Sabala v. Western Gillette, Inc.

• Decision Date: 17 July 1973
• Docket Number: 71-H-1338.,Civ. A. No. 71-H-961
• Parties: Oliver I. SABALA, Individually and on behalf of all others similarly situated v. WESTERN GILLETTE, INC., et al. Leonard M. RAMIREZ, Individually and on behalf of all others similarly situated v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, et al.
• Court: U.S. District Court — Southern District of Texas

362 F. Supp. 1142

Oliver I. SABALA, Individually and on behalf of all others similarly situated v. WESTERN GILLETTE, INC., et al.

Leonard M. RAMIREZ, Individually and on behalf of all others similarly situated v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, et al.

Civ. A. Nos. 71-H-961, 71-H-1338.

United States District Court, S. D. Texas, Houston Division.

July 17, 1973.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Henry M. Rosenblum, Rosenthal, Didion & Rosenblum, Houston, Tex., for plaintiff Oliver I. Sabala.

Sidney Ravkind, Mandell & Wright, Houston, Tex., for plaintiff Leonard M. Ramirez.

L. G. Clinton, Jr., Fulbright, Crooker & Jaworski, Houston, Tex., for defendant Western Gillette, Inc.

L. N. D. Wells, Jr., G. William Baab, Mullinax, Wells, Mauzy & Baab, Dallas, Tex., for defendants International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Southern Conference of Teamsters.

James P. Wolfe, Houston, Tex., for Local Union 988, Teamster, Freight, Tank Line and Automobile Industry.

SINGLETON, District Judge.

Memorandum and Order:

These cases involve the question of facially neutral seniority systems and their effect on past discrimination in employment.

These two cases alleging racial discrimination in employment were consolidated and tried before the court. Plaintiff Sabala is a Mexican American who works in Houston, Texas, for defendant Western Gillette, Inc., a nationwide trucking firm, and brings his suit as a class action. Plaintiff Ramirez is also a Mexican American who currently works for Western Gillette, Inc., in Salt Lake City but who worked in Houston during the period in question. He brings his suit individually.

The defendants are Western Gillette, Inc., and three union organizations. These unions are International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Southern Conference of Teamsters, and Local 988, Teamster, Freight, Tank Line and Automobile Industry. Local 988 is the collective bargaining representative for the truck drivers at the Western Gillette terminal in Houston, Texas, and it is a member of both the Southern Conference of Teamsters and the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.

Against all the defendants Sabala and Ramirez and the class plaintiffs have filed suit under 42 U.S.C. § 2000e et seq. (the Civil Rights Act of 1964) and 42 U.S.C. § 1981 (the Civil Rights Act of 1866). They allege basically two causes of action. In each cause plaintiff Sabala, both on his own behalf and as representative of a class pursuant to Fed.R. Civ.P. 23(b)(2), seeks a declaratory judgment, injunctive relief, damages, and attorneys' fees. By an order entered before trial, this court defined the class of persons plaintiff Sabala is entitled to represent as follows: "All Mexican Americans and Blacks currently employed by Western Gillette during the pendency of this action as city drivers in Houston, Texas." Plaintiff Sabala in the first cause of action has alleged that defendants Western Gillette, Inc. hereinafter referred to as "Employer" or "Company", International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America hereinafter referred to as "International" and Southern Conference of Teamsters hereinafter referred to as "Southern Conference", Local Union 988, Teamster Freight, Tank Line and Automobile Industry hereinafter referred to as "Local", have entered into collective bargaining agreements which provide for separate seniority for "city" and "road" employees at the Houston terminal, with each class having its own seniority roster. "City" drivers are those who drive principally in Houston and make short runs inside the city limits, whereas "road" drivers make long hauls between different cities. Plaintiffs allege that the conditions imposed on transferring between "city" and "road" are so onerous that the effect is that it is impossible to transfer. It is alleged that the agreements in effect require a city driver to forfeit all "job seniority rights" when he transfers to a road position. In addition, plaintiff alleges, upon transfer from city to line, the driver is placed upon a probationary period during which time he can be discharged. Although there is some dispute as to the truth of this allegation, the court feels that a letter, written to plaintiff Sabala on October 14, 1971, which waived the 30-day probationary period, conclusively establishes the existence of this further burden on transfer from city to line position. The effect, purpose, and intent of the policies and practices pursued by defendants have been and continue to be to limit, segregate, classify, and discriminate against Mexican Americans and Black employees in equal employment opportunities secured to them by the provisions of Title 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981. Plaintiffs argue that while nondiscriminatory on its face, the bargaining agreements creating separate seniority systems perpetuate and continue past discriminatory practices of the defendants and thus lock in past discrimination.

In the second cause of action, plaintiffs allege that the defendants International, Southern Conference, and the Local have violated their duties of fair representation imposed upon them by the National Labor Relations Act, 29 U.S.C. A. § 151, in that they have knowingly acquiesced, joined, or conspired in the allegedly unlawful discriminatory practices and policies complained of and have failed to protect Black and Mexican American employees of defendant Employer from said alleged discriminatory policies and practices.

Plaintiff Ramirez basically has the same cause of action as Sabala and the class. Therefore, his case was consolidated with that of the class, and this court's findings with respect to the class apply to plaintiff Ramirez also.

The trial was ordered bifurcated by this court and this opinion will deal basically with the questions of jurisdiction and liability with some discussion of remedy. Pursuant to the findings as to these two issues, there will be another hearing as to the question of specific remedy and damages, if any.

THE CLASS MAINTAINABLE

As stated earlier, this court before trial had ruled that a class action was maintainable. Fed.R.Civ.P. 23 provides that an order authorizing a class action may be amended or redefined at any time before a decision on the merits. This court, however, declines to amend its order authorizing the class action previously stated. There is little question that the requirements of rule 23(b)(2) have been met. Rule 23(b)(2) is the normal vehicle for civil rights class actions and the allegations and evidence that the defendants have acted on grounds generally applicable to the class thereby making appropriate injunctive relief with respect to the class as a whole demonstrate this suit easily falls within the rule 23(b)(2) class structure. Defendants basically argue that three prerequisites of rule 23(a) are not met. First, they argue that the class is not so numerous as to make joinder of the individual plaintiffs impracticable. This is a requirement of a class action under rule 23(a)(1) but the court reaffirms its earlier rulings that joinder of all members is impractical. As earlier stated, the class plaintiff is allowed to represent is as follows: "All Mexican Americans and Blacks currently employed by Western Gillette during the pendency of this action as city drivers in Houston, Texas." The total number of potential class members under this court's definition was thirty-nine. Of that number, one has been eliminated by termination of his employment, and approximately twelve have opted out of the class. Thus, there are twenty-six members of the class. This court holds that this number is great enough along with other factors such as the expediency of the joinder of all the potential plaintiffs, the inconvenience of trying individual suits, and the ability of the individual litigants to institute an action on their own behalf. See Philadelphia Elec. Co. v. Anaconda Am. Brass Co., 43 F.R.D. 452 (D.C.Pa.1968).

Secondly, defendants argue that a class action is not appropriate in this case because each member of the class will need to show individual evidence of discrimination and injury therefrom and, therefore, in effect there are no common questions of law or of fact. This court rejects this contention. The suits to enjoin racial discrimination in employment are by their nature appropriate for class actions. Wright & Miller, Federal Practice and Procedure § 1776. Here, even though some relief might need to be fashioned individually, the common questions of law and fact as to whether there was discrimination as to the class of Mexican Americans and Blacks is enough to satisfy the requirements of rule 23. See Oatis v. Crown Zellarback Corp., 398 F.2d 496 (5th Cir. 1968); Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir. 1968); Johnson v. Georgia Highway Express, Inc., 417 F. 2d 1122 (5th Cir. 1969).

Finally, the Local raises one other problem as to the maintenance of a class action. It argues that Mexican Americans cannot sue under § 1981 and plaintiff Sabala cannot adequately represent a class under § 1981. This court has already held that § 1981 protects aliens from discrimination. Guerra v. Manchester Terminal Corp., 350 F.Supp. 529 (S.D.Tex.1972). This same reasoning would apply to Mexican Americans who are discriminated against on the basis of their ethnic heritage. In any event, in this court's pretrial order the parties stipulated as to jurisdiction under § 1981. This court holds that plaintiff Sabala can adequately represent the class of both Mexican Americans and Blacks and declines to modify its original order.

At trial, plaintiffs suggested that the class should be broadened to include minority teamster employees employed by Western Gillette in...