Stevenson v. INTERNATIONAL PAPER COMPANY, MOBILE, ALA.

• Decision Date: 07 December 1972
• Docket Number: Civ. A. No. 6647-71-H.
• Citation: 352 F. Supp. 230
• Parties: Jessie STEVENSON et al., Plaintiffs, v. INTERNATIONAL PAPER COMPANY, MOBILE, ALABAMA, et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

352 F. Supp. 230

Jessie STEVENSON et al., Plaintiffs, v. INTERNATIONAL PAPER COMPANY, MOBILE, ALABAMA, et al., Defendants.

Civ. A. No. 6647-71-H.

United States District Court, S. D. Alabama, S. D.

December 7, 1972.

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COPYRIGHT MATERIAL OMITTED

Algernon J. Cooper, Frankie Fields Smith, Vernon Z. Crawford, Mobile, Ala., Jack Greenberg, James M. Nabritt, III, William L. Robinson, Lowell Johnston, Sylvia Drew, New York City, for plaintiffs.

R. F. Adams, Brock B. Gordon, Mobile, Ala., Benjamin Erdreich, Birmingham, Ala., for defendants.

OPINION OF THE COURT PRELUSIVE COMMENT

HAND, District Judge.

This action was filed in this Court on May 10, 1971, by plaintiffs on their behalf as individuals and on behalf of those similarly circumstanced, against the International Paper Company and the International Brotherhood of Pulp, Sulphite and Papermill Workers, AFL-CIO, their Locals 229 and 337, and Locals 265-A, 265 and 940 of the United Papermakers and Paperworkers, Mobile, Alabama, claiming jurisdiction pursuant to the provisions of 28 U.S.C., Section 1343(4), 42 U.S.C., Section 2000e-5(e)(f) and 28 U.S.C., Sections 2201 and 2202, requesting among other things, injunctive relief as provided in 29 U.S.C., Section 151 et seq. It is contended that this is a class action and that the plaintiffs represent black persons employed or who might seek employment at the manufacturing facility of International Paper Company in Mobile. The claim is also predicated on representation of the alleged class by the black members of the local unions who have or might continue to be adversely affected by the practices of which complaint is made.

The nature of the claim is for declaratory relief with permanent injunction requested, restraining all of the defendants from continuing policies and practices discriminating against the plaintiffs and practices discriminating against the plaintiffs and other blacks with respect to hiring, compensation, terms and conditions of employment; limiting, segregating and classifying employees in ways that denied the members of the class their equal employment and otherwise adversely affecting their status as employees or prospective employees; refusing to promote, because of race; demoting, because of race; merging formerly segregated unions without provision for protection of the formerly all black members of these unions; and by harassing members of the class because of their race.

At the time of the filing of this action there was pending in this Court two other cases filed by the same law firms¹ on behalf of named parties plaintiff, including some of the named parties plaintiff in this case, who sued individually and on behalf of others similarly circumstanced. These cases were styled Herron et al. v. United Papermakers and Paperworkers, AFL-CIO, et al., Civil Action No. 5665-69-P (S.D.Ala.) and Fluker et al. v. Locals 265 and 940, United Papermakers and Paperworkers, AFL-CIO, et al., Civil Action No. 5839-70-P (S.D.Ala.) and were filed on September 15, 1969, and January 13, 1970, respectively. The Herron case averred jurisdiction pursuant to the provisions of 28 U.S.C., Section 1343, 42 U.S.C., Section 2000e-5(f), 28 U.S.C., Sections 2201 and 2202, and 29 U.S.C., Sections 411(a)(1) and 412. The Fluker case averred that the action was to redress the deprivation of rights secured by 42 U.S.C., Section 1981, 29 U.S.C., Section 151 as well as 29 U.S.C., Section 411. Jurisdiction was invoked pursuant to 28 U.S.C., Section 1343(4), 29 U.S.C., Section 412 and 28 U.S.C., Sections 2201 and 2202.

In both of the latter cases it was averred that the actions constituted class actions on behalf of the black employees of Local 406 of the Papermakers union which had been merged into the white local, who had been denied the same protection and benefits of union membership as enjoyed by whites and who had been discriminated against on the basis of race; their right to make and enforce contracts; their right to be fairly represented by the unions; and their right to participate in elections and deliberations of the union. Further, relief was sought to re-establish Local 406 as an all segregated black union until such time as protective transitional arrangements could be made.

These two cases proceeded to trial prior to this case and an opinion and order was entered by Judge Pittman on the 9th day of December, 1971. In connection with the trial of the Herron and Fluker cases, the parties entered into a joint pretrial agreement. Among things stated as being contested in that action was the issue of whether or not the union properly represented the parties in grievance procedures and whether any of the parties complained about the manner of job or employment opportunities. Also contested was whether or not there was any unlawful racial discrimination between papermakers and the company in regard to black employees under their jurisdiction and in the application of the terms of the union-management contract.

The Court took judicial notice of these cases including all pleadings, exhibits, transcript of evidence, arguments of counsel, pre and post-trial briefs, pretrial order and agreement, and all other matters reflected in the court file.

There are and were a number of areas of overlap existing in the case at hand and the Herron and Fluker cases and a wide variety of things argued by counsel in the Herron and Fluker cases were advanced during the course of the trial of this case. Some of the same testimony was introduced and a number of the same arguments were made.

At the very commencement of the trial and in regard to the effect of the Herron and Fluker cases on the issues of res judicata and collateral estoppel, the parties agreed that the case of Wasoff v. American Automobile Insurance Company, 451 F.2d 767 (5th Cir.1971) was controlling and that the Herron and Fluker cases were determinative of all matters contested and all matters which could have been contested in those proceedings.

Though raised by the pleadings in this case, and often alluded to in pre and post-trial briefs and arguments, it was agreed that though historically the plant in Mobile had been segregated in the past this was not a material issue involved in this trial, save only insofar as it might reflect continuing results of that past condition. Historically, in the main, most industries in the South, and indeed in other areas of the country have past histories of racial segregation, for until recent date this had been the accepted norm. Regardless of what constituted the compelling reason for the industry to change this pattern of practice and notwithstanding the understandable advocacy of counsel for the plaintiffs in arguing and presenting this aspect of the case, the Court was greatly impressed by the candor and demeanor of the personnel of International Paper Company who testified in regard to their desire and zeal to comply with the present law and even more so, the improvement of race relations at its mill, both from a sociological standpoint and from an appreciation of the business advantages to be gained from the expanding of a qualified labor source.²

The Court is not to be understood to say that evidence in this case did not reflect occasional individual instances of discrimination, nor that there may not be such future occurrences at this plant, from both the white and black side, but it is to be understood to say that such evidence reflected that these proven instances were on an individual basis, not a company or union instigated basis. After all, we are dealing with human beings and every human being has his share of biases and prejudices and we have not yet reached the millenium. This is also not to say, though, that there was evidence that such individual acts were encouraged or condoned by management or by the labor unions, for the evidence clearly reflects the contrary, and in all instances brought to the attention of the Court through the testimony, strenuous efforts were advanced by management to correct or eradicate them.

This brings to mind another point reflected by the evidence which the Court feels is noteworthy of comment at this point.

The grievance procedures provided by Section VII of the contract with the union were shown to be operable and effective. Indeed, it was so held in Herron and Fluker. However, the testimony demonstrated that members of the class continuously circumvented these procedures in that, on an individual basis, aggrieved members would contact non-union officials in their own unions, union officials in other unions, and higher authorities within the company, stating their alleged grievances and thereby by-passing foremen, shop stewards and the contract requirements itself. Apparently the company and the unions have permitted this out of an overabundance of caution in order not to be accused of discrimination. Where procedures for redress are available, and have been shown to have been effectively utilized, they should be followed. The law and case decisions which require employees and unions to operate on a non-discriminating basis are so numerous this can no longer be a disputed issue. All members of this class are adults. They have been told of, and the evidence shows they know, their rights. Once told and given opportunity to exercise them through the grievance machinery there is no requirement in law that they need be pampered. Such leads to both dissention and disrespect, and, possibly, by operation of such paternalism, to a discriminatory practice that would be illegal. Such practice should be brought to an end.

Another area for comment is also in regard to the fair employment practices resulting from the existence of the contract in question.

Where there is a company-union relationship resulting in a contract covering employee relations, and both the contract and its application by the parties is non-discriminatory, there is no area in which...