55 F.R.D. 284 | E.D. Tex. | 1972
MEMORANDUM OPINION
Plaintiff has sued both his former company employer and his union in separate counts;
Willie Lee Davis was first employed by Defendant company in August, 1959 as a laborer in the Labor Department; he was promoted in 1965 to the Laboratory Department as a lab tester trainee. Thereafter, Davis was again promoted to A-Operator, which position he held until his dismissal in 1968.
On Sunday morning, March 3, 1968, Davis telephoned the company graveyard foreman and advised him that he would be late. Arriving late, Davis went to the production office to talk with the graveyard foreman instead of going directly to his appointed job. Davis and the graveyard foreman engaged in a heated conversation and Davis was advised by his own foreman to report to his assigned work area. After reporting to his job, Davis engaged in another argument, this time with his operator helper. The operator helper was struck on his arm and was cursed during this'argument. Following this altercation, the shift foreman demanded that Davis take a urine test. Because Davis refused this demand, he was instructed to leave the plant.
After deliberating on Davis’ disorderly conduct of March 3, and his giving false information to the company about the incident
Counsel for Defendants urges that Plaintiff Davis has made a final and binding election of remedies in seeking arbitration; and that under Dewey v. Reynolds Metals Company, 429 F.2d 324 (6th Cir. 1970), aff’d, 402 U.S. 689, 91 S.Ct. 2186, 29 L.Ed.2d 267, he is therefore bound by the decision of the arbitrator. On the other hand, counsel for Plaintiff urges that this Court should follow as controlling precedent Hutchings v. United States Industries, Inc., 428 F. 2d 303 (5th Cir. 1970) in which it is held that an employee does not make a final, binding election of remedies by pursuing a grievance under a collective bargaining agreement. While this Court has previously expressed its opinion on this subject,
The fact that an arbitrator should not substitute his judgment for that of Management does not mean that an arbitrator should not step in and substitute his judgement for that of Management when the evidence shows that Management was unreasonable, arbitrary or capricious. In this instance, Management had all the facts, it did not act hastily, and there is no evidence that the decision was arbitrary, unreasonable or capricious, or that the decision was made in bad faith or clearly wrong. See Arbitrator’s Decision, p. 27.
The second issue developed in trial concentrated on additional evidence to support the class action allegations alleged by Willis Prejean. Defendant Company has proeedurally challenged the class action allegations because the requirements of Fed.R.Civ.P. 23 have not been met, in that neither Willis Prejean nor Willie Lee Davis are proper representatives of the class they seek to repre
Class claims have centered around the availability of training and apprenticeship programs in the craft units; the filling of craft jobs by new, inexperienced Caucasians when denied to Negro employees with seniority; and, the testing procedures used to fill vacancies within the company. The testimony presented at trial establishes that Plaintiffs have not proved these charges. There are no training and apprenticeship programs operated by Defendant Company, except in the instruments department which requires specialized training in
In conclusion, it may be noted that the Defendants have attempted to eliminate possible racial discrimination in their bargaining efforts as evidenced by their resulting contracts. For example, divisional seniority was eliminated in 1968 shortly after Quarles v. Philip Morris, Inc., 279 F.Supp. 505 (E.D.Va. 1968). Such activity as this tends to indicate that the company has endeavored to voluntarily extend civil rights to its employees. It is simply a fact of life that racial discrimination existed frequently in hiring and promotion policies of many companies until the advent of civil rights legislation; however, when companies have attempted and achieved voluntary compliance with the civil rights legislation and its companion case law prior to the institution of any litigation, the plaintiffs should not receive any injunctive relief or damages. Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968); Quarles v. Philip Morris, Inc., 279 F.Supp. 505 (E.D.Va.1968); Accord, Whitfield v. United Steelworkers, 263 F.2d 546 (5th Cir. 1959).
Final Judgment will be entered in accordance herewith.
. Plaintiffs invoked the jurisdiction of this Court complaining of violations of the Civil Rights Act of 1964, codified as 42 U.S.C. § 2000e et seq., and of violations of 42 U.S.C. § 1981. Plaintiffs also relied on 29 U.S.C. § 151 et seq. to support an allegation of a failure to fairly represent in the arbitration proceedings conducted after Willie Lee Davis’ dismissal.
. The accounts of what actually took place during the two confrontations on March 3, 1968, vary greatly in detail. Davis alleges that the graveyard foreman cursed him, that he did not strike the operator helper, and that the operator helper threw a piece of rubber at him and then pulled a knife on him. Bach of these allegations is denied by those other persons present at each event. The company’s basis in determining that Plaintiff had given false information was not unsubstantiated, but rather gleaned from all the accounts supplied by its own employees.
. Plaintiff strongly stresses that his disciplinary record was not any more heinous
In general, the past conduct of the grievant is of concern to this arbitrator. No arbitrator can fail to take note of a good record and at the same time the arbitrator must take note of a poor record. As stated by Arbitrator John Day Larkin in Borg-Warner, 22 L.A. 589: “By the same token, if an employee’s past performance has been one of increasing disregard of his responsibilities to his job and to the employer who is paying him, no arbitrator can rightly sweep this sort of evidence under the rug. . . .” See Arbitrator’s Decision, at 28.
. See Hutchings v. United States Industries, Inc., 309 P.Supp. 691 (E.D.Tex. 1969), rev’d., 428 F.2d 303, 5 Cir., (1970). This Court decided the Hutchings case initially at the district level in much the same fashion as did the Dewey v. Reynolds Metals Company case.
. The arbitration proceedings were fair, deliberate and conducted in all seriousness, fully aware of the attendant responsibilities as evidenced by the following passages from the arbitration decision :
. It is interesting to note that Plaintiff Davis contended that he had been prevented from presenting a complete defense at the arbitration proceedings by the Union because there were witnesses
. Fed.R.Civ.P. 23(a) states:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. . . .
. Prejean’s motivation appears to be economic, namely that the overtime available to A-operators is so ample that he can earn more money in this position.
. Prejean was refused these jobs because he did not have at least four years craft on the job experience, or equivalent training in a craft apprenticeship program.
. See generally Oatis v. Crown Zellerbach, 398 F.2d 496, 49S-499 (5th Cir. 1968) which notes that once an aggrieved party has filed EEOC charges he can sue for himself and for a class, but he can sue for the class only when he can meet the requisites of Rule 23. Thus, a plaintiff has standing to raise only those issues to which he is aggrieved, and those asserted for class members must be the same or similar. See also King v. Georgia Power Co., 295 F.Supp. 943, 947-948 (N.D.Ga.1968).
. In 1966, Defendant company employed two Negroes in the pipe department as pipefitters and they have continued in that capacity. In 1970, another Negro transferred from the production department to the paint department.
. One simple test of reading and writing is still given to oilers and forklift tractor drivers. Such tests are necessary for successful job performance because an oil-er is required to read labels on oil drums to determine which oil to use and because a forklift tractor driver is required to read warning signs, such as “Slow”, “Stoj)” and “Danger”. These tests are not discriminatory racially and show sufficient relation to job performance to justify their use.