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FANNIE v. CHAMBERLAIN MFG. CORP.

December 5, 1977

THELMA FANNIE and LAVINA TOROCKIO, et al., Plaintiffs,
v.
CHAMBERLAIN MANUFACTURING CORP., DERRY DIVISION, and LOCAL 624 UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA, et al., Defendants



The opinion of the court was delivered by: TEITELBAUM

The case sub judice is an action for alleged sex-based employment discrimination. The plaintiffs were female employees of the defendant company and members of the defendant Local 624. They allege in a 41-page, six-count complaint that the defendant company, union and named individuals have operated under a policy and practice of discrimination against female employees on the basis of sex in regard to various terms and conditions of their employment.

 Specifically, eleven employees of the Chamberlain Manufacturing Corporation allege that the corporation, various of its present and/or former supervisory employees, their unions, Local 624 and the United Electrical, Radio and Machine Workers of America, and various present and/or former union representatives and officers have violated their rights protected by Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, et seq. ; 29 U.S.C. Sec. 185; 42 U.S.C. Sec. 1981; and 42 U.S.C. Sec. 1985(3).

 Counts One and Two of the complaint allege a historical and continuing pattern and practice of discrimination against female employees based upon their sex. The complaint specifically alleges discrimination in the plaintiffs' terms and conditions of employment, in job classifications and assignments, in the seniority system, in lay-off and recall practices, in the negotiation, administration and enforcement of collective bargaining agreements, in the harassment and intimidation of female employees, and in the retaliation against those female employees who lodged charges of discrimination with government agencies and/or who filed prior complaints of sex discrimination against the defendants in Court. It is also alleged that a 1965-1967 Collective Bargaining Agreement entered into by the Local and International Union defendants and Keystone Alloys Company, predecessor in interest to Chamberlain Manufacturing Corporation, provided separate men's and women's job classifications and that all women's jobs paid less then all men's jobs. Additional allegations are that women were laid off out of line of seniority while men junior to them were permitted to work and while new male employees were hired, and that this practice occurred both before and after January 1, 1967, when Chamberlain Manufacturing Corporation assumed control of the plant in which the plaintiffs were working in Derry, Pennsylvania. The complaint further alleges that the plaintiffs were employees in the Window and Door Division of the Corporation's plant and that they held divisional seniority in that division. This division of the corporation was closed in 1969-1970 resulting in the lay-off of each of the plaintiffs, and the 1969-1972 Collective Bargaining Agreement in effect at the time of the closing required employees to forfeit their seniority in the Window and Door Division if they elected to transfer to the Siding Division, the corporation's only other division in the Derry Plant. The employees of the Window and Door Division are alleged to have been predominantly female, while the employees of the Siding Division were predominantly male. The seniority system and other provisions of the Collective Bargaining Agreements are alleged to have perpetuated the effects of past discrimination since female employees were locked into a division that was no longer operational. Counts One and Two also allege discriminatory practices to which the plaintiffs were subjected when they worked as junior employees in the Siding Division after the closing of the Window and Door Division including harassment and intimidation, discriminatory job disqualification practices, and retaliatory practices. The plaintiffs also allege that after the closing of the Window and Door Division they were denied the opportunity of doing work to which their Window and Door Division seniority entitled them.

 Count Three alleges violations by the corporation of contracts between the corporation and the unions in violation of 29 U.S.C. § 185. The plaintiffs in Count Three include the eleven plaintiffs named in Counts One and Two plus an additional employee. Count Three sets forth a clause present in all contracts from 1964 prohibiting discrimination on the basis of sex and plaintiff's allegation that the discriminatory acts earlier described in Counts One and Two are violations of the contract.

 Count Four alleges that the Local and International Defendants violated their duty of fair representation in violation of 29 U.S.C. § 185. It additionally alleges that the defendant Local in 1971 and 1975 arbitrarily and discriminatorily refused to accept grievances and to process meritorious grievances of the plaintiffs. The defendant Unions are further alleged arbitrarily and discriminatorily to have failed to represent female employees fully in arbitration and to have negotiated, administered and enforced contracts with the company which discriminate against female employees on the basis of their sex.

 Count Five alleges that the acts set forth in Counts One and Two and the additional individual claim of Count Three are violations of 42 U.S.C. § 1981.

 Count Six alleges that the defendants and others presently unknown conspired to deprive the plaintiffs of their rights, privileges and immunities secured by 42 U.S.C. §§ 2000e, et seq., 29 U.S.C. § 185, and 42 U.S.C. § 1981, and injured them in property or person and deprived them of equal protection of the laws and rights secured by these same statutes. The alleged discriminatory acts committed by one or more of the defendants in furtherance of the conspiracy include: the discriminatory practices described in other counts; negotiation of discriminatory provisions of collective bargaining agreements which were signed by all the individual defendants, except two who are alleged to have participated in the conspiracy by harassing female employees and by assigning them jobs and judging their qualifications to do such jobs in a discriminatory manner; and retaliation in violation of First Amendment rights against female employees who lodged charges of discrimination with government agencies and/or who filed prior complaints against the Company and Union defendants in court.

 The relief sought in Counts One and Two includes declaratory and permanent injunctive relief; back pay; costs, including attorneys' fees; retention of jurisdiction of the case by the Court until it is assured that the activities complained of have been remedied; and such other relief as is necessary and appropriate. In Count Three the plaintiffs seek injunctive relief, compensatory damages for injuries suffered due to the execution of discriminatory provisions in the collective bargaining agreements and for the Corporation's breaches of contract. In Count Four, the plaintiffs seek injunctive relief, compensatory damages for the injuries suffered by them from the Unions' breaches of contract, and of their duty of fair representation; and costs, including attorneys' fees. In Counts Five and Six the relief sought is essentially the same as that sought in Counts One and Two, except that requests for compensatory and punitive damages are also included.

 The issues presently to be decided on various motions by the parties are whether or not the instant case should be certified as a class action under Rule 23 of the Federal Rules of Civil Procedure, whether or not defendants' motion to dismiss should be granted and whether partial summary judgment with respect to Count Two of plaintiffs' amended complaint is appropriate.

 CLASS CERTIFICATION

 Plaintiffs have moved this Court to certify the instant case as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure *fn1" The class which plaintiffs seek to represent is defined as follows:

 
". . . [all] females who are or were employed by Chamberlain Manufacturing Corporation at its Derry Division, or by its predecessor in interest, Keystone Alloys Company, on July 2, 1965, or thereafter, and who are or during the course of their employment were, on the seniority list of the Window and Door Division."

 There are initially four prerequisites which must be satisfied as a condition precedent to the maintenance of a class action under Rule 23(a). *fn2" For the reasons hereinafter stated, we deem the requirements of 23(a)(3) and 23(a)(4) to be unfulfilled in the case sub judice.

 Plaintiffs have failed to prove that their claims are typical of the class they seek to represent, thereby failing to comply with Rule 23(a)(3). Plaintiffs' claims are not typical because former Window and Door employees can be classified into two distinct groups. The first group would be comprised of those former employees, like the nominal plaintiffs, who refused transfer over to the Siding Division after the closing of the Window and Door operations. The second group would be comprised of those former employees, unlike the nominal plaintiffs, who did in fact transfer to the Siding Division after the closing of the Window and Door operations. When those employees in the first group refused to transfer from the Window and Door Division to the Siding Division, employment opportunities were offered to other Window and Door employees, members of the second group, who had less Window and Door seniority than first group plaintiffs. Thereafter, the group one employees, including the nominal plaintiffs, were laid-off and recalled in accordance with their accumulated seniority in the Siding Division. Having refused transfer to the Siding Division, the employees in group one were treated as new employees with no seniority benefits with respect to lay-off and recall. In light of the foregoing facts, it is apparent that the nominal plaintiffs' claims are only typical of those Window and Door employees who refused transfer to the Siding Division. Their claims are not typical of the entire purported class which would include all females who were on the seniority list of the Window and Door Division since 1965.

 Additionally, typicality is lacking in the nature of discriminatory charges alleged in the instant suit. The complaint alleges as a basis for relief retaliation against those female employees who lodged charges of discrimination with government agencies and/or who filed prior complaints of sex discrimination against the defendants in court. These charges, while applicable to the nominal plaintiffs, are not typical of the purported class in its entirety. *fn3" The complaint further alleges that plaintiffs were subjected to discriminatory practices when they worked as junior employees in the Siding Division after the closing of the Window and Door Division. The nature of these charges also varies depending upon whether or not the junior employee had accepted transfer to the Siding Division. For those who refused transfer to the Siding Division, that which is perceived as discriminatory treatment could merely be a result of adherence to the new Siding Division Seniority List. Thus, the nature of the claims set forth in plaintiffs' complaint reveals diversity rather than typicality, thereby requiring an individualized, factual analysis not conducive to broad class action treatment. *fn4" See Ungar v. Dunkin Donuts of America, Inc., 531 F.2d 1211 (3d Cir. 1976). The aforementioned factual scenario is also sufficient to defeat the somewhat duplicative adequacy of representation requirement contained in Rule 23(a)(4). "Whether a party adequately represents a class depends on all the circumstance of the particular case." 3B, Moore, Federal Practice, P 23.07[1] (2d Ed. 1974). Where the basis for relief is predicated upon differing individual situations to the extent existent in the instant suit, the nominal plaintiffs could not possibly be adequate representatives of the heterogeneous class as a whole. Thus, the requirement of Rule 23(a)(4) is also unfulfilled in the case sub judice.

 Regardless of whether the class deficiency is labelled under Rule 23(a)(3) or Rule 23(a)(4), the important principle to be recognized is that a class action would be an inappropriate vehicle for litigation of the claims alleged in the instant case. Accordingly, class certification will be denied for failure to satisfy the requirements of Rule 23(a)(3) and/or Rule 23(a)(4). *fn5"

 Defendant Chamberlain Manufacturing Corporation and defendants United Electrical, Radio and Machine Workers of America, and Local 624, United Electrical, Radio and Machine Workers of America have asserted numerous reasons why plaintiffs' complaint should be dismissed. For the sake of clarity, we will undertake a seriatim review of the objections to each individual Count of the Six Count Amended Complaint.

 "Count One"

 The first barrier erected by the defendants in an effort to dismiss Count One is the doctrine of res judicata.6 "[Under] the doctrine of res judicata, a judgment 'on the merits' in a prior suit involving the same parties or their privies bars a second suit based on the same cause of action." Lawlor v. National Screen Service Corp., 349 U.S. 322, 326, 99 L. Ed. 1122, 75 S. Ct. 865 (1955). The prior judgments which defendants assert as a bar to the maintenance of the instant litigation will hereinafter be referred to as Torockio # 1 and Torockio # 2. Torockio, et al. v. Chamberlain Manufacturing Corporation, et al., 328 F. Supp. 578 (W.D. Pa. 1971), remanded, 456 F.2d 1084 (3d Cir. 1972), on remand 56 F.R.D. 82 (W.D. Pa. 1972), aff'd. 474 F.2d 1340 (3d Cir. 1973) (Torockio # 1); Torockio, et al. v. Chamberlain Manufacturing Corporation, et al., Civ. No. 72-244 (W.D. Pa. 1973) (Torockio # 2).

 Torockio # 1 was also an action instituted against the same defendants named herein based on alleged sex discrimination. This Court held in Torockio # 1 that the filing of a charge with the Equal Employment Opportunity Commission (hereinafter EEOC) within 90 days of the occurrence of the alleged unlawful employment practice and the filing of a civil action within 30 days of the issuance of a Right to Sue letter were both jurisdictional preconditions to the commencement of an action under Title VII. Having concluded that none of the ten (10) named plaintiffs had complied with the jurisdictional prerequisite of filing suit within 30 days of the issuance of a Right to Sue letter, it was ordered that the action be dismissed without prejudice to the plaintiffs. *fn7"

 In Torockio # 2, the plaintiffs, all of whom were or had been employees of the defendant, Chamberlain Manufacturing Corporation alleged that (1) pursuant to the terms of a collective bargaining agreement between them, the defendants established a promotional and seniority system the intent and effect of which was to discriminate against the plaintiffs on the basis of their female sex; (2) the defendant unions breached their duty of fair representation in that they arbitrarily failed to process grievances entered by the plaintiffs; and (3) defendant Chamberlain violated the collective bargaining agreement in that it did not honor plaintiffs' seniority rights in its laying off and recall practices. This Court dismissed the first count of Torockio # 2 based upon Torockio # 1 in that no plaintiff had yet presented a timely right to sue letter. *fn8" Counts Two and Three in Torockio # 2 were dismissed because of the failure to aver that plaintiffs had either exhausted or attempted to exhaust any available internal union remedies.

  Having set forth the holdings in both Torockio # 1 and Torockio # 2, it is apparent that they do not raise res judicata implications for the case sub judice. Res judicata requires for its application a final judgment "on the merits." A dismissal without prejudice, as in Torockio # 1, does not determine the merits. American Heritage Life Insurance Co. v. Heritage Life Insurance Co., 494 F.2d 3 (5th Cir. 1974); Sack v. Low, 478 F.2d 360 (2d Cir. 1973). Additionally, it was the intention of this Court that Torockio # 1 not bar subsequent litigation. In fact, the petition for reconsideration, review and reinstatement of the complaint in Torockio # 1 was denied "because the Order of June 8, 1971 had dismissed ...


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