APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D.C. Civil No. 73-1292
Before Rosenn and Hunter, Circuit Judges, and Kunzig, Court of Claims Judge.*fn*
This is an interlocutory appeal which presents us with the novel question of whether a class action provides an appropriate forum for adjudicating the individual claims of class members who are not named plaintiffs but who testified in support of a class claim held to be without merit. The genesis of this appeal lies in a broad-based class action race discrimination suit brought by two former employees of United States Steel Corporation ("the Company") at its Fairless Works in Bucks County, Pennsylvania. Plaintiffs, Moses Dickerson and Eddie Williams, filed this action in June 1973 on behalf of themselves and all other black employees and black applicants for employment at the Fairless Works. The complaint alleged racial discrimination in the Company's employment practices and in the practices of the representative union, United Steelworkers of America, AFL-CIO, and five of its local unions (collectively "the Union") in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e Et seq. and 42 U.S.C. § 1981. In addition, the plaintiffs asserted individual claims and sought injunctive and back pay relief.
The district court certified the broad class in September 1974, pursuant to Fed.R.Civ.P. 23(b)(2). The certified class consisted of: a. all blacks now employed or who might be employed in the future by the Company at its Fairless Works plant; all blacks who were employed by the company from July 2, 1965, to the present date, but who are no longer employed there; and all blacks who unsuccessfully sought employment at the Fairless Works plant at any time between July 2, 1965, and the present date; b. all blacks who are represented, or who might be represented in the future by defendant union at the Fairless Works plant; and all blacks who were represented by defendant union at the Fairless Works plant from July 2, 1965, to the present date.
In April 1976 the defendants moved to decertify the class. The district court denied the motion, but expressly reserved the right to reexamine the class prior to trial to safeguard manageability. In August 1976, as part of its final pretrial orders, the district court granted in part U. S. Steel's motion to decertify by reconstituting the class, narrowing it to the following: a. All blacks now employed or who might be employed in the future as hourly production and maintenance employees by the Company at its Fairless Works plant; and all blacks who were employed as hourly production and maintenance employees by the Company from July 2, 1965, to the present date, but who are no longer employed there; b. All blacks within the class identified in sub-paragraph (a) who are represented, or who might be represented in the future by the Union at the Fairless Works plant; and all blacks within the class identified in sub-paragraph (a) who were represented by the Union at the Fairless Works plant from July 2, 1965, to the present date.
During this pretrial period, plaintiffs conducted extensive discovery relating to class-wide claims of discrimination in the Fairless Works, gathering both statistical information to be used by plaintiffs' experts and individual case studies of differing treatment. Defendants conducted similar statistical studies, deposed plaintiffs' experts, and deposed many members of the plaintiff class who had been identified by plaintiffs in either interrogatories or pretrial statements as suffering from discrimination.
Pursuant to the court's pretrial orders, the plaintiffs filed a pretrial statement summarizing the subject of the testimony to be adduced. Each witness was limited at trial to testimony of what had appeared in the summary.
The plaintiffs stated that they would prove class-wide discrimination of the following types:
(1) initial assignment of blacks to undesirable jobs;
(2) exclusion from crafts by discriminatory tests;
(3) exclusion from first crews and newly opened facilities;
(4) exclusion from promotions;
(5) restrictive transfer opportunities;
(6) excessive discipline;
(7) failure by the union to process grievances;
(8) maintenance of a hostile atmosphere to ...