Appendix — Ambrose v. Sperry Rand Corp.
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ap. f Supreme Court, U.S.
ee ly
jo =4 14
SEP 9 1985
No. A-77 JOSEPH F. SPANIOL, JR.
CLERK
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1985
HELEN M. AMBROSE,
Petitioner,
VS.
SPERRY RAND CORPORATION, a Delaware Corpora-
tion,
Respondent.
APPENDIX
HELEN M. AMBROSE
3528 27th Avenue South
Minneapolis, Minnesota 55406
(612) 729-0010
Petitioner Pro Se
1985—Northwest Brief Printing Co., 3010 2nd St. No., Minneapolis 55411—588-7506
¥ SPIES Celeste dkms be
a stnatenemnll tiated intent nN
APPENDIX INDEX
Page
Opinions/Orders of the Court of Appeals ...... A-1-10
Opinions/Orders of the District Court ........ A-11-21
Notice of Association of Counsel ............... A-22
March 30, 1979 letter to defendant re Hvass re-associa-
Wk aia at 5 res Se Ae Ske ha et Re ae ee A-23
Memorandum Order (May 27, 1976) .......... A-24-62
MEMORANDUM ORDER OF MAY 27, 1976
ALPHABETICAL LIST OF AUTHORITIES
Cases:
Albemarle Paper Co. v. Moody, 422 U.S. 405
(ARF eP Get BFF os kd as /.A-38, A-40, A-59
Arkansas Ed. Assoc. v. Bd. of Ed., 446 F.2d 763.
765-66 (8th Cir. 1971) also (768-769) ......
a Be ee ee eee A-29, A-40, A-42
Associated Orchestra Leaders v. Philadelphia Mu-
sical Society, 203 F.Supp. 755, 757 (E.D. Pa.
ee ee ee Ce ee ks baa oa es A-45
Bowe v. Colgate-Palmolive Co., 416 F.2d 711,
yi. ie, CS 30) |.) A-36, A-38
Buchholtz v. Swift & Co., 62 F.R.D. 581, 597 (D.
EN iin a ee x cae A-47, A-52
Butler v. Local Union 823, Int’l. Brotherhood of
Teamsters, etc., 514 F.2d 442, 449-50 and n.11
(8th Cir. 1975) cert. denied 423 US. 924
GUE OCC eae sc ee waa teres es A-27
Carroll v. Amer. Fed. of Musicians of the United
States and Canada, 372 F.2d 155 (2d Cir.
SHRP SM ae ONS Cr Hines on oer ae A-45
Cavanaugh v. Minneapolis Aquatennial Assoc..
No. 4-75 Civ. 628 (D. Minn. May 3, 1976) Slip
re iar Pn LA SEE RE RA eos se A-25
Cox v. Hutcheson, 204 F. Supp. 442, 446-47
ee SS ek ok eh we Se ee A-45
Danner v. Phillips Petroleum Co., 447 F.2d 159,
163-64 (Sth Cir. 1971) Petition for rehearing
and rehearing en banc denied, 450 F.2d 881
(1971) (Tuttle, Brown and Wisdom J.J. dissent-
PPE ee ee ee re rere A-37, A-38
Dawson v. Delaney, 189 F. Supp. 416, 419 (D.
Rel 196) wb ie tae ee A-47
Dierks v. Thompson, 414 F.2d 453 (lst Cir.
19G9) . 0. ccnnddeae tee A-46
duPont v. Wyly, 61 F.R.D. 615, 622-24 (D. Del.
BOTS) os vc a nek eee A-43, A-44, A-56, A-57
E.E.O.C. v. Detroit Edison Co., 515 F.2d 301.
311 (6th Cie. ERP odaceaeeeee A-30. A-42
Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562
(24 Che, 1968) 2 ctaecaweueee A-42, A-53. A-60
First American Corp. v. Foster, 51 F.R.D. 248,
250 (N.DAse. MEP oki ccc eendes A-43, A-44
Gates v Dalton, 67 F.R.D. 621, 630 (E.D.N.Y.
SOTEE: ck cee A-44, A-46, A-47, A-49, A-53-54
Gilmore v. Kansas City Terminal Railway Co.,
509 F.2d 48, 52-53 (8th Cir. 1975) ..A-38, A-61
Giordano v. Radio Corp. of America, 183 F.2d
$58, 560 .(3rd Cir. OGD non k oases nncsss A-45
Gray vy. Reuther, 99 F. Supp. 992 (E.D.Mich.
2951) .....<.0.0.0.0:0» 20 cee ees A-45
Hansberry v. Lee, 311 U.S. 32 (1940) ....... A-41
Jenkins v. United Gas Corp., 400 F.2d 28, 33
(Sth Cir. 19GB 6 tes eee A-37. A-38
Johnson v. Georsia Highway Express. Inc.. 417
F.2d 1122. 1126. 1127 (Sth Cir. 1969) ....A-41
Johnson v. Goodvear Tire & Rubber Co., 491 F.
2d 1364 (Sth: Cie. 9D vcs cates cced A-59
Jones v. United Gas Improvement Corp.. 68
F.R.D. 1, 22 (2D. Pa. W9TD) 22 ees Tee
Knuth v. Erie-Crawford Dairy Corp. Assoc., 395
F.2d 420, 428 (3rd Cir. 1968) ........... A-43
Lynch v. Sperry Rand Corp., 62 F.R.D. 78, 82
(S.DM.F. CEFR 060s sae naar aeeerwees A-48
Maynard, Merel & Co. v. Carcioppolo, 51 F.R.D.
vi Meeps, Bo 8k ey), A-42
Mersey v. First Republic Corp. of America, 43
F.R.D. 465, 468-71 (S.D.N.Y. 1968’. A-43, A-49
Norman v. Missouri Pacific Railroad, 414 F.2d
re rere A-61
Northwestern National Bank v. Williamson, No. 4-
73 Civ. 24 (D. Minn. May 20, 1975) ..A-45, A-46
Oatis v. Crown Zellerbach Corp., 398 F.2d at
Sl cae e tk eek wit b/c Ow a o 0 0 5's A-29, A-36
Parham v. Southwestern Bell Telephone Co., 433
P.ae 421, 425 (6th Cir. 1970) ............ A-37
Peritz v. Liberty Loan Corp., 523 F.2d 349, 353
ee ek dawn d webs A-37
Phillips v. Klaussen, 502 F.2d 362, 366-67 (D.C.
Cir. 1974), cert. denied, 419 U.S. 996 (1974) A-45
Redmond v. Commerce Trust Co., 144 F.2d 140.
151 (8th Cir. 1944), cert. denied. 323 U.S. 776
NS Bae ree ads wh as bee A-42, A-44, A-57
Rich v. Martin Marietta Corp., 522 F.2d 333, 341
(10th Cir. 1975), (and cases cited) ........ A-39
Rodriquez v. East Texas Motor Freight, 505 F.
2d 40, 50 (Sth Cir. 1974) (Wisdom, J.) ......
Ge be wed 648 kos 0:2 A-37, A-46, A-47, A-53
Rota v. Brotherhood of Railway Airline & SS.
Clerks, 64 F.R.D. 699, 706 (N.D. Ill. 1974)
RE ae ee ee A-46, A-47
Sagers v. Yellow Freight System. Inc., 529 F. 2d
Wey SERGE, BOVE bo esiecenaleeewes A-40
Schy v. Susquehanna Corp., 419 F. 2d 1112.
1116-17 (7th Cir. 1970). cert. denied 400 U.S
I 0S Cd ob oss bajo us exhb eee il A-43
Schmidt v. Fuller Brush Co., 527 F. 2d 532 (8th
spe, sb. ob bk 64s eae REDS A-25
Sheridan v. Liquor Salesmen’s Union, L.ocal 2. 60
F.R.D. 48, 52 (S.D.N.Y. 1973) .A-45, A-48. A-S1
Shulman v. Ritzenberg. 47 F.R.D. 202, 207-208
a wns lp San 44.0 0's 4 v8 'o A-43
Sprogis v. United Air Lines, Inc., 444 F.2d 1194,
1201-1202 (7th Cir. 1971), cert. denied, 404
ce Sf) | Sere ewe errr ae a A-37, A-39
United States v. Allegheny-Ludlum Industries,
Inc., 517 F.2d 826, 878 (5th Cir. 1975) A-40, A-59
Vaca v. Sipes, 386 U.S. 171 (1967) ....A-25, A-26
Vernon J. Rockler and Co. v. Graphic Enter-
prizes, Inc., 52 F.R.D. 335, 342-44 (D. Minn.
1971) Cowie, J.) oc ceca A-43, A-49, A-52
Wetzel v. Liberty Mutual Insurance Co., 508 F.
2d 239, 252-53 (3rd Cir. 1975), cert. denied
ie gh. ere A-39, A-40
Williams v. General Foods Corp., 492 F.2d 399.
oki be PEE ETRE EE eT ee eee re A-36
Wright v. Stone Container Corp., 524 F.2d 1058,
ee GE Rs STEP 5 cis cee A-37, A-41, A-49
Other Authorities:
Be Urs Be OF) GD) x noc acca cccacce: A-61
a GR SS rey eae
.A-25, A-36, A-41, A-44, A-49, A-57, A-58, A-59
OG ME ED ew as A-29, A-37, A-58
Pete BOD BENE) 0. ccc csncece A-27, A-29
Pia meee ZICRS) .. 2 eee A-27, A-29, A-30
Pa We ZUM) «2... scene A-29, A-30, A-32
PE EE ETD 6 ok awa ccusdansasddcase
A-32, A-36, A-40, A-41, A-42, A-44, A-49, A-50
FRCP Rule 23(b)(2) ...... A-25, A-39, A-40, A-58
yp UR rege A-25, A-39
fy ey | A-59. A-60, A-62
7 Wright & Miller Fed. Prac. & Proc. Civil §1764
ar eet an hd ea was Dk aan A-31
7 Wright & Miller Fed. Prac. & Proc. Civil §1771
RE oe goa, gio peat ota ee ie Scere?
7 Wright & Miller Fed. Prac. & Proc. Civil §1768
WN bee ras dake cM ee ae eed A-42, A-60
7 & 7A Wright & Miller Fed. Prac. & Proc. §1793
DEED cnn sh. GbCSEE eee A-60
Har. L. Rev. Vol. 84. 1109, 1220-21 (1971), “De-
velopments in the Law: Employment Discrim-
ination and Title VII of the Civil Rights Act of
SM Ass GA54000%0584000 060 RE A-24, A-42
ee Pee WE oo ds ceceac be dake ke kews A-63-69
SOE I no Gods FA beawhiseacdanceca A-69-7i
Judge Larson’s March 27 letter to 8th Circuit ... . A-72-73
December 2, 1980 Carol Grant letter .........A-74-75
FOS Se CE ik ks hacked bbb 40 Gahan A-76
Chart—Interconnecting Relationships & Progression of
WD SF OD ng ono 0s be cnc ssna vas A-77
Ethics Committee Findings of November 17, 1981 A-78-79
Fairness Hearing Minutes .................. A-79-88
Named Plaintiffs January 13, 1981 letter to Judge
SEN i UN 66d ows Widen ook anes ek nee A-89-95
L.U. No. 2047 Grievance of July 13, 1982 against
Sperry alleging sex discrimination ........... A-95-96
Order extending time to file Petition for Writ of Cer-
GE 55h bex euws ces oe eee ee A-97
A-1
APPENDIX
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
U.S. COURT & CUSTOM HOUSE
1114 Market Street
St. Louis, Missouri 63101
July 19, 1985
Robert D. St. Vrain 314-425 5600
Clerk FTS: 279-5600
Mr. Frank Dosal, Clerk
U. S. District Court
1108S. Fourth St.
M:nneapolis, MN 55401
Re: No. 84-5183-MN Helen Ambrose vs. Sperry
Rand Corp., etc., et al. (4-74-627)
Dear Sir’
The mandate of this Court is enclosed together with a
receipt therefor in the above case. We would appreciate it
if ycu would sign, date and return the receipt to this of-
fice.
Since no timely cost bill was filed, no costs will be taxed
on appeal.
Returned are three volumes of transcript and two vol-
umes of transcript.
Sincerely,
ROBERT ST. VRAIN, CLERK
by /s/ E. Hoffman
Deputy Clerk
eh
Enclosures 6
A-2
cc: Helen Ambrose
David S. Doty
James T. Hansing
Hyman Edelman
Stewart C. Loper
Richard A. Williams, Jr.
J. Richard Bland
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FOURTH DIVISION
Helen Ambrose,
Plaintiff,
VS.
Sperry Rand Corp., et al,
Defendant
No. 4-74 Civil 627
USCA #84-5183d
You are hereby notified that in the above-entitled cause,
on the 22nd day of July, 1985 we filed certified copy of
opinion and judgment from the Court of Appeals, Eighth
Circuit that it is hereby adjudged and decreed that the
judgment of the District Court is affirmed in accordance
A-3
with the opinion of this Court. See 8th Circuit Ruie 14.
March 11, 1985.
Helen M. Ambrose FRANCIS E. DOSAL, CLERK
3528 27th Avenue South by: /s/ Judith E. Palmer
Minneapolis, MN. 55406 Deputy Clerk
David S. Doty Stewart C. Loper
4344 IDS Center 360 Wabasha, Suite 500
Minneapolis, MN. 55402 St. Paul, Mn. 55102
James T. Hansing Richard A. Williams, Jr.
1208 Plymouth Building 715 Cargill Building
Minneapolis, MN. 55402 Minneapolis, MN. 55402
Hyman Edelman J. Richard Bland
1800 Midwest Plaza Building 2250 IDS Center
Minneapolis, MN. 55402 Minneapolis, MN. 55402
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
JUDGMENT
No. 84-5183MN
Helen Ambrose,
Appellant,
VS.
Sperry Rand Corp., et al,
Appellees.
September Term, 1984
CV 4-74-627
Appeal from the United States District Court for the Dis-
trict of Minnesota
A-4
This appeal from the United States District Court was
submitted on the record of the said District Court and
briefs of the parties.
Upon consideration of the premises it is hereby ad-
judged and decreed that the judgment of the District Court
is affirmed in accordance with the opinion of this Court.
See 8th Circuit Rule 14. |
March 11, 1985 |
A true copy.
ATTEST: /s/ Robert D. St. Vrain |
Clerk, U.S. COURT OF APPEALS, EIGHTH CIR-
CUIT
7/20/85
A-5
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
U.S. Court & Custom House
1114 Market Street
St. Louis, Missouri 63101
Robert D. St. Vrain 314-425-5600
Clerk FTS: 279-5600
May 13, 1985
Ms. Helen M. Ambrose
3528 27th Avenue South
Minneapolis, MN 55406
Re: No. 84-5183-MN Helen Ambrose vs. Sperry
Rand Corp., etc., et al
Dear Ms. Ambrose:
Enclosed is a copy of an order entered by us today at
the direction of the court.
Sincerely,
/s/ Michael E. Gans
Michael E. Gans
Chief Deputy
MEG /cgj
Enclosure
cc: Mr. David S. Doty
Mr James T. Hansing
Mr. Hyman Edelman
Mr. Stewart C. Loper
Mr. Richard A. Williams, Jr.
Mr. J. Richard Bland
Ms. Phyllis Farguharson, Court Reporter
Mr. Frank Dosal, Clerk, U.S. District Court
FOR INFO ONLY:
Honorable Earl R. Larson
(4-74-627)
A-6
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 84-5183-MN
Helen Ambrose,
Appe:lant,
vs.
Sperry Rand Corp., etc., et al,
Appellees.
Appeal from the United States District Court for the Dis-
trict of Minnesota
Appellant’s motion for reconsideration or to vacate or
modify orders and to prevent manifest injustice, having
been considered by the court, is denied.
May 13, 1985
A-7
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
U.S. Court & Custom House
1114 Market Street
St. Louis, Missouri 63101
Robert D. St. Vrain 314-425-5600
Clerk FTS: 279-5600
March 11, 1985
Ms. Helen M. Ambrose Mr. David S. Doty
Mr. James T. Hansing Mr. Hyman Edelman
Mr. Steward C. Loper Mr. Richard A. Williams
Mr. J. Richard Bland
Mr. Frank Dosal, Clerk (Civ 4 74 627)
Re 84-5183 Helen Ambrose v. Sperry Rand Corp.,
et al Counsel:
Enclosed is a copy of the opinion of this Court filed to-
day in the above case. Judgment in accordance with the
opinion is also entered today.
Please consult the appropriate Federal Rules of Appel-
late Procedure and the Eighth Circuit Rules (15 & 16)
for post-opinion procedure, particularly Circuit Rule 16
(d).
Your attention is also directed to Federal Rule of Ap-
pellate Procedure 39 and Eighth Circuit Rules 7(f) and
8(j). Itemized and verified bills of cost are to be filed with
this office with proof of service within 14 days from this
date. We would appreciate it if counsel for the prevailing
party would promptly forward to us an itemized bill of
costs fer the reproduction of the authorized number of
copies of their briefs. If the prevailing party fails to svb-
mit an itemized bill of cost on a timely basis, this office
A8
will assume that the right to recoup costs has been waived.
Itemized bills of cost which are not timely filed will not be
processed without a special order of the Court. Similarly,
objections to requested bills of cost must also be submitted
on a timely basis-within 10 days of the bill of costs.
Your prompt attention to this request will be appre-
ciated.
Sincerely,
/s/ Robert D. St. Vrain
Clerk of Court
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 84-5183
Delores Elliott,
Helen Ambrose,
Appellants,
Ruberta Pettit, and all other persons similarly situated,
v.
Sperry Rand Corporation, a Delaware corporation, The
International Brotherhood of Electrical Workers, AFL-
CIO, and Local Union No. 2047 of The International
Brotherhood of Electrical Workers,
Appellees.
A-9
Appeal from the United States District Court for the Dis-
trict of Minnesota
Submitted: February 12, 1985
Filed: March 11, 1985
Before HEANEY, Circuit Judge, HENLEY, Senior Cir-
cuit Judge, and McMILLIAN, Circuit Judge.
PER CURIAM.
This appeal is from a May 31, 1984 order of the district
court denying certain post-judgment relief following an
approved settlement in a sex discrimination lawsuit brought
against Sperry Rand Corporation, the International Brother-
hood of Electrical Workers, AFL-CIO, and the local union.
Appellant, Helen Ambrose, is an individual plaintiff who
sought by a post-judgment motion and now seeks by this
appeal to upset the approved settlement by her attack on
the ethics, impartiality, conflict of interests, and fee award
of certain counsel members of the Hvass law firm, who
represented plaintiffs. The appellees contend the district
court properly terminated the action by granting Sperry
Rand’s motion to dismiss with prejudice, thereby refus-
ing to invalidate the settlement.
The voluminous record shows that the settlement was
signed by the parties May 20, 1981, approved by the dis-
trict court August 11, 1981, and affirmed by decision of
this court filed on June 23, 1982. The eight-page memor-
andum of the district court dated May 31, 1984, which
accompanied the appealed order now before this court,
shows the district court considered and ruled on the claims
of plaintiff-appellant, concluding defendant Sperry Rand
had complied with the terms of the stipulated settlement
agreement and that plaintiffs’ counsel had done an excel-
A-!C
lent job. The court agreed with the conciusion of the Ethics
Committee of the Hennepin County Bar Association and
the Lawyers Professional Responsibility Board that the
ethics complaint should be dismissed and found no con-
flict of interests. The district court noted Sperry Rand
agreed to arbitrate any disputes which remain and men-
tioned one dispute over posting of first line supervisory
positions and another over access to two reports. The court
found the misunderstanding and dispute over those two
matters had been resolved and opined that any other dis-
putes could be resolved in grievance procedures, arbitra-
tion. or by administrative agencies.
The district court calculated the considerable risks to
plaintiffs of starting the litigation over and concluded,
“After 10 years the entire matter should be put to rest.”
The standard of review of this approved settlement is
whether the district court abused its discretion. Elliott v.
Sperry Rand Corp., 680 F.2d 1225 (8th Cir. 1982); Rey-
nolds v. National Football League, 584 F.2d 280 (8th Cir.
1978) The thorough May 31, 1984 memorandum shows
the district court diligently and carefully considered the at-
tacks on the settlement and plaintiffs’ counsel.
We find no indication that the district court abused its
discretion. No error of law or fact appearing and it being
clear that further expression by us would have no prece-
dential value, the judgment of the district court is affirmed.
See 8th Cir. R. 14.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH
CIRCUIT.
A-il
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FOURTH DIVISION
Delores Elliott, Helen Ambrose, Roberta Pettit, and all
other persons similarly situated,
Plaintiffs,
VS.
Sperry Rand Corporation, a Delaware corporation, the In-
ternational Brotherhood of Electrical Workers, AFL-
CIO, and Local Union No. 2047 of the International
Brotherhood of Electrical Workers,
Defendants.
ORDER
4-74-Civil-627
On May 31, 1984 I filed 2 Orders and a separate
Memorandum.
One Order denied the motion of pro se plaintiff Am-
brose to Invalidate Settlement, to Stay Order for Judgment
and for a New Trial on all issues. The motion was based
on a claimed conflict of interest of one of the law firms
representing the named plaintiffs and the class.
A second Order granted the motion of defendant Sperry
Rand for an Order dismissing the action as to all parties
and discharging from further supervisory jurisdiction of
the Court In this Order I reviewed some of the history of
the case and Sperry’s compliance and also disposed of
several minor matters.
A-12
The Memorandum reviewed the history of the litigation
and made reference to a claim of possible conflict of in-
terest on the part of the Hvass law firm. I stated that this
claim was not raised during the extended trial or the settle-
ment negotiations nor in the Court of Appeals.
On June 8, 1984 Ms. Ambrose filed a Motion for New
Trial and Amendment of Judgments and stated tnat a
supporting Memorandum and affidavits would be sub-
mitted within 20 days. The additional materials were
submitted on July 18, 1984.
I will treat the June 8 motion as a Motion for Recon-
sideration of the May 31 Orders.
On June 8 Ms. Ambrose also filed a Notice of Appeal
and on June 15 a notice to clerk to Transmit and Certify
a Designated Record and Settlement of Issues.
I 2m also in receipt of am exchange of correspondence
between Ms. Ambrose and attorneys Roback and Wolf,
the latest attorneys to represent Ms. Ambrose.
The tast Ambrose letter was received on August 27,
1984. The correspondence relates to a private dispute as
to attorneys fees and will not be considered by me.
Though an appeal appears to be pending I will treat
the latest motions as Motions for Reconsideration.
I have considered the Motions, Memoranda, Affidavits
and Exhibits. No further hearing or argument is needed
or would be productive.
Ms. Ambrose charges me with bias and fatigue. I deny
the bias but admit the fatigue.
IT IS ORDERED:
1. That the June 8, 1984 Motion for New Trial and
Amendment of Judgment be denied.
A-13
2. That the Motion for Reconsideration of the 2 May
31, 1984 Orders and Memorandum be denied.
September 10, 1984.
/s/ Signature illegible
United States Senior District Judge
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FOURTH DIVISION
Delores Elliott, et al,
Plaix.tiff,
VS.
Sperry Rand Corporation, et al,
Defer.dant.
No. 4-74 Civil 627
Clerk’s Notice under Rule 77(d) F.R. Civil Procedure or
Rule 49(c) F.R. Criminal Procedure
You are hereby notified that in the above-entitled cause,
on the 10th day of September, 1984 we filed Judge Lar-
son’s Order 1. That the June 8, 1984 motion for new trial
and amendment of Judgment be denied. 2. That the mo-
tion for reconsideration of the May 2, 1984 Orders and
Memorandum be denied.
FRANCIS E. DOSAL, CLERK
By
Deputy Clerk
Helen M. Ambrose
3528 27th Ave. S.
Minneapolis, MN 55405
Meagher, Geer Law Firm
J. Richard Bland &
Bradley M. Jones
2250 IDS Tower
Minneapolis, MN 55402
Hvass, Weisman & King
Richard A. Williams, Jr.
David S. Doty &
Sally A. Johnson
4344 IDS Center
Minneapolis, MN 55402
James T. Hansing
1208 Plymouth Bldg.
Minneapolis, MN 55402
Hyman Edelman
1800 Midwest Plaza Bldg.
Minneapolis, MN 55402
Minneapolis, MN 55402
Cochrane & Bresnahan
Steward C. Loper
360 Wabasha, Suite 500
St. Paul, MN 55102
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FOURTH DIVISION
Delores Elliott, Helen Ambrose, Roberta Pettit, and all
other persons simi’»"'y situated,
Plaintiffs,
VS.
Sperry Rand Corporation, a Delaware corporation, the In-
ternational Brotherhood of Electrical Workers, AFL-
CIO, and Local Union No. 2047 of the International
Brotherhood of Electrical Workers,
Defendants.
A-15
ORDER
4-74-Civil 627
Defendant Sperry Rand Corporation (Sperry) has moved
for an Order for Judgment dismissing the action as to all
parties and discharging the parties from the supervisory
jurisdiction of this Court.
The Court held 3 hearings in December 1983 and
since then has considered various affidavits, letters and
memoranda which have been submitted to the Court.
On August 11, 1981 the Court entered an Order approv-
ing the Stipulation of Settlement which had been entered
into by the parties on May 20, 1981. The Court also deter-
mined that the Settlement was fair, adequate and reason-
able. The Court of Appeals on June 23, 1982 affirmed
this Court’s determination.
The Court finds that the parties have complied with the
Stipulation and this Court’s Orders. Sperry has paid the
class members $1,762,618.47. The sum of $1,794.67
remains unclaimed in the settlement fund. Sperry has
also complied with the Court’s Order relating to the pay-
ment of attorneys fees and costs to class counsel. In addi-
tion Sperry and the Local Union have modified the col-
lective bargaining agreement as agreed to. Sperry has
furnished to the Court the Hays studies, has established
appropriate jobs in Plating and Electro-Mechanical areas
for assemblers, has established selection criteria for first
line supervisors, has encouraged employees to avail them-
selves of its tuition reimbursement program and has pro-
vided notice to employees of the criteria for promotion to
various iobs.
A-16
IT IS HEREBY ORDERED THAT:
1. The action is dismissed in all its counts and claims as
to all parties with prejudice.
2. Class members are barred and enjoined from prosecu-
ting any other action involving the claims of the class ac-
tion complaint and defendants are barred and enjoined
from prosecuting any action against a class member aris-
ing from a claim embraced in the class complaint or for
defense costs or fees.
3. The parties be discharged from the supervisory jur-
isdiction of this Court arising from the previous Orders
of this Court, the Stipulation of Settlement and the power
granted to the Court by Rule 23 relating to class actions.
4. Sperry pay to 5 employees or former class members
employees—Axtell, Turnipseed, Olson, Silva and Turner
—the amounts due them upon proof of membership in
the class and their entitlement to payment.
5. Sperry within 10 days pay the sum of $1,794.67 into
the Clerk’s registry fund. The list of 22 class members
and the amounts due them is Attachment 1 to the Achter-
hof Affidavit (Clerk’s Folder IX-1). Sperry will within 15
days file with the Clerk a supplemental list which will in-
clude first names, the most recent address and any other
identifying information. Payment to the class members
will be made by the Clerk upon the submission of a claim
and proper proof. After 5 years the Clerk will remit the
balance remaining in the fund to the Treasurer of the
United States.
A-17
Let Judgment be Entered Accordingly.
May 31, 1984.
/s/ Earl R. Larson
United States Senior District Judge
Separate Memorandum Filed
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FOURTH DIVISION
Delores Elliott, Helen Ambrose, Roberta Pettit, and all
other persons similarly situated,
Plaintiffs,
vs.
Sperry Rand Corporation, a Delaware Corporation, the
International Brotherhood of Electrical Workers, AFL-
CIO, and Local Union No. 2047 of the International
Brotherhood of Electrical Workers,
Defenaants.
ORDER
4-74-Civil-627
Helen M. Ambrose as Pro Se Plaintiff filed a motion on
January 3, 1984 to Invalidate Settlement and to Stay
Order for Judgment. The motion also requests the Court
to set aside previous findings, opinions and judgments, to
permit further discovery, and for a new trial on all issues
held by the Hvass law firm which acted as co-counsel for
the plaintiff class.
A-18
The Court has considered the motion, affidavit, memor-
anda and letters, and the claims and arguments of the par-
ties.
The Court refers the parties and counsel to the separate
Memorandum to be filed.
IT IS ORDERED:
That the motion be denied.
May 31, 1984.
/s/ Earl R. Larson
United States Senior District Judge
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FOURTH DIVISION
Delores Elliott, et al,
Plaint.ff(s),
vs.
Sperry Rand Corp., et al,
Defendant(s).
No. 4-74- Civil 627
Clerk’s Notice under Rule 77(d) F.R. Civil Procedure or
Rule 49(c) F.R. Criminal Procedure
You are hereby notified that in the above-entitled cause,
on the 31st day of May, 1984, we filed Judge Larson’s
A-19
Order that Helen M. Ambrose’s motion be denied. We
also filed Judge Larson’s Memorandum.
ROBERT E. HESS, CLERK
By:
Deputy Clerk
J. Richard Bland
Richard A. Williams, Jr.
Steward C. Loper
Helen Ambrose
David S. Doty
James T. Hansing
Hyman Edelman
(Title of Cause.)
No. 4-74 Civil 627
Clerk’s Notice under Rule 77(d) F.R. Civil Procedure or
Rule 49(c) F.R. Criminal Procedure
You are hereby notified that in the above-entitled cause,
on the 31st day of May, 1984, we filed Judge Larson’s
Order as follows:
1. The action is dismissed in all its counts and claims as
to all parties with prejudice; 2. Class members are barred
and enjoined from prosecution any other action involving
the claims of the class action complaint and defendants
are barred and enjoined from prosecuting any action against
a class member arising from a claim embraced in the
class complaint or for defense costs or fees. 3. The par-
ties be discharged from the supervisory jurisdiction of this
Court arising from the previous Orders of this Court, the
A-20
Stipulation of Settlement and the power granted to the Court
by Rule 23 relating to class actions; 4. Sperry pay to five
employees or former class members employees—Axtell,
Turnipseed, Olson, Silva and Turner—the amounts due
them upon proof of membership in the class and their en-
titlement to payment; 5. Sperry within 10 days pay the
sum of $1,794.67 into the Clerk’s registry fund. The list of
22 class members and the amounts due them is Attachment
1 to the Achterhof Affidavit (Clerk’s Folder IX-1). Sperry
will within 15 days file with the Clerk a supplemental
list which will include first names, the most recent address
and any other identifying information. Payment to the
class members will be made by the Clerk upon the submis-
sion of a claim and proper proof. After five years, the
Clerk will remit the balance remaining in the fund to the
Treasurer of the United States. Judgment was entered ac-
cordingly.
ROBERT E. HESS, CLERK
By:
Deputy Clerk
J. Richard Bland
2250 IDS Center
Minneapolis, MN 55402
Richard A. Williams, Jr.
715 Cargill Building
Minneapolis, MN 55402
Steward C. Loper
Cochrane & Bresnahan
360 Wabasha, Suite 500
St Paul, MN 55102
A-21
Helen Ambrose
3528 - 27th Avenue South
Minneapolis, MN 55406
David S. Doty
Popham. Haik, et al
4344 IDS Center
Minneapolis, MN 55402
James T. Hansing
1208 Plymouth Building
Minneapolis, MN 55402
Hyman Edelman
1800 Midwest Plaza Building
Minneapolis, MN 55402
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FOURTH DIVISION
Delores Elliott, Helen Ambrose, and all other persons sim-
ilarly situated,
Plaintiffs,
VS.
Sperry Rand Corporation, a Delaware corporation, the In-
ternational Brotherhood of Electrical Workers, AFL-
CIO. and Local 2047 of the Electrical Workers,
_. Defendants.
A-22
No. 4-74 Civ. 627
NOTICE OF ASSOCIATION OF COUNSEL
TO DEFENDANT SPERRY RAND CORPORATION
and DAVID S. DOTY, its attorney:
DEFENDANT INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS and JAMES T. HAN-
SING, its attorney; and
DEFENDANT LOCAL 2047 and HYMAN EDEL-
MAN, its attorney:
PLEASE TAKE NOTICE that the undersigned are here-
by associated with Meagher, Geer, Markham, Anderson,
Adamson, Flaskamp & Brennan, 2250 IDS Center, Minne-
apolis, Mn 55402, as attorneys for the plaintiffs in the
above captioned matter.
HVASS, WEISMAN & KING
By /s/ Richard A. Williams, Jr.
715 Cargill Building
Minneapolis, MN 55402
333-0201
We hereby consent to the above association of counsel
MEAGHER, GEER, MARKHAM, ANDERSON,
ADAMSON, FLASKAMP & BRENNAN
By /s/ J. Richard Bland
2250 IDS Center
Minneapolis, MN 55402
338-0661
Dated: + -—
A-23
STATE OF MINNESOTA
Ss.
COUNTY OF HENNEPIN
AFFIDAVIT OF SERVICE BY MAIL
Melba H. Bylund, being first duly sworn, deposes and
says: That on the 30th day of March, 1979, she served
the attached Notice of Association of Counsel upon the
following attorneys representing the parties as indicated,
by depositing a true and correct copy thereof in the U. S.
Mail in the City of Minneapolis, Hennepin County, Min-
nesota, with postage prepaid, in an envelope directed and
addressed to said attorneys.
David S. Doty
Attorney for Sperry Rand Corp.
4344 IDS Center
Minneapolis, MN 55402
James T Hansing
Attorney for Local Union No. 2047
656 IDS Center
Minneapolis, MN 55402
Hyman Edelman
Attorney for International Brotherhood
of Electric Workers
1800 Midwest Plaza Building
Minneapolis, MN 55402
Subscribed and sworn to before me this 30th day of
March, 1979.
/s/ Carla M. Stevenson
Notary Public
A-24
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FOURTH DIVISION
Delores Elliott, Helen Ambrose, Roberta Pettit, and all
other persons similarly situated,
Plaintiffs,
VS.
Sperry Rand Corporation, a Delaware Corporation, the
International Brotherhood of Electrical Workers, AFL-
CIO, and Local Union No. 2047 of the International
Brotherhood of Electrical Workers,
Defendants.
MEMORAiYDUM ORDER
No. 4-74-Civ. 627
Plaintiffs bring this action against defendants Sperry
Rand Corporation, doing business through its Univac Di-
vision (hereinafter “Univac’’), Local Union No. 2047 of the
International Brotherhood of Electrical Workers (herein-
after “Local”), and the International Brotherhood of Elec-
trical Workers, AFL-CIO (hereinafter “International’”).
Plaintiffs allege that defendants engage in a pattern or
practice of sex discrimination, and plaintiffs assert claims
(1) or violation of the “Back Pay Act of 1963,” 29 U.S.C.
$ 206); (2) for violation of the unions’ duty of fair repre-
sentation and for Univac’s breach of contract, and (3) for
violation of Title VII of the Civil Rights Act of 1964 as
amended, 42 U.S.C. § 200-e. et seq. Plaintiffs seek to main-
.
A-25
tain this action as a class action. Before the Court for de-
Cision are cross motions for an Order certifying and de-
certifying the purported class under Rule 23(c) (1).
I. BACK PAY ACT.
Claims arising under 29 U.S.C. § 206 are governed by
the procedural provisions of 29 U.S.C. § 216(b). The “opt
in” procedure of § 216(b) is totally inconsistent with the
“opt out” procedure of Rule 23(b) (3) and is equally in-
consistent with the binding effect of Rule 23(b) (2) class
actions. Rule 23 and § 216(b) are irreconcilable. Schmidt
v. Fuller Brush Co., 527 F.2d 532 (8th Cir. 1975);
see also, Cavanaugh v. Minneapolis Aquatennial Assoc.,
No. 4-75-Civ. 628 (D. Minn. May 3, 1976) Slip Op. at 5-6.
Plaintiffs’ Back Pay Act claim cannot be maintained as a
Rule 23 class action.
Filed May 28, 1976
Harry A. Sieben, Clerk
By /s/ Cyndee Beneon
Deputy
Il. DUTY OF FAIR REPRESENTATION AND
BREACH OF CONTRACT.
The burden of establishing that a case is appropriate
for treatment as a class action is on the plaintiffs. With
respect to their representation/breach of contract claim,
plaintiffs have failed to discharge this burden.
The complaint alleges a typical claim under Vaca v.
Sipes 386 U.S. 171 (1967), involving the employer’s
breach of contract and the union’s bad faith failure tc dis-
charge its duty as the exclusive representative of its em-
A-26
ployees in processing grievances under the contract. The
questions of law and fact underlying a typical Vaca v.
Sipes claim pertain to the processing of grievances; the
employees who may have claims are those whose grievances
were improperly processed. Certainly, in order to main-
tain a Vaca type class action, plaintiffs must at the least
identify those grievances which the union has improper-
ly handled and which may give rise to common claims
among an identifiable class of persons. Plaintiffs have iden-
tified no such grievances. If there are persons with claims
for the perfunctory processing oi grievances, the Court
does not know who they are, what the subject matter of
their grievances is, or what steps if any the defendant
unions took in processing those grievances. There is simply
no basis for certification of a typical Vaca v. Sipes class
action.
In fairness to plaintiffs, it must be emphasized that
plaintiffs apparently do not rely on the non-processing of
filed grievances. Rather, plaintiffs argue, the gravamen of
there action is the unions’ failure to initiate grievance pro-
cedures, i.e., the failure to file grievances after receipt of
complaints by union members alleging sex discrimination
in violation of the non-discrimination clause of the collec-
tive bargaining agreement. However, this theory of unfair
representation is essentially identical to a traditional
Vaca v Sipes grievance processing claim, for in both
cases liability is premised on a breach of contract by the
employ2r and on the union’s breach of its duty to represent
the employees under the grievance machinery of the con-
tract. The “. . . necessary condition precedent to suit . . .”
in either case is the exhaustion by the employee of those
steps in the grievance procedure which the employee has
A-27
power to invoke. Butler v. Local Union 823, International
Brotherhood -f Teamsters, Etc., 514 F.2d 442, 449-50
and n.11 (8th Cir. 1975), cert. denied, 423 US. 924
(1975). The theories are different only in that in the latter
case employees are alleged to have exhausted their indi-
vidual recourse under the grievance procedure simply upon
making complaints to the union, notwithstanding the em-
ployee’s failure to file a grievance. In their complaint,
plaintiffs do allege that the unions have exclusive authority
under the relevant collective bargaining agreements to in-
itiate grievances. If this is true, i.e., if the employee herself
is not authorized to file grievances against the employer,
then the making of complaints to the union may be suf-
ficient exhaustion of the grievance machinery to lay the
foundation for an unfair representation claim against the
unions and a breach of contract claim against the em-
ployer.
Even under this approach, however, the class proponent
should identify those particular complaints which the union
is alleged to have abandoned or ignored in violation of its
duty of fair representation. The Court should at a mini-
mum be informed as to the subject matter of the com-
plaints and the number of persons involved in the com-
plaints. so that some rational decision may be had as to
the questions of numerosity, typicality, and commonality.
Rule 23(a) (1), (2) and (3). Although the record indicates
that a great many complaints have been directed to the
unions during the last several years, plaintiffs have not
specified which complaints form the basis for the claims
to class relief, and this Court cannot certify a class action
on the basis of its own speculations as to which complaints
plaintiffs may believe give rise to liability.
A-28
Additionally, the record is presently inadequate for class
certification because there is no evidence that in fact the
unions do have exclusive control over the initiation of
grievances. Plaintiffs’ allegations of exclusive union con-
trol, stated in their complaint, have been denied by all three
defendants, and the contractual provisions referred to
in the complaint have not been set forth on the record. In
her deposition, plaintiff Elliott seems to have admitted
that exclusive authority to initiate and pursue grievances
may not be in the unions:
“The procedure is not for an individual to do so. You
must accost [sic] it through the union if possible.
If they reject this, then you can do it on your own,
but our procedure is that the union will pursue it.”
[Emphasis supplied. ]
Although plaintiffs at this time are not required to prove
that their claim is meritorious, in the Court’s view plaintiffs
should demonstrate that some state of facts exists which
may justify class-wide relief under the legal theory which
plaintiffs advance. The Court is entitled to know what
the grievance procedure language is before being asked to
certify a class under plaintiffs’ “grievance initiation”
theory.
Plaintiffs have failed to demonstrate the appropriateness
f class treatment of the unfair representation/breach of
contract claims. Since this action has been pending for
over a year, and since the parties have engaged in exten-
sive discovery directed to the questions of maintenance of
the case as a class action, plaintiffs’ failure to satisfy
their burden is a sufficient ground to order conditional de-
certification of the class with respect to these claims.
Il. TITLE VII.
It is settled law that Title VII cases are well suited for
treatment as class actions, Part III, B., (2), ante. In order
to maintain a Title VII action as a class action, plaintiffs
must satisfy all the prerequisites of Rule 23(a), in addition
to one of the requirements of Rule 23(b). Oatis v. Crown
Zellerbach Corp., 398 F.2d 496, 499 (5th Cir. 1968).
A. Rule 23(a) (1), (2) and (3).
The Court is satisfied that plaintiffs easily fulfill the re-
quirements of numerosity, commonality and _typicality.
Rule 23(a) (1), (2) and (3). Defendant unions concede as
much, although the Local argues that if Rule 23(a) (3) is a
truly separate requirement, plaintiffs have not satisfied it.
Univac’s arguments focus on the pleadings and largely
overlook the extensive discovery materials which have been
generated.
Jn employment discrimination cases, the numerosity re-
quirement has not been stringently applied. Arkansas Edu-
cation Association v. Board of Education, 446 F.2d 763.
765-66 (8th Cir. 1971) (less than two dozen). The materials
on file demonstrate that the prospective class contains in
excess of 2,000 members. Joinder of a!'l such persons in a
single action is patently impracticable.
Plaintiffs allege that defendants follow a policy or prac-
tice of discrimination based on sex in connection with. in-
ter alia, training, promotions, seniority systems, hiring,
and maintenance of job classifications. The discrimination
alleged is based on a characteristic common to the class.
Common questions of law and fact exist concerning the
nature of defendants’ practices, the effect of these prac-
A-30
tices on class members, and the legality of these practices
under Title VII. A liberal construction of Rule 23(a) (2)
and (3) is appropriate in Title VII cases, EEOC v. De-
troit Edison Co., 515 F.2d 301, 311 (6th Cir. 1975).
The same is true as to the typicality requirement of
Rule 23(a) (3). Plaintiffs Elliott and Ambrose have each
been employed by Univac and have been members of the
Local and International for over 20 years. Plaintiffs allege
that during their employment at Univac they have been
promoted only three or four times, and that they have been
continuously subjected to defendants’ discriminatory prac-
tices. Plaintiff Elliott currently holds the position of Gen-
eral Inspector “B”. Plaintiffs claim that the formation of
two General Inspector classifications, “A” and “B”, was
discriminatory in that females were “funneled” into the
lower paying “B” classification and in that the opportuni-
ties for advancement are significantly greater in the pre-
dominantly male (118 males, | female) “A” classification.
The complaint alleges that the plaintiffs, as weli as the
class
“
. have been and are being deprived of income in
the form of wages and of prospective retirement bene-
fits, social security and other benefits due to them as
workers, solely because of their sex... .”
Defendant Univac argues that it is impossible for the
Court to determine whether plaintiffs’ claims are typical
of the claims of the class because plaintiffs have failed to
specify what their individual claims are. It is true that
plaintiffs have not set forth specific incidents (such as fir-
ing, demotion or lay off) which form the basis for their
individua! claims. However, plaintiffs’ personal claims are
A-3i
not at all obscure. Plaintiffs claim that defendants’ prac-
tices have denied plaintiffs opportunities for advancement,
that this denial has been solely due to plaintiffs’ sex, and
that as a result of this denial plaintiffs have suffered econo-
mic detriment. The basis for plaintiff Elliott’s claim is par-
ticularly clear, since she occupies a job position which is
directly tied into defendants’ allegedly discriminatory de-
nial of advancement opportunities’ and claimed relegation
of women to lower paying positions. The individual claims
are typical of the claims of the class.
The fact that plaintiffs, after over 20 years’ employment
at Univac, now hold some of the higher paying jobs in
the bargaining unit does not render their claims atypical.
As of May 3, 1975, plaintiffs earned $4.54 and $4.49 per
hour. less than $1.35 per hour more than the lowest paid
new employees in the bargaining unit, and less than $0.40
an hour more than employees with only two years’ exper-
ience. Plaintiffs’ relatively higher paying jobs do not set
them apart from the class they seek to represent.
Univac argues that because the various jobs at its
plants have no common criteria and can be visualized as
discrete entities, plaintiffs’ claims cannot be typical of the
claims of those occupying entirely separate positions. The
fact that varying fact patterns may exist is generally con-
sidered immaterial, where all claims are based on the same
remedial or legal theory, and especially where the com-
mon theory is similarly central to all claims. See generally,
7 Wright & Miller, Federal Practice and Procedure: Civil
§ 1764 (1972). In the present case, the claims of the class
‘Since plaintiffs do allege individual claims, Univac’s arguments that
plaintiffs cannot represent the class because they have not stated
personal claims for relief and because they are not aggrieved persons
within the meaning of Title VIT are not persuasive.
A-32
are based on an identical theory which is central to all,
and the possible existence of discrete factual situations is
unimportant, particularly in a Title VII action where
courts exercise liberality in applying Rule 23(a) (3).
B. Rule 23(a) (4).
(1) Factual background—
4
The critical question regarding class certification under
Title VII is whether plaintiffs will fairly and adequately
represent the interests of the class. Rule 23(a) (4). De-
fendants direct the Court’s attention to five sources of al-
leged antagonism between plaintiffs and the class which
in defendants’ view demonstrates that plaintiffs cannot
be adequate representatives.
The first source of antagonism concerns plaintiffs’ man-
agement of union affairs from 1968 until 1970. In June
1968 plaintiff Elliott was elected president of the Local
and plaintiff Ambrose was elected to the Local’s Executive
Board. From that time until their removal from office in
1970 both plaintiffs were key figures in various disputes
within the Union. These difficulties began soon after
plaintiffs took office and centered on the organizational
structure and internal procedures of the Local. Plaintiffs
believed the office of president should be a full time posi-
tion, whereas certain other officers believed that oniy the
business manager should act in a full time capacity.
Plaintiffs prevailed on this issue, and beginning in the fall
of 1968 the Local operated with two full time officers. A
number of disputes arose concerning the respective re-
sponsibilities of the president and the business mauager
and concerning the Executive Board’s policy making
A-33
function. Other disagreements involved the sending of ten
union members to a labor law convention in Texas, the
handling of two controversial grievances, the tape record-
ing of union meetings, and the plaintiffs’ involvement in
antiwar activities.
In 1969 a prenegotiating committee was established in
anticipation of the 1970 contract negotiations. In the fall
of 1969 plaintiff Elliott retained an attorney to assist her
and the union in this regard. This action was strongly op-
posed by the business manager, who regularly employed
different counsel on behalf of the Local. Plaintiff Elliott’s
attorney introduced plaintiffs and other members of the
prenegotiating committee to a Mr. Morris. In the spring
of 1970 Morris spearheaded an attempted “raid” on the
Local by an unaffiliated union. This raid was initiated by
a mailing to all members of the Local. Elliott’s attorney
withdrew from representing the Local, stating his belief
that the raiding union would better represent Univac’s
employees than did the Local and noting his conflict of in-
terest. Defendants suggest that the mailing list used by
Morris came from plaintiff Elliott. In her deposition EI-
liott denied that she provided such a list, and both Elliott
and Ambrose stated that they had no prior knowledge of
the raid or of Morris’ involvement with the raiding union.
Beth plaintiffs signed a statement opposing the raid, Neither
plaintiff signed an authorization card for the raiding union.
Beyond this, neither took any steps to prevent the raid.
Plaintiffs assert that it was made clear to them that re-
sponsibility for such opposition lay with the business mana-
ger and not with the president or the Executive Board.
Ambrose prepared certain leaflets or flyers setting forth
members’ rights under the Labor-Management Report-
A-34
ing and Disclosure Act and sought to assure members of
their right to sign authorization cards for the raiding union
if they chose to do so. Ambrose believed that the Local
was attempting to intimidate its members, and she be-
lieved it was her responsibility as a union officer to at-
tempt to clarify members’ rights. She felt that the raid was
a useful lever in the impending negotiations. Defendants
argue that plaintiffs’ actions and inactions regarding the
raid constituted a serious breach of their fiduciary duties
as union officers.
It is clear to the Court that there were serious and re-
peated disagreements within the Local during this period.
These conflicts unquestionably involved the then union
leadership and the supporters of the opposing factions.
The extent of rank-and-file involvement is uncertain.
Defendants argue secondly that, apart from the actual
dissension which occurred from 1968-1970, plaintiffs, by
virtue of their positions as active and important union of-
ficers during this period, possess interests which inher-
ently conflict with those of the class. As vigorous advocates
for the rights of women and minorities, and as negotiators
of the 1970 collective bargaining agreement, plaintiffs may
indeed be the most important witnesses for the Local with
respect to questions of liability for the period when
plaintiffs were officers of the Local.
Third, in 1970 plaintiffs were removed from office by
the International and were suspended from holding of-
fices for five years. A trusteeship was imposed upon the
Local by the International. Since their removal, plaintiffs
have initiated proceedings against the defendant unions on
three occasions. In 1970 plaintiff Elliott brought an action
in Ramsey County District Court against the International
A-35
challenging her removal and seeking reinstatement. AI-
though the affirmative relief Elliott seeks in that case has
become moot, Elliott still desires to pursue that action in
order to vindicate herself. In 1971 plaintiffs brought
charges before the Secretary of Labor challenging the
Lecal’s election, which was held after the trusteeship was
removed. The Secretary found that plaintiffs’ charges
lacked merit. In 1974 plaintiffs again filed charges with
the Secretary of Labor, seeking tao have the 1974 Local
election set aside. The Secretary found merit in plaintiffs’
claim and has brought an action which is now pending in
Federal District Court in St. Paul. Since their removal
plaintiffs have also complained on numerous occasions to
the Local about a wide variety of matters. Defendants
characterize the bringing of these charges and complaints
as part of a pattern of attempted retaliation against the
unions for plaintiffs’ removal from office. Defendants
claim that the present action is likewise motivated in large
measure by plaintiffs’ desire for vindication and that
plaintiffs thus possess unique interests in this action which
are antagonistic to and are not shared by the class.
Fourth, defendants claim that the class itself does not
perceive plaintiffs to be proper or adequate representa-
tives. Following the filing of this lawsuit, the Local held a
regularly scheduled meeting on December 12, 1974. As
is customary, the meeting was conducted in two segments
to accommodate members who work on separate shifts.
At the second meeting 101 members were present. By a
vete of 83-0 a resolution was passed expressing nonsup-
port for this lawsuit. Subsequent to this meeting, the Lo-
cal’s business manager, Mr. Curley, received a number
of unsolicited petitions stating that the signators are not
a
A-36
involved in this action and do not wish to be represented
by the named plaintiffs. The petitions contain 372 signa-
tures.
Fifth. defendants note that plaintiffs have been acti-
vists in union affairs and that their disability from hold-
ing union office has now ended. Defendants argue that
plaintiffs may well attempt to run for office again and may
use this lawsuit to advance their political objectives. In
their depositions, plaintiffs indicate that they have no pres-
ent plans to campaign for office, but they have certainly
not ruled out that possibility, which has been suggested
to them by members of the Local. In view of plaintiffs’
ok-vivusly keen interest in union affairs, the probability
that these plaintiffs may again seek elective offices with-
in their union ‘s substantial.
(2) The nature of Title VII suits generally and of Title
VII class actions
In assessing whether this evidence of antagonism is
sufficient to demonstrate that plaintiffs do not satisfy
the requirements of Rule 23(a) (4), it is important to un-
derstand the nature of Title VII actions, for the rela-
tionship between Title VII and Rule 23 is in a sense
unique.
It is well recognized that when an individual plaintiff
brings an action under Title VII alleging a general policy
of discriminaticn, her lawsuit may be a vehicle for vin-
dicating important social policies and not only for righting
individual wrongs. Williams v. General Foods Corp., 492
F.2d 399, 406 (7th Cir. 1974). Not only racial discrimina-
tion, but sex discrimination as well, is by definition class
d'scrimination. Oatis v. Crown Zellerbach Corp., supra,
368 F.2d at 499; Bowe v. Colgate-Palmol've Co., 416
A-37
F.2d 711, 719 (7th Cir. 1969). It has been said that a
Title VII suit, “[w]hether in name or not, .. . is perforce
a sort of class action for fellow employees similarty sit-
uated.” Jenkins v. United Gas Corp., 400 F.2d 28, 33
(Sth Cir. 1968); Rodriguez v. East Texas Motor Freight,
505 F.2d 40, 50 (Sth Cir. 1974) (Wisdom, J.) (hereinafter
Rodriguez). It is familiar learning that a single charge of
employment discrimination may form the basis for a full
inquiry into the unlawful employment practices of de-
fendants. Parham vy. Southwestern Bell Telephone Co.,
433 F.2d 421, 425 (8th Cir. 1970); Wright v. Stone Con-
tainer Corp., 524 F.2d 1058, 1062 (8th Cir. 1975).
Since Title VII actions are inherently well adapted to
class action treatment, courts have been quite liberal in
applying the prerequisites of Rule 23(a) Rodriguez su-
pra. As a consequence, the question uf whether a court
in a non-class action is nonetheless empowered under Title
VII to grant appropriate class wide relief has arisen in-
frequently. In Sprogis v. United Air Lines, Inc., 444 F.2d
1194, 1201-1202 (7th Cir. 1971) (hereinafter Sprogis),
cert. denied, 404 U.S. 991 (1971), the Court held that:
‘
* ... Rule 23 to the contrary notwithstanding, the
district court possesses such power in Title VII cases.”
See, 7 Wright & Miller, supra, § 1771 at 663-64. cf.,
Peritz v. Liberty Lean Corp., 523 F.2d 349, 353 n.3 (7th
Cir. 1975) (Sprogis a specialized rule in Title VII cases,
which may or may not withstand intervening Supreme
Court decisions). The Fifth Circuit reached a contrary re-
sult in Danner v. Phillips Petroleum Co., 447 F.2d 159,
163-64 (Sth Cir. 1971), petition for rehearing and rehear-
ing en banc denied, 450 F.2d 881 (1971) (Tuttle, Brown
eee aN
A-38
and Wisdom, JJ., dissenting) (hereinafter Danner), a case
in which plaintiff sought relief solely on her own behalf
and never attempted to champion the rights of similarly
situated employees.
In the present case plaintiffs allege they have been
harmed by a policy of class-wide discrimination practiced
by defendants, and it seems probable that plaintiffs will
nroceed at trial by means of evidence, such as statistical
disparities, which demonstrates class discrimination, and
which calls for class relief. Should plaintiffs prevail on
their individual claims, it would be anomalous for a Feder-
a1 District Court, having found that class-wide discrimina-
tion is being practiced in contravention of Title VII, and
being armed by Title VII with a full panoply of equita-
ble powers to remedy such discrimination, to stay its hand
and in effect sanction the continued violation of Title VII.
Cf., Jenkins v. United Gas Corp., supra, 400 F.2d at
34 and n.15; but see, Danner, supra. In related circum-
stances courts have found that the duty of the judiciary to
grant full relief under Title VII mandates the joinder of
additional parties late in the proceedings, Gilmore v. Kan-
sas City Terminal Railway Co., 509 F.2d 48, 52-53 (8th
Cir. 1975), or the belated certification of the class for
purposes of back pay as well as for purposes of declaratory
ard injunctive relief. Bowe v. Colgate-Palmolive Co., su-
pra, 416 F.2d at 719-21; cf., Albemarle Paper Co. v.
Moody, 422 U.S. 405 (1975).
Although the Court must be attentive to granting full
relief under Title VII in appropriate cases, it is true that
on “. . . issues of procedural regularity and prejudice, the
‘broad aims of Title VII’ provide no ready solution.” 7d.,
422 US. at 425. While the Danner result certainly seems
A-39
incongruous in cases involving proof of class discrimina-
tion. the Sprogis result not only circumvents the Rule 23
procedure but may be unfair as well. Under Sprogis, if
plaintiff prevails, the entire “class” benefits; but if plaintiff
fails, none of the members of the “class” are bound. As
then Circuit Judge Stevens pointed out in dissent in
Sprogis:
“A procedure which permits a claim to be treated as
a class action if plaintiff wins, but merely as an
individual claim if plaintiff loses, is strikingly un-
tair.” 444 F.2d at 1207
The Eighth Circuit has not specifically addressed this
question, and it is unnecessary for this Court to resolve
the issue at this time. It is worth noting, however, that the
problems inherent in either approach evaporate if a class
action is certified. Avoidance of such unjust or anomalous
results is itself a cogent reason for certifying Title VII
class actions in the absence of peculiar or exceptional cir-
cumstances indicating that the class action form would be
improper.
Title VII class actions are best suited for treatment
under Rule 23(b) (2), since disccrimination under Title
VII is by nature action or inaction with respect to the en-
tire class and since Title VII’s remedies, including the
award of back pay, are all equitable in mature. See, Rich
v. Martin Marietta Corp., 522 F.2d 333, 341 (10th Cir.
1975) (and cases cited). While some courts hold that the
remedy of back pay may be granted under a (b) (3) class,
id., this Court finds the better view to be that the entire
Title VII case should be governed by (b) (2) and not (b)
{2). Wetzel v. Liberty Mutual Insurance Co., 508 F.2d
A-40
239, 252-53 (3rd Cir. 1975), cert. denied, 421 U.S. 1011
(1975): Jones v. United Gas Improvement Corp., 68 F.R.D
F.R.D. 1, 22 (E.D. Pa. 1975); Sagers v. Yellow Freight
System, Inc., 529 F.2d 721, 736 (Sth Cir. 1976); cf.,
Arkansas Education Association v. Board of Education,
supra, 446 F.2d at 768-69. This procedure accords with
the purposes of Title VII, which contemplates a full in-
guiry into defendants’ conduct and resolution of the issues
of liability and remedy in a single, comprehensive pro-
ceeding. Under 23(b) (2) no members of the class may
“opt out,” United States v. Allegheny-Ludlum Industries,
Inc.. 517 F.2d 826, 878 (Sth Cir. 1975); Wetzel, supra.
and the Rule 23(b) (2) procedure thus has a “superior”
res judicata effect and protects defendants from the risk
of repetitive litigation. This superior res judicata effect is
also beneficial to the Court in its determination of appro-
priate back pay awards. Under Title VII, the Court must
carefully articulate the reasons which justify a denial
or grant of back pay. Albemarle Paper Co. v. Moody,
supra, 422 U.S. at 421 n.14. This exercise of discretion
should be informed by a comprehensive view of the setting
of the case and obviously can better be exercised in the
context of the original Title VII action rather than in a
series of individual suits seeking back pay. If this suit is
appropriate for class treatment, it should be certified as a
class action under Rule 23(b) (2).
(3) Legal principles underlying Rule 23(a) (4,
Despite the universally recognized principle that Title
VII actions are peculiarly well suited to class treatment,
it is nonetheless true that not all Title VII cases are ap-
propriate class actions. There may be “peculiar circum-
A-4]
stances” justifying the withholding of class certification,
as when the discrimination complained of is unique to the
individual, or when the named plaintiff is an inadequate
class representative. Wright v. Stone Container Corp., su-
pra, 524 F.2d at 1062.
The requirement of Rule 23(a) (4) is crucial tc the
proper application of Rule 23 as a whole. Where an en-
tire class will be bound by the judgment in the action,
placing the fate of the class in the hands of an inadequate
representative is plainly repugnant to due process. Hans-
berry v. Lee, 311 U.S. 32 (1940). Effectuation of the
social policies embodied in Title VI? does not permit dilu-
tion of the due process rights of absent class members.
Judge Godbold’s admonition, stated in his special concur-
rence in Johnson v. Georgia Highway Express, Inc., 417
1122.1126, 1127 (Sth Cir. 1969), is well taken:
“It is tidy, convenient for the courts fearing a fiood
of Title VII cases, and dandy for the employees if
their champion wins. But what of the catastrophic
consequences if the plaintiff loses and carries the
class down with him, or proves only such limited
facts that no practice or policy can be found, leav-
ing him afloat but sinking the class?
* * *
“(When the problem [of due process to the em-
plovee] is multiplied many-fold, counsel, and at
times the courts, are moving blithely ahead tacitly
assuming all will be well for surely the plaintiff will
win and manna will fall on all members of the
class. It is not quite that easy.”
Even in Title VII cases, the Court must carefully scruti-
nize the adequacy of plaintiffs’ representation of the class.
A-42
“Developments in the Law: Employment Discriminaiton
and Title VII of the Civil Rights Act of 1964,” 84 Harv.
L. Rev. 1109, 1220-2! (1971); EEOC v. Detroit Edison
Co., supra, 515 F.2d at 311.
Rule 23(a) (4)’s requirement of fair and adequate rep-
resentation embodies two essential elements: (1) plaintiffs
must be represented by competent counsel who will ener-
gcticaily pursue the action; and (2) named plaintiffs must
not possess interests which are antagonistic to the interests
of the class. Eisen v. Carlisle & Jacquelin, 391 F.2d 555,
562 (2nd Cir. 1968). There is no doubt in this case that
plaintiffs are represented by able and vigorous counsel,
and the Court so finds. The issue is antagonism.
The general law of antagonism is set forth in Redmond
v. Commerce Trust Co., 144 F.2d 140, 151 (8th Cir.
1944). cert. denied, 323 U.S. 776 (1944) (hereinafter Red-
mond). Representation is inadequate,
“
. . when there is antagonism of interests within
the alleged class as to the subject matter. But this
antagonism must be as to the subject matter of the
suit.” (Emphasis supplied.)
See also, 7 Wright & Miller, supra, § 1768 at 638-39
and cases cited at n.90. Redmond is the “leading case”
on this question; it is unquestionably the law of this Cir-
cuit Arkansas Education Association v. Board of Educa-
tion, supra, 446 F.2d at 767. (employment discrimination).
The clearest case for application of the Redmond rule
is where the interests asserted by the class representative
directly conflict with the economic interests of the class,
and the rule has been uniformly followed in this situa-
tion. Maynard, Merel & Co. v. Carcioppolo, 51 F.R.D.
A-43
273, 277-78 (S.D. N.Y. 1970); Schy v. Susquehanna Corp.,
419 F.2d 1112, 1116-17 (7th Cir. 1970), cert. denied,
4C0 U.S. 826 (1970); Shulman v. Ritzenberg, 47 F.R.D.
202, 207-208 (D.D.C. 1969).
Decertification of class actions is not appropriate, how-
ever, when the evidence of antagonism is weak, or when
the potentially conflicting interest of the representative
party will not interfere with the representation of those in-
terests as to which there is no conflict. Knuth v. Erie-
* Crawford Dairy Coop. Association, 395 F.2d 420, 428
(3rd Cir. 1968); Mersay v. First Republic Corporation of
Americu, 43 F.R.D. 465, 468-71 (S.D. N.Y. 1968);
Vernon J. Rockler and Co. v. Graphic Enterprises, Inc.,
52 F R.D. 335, 342-44 (D. Minn. 1971) (Neville, J.).
While the question of antagonism properly focuses pri-
marily on the interests actually asserted in the lawsuit,
ccurts have not overlooked the possible existence of ul-
terior motives held by the representative party which may
work prejudice upon the absent class members.
“Thus, although the Court is interested in the ade-
quacy of representation, and not the motive for such
representation, should any ‘ulterior’ motives of
plaintiffs which are inimical to their ability to ade-
quately represent the other shareholders become man-
ifest, the Court is free to make appropriate adjust-
ments.” First American Corp. v. Foster, 51 F.R.D.
248, 250 (N.D. Ga. 1970).
In duPont v. Wyly, 61 F.R.D. 615, 622-24 (D. Del. 1973)
(hereinafter duPont), the Court ordered that the action not
proceed on a class basis, in part because of plaintiff’s
apparent desire to “wage war” on one of the defendants.
A-44
The precedential value of this holding on the issue of mo-
tive may be questionable for two reasons. First, the ques-
tion of motive was an alternative ground for decision. The
other basis for decertification concerned a “. . . direct and
specific conflict . . .” (a ground which alone is obviously
sufficient to justify decertification), and the existence of
this direct conflict was clearly the Court’s primary concern.
Sccond, the duPont Court doubted that Redmond meant
what it said. In this Court’s view, Redmond does mean
what it says and represents the prevailing and correct view
as to antagonism. Nonetheless, the duPont decision
points out important considerations relating to the question
of motive. The problem of antagonism is generally rem-
eaied by formation of subclasses, inviting intervention, or
through the exercise of additional powers lodged in the
Court by Rule 23. However, these supervisory powers are
net without limitations. In assessing the adequacy of a
party’s representation, the Court should take account of the
p:actical limits of its supervisory powers and should con-
sider whether a party’s motives are likely tu influence his
ccnduct of the litigation in a manner inconsistent with the
interests of the class and in a manner not susceptible to ef-
fective control by the Court. If the ulterior motive is truly
dominant and poses a genuine threat to class interests, the
class may be decertified. First American Corp. v. Foster,
supra.
Questions concerning Rule 23(a) (4)’s antagonism ele-
ment have arisen quite frequently in class action suits in-
volving union members or groups of employees. These
cases have “ . . . led to widely divergent results,” and it
often appears that decision nas turned . . . on the factual
setting of the case.” Gates v. Dalton, 67 F.R.D. 621, 630
A-45
(E.D. N.Y. 1975). While the cases are fact specific to a
large degree, the Court finds that the general principles
applicable in the nonunion setting have for the most part
been adhered to in the union/employee class cases.
It is clear that when an employee asserts a claim which
is directly antagonistic to the economic interests of the
class, a class action is inappropriate. Phillips v. Klassen,
502 F.2d 362, 366-67 (D.C. Cir. 1974), cert. denied,
419 U.S. 996 (1974); Carroll v. American Federation of
Musicians of the United States and Canada, 372 F.2d
155 (2nd Cir. 1967); Associated Orchestra Leaders vy.
Philadelphia Musical Society, 203 F. Supp. 755, 757 (E.D.
Pa. 1962); Sheridan v. Liquor Salesmen’s Union, Local 2,
€0 FR.D. 48, 52 (S.D. N.Y. 1973); Northwestern Nation-
al Bank v. Williamson, No. 4-73-Civ. 24 (D. Minn., May
20. 1975) (class action nonetheless maintainable in pecu-
liar circumstances since all those opposed to asserted class
interest were adequately represented by defendant). The
decisions are somewhat divided as to the propriety of class
treatment when the class is sharply divided over the relief
which plaintiff seeks when such relief here is not directly
antagonistic to the concrete interests of the class. In a
number of older decisions the existence of conflicting views
regarding the relief requested has led courts to order that
cases not proceed as class actions. Giordano v. Radio Cor-
poration of America, 183 F.2d 558, 560 (3rd Cir. 1950)
(legality of expulsion from union of plaintiff and his as-
sociates). Gray v. Reuther, 99 F. Supp. 992 (E.D. Mich.
1951), aff'd per curiam, 201 F.2d 54 (6th Cir. 1952)
(reinstatement in the union); Cox v. Hutcheson, 204 F.
Supp. 442, 446-47 (S.D. Ind. 1962) (injunctive claim under
Labor-Management Reporting and Disclosure Act). How-
A-46
ever, more recent decisions evidence a flexible approach
toward this problem. In Rota v. Brotherhood of Rail-
way, Airline & S.S. Clerks, 64 F.R.D. 699, 706 (N.D.
Ill. 1974) (rescission of a dues increase), a conflict regard-
ing the relief requested did not preclude class treatment,
since the position of those union members who opposed
plaintiff's claim was adequately represented by the defend-
ant unions. The Rota Court relied on Dierks v. Thompson,
414 F.2d 453 (1st Cir. 1969), as did this Court in
Northwestern National Bank v. Williamson, supra. The
Court in Gates v. Dalton, supra (dues increase), followed
a different approach. The Court noted that disagreements
concerning the relief sought might pose a“. . . sufficient,
genuine conflict . . .” such that the class should be decer-
tified. Id., 67 F.R.D. at 631. Nonetheless, the Court de-
clined to accept at face value a membership vote retro-
actively approving the dues increase. Rather, the evidence
of alleged antagonism was subjected to “close scrutiny,”
and the Court found that the record did not demonstrate
a clear and genuine conflict between plaintiff and the class.
This approach is entirely consistent with Judge Wis-
dom’s analysis of an antagonism issue presented in Rodri-
guez, supra, 505 F.2d at 50-51, where the Court tound
that a membership vote opposing the relief plaintiff sought
did not clearly reflect the actual preference of the class.
The Court went on to note that even if the vote were ac-
cepted at face value, the evidence of antagonism would
not justify dismissal of the class action. The trial court
cculd have shaped the class to avoid antagonism. Alter-
natively, where the only antagonism related to the relief
sought.
A-47
‘
‘. .. the court could have shaped the relief to avoid
any injustice to the dissenting class members. Dis-
trict courts have wide discretion in fashioning relief
under Title VII, [citations omitted]. And flexibility
and careful tailoring of judicial decrees in Title VII
Cases are the order of the day.” Jd., 505 F.2d at 51.
Gates v. Dalton and Rodriguez not only indicate that
seeming antagonism as to the relief sought may not be dis-
positive of the (a) (4) issue, these cases also demonstrate
a sound and realistic assessment of the evidentiary weight
to be accorded votes taken at union meetings. The per-
centage of the membership attending such mectings may
nct be large. The Court should not lightly assume that the
vote of a fraction of the members reflects the views of most.
Gates v. Dalton, supra (7/48). Moreoverz, the composition
of those voting may not be congruent with the class, id.,
Rodriguez, supra, and this fact casts further doubt on the
reliability uf evidence based on votes. This Court agrees
that when the evidence of antagonism rests on contrary
membership votes, such evidence “ . . . should be nothing
short of clear and convincing.” Gates y. Dalton, supra,
67 F.R.D. at 632.
The rule that antagonism must relate to the subject mat-
ter at issue has been almost uniformly followed and has
been adhered to by this Court. Buchholtz y. Swift & Co.,
62 F.R.D. 581, 597 (D. Minn. 1973). The mere existence
of internal union d’ssension or factionalism does not of it-
self defeat maintenance of a class action. Rota v. Brcther-
hood of Railway, Airline & S.S. Clerks, supra, 64 F.R.D.
at 706. In Dawson v. Delaney, 189 F. Supp. 416, 419
(D. Del. 1960), the membership was sharply divided as to
whom should be elected officers of the Local. However,
A-48
there was agreement that a trusteeship should be removed
and an election held, and this was the subject matter of
the lawsuit. The existence of an underlying but separate
political conflict was found to be immaterial as to whether
plaintiffs could represent the class. In Sheridan v. Liquor
Salesmen’s Union, Local 2, supra, plaintiffs, members of a
“political clique,” had raised a “furor” within the union
in the course of their campaigns for elective office. Al-
though the Court took note of this conflict and of the fact
that plaintiffs had been unsuccessful in seeking office, the
Court recognized that this factor “. . . is only entitled to
slight weight... .” Id., 60 F.R.D. at 54.
The Court in Sheridan, id., suggested that since some
members of the class were union officers or agents, a class
action would be improper because:
ce
. . . [nJo such person should be part of a class
action where he is, in effect, complaining of his own
actions, or wrongs committed against the class, to
which he was a party.” Jd., 60 F.R.D. at 55.
To the extent that union officers are merely members of
the unnamed class, this difficulty is not insurmounteble,
for a class can be easily fashioned which excludes such
persons as members and avoids any inherent conflicts of
interest. More fundamentally, this Court does not believe
that union officers or former officers are necessarily dis-
enabled from serving as named representatives when the
interests asserted are solely those of.the union member
qua employee and not those of the union member qua
officer. The Court in Lynch v. Sperry Rand Corp., 62
F.R.D. 78, 82 (S.D. N.Y. 1973), so held, despite a finding
that the union itself was prevented from acting as a class
A-49
representative because of serious potential conflicts of in-
terest. Cf., Vernon J. Rockler and Co. v. Graphic Enter-
prises, Inc., supra; Mersay v. First Republic Corporation
of America, supra.
The mere fact that members of the class may not con-
Sider it wise to sue the union is immaterial. Gates v. Dal-
ton, supra, 67 F.R.D. at 631. This position is particularly
important in Title VII actions, for the Eighth Circuit
has recently stated that the failure of a plaintiff to join the
relevant unions as defendants cast doubt on the adequacy
of the class representative. Wright v. Stone Container
Corp., supra, 524 F.2d at 1062. Unions are by nature po-
lirical entities. Political differences within unions are not
uncommon; nor is it uncommon for union members to op-
pose as disloyal the bringing of actions against the union.
If these factors were sufficient to justify decertification
under Rule 23(a) (4), the class representative would often
be confronted with an impossible choice. Where there were
divisions within the union, the representative could forego
suing the union, but this decision might itself brand the
representative as inadequate. Alternatively, the union could
be joined as a defendant, but if generalized and undiffer-
entiated displeasure with this course were legally sufficient
to characterize the representative as inadequate, the class
sction again would fail. This “Catch 22” would foreclose
class actions against both the union and the employer. The
result would be irrational and inefficient and wouid se-
verely undermine the effectiveness of Rule 23 in advancing
the important social policies embodied in Title VII. This
Court eschews such a course.
These Rule 23(a) (4) principles may be summarized
as follows: (1) the antagonism which will defeat main-
A-50
tenance of a class action must relate to the subject matter
in controversy, as when the representative’s claim con-
flicts with the economic interests of the class; (2) disagree-
ments as to the remedy do not necessarily defeat a class
action, especially in Title WII cases where the Court has
broad powers in fashioning appropriate remedies; (3) the
mere existence of political divisions or factionalism with-
in a union does not require class decertification; (4) dis-
agreements as to the wisdom of « union member’s suing
the union are not a proper basis for decertification; (5)
union officers are not necessarily disenabled from suing on
behalf of union members when the interests asserted are
solely the interests of members and employees; (6) evidence
of antagonism based on membership votes should be care-
fully scrutinized and should be clear and convincing; and
(7) while questions of motive are secondary, the Court
should be cognizant of the limitations of its supervisory
powers and should be sensitive to the possible existence of
ulterior motives which might jeopardize the interests of the
class.
(4) Application of Rule 23(a)(4) principles in this case
The Court finds that the evidence of antagonism between —
named plaintiffs and the class is insufficient to justify class
decertification. The first source of antagonism is remote
in time and, more importantly, does nut concern the sub-
ject matter at issue in this case. The dissension existing
between 1968 and 1970 centered on the internal structure
of the union, This was a political dispute, or a series of
political disputes. At best this would be entitled to “slight
weight.” Since the source of antagonism is remote, and
since plaintiffs prevailed on most of the disputed issues,
A-51
contrast, Sheridan v. Liquor Salesmen’s Union, Local
2, supra, the Court concludes that these events are entitled
tc no weight whatsoever. The claim that plaintiffs demon-
strably failed to protect the class in connection with the
attempted raid is not persuasive. The raid itself is remote
in time. The evidence that plaintiffs participated in or en-
couraged the raid is based on hearsay and is equivocal,
and the sworn statements of both plaintiffs are to the con-
trary. Plaintiffs’ testimony that they were required to take
a “hands off” policy regarding the raid is unrebutted.
Plaintiff Ambrose’s activity in attempting to inform mem-
bers of their rights is certainly remarkable, but if anything
this course of conduct reflects an acute concern that mem-
bers of the class be aware of and freely exercise their
rights under the law and not an antagonism to class in-
terests.
The second source of antagonism, an inherent conflict
of interest stemming from plaintiffs’ status as former union
officers, is more troubling. In a sense this conflict does re-
late to the subject matter in controversy, viz., the Local’s
liability for discriminating against its female members.
The problem, of course, is that plaintiffs may be wearing
two hats at trial: one as former union officers defending
their actions, and a second as employee/members com-
plaining of the inaction of their union. However, the ex-
tent of the conflict of interest in this situation is not clear.
The conflict appears to exist only as to one defendant. As
to this defendant, the conflict relates only to a two year
period and relates only to the issue of liability. The ques-
tion of liability spans the entire period from the enactment
of Title VII to the present and, since plaintiffs allege con-
tinuing violations, will extend to the time of trial. It is not
A-52
at all clear that evidence bearing on liability from 1968
to 1970 will be necessary or important for assertion of the
class claim against the Local. The conflict alleged is sole-
ly an inherent one. The likelihood that plaintiffs might
themselves be liable to the class is utterly remote and
speculative. The record contains no evidence which would
point toward such liability. Cf., Vernon J. Rockler and
Co. v. Graphic Enterprises, Inc., supra, 52 F.R.D. at 341-
42. The Court is satisfied that plaintiffs will vigorously
advance the interests of the class and that the conflict of
interest identified by defendants will not detract from the
presecution of the class claims. The fact that plaintiffs
may be required to testify at trial in dual roles should not
prejudice the class. There is no right to jury trial in Title
VII cases, and thus there is no danger of jury confusion.
This Court is presumptively capable of segregating that
testimony which is offered on behalf of the empioyees
from that which is elicited in defense of the union, Plain-
tiffs. if called to testify for the union, must answer truth-
fully regardless of their status as representative parties. and
the Local’s ability to defeat the class claim is not affected
by plaintiffs’ representative capacity. The Court concludes
that plaintiffs’ tenure as union officers does not preclude
their representation of employee interests in this case. If
anything, plaintiffs’ prior experience in union affairs is
likely to augment their adequacy as class representatives.
Buchholtz v. Swift & Co., supra, 62 F.R.D. at 598.
The third source of antagonism, concerning plaintiffs’
reaction to being removed from office and the filing of
charges against the unions, does not relate to the subject
matter in controversy. Defendants’ argument focuses on
motive, which the Court discusses below. It may be that
A-53
defendants, by arguing that this action is simply a per-
sonal vendetta, also mean to imply that plaintiffs’ claim
is without merit. Questions running to the merits of the
case are not cognizable on a motion seeking class determin-
ation, as defendants admit. Eisen v. Carlisle & Jacquelin,
417 US. 156, 177 (1974).
The expressions of class displeasure with plaintiffs’ rep-
resentation are inadequate evidence of antagonism for two
reasons, First, the expressions themselves are highly unre-
liable. The vote taken at the union meeting occurred short-
ly after this suit was filed. Business manager Curley did
attempt to explain the lawsuit to those present, but he was
uncertain whether he had even read the pleadings at that
time He erroneously explained that the lawsuit involves
beth racial and sexual discrimination. It is not at all clear
what assumptions underlay the vote. Rodriguez, supra.
The circumstances surrounding the signing of the petitions
are even more obscure. Univac has a company rule for-
bidding the circulation of such petitions, and it appears
that the signatures were executed in a clandestine environ-
ment It is unknown who circulated the petitions or what
was said to the signators.
Neither the vote nor the petitiums are congruent with
the class. At the December 12 meeting 101 members were
present; the vote was 83-0. Forty-one of those present were
male.” A number of the petition signators were also males.
Some signatures are duplicates; it is unknown how many
signators also voted at the union meeting. While the precise
number of class members who had opposed this suit is un-
clear, the proportion is roughly the same as that in Gates
*Ten members are recorded by first initials only; the sex of others. such
as “Jan.” “Jean” and “Pat,” is unclear on the record. None of these
is included in the Court’s figure of 41.
A-54
v. Dalton, supra, where the Court found that the fraction-
al vote was an unreliable indicator of class sentiment. This
evidence of antagonism is a good deal less than clear and
convincing.
The deposition testimony of plaintiffs, of business man-
ager Curley, and of Douglas Boyce, provides no better
evidence of antagonism. The plaintiffs admit that there is
some opposition to their suit, especially among the union
leadership, but they believe that most people support them.
Mr. Boyce likewise believes that most of the women in his
area support the plaintiffs. Mr. Curley, on the other hand,
believes that opposition to plaintiffs is strong and wide-
spread. All these opinions were based on hearsay, multiple
hearsay and ccniecture. These personal samplings of class
oninion demonstrate little more than that there is some
opposition to the suit among the class, the degree and na-
ture of which is unknown.
The second difficulty with defendants’ evidence of class
antagonism is this: while the assumptions underlying the
vote and the petitions are not known, the available evi-
dence suggests that most objecting class members were
simply upset with the fact that a union member was suing
her own union. Although Mr. Curley stated that he did
not know why each member voted against the suit in De-
cember 1974, he indicated that the primary issue discussed
at that meeting was the fact that the Local was being
sued by its own members. The minutes of that meeting
reflect this concern:
“Members questioned Pres. Curley on action that
could be taken against these members (Helen Am-
brose & Delores Elliot[t]) for violating there [sic] oath
A-55
as a *nember & also what action could be taken to
show that they do not suprort this suit.
“Pres. Curley stated that the members should take
any action on their own. The local is a defendant &
should not try to influence the members.” (Emphasis
supplied.)
A great muny of the petitions refer only to the fact that che
Local is being sued and indicate that the signers do not
wish to be party to such action. To the extent that defend-
ants’ evidence of antagonism reflects the view of class
members that it is disloyal and improper for a union mem-
ber to sue her own union, the antagonism is of a type
which can have no bearing on certification of a Title VII
class.
It is unclear to what degree, if any, the alleged class an-
tagonism extends beyond this generalized displeasure.
Moreover, there is no evidence that the class believes that
the claims advanced here conflict with the concrete inter-
ests of the class. There is no evidence that the class is
opposed even to the relief sought, except perhaps insofar
as relief may involve the Local. At best, it appears that cer-
tain class members may be opposed to the named plaintiffs
acting as representative parties. Since this antagonism
seems to stem from political differences and from a feel-
ing of disloyalty and has nothing to do with the subject
matter of this lawsuit or the interests of the class in this
lawsuit, and since the evidence of even this antagonism is
less that clear, the fourth source of antagonism is not a
basis for class decertification.
The fifth source of conflict of interest, like the third,
poses the problem of motive. It is not unlikely that plain-
A-56
tiffs will participate in the political affairs of their union,
and it is not inconceivable that plaintiffs will attempt to
pursue this action so as to advance their political purposes.
The Court’s supervisory powers are not perfect, and
this is particularly true in relation to plaintiffs’ acceptance
or rejection of settlement offers which may or may not be
beneficial to the class. duPont, supra. Additionally, even
if plaintiffs actually possess no dominant ulterior motives,
there is a danger that the class itself will perceive this law-
suit as merely a vehicle for advancing plaintiffs’ personal
and political goals. Such a perception could threaten
nl.intiffs’ ability to pursue class interests. for suspicion on
the part of the class might foreclose access to sources of
vroof. For example. if class members feel that this action
is alien to them, they might refuse to provide the Court
with the information necessary to determine appropriate
back pay awards, relinquishing rights which might have
been asserted were the class representative more personal-
lv compatible with the class.
The problem of ulterior motives, and of class percep-
tion of motives, does not warrant decertification at this
time. As noted above, the evidence of present class antag-
onism or suspicion is far from clear. Since the Court finds
that some notice to the class wi'l be necessary under Rule
23(d) (2), ante, it will be possible at that time to de-
termine the degree and nature of antagonism and to judge
the appropriateness of intervention by additional class
members, whose presence as named parties could vpbviate
the danger of perceived antagonistic motives.
The supervisory powers vested in the Court are not all-
encompassing. However, in the task of protecting the class
from conflicting interests or ulterior motives, the Court
A-57
dees not stand alone. Counsel for the class are officers of
the Court. When attorneys undertake representation of a
class, each member of the class becomes a client. The
representative party’s attorney thus owes a duty of loyalty,
and a duty of zealous representation not only tc the
named party but to all absent parties as well. This Court
is of the view that if the named parties in this case attempt
to manipulate the conduct of this action so as to further
their solely personal interests, or if the representative par-
ties take any action which is inimical to class interests or
poses a danger of potential conflict of interest with the
class. counsel’s ethical obligations to their class clients and
to the Court would require corrective action and disclosure
t~ the Court.” Such responsible action by counsel is essen-
tial to make Rule 23 function efficiently and fairly. In the
Court’s view, the strict Redmond rule is premised on the
belief that courts can rely on counsel to prevent ulterior
motives or other considerations not bearing on the subject
matter in controversy from affecting the prosecution of
common legal interests. The teaching of Redmond suggests
that a class action should not be decertified because of
concerns bearing on ulterior motives except in exceptional
cases, as where the ulterior motive is so clearly dominant
that it is doubtful that the attorney for the class will be able
te control the named party, cf., duPont, supra, or where
ccunsel has demonstrably failed to exercise effective con-
trol
To date the common interests of the class have been
diligently pursued by the named parties and their attorreys.
*Plaintiffs could have sued in their individual capacities, and had they
done so they would have been entitled to pursue their legal interests
in a manner consonant with their ulterior motives, if any. In repre-
senting a class, however, the named parties and their counsel are re-
quired to look only to the common legal interests of the class.
A-58
The problem of motive looks to the future; the danger is
speculative. The Court cannot say that its supervisory
powers under Rule 23 will be inadequate to cope with
any problems of ulterior motive which may develop and
as to which the Court will be appropriately appraised by
counsel for the class.
In sum, in this Title VII action plaintiffs assert legal
interests which are common to the entire class and seek
relief which will inure to the benefit of ihe entire class. The
Court perceives no concrete or direct conflict between
plaintiff:’ interest under Title VJI and the interests of
ciass members. Plaintiffs and their counsel have vigor-
ously represented the class thus far, and the Court is satis-
fied that they will continue to do so. The conflicts of in-
terest identified by defendants are tangential and are al-
most entirely immaterial to the issues posed in this case.
Heretofore. these conflicts have not prejudiced class irter-
ests. Should genuine conflict arise in the future, the Court,
being advised by counsel for the class, may remove any
antagonism or, if necessary, decertify the class.
II. CERTIFICATION OF APPROPRIATE CLASS,
NOTICE, AND PARTIES.
Plaintiffs satisfy the prerequisites of Rule 23(a), and
this action shall be certified as a class action under Rule
23(b) (2). Such certification is conditional. Since broad
injunctive and declaratory relief is often appropriate in
Title VII cases, a class includirg both former and future
employees and union members is appropriate. The Court
believes that including within the class those who “would
have” become employees is unnecessary for granting what-
ever relief may be necessary and would constitute an over-
A-59
lv vague class definition. The class shall be defined as
former, present and future employee/union members.
Since this action shall proceed as a class action, it is
appropriate and consistent with the Court’s duties under
Rule 23 to provide the parties with some direction. The
Court finds that some notice to class members who may
be entitled to back pay should be provided under Rule
23(d) (2). This conclusion rests on two grounds. First,
it appears that the award of back pay may turn on“...
the equities of individual cases... .” Albemarle Paper Co.
v. Moody, supra, 422 U.S. at 413. The determination of
back pay awards should be made on an individualized
basis, Johnsen v. Goodyear Tire and Rubber Co., 491
F.2d 1364 (5th Cir. 1974), and such a decision should
follow notice directed to the class. Williams v. Locai No.
19, Sheet Metal Workers International Association, 59
F.R.D. 49, 56 (E.D. Pa. 1973). While “ . . . experience
teaches that such notice may come late in the litigation
_.. United States v. Allegheny-Ludlum Industries, Inc.,
supra, 517 F.2d at 878, a second consideration indicates
that earlier notice is appropriate in the present case. Al-
though the evidence of antagonism in this case is not of a
type which justifies class decertification, there are legit-
mate grounds for concern that some, and perhaps many,
class members may be opposed to the conduct of this suit
by the named parties and that such members of the class
might abandon their potential claims for back pay simply
because of the identity of the representative parties. Al-
though the Court is powerless to prevent class members
from foregoing the assertion of their legal rights, reason-
able steps should be taken to determire the degree and
nature of class antagonism so that measures may be fash-
A,-60
ioned for reducing such antagonism. The (2) (2) notice
procedure is an appropriate mechanism for exploring
problems of antagonism, reducing confusion within the
class, and formulating necessary orders. 7 and 7A, Wright
& Miller, supra, § 1768 at 651, § 1793 at 209-210 The
parties should proceed with discovery not only as to the
merits but also for the purpose of defining an appropriate
back pay class and determining the names and current
mailing addresses of such class members. When such dis-
covery is complete, the parties should submit to the Court
proposed notices. At the least, the notices should concisely
explain the nature of this lawsuit, explain that all persons
will be bound by the judgment in this case, explain that the |
recipients may at some future date be entitled to an award
of back pay, enumerate those types of evidence which the
employees should retain for proof of their back pay claims,
and elicit responses on the issue of antagonism. These
responses should seek information as to the following:
(1) whether the recipient is opposed to this lawsuit; (2)
if there is opposition, what the source of that opposition
is; (3) whether the recipient would desire to intervene in
this case either with her own counsel or with counsel! pres-
ently representing the class; and (4) if there is opposition
and if the recipient does not wish to intervene, whether the
recipient would wish to see other class members intervene,
and, if so, whom the recipient feels would be appropriate
intervenors, The cost of such notice must be borne by the
class representatives. Eisen v. Carlisle & Jacquelin, supra,
417 US. at 177-79.
The Court notes that the EEOC “right to sue” letter at-
tached to the complaint appears to name only the Local
as a respondent. The caption is somewhat ambiguous, and
A-61
it is not inconceivable that the International as well as the
Local was charged before the EEOC. However, :f only
the Local was a respondent, there may be an impediment
in this case to the granting of complete relief. Plaintiffs
complain of discrimination on the part of all three defend-
ants. Where unions are guilty of discrimination, they must
be joined as defendants. Gilmore v. Kansas City Terminal
Railway Co., supra, 509 F.2d at 52-53. When non-joinder
threatens to frustrate a Court’s exercise of Title VII re-
medial powers, the Court may act sua sponte to order the
unions joined, as did the Eighth Circuit in Gilmore. How-
ever, it may be necessary for administrative charges to
have been filed with and processed by the EEOC before a
proper joinder may be effectuated. Norman v. Missouri
Pacific Railroad, 414 F.2d 73, 84-85 (8th Cir. 1969); 42
U.S.C. § 2000e-5(f(1) (“. . . a civil action may be brought
against the respondent named in the charge... .”). If
plaintiffs have not heretofore brought a charge against the
International before the EEOC, they should do so im-
mediately.
IT IS ORDERED:
1. That defendants’ motions that this case not proceed
as a Class action are granted as to plaintiffs’ claims arising
under the Back Pay Act and as to plaintiffs’ claims for
breach of the duty of fair representation and for breach
of contract. Said motions are denied as to plaintiffs’ Title
VII claims.
2. That plaintiffs’ motion for class certification is
denied as to plaintiffs’ Back Pay Act, breach of duty of
fair representation and breach of contract claims. Said
motion is granted as to plaintiffs’ Title VII claims.
A-62
3. That the Title VII class is hereby conditionally cer-
tified and is defined at this time to include former, present
and future female employees of defendant Univac employed
at its plants in and near St. Paul, Minnesota, and who are,
have been, or will be members of defendants Local and In-
ternational, for the period commencing on July 2, 1965,
and continuing to the date of trial.
4. That denial of plaintiffs’ motion for certification of
a class action as to the duty of fair representation/breach
of contract claims is conditional. Denial of said motion with
respect to the Back Pay Act claims is not conditional.
5. That the parties, in addition to proceeding with dis-
covery on the merits, also pursue such discovery as will
identify the names and current mailing addresses of class
members who may be entitled to an award of back pay
under Title VII.
6. That upon the completion of such discovery, the
parties submit to the Court proposed forms of notice to be
mailed to members of the class pursuant to Rule 23(d) (2).
May 27, 1976.
/s/ Earl R. Larson
United States District Judge
wi ebibieedidin
A-63
NOTICE OF CLASS ACTION
PLEASE READ THIS CAREFULLY
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FOURTH DIVISION
Delores Elliott, Helen Ambrose and all persons similarly
situated,
Plaintiffs,
vs
Sperry Rand Corporation, a Delaware corporation, the
International Brotherhood of Electrical Workers, AFL-
CIO, and Local Union No. 2047 of the International
Brotherhood of Electrical Workers,
Defendants.
No. 4-74 Civil 627
TO: PLAINTIFFS AND CLASS MEMBERS
There is pending in the United States District Court for
the District of Minnesota, Fourth Division, a class action
lawsuit against Sperry Rand Corporation, the Internation-
a! Brotherhood of Electrical Workers (IBEW), and Local
Union No. 2047 of the IBEW, alleging that these defend-
ants violated Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000e, et seq.
This notice is directed to you because you may be af-
fected by this litigation. The notice is not to be understood
as an expression of opinion by this Court as to the merits
o’ any of the claims or defenses asserted. Rather it is given
solely for the purpose of informing you of the pendency
A-64
o* this action so that you may decide what steps you
wish to take in regard to it.
The complaint in this lawsuit alleges that Sperry Rand-
Univac, the IBEW and Local Union 2047 discriminate,
and have discriminated in the past, in a number of ways
a2ainst women at Univac’s Twin Cities locations. The
lawsuit seeks an Order from the Court forbidding the de-
fendants from further discrimination and for an Order rec-
titying past discrimination to include the award of back
pay and money damages.
The defendants have denied the allegations contained
in the complaint and further deny any liability.
Or. May 27, 1976, the Court determined that plaintiffs
Delores Elliott and Helen Ambrose were proper repre-
sentatives of a class consisting of:
“Those present and future female employees of de-
fendant Univac employed at its plants in and near
St. Paul, Minnesota. and whz are or will be members
of defendants Local and International, up until the
date of trial; and those former female employees who
were employed by defendant Univac at its plants in
and near St. Paul, Minnesota, and who were mem-
bers of defendants Local and International, on Sept-
ember 4, 1972, or thereafter.”
All persons who fit within the above class definition
and who do not request to be excluded from this action
will be deemed members of the class, will be represented
bs the named plaintiffs in this action and will be bound
by the judgment of this Court in the action, whether favor-
able or unfavorable to the class. In this regard, a ques-
ticnnaire has been attached to this Notice. Please read this
A-65
questionnaire and return it to the Clerk of Court indicating
appropriate answers in the spaces provided.
It may be necessary during the course of this litigation
to provide the Court with certain information about your
employment with Univac. Therefore, you should attempt
to make a record or keep a record or other factual sup-
port for proof of (a) the job classification(s) you held dur-
ing your employment with Univac; (b) the number of
times and the dates on which you may have applied for
other positions at Univac; (c) the dates of any changes in
ysur position or job classification at Univac; (d) the date
of your hiring and, if applicable, the date of your termin-
avon.
Please address any communicatiuns or inquiries you may
have concerning the conduct of this action to the Clerk of
Court, United States District Court, District of Minnesota,
Fourth Division, P.O. Box No. 2230 Loop Station, Min-
neapolis, Minnesota 55402.
/s/ Earl R. Larson
EARL R. LARSON
UNITED STATES SENIOR DISTRICT JUDGE
A-66
C.erk of Court
United States District Court
P.O. Box No. 2230 Loop Station
Minneapolis, Minnesota 55402
Re: Delores Elliott, Helen Ambrose, and all other per-
sons similarly situated v. Sperry Rand Corporation, the
International Brotherhood of Electrical Workers, AFL-
CIO, and Local Union No. 2047, 1.B.E.W. No. 4-74
Civil 627.
79
Ambrose HelenM. 000003271
3528-27th Ave. S.
Mpls. Minn. 55406
BEFORE COMPLETING THIS QUESTIONNAIRE
READ THE NOTICE ATTACHED.
1. Do you favor or oppose this lawsuit being brought
on your behalf by Delores Elliott and Helen Am-
brose?
“Mark X indicating your choice.)
I favor this lawsuit
T oppose this lawsuit
2. If you answered “I oppose” to question (1) above,
please set forth below the reason for your opposition.
3. Do you wish to participate as a member of the class
in this lawsuit and be represented by the attorneys
for the class?
Yes Nec
A-67
4. Do you wish to participate in this lawsuit with your
own attorney?
Yes No
5. If you do not wish to participate but desire that others
participate, please specify the names of these other
individuals.
EXCLUSION REQUEST
(COMPLETE THIS PORTION ONLY IF YOU DE-
STRE TO BE EXCLUDED FROM THE CLASS IN THIS
I ITIGATION.)
6. I acknowledge receipt of the notice attached and
wish to be excluded from this litigation.
Date: , 1979.
AFTER YOU HAVE ANSWERED THE QUESTIONS
ASKED ABOVE, PLEASE PROVIDE THE FOLLOW-
ING INFORMATION AND RETURN THIS QUES-
TIONNAIRE BY AUGUST 6, 1979.
Date: , 1979.
Name:
Address:
QUESTION NO. 4: How much of any money damages
awarded to Delores Elliott and Helen Ambrose on behalf
of the class might the IBEW and Local 2047 be re-
sponsible for?
ANSWER: This would be determined by the Court after
hearing all the evidence. Until all the evidence is heard,
A-68
it is difficult to say. It is possibte, however, that the In-
ternational and Local Unions might be held responsible
for a portion of any back pay and money damages
awarded.
QUESTION NO. 5: How wouid the IBEW and Local
2047 pay any back pay of money damages for whicn they
are held responsible?
ANSWER: The IBEW would attempt to pay its share
out of its own funds as available. Local 2047 would at-
tempt to pay its share out of its own funds and if its own
funds on hand were insufficient, it is possible that the Lo-
cal Union could, by secret vote of its membership, assess
att of its members to cover its share.
QUESTION NO. 6: How will this case affect me as an
employze of Sperry Rand and as a present or past mem-
ber of the International Union and the Local Union?
ANSWER: If the plaintiffs establish sex discrimination,
the Court has the power and the authority to issue an Or-
der forbidding further discrimination and to award back
pay and money damages. You would be covered by the
Court’s Order forbidding further discrimination. It you
are determined to have been discriminated against, you
may also be entitled to back pay and money damages.
At the same time, as 2 member of the Local Union, it is
pessible that you might be assessed some amount of mon-
ey. as a result of a secret vote by the Union membership,
t help the Local Union pay its share of any back pay or
money damages for which it is he!d responsible.
Regardless of the outcome of this lawsuit, neither Sper-
ry Rand nor the Local Union has any right to fire, de-
mote or otherwise terminate your employment with the
Cumpany or your membership in the Local Union as a
id Nie dabendiobten narra foe
A-69
result of any activity or conduct on your part in this law-
suit.
If you have any further questions or other communica-
tions pertaining to the matters discussed above, please ad-
dress those questions in writing to:
Clerk of Court, United States District Court
P.O. Box 2230 Loop Station
Minneapolis, Minnesota 55402
Please be sure to include your name and address in any
correspondence with the Clerk of Court.
SETTLEMENT NOTICE
A copy of the Stipulation of Settlement and other papers
relating to this lawsuit are on file with the Clerk of the
United States District Court, 110 South Fourth Street,
Minneapolis, Minnesota. You may inspect these documents
at the Clerk’s office between 8:30 am. and 5:00 p.m.,
Monday through Friday.
The Court must approve this settlement. The Court
has scheduled a hearing to be held on July 27, 1981, at
9:00 a.m. at the United States Courthouse in Minneapo-
lis to determine whether the proposed settlement is fair,
reasonable and adequate and should be approved by the
Ceurt.
You are entitled to object to all or any part of the set-
tlement and to have your objection ruled upon by the
Court. IF YOU WISH TO OBJECT TO THE APPROV-
AL OF THIS SETTLEMENT, YOU MAY APPEAR AT
THE HEARING AND SHOW CAUSE, IF ANY, AS TO
WHY THE SETTLEMENT SHOULD NOT BE AP-
PROVED AS FAIR, REASONABLE, AND ADEQUATE
AND WHY THIS ACTION SHOULD NOT BE DIS-
MISSED ON THE MERITS AND WITH PREJUDICE
AS TO DEFENDANTS.
A-70
If you wish to object to the settlement, your objection
must be submitted in writing tu the Court and must be
received by the Court no later than July 20, 1981. Your
objection should be mailed to:
Clerk of United States District Court
110 South Fourth Street
Minneapolis, Minnesota 55401
with copies mailed to:
J. Richard Bland, Esq
Bradley M. Jones, Esq
2250 IDS Center
Minneapolis, Minnesota 55402
David S. Doty, Esq.
Sally A. Johnson, Esq.
4344 IDS Center
Minneapolis, Minnesota 55402
Hyman Edelman, Esq.
William Z. Pentelovitch
1800 Midwest Plaza
Minneapolis, Minnesota 55402
James T. Hansing, Esq.
1208 Plymouth Building
Minneapolis, Minnesota 55402
You may consult and retain your own legal counsel
if you desire. You may also address questions to:
J. Richard Bland, Esq. or
Bradley M. Jones, Esq.
2250 IDS Center
Minneapolis, Minnesota 55402
Telephone: (612) 338-0661
A-71
If you fail to object in the manner prescribed herein,
you will have waived your objection, you will be bound by
the Court’s determination, and you will be foreclosed for-
ever from raising an objection without special permis-
sion of the Court.
In the event that the hearing un this settlement does
nct resolve all questions or objections on July 27, 1981,
the Court may order further proceedings to be held No
further notice will be sent to you regarding any such con-
tinuations of the hearing or related proceedings unless
ordered by the Court.
BY THE COURT
/s/ Earl L. Larson
United States District Court Judge
Dated: May 21, 1981
A-72
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF MINNESOTA
670 U. S. COURT HOUSE
MINNEAPOLIS, MINNESOTA 55401
March 27, 1985
CHAMBERS OF
EARL R. LARSON
Senior Judge
Mr. Robert D. St. Vrain,
Clerk, U. S. Court of Appeals
U. S. Courthouse and Customs House
1114 Market Street
St. Louis, MO. 63101
Re. Elliott, et al v. Sperry Rand, et al
4-74 Civil 627
#84-5183
Dear Mr. St. Vrain:
A response to the Ambrose letters of March 11 and
March 17, 1985 should perhaps not be necessary.
Ms Ambrose states that the law firm of Lindquist &
Vennum was identified at the start of the law suit as
counsel for Teamsters Local Union No. 970. The law suit
was filed in 1974.
I became a Judge in August 1961 and at that time com-
pletely severed my relationship with my former firm. I
enforced a three year deadline during which time I took
no cases involving my old firm. The firm continued as
Lindquist, et al and in 1968 merged with Vennum et al
and became Lindquist & Vennum. None of the Lindquist
et al or Lindquist & Vennum lawyers who appeared before
me after 1964 were in the Larson et al firm in 1961 or
prior thereto.
A-73
I have no knowledge as to whether or at what point in
time Lindquist & Vennum might have represented Local
970.
Ms. Ambrose refers to a statement in a Sperry Rand
brief that I came to the bench with an extensive labor
background. I practiced little, if any, labor law. Counsel
for Sperry Rand may have been thinking of Leonard
Lindquist with whom I started the firm in 1946. Mr.
Lindquist has an extensive background in labor arbitra-
tion. Since 1961 I have been involved in a number of cases
and disputes involving labor and management. This is true
of all Judges. I feel that I have- followed the law in the
resolution of these disputes.
In the second letter Ms. Ambrose refers to two law
clerks who later became members of the Hvass, et al
law firm. Once a law clerk tells me of a decision to join a
certain law firm I no longer permit the law clerk to do any
work involving that law firm. For a period of three years
I do not take any cases in which a former law clerk will
participate.
Since 1970 Ms. Ambrose has been engaged in a series
of attacks directed to her Local Union, the International
Union, her employer, three of her law firms and now my-
self The Court of Appeals is the next likely target.
Sincerely,
/s/ Ear! R. Larson
Ear! R. Larson
Senior, U. S. District Judge
ERL/jep
c>* Ms Helen M. Ambrose
3528 27th Avenue So.
Minneapolis, MN. 55406
A-74
LAW OFFICES
MESHBESHER, SINGER & SPENCE, LTD.
1616 PARK AVENUE
MINNEAPOLIS, MINNESOTA 55404
(612) 339-9121
December 2, 1981
Ms. Helen M. Ambrose
3528 27th Avenue South
Minneapolis, MN 55406
PE: 45-(81-82)
Dear Ms. Ambrose:
I have enclosed a copy of a Hennepin County Bar As-
sociation Ethics Committee Rules, as you requested.
Committee members assigned to a particular case are asked
to conduct an investigation, which involves receiving writ-
ten materials from the parties and doing whatever follow
up is necessary. The limitations on the investigation are
set forth in the enclosed rules. I have questioned you and
Ms. Elliott over the telephone to save time, but solicit all
the information you can give me, in either written or ver-
ba! form
I have sent the respondent attorney’s written submis-
s:ons, and have summarized any additional oral responses
that they have made.
After my presentation to the committee which first
screens these matters, it was decided not to dismiss the
case and to continue the investigation. I have received and
reviewed the additional materials that you sent me. In ad-
dition, I contacted Charles Hvass, Sr., who gave me more
information about his firm’s representation of the Team-
bitin ai
A-75
sters. They did some work similar to the machinists and
were initially concerned that the same kind of lawsuit
might be made against them. Later, they concluded that
there was no such possibility and told Hvass that they were
comfortable with his representation of you.
I also asked Hvass about his representation of Doty’s firm.
Apparently, the representation had been concluded by the
time he entered your case. He represented Doty’s firm in a
fee award result which was appealed to the Regional
Federal Appeals Court. Hvass did not do the written work,
but argued the case in St. Louis. He received a fee which
had been set before he entered your case.
The investigation will continue with a second review be-
fore an Ethics Committee panel.
Yeur truly,
/s/ Carol Grant
Caro: Grant
CG:ke
F:closure
cc Ms. Delores Elliott
A-76
HANDWRITTEN AFFIDAVIT OF CLASS MEMBER
JENNIE HODDER
Ms. Carol S. Grant, Atty.
1616 Park Avenue
Mpls., Minn.
Dear Ms Grant:
I, Jennie Hodder wish to give an affidavit that I was
tc have been called as a witness in the case No. 4-74 Civil
627.
My testimony was to be directed to the fact that I per-
formed the same work as a Teamster Mechanical Inspec-
tor, as well as the same work in the I.B.E.W. General
Inspector class, and that I was paid at a lesser rate of
pay.
I wish to make it clear to you, that I had made that
fsct plain to Mr. Bland during the trial. I attended the
trial daily except for the first week. Mr. Bland was aware
o: the intermingling of the Inspection classes these com-
plaints were made to him during coffee and lunch breaks
at trial. Mr. Bland failed to read, or acknowledge my writ-
ten objection, at that it was directed to the fact I per-
formed the same work as a Teamster Mechanical In-
spector, and that I received a lesser rate of pay.
Sincerely,
Ms. Jennie Hodder
2436 Martin Way
White Bear Lake, Mn. 55110
On 13th day of March 1982
Notarized
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A-78
ETHICS COMM. LAWYER
CAROL GRANT NOV. 17, 1981
FINDINGS AS TO HVASS CONFLICTS
November 17, 1981
The tindings of Carol Grant of the Ethics Committee
after initial investigation was predicated upon Disc. Rules
and Cannons as follows;
DR 7-101 (a) (3), EC. 7-7, DR 5-105. EC. 5-19
“In light of these rules, I evaluate complainants’ ‘cleims
as follows:
1.
Complainants acquiesced in Williams’ presence
during trial. They knew he was from the Hvass law
firm. I, therefore, would dismiss this complaint.
Complainants apparently concede or at least can’t
dispute that they were in error about the sutstitu-
tion of Charles Hvass for Richard Bland during set-
tlement negotiations.
Complainants have no proof to dispute the claim of
Charles Hvass that he was asked to participate by
his own associate Williams I do think representa-
tion of Doty should have caused Mr. Hvass to dis-
cuss the matter with complainants and withdraw
upon request, per EC 5-19 and DR 5-105 (c). Thus,
I believe there has been a violation of the disciplin-
ary rules.
The Teamsters’ conflict of interest was remote or
non-existent and arguably falls outside the conflict
of interest disclosure requirement. In any event, they
objected, but it appears the objection was more in
A-79
the form of a question to Bland. It would have been
desirable for Bland to relay this information to
Hvass, so that Hvass could withdraw, but given
the remote or non-existent nature of the conflict
and weak objection, I recommend that this com-
plaint be dismissed.
5. It appears that complainants expressed their desire
to attempt (attend) settlement conferences but ac-
quiesced in the strong recommendation that they
not do so. Again, it might have been desirable for
the lawyers to let plaintiffs attend, but I don’t think
the situation warrants discipline.
6. The lawyers may have been unduly harsh in stat-
: ing their case for the proposed settlement, but I
j don’t think they overstepped the bounds of propri-
ety. The settlement was approved by Judge Earl
Larson and apparently the proper procedures were
followed in obtaining class acquiescence.
7. The attorneys apparently did obtain the job packets
and determined they weren’t too useful; therefore I
dismiss this complaint.”
JULY 30, 1981. FAIRNESS (FEE) HEARING
HVASS COMFLICTS
EXPLANATIONS BY BLAND, WILLIAMS AND
HANSING (L.U. 2047 IBEW ATT’Y)
[188] THE COURT: Ms. Roback or Ms. Wolf—
MS. ROBACK: Your Honor, it is my understanding
we are discussing the petition of the class attorneys for
A-89
fees and costs, and just making response to that petition
we are not objecting to the Meagher, Geer firm’s fees and
costs, but would like to know on what hourly basis the
firm is billing these attorneys’ fees.
Secondly, we do object to the firm of Hvass, Weisman
& King receiving attorneys’ fees when they have not speci-
fied to the Court the time period these fees were incurred
and also, due to the fact they did withdraw from the case
before the Court due to conflict of interest and re-entered
the case without the consent of the named plaintiffs or
otker class members. I would like to challenge the vropri-
ety of the award of attorneys’ fees to this firm and to note
to the Court that in the settlement itself and in the rotice
to the class, it is not noted that the Hvass firm is to receive
the fees.
Also, where it lists the attorneys on the notice itself
which did go to the class, there is no mention of the Hvass
frm on this notice.
We will address our motion for attorneys’ fees after any
other objections have been made to Mr. Bland’s motion.
Thank you. |
[189] THE COURT: Mr. Bland or Mr. Williams,
as I remember there was this earlier conflict and you came
back into the picture because the conflict no longer con-
tinued?
MR. WILLIAMS: Well, Your Honor, I will speak to
that issue. What happened on the case was we never felt,
actually, that there was a conflict of interest. Where the
issue arose was an apparent conflict of interest which was
reised by a Teamster organization which our office did
not represent. However, we did represent Joint Council
32. the unbrella organization of which that particular
ie te:
A-81
Teamster Local was a participant. When that Local
raised the issue because they represented people on the
mecahnical side of that same operation—they had a
small bargaining unit—we advised the class representa-
tives of the fact that this objection had been raised and
since these people did contribute in part on a per capita
tc a retainer that our firm received from the Joint Council,
and since the Joint Council, or this one Local was object-
ing, we advised them that under the circumstances we
probably felt we might have to withdraw from the case,
simply because of the appearance. We did not feel there
was a conflict but there was an appearance of a conflict
and it was our client that was objecting.
‘190] It was at that time that we made arrangements
tc meet with other counsel on the case to see if they were
satisfied with a particular firm taking over the matter.
What happened was at some time later the Joint Council
advised they did not feel this was a conflict of the nature
that should keep us from participating in the case. It was
at that time that we once again became reinvolved in the
case with the Meagher, Geer office to help participate in
the prosecution of the lawsuit. We came in after the issue
went up to the Eighth Circuit on the issue of class certifi-
cation and returned to this Court for trial.
That is the factual framework under which the with-
drawal took place. I don’t think it is fair to say there was
a conflict of interest, and I know because I was present at
some of the discussions that took place at that time. Mr.
Hvass advised the class representatives—in fact, very care-
fully advised him that he did not view it as a conflict but
there was the potential appearance of a conflict and the
party raising it was a client of the office. That was the
reason we left the case at that time.
A-82
However, as I pointed out, it was the party who raised
the issue which later said, “No, don’t worry [191] about
it You may participate in the case.” The party having the
right to raise the issue of conflict said “We don’t view it as
a conflict of interest.”
THE COURT: Do you want to speak to your request,
Ms. Roback?
MS. ROBACK: Our request for attorneys’ fees?
THE COURT: Yes.
MR. WOLF: I didn’t know if you wanted a response
tc what Mr. Williams said.
THE COURT: You may respond to what Mr. Wil-
liams said.
MS. WOLF: First of all, if there was enough of a con-
flict ur they believed there was enough of a conflict to ex-
cuse themselves from the case initially, our clients still
feel that they need to have a justification for why the
Hvass firm re-entered the case and why until they appeared
ai the first day of trial, they were i.ot aware that the Hvass
finn had evidently been rehired.
Our clients do not object to any payments to the Hvass
firm in the drafting of the Complaint in the initial lawsuit.
They had retained them, they were pleased with that
counsel. The question we have is from the documents sub-
mitted thus far by Meagher, Geer and the Hvass firm it is
impossible to see—there is no [192] breakdown of
hours on which charges are, let’s say pre-trial and which
are during trial or post trial. Those are the fees that our
clents object to.
THE COURT: I believe everyone knows that Mr. Wil-
liams was here for much of the trial. He examined some
of the witnesses as I recall and participated in cross-ex-
amination.
A-83
MS. WOLF: Our clients are not challenging the fact
that Mr. Williams was here at trial. They saw him every
jay. The issue is, Your Honor, they feel that his repre-
sentation or desire to represent them as part of class
counsel was unauthorized and was without their krowl-
edge. They don’t understand how it was that he came to
re-enter the lawsuit. Therefore, until that is explained we
would like that portion of the fees to the Hvass firm to be
withheld.
In other words, the first thing I am asking for is a break-
down of the fees that the Hvass firm is asking for so that
we are able to distinguish the portion of fees before the
Hvass firm declared a conflict of interest, approximately
December, 1974. That portion of the fees we have no ob-
jection to.
The second issue is the portion of fees that occurred
after the Hvass firm re-entered the case and proceeded to
trial in approximately 1979. It is that [193] portion
ot the fees where our clients feel the issue needs tc be
c!arified—how it was that the Hvass firm came to be re-
involved It is that portion of the feces to which they object.
THE COURT: Mr. Williams just explained that Ms.
Elliott hired them in the first place. I know they are hiring
more and more law firms. They hired you and Ms. Roback
and I suspect they will be hiring more law firms.
MS. WOLF: Your Honor, I don’t think that is the
issue at all. The issue is not how many law firms Ambrose
ard Elliott have hired, Your Honor. They deserve to be
represented as competently as possible.
THE COURT: My guess is they are going to be dis-
satisfied with you and Ms. Roback and will be back ask-
‘ag for more representation in this vourt.
A-84
MR. WOLF: _I would .ike it on the record that we be-
lieve and our clients believe that is absolutely irrelevant to
the issue.
MR. HANSING: Could I make a few remarks with
reterence to what Mr. Williams said.
I have been the attorney for Local Union 2047 of
I.B.E.W. since about 1973 when I left the NLRB, and
this suit was commenced in 1974. Some time after the suit
was commenced it was brought to the attention of
[194] the Local Union that the Hvass firm which was
representing the plaintiffs at that time was the attorney
for Teamsters Joint Council 32, which as Mr. Williams
stuted is the Minnesota unbrella organization for all Team-
ster Local affiliates in the State of Minnesota. One of the
Teamster Local Unions affiliated with Joint Counci: 32,
Teamster Local 970, had a small bargaining unit at
Sperry Univac, and the bargaining unit consists of experi-
mental, prototype people in an area, if I recall correctly,
which was adjacent to the refurbishing area, and from
time to time jurisdictional disputes erupted between Local
Union 2047 and the Teamsters Local.
As you know, Local 2047 is a production and main-
tenance employee union, and Local 970 represents the ex-
perimental shop employees. If I recall correctly, Mr. Curley
became indignant over the fact that the Hvass firm
which represented the Teamsters was suing another Local
Union which was not affiliated with the Teamsters. I
think at some time maybe that concern was transmitted to
e‘ther 970 or the Teamsters. I was not a party to it but that
is my understanding in talking to Mr. Curley. I think at
that point the Hvass, Weisman firm because of their
sence of commitment or obligation to the Joint Council,
A-85
not to 970, desired to step aside from the case. At that
time Local 970 was represented by Leonard [195]
Lindquist’s firm, Lindquist & Vennum. The Hvass, Weis-
man firm was not representing 970 at that time.
I can even give testimony that Hvass, Weisman has
never represented 970 until recently. Lindquist & Ven-
num has been representing them, and it is my under-
standing that Robins, Davins & Lyons now represents
970.
MR. WILLIAMS: I would just like to clarify one
thing, Your Honor. I think the facts that Mr. Hansing re-
lates are accurate. I report to the Court that I was present
when Mr. Hvass met with the named plaintiffs and ex-
pained to them the fact we didn’t believe there was a con-
flict but we were faced with a claimed appearance of con-
flict by another client of the office, and under those cir-
cumstances with another client in the office making a
claim of an apparent conflict of interest, we felt it was
the responsible thing at that point in time, to try to get
o*her counsel to continue the case. I want to emphasize
that at a later point in time the very party raising the is-
sue said, “We don’t believe there is conflict of interest and
have no objection to you participating in the case.” That is
why we became reinvolved in the case.
I don’t want the Court to have a feeling there was any
feeling in our office that there was an actual conflict of
interest or that we were incapable in any way [196]
representing the named plaintiffs in the case.
MR. HANSING: One other point, the class, Your
Honvr, includes all females who have been, are, or will
be employed by Sperry Univac and who are members of
the Local Union 2047, I.B.E.W. That class definition never
A-86
at any time included any other employees, including em-
p'oyees of the Teamster affiliate. So people in that exper-
imental prototype shop were never part of the class. No-
one ever sought to include them. As I perceive it they have
never been involved indirectly or directly in the case in any
manner.
MR. BLAND: If I can just add a couple of comments
also I don’t quite understand why this issue is being
raised and perhaps Ms. Wolf or Ms. Roback can clarify
this, but I don’t think they are claiming that because of
Mr. Williams’ involvement, not only in the trial of this case
but in a great deal of the pre-trial discovery in this case,
depositions of Union personnel, all of which was known
to both Delores Elliott and Helen Ambrose. We had meet-
ings with them prior to the trial. They fully knew the in-
volvement of Mr. Williams and the Hvass firm long before
the trial of this case was started. Unless their claims is
that somehow this class and the named plaintiffs got lesser
representation because of the entry of the Hvass firm than
they got from the Meagher, [197] Geer firm, then I
don’t see why they are raising this issue.
The Hvass firm got in for twc very good reasons. It
takes a iot of time and a lot of skill to handle a case like
this. Mr. Williams has a great deal of skill with respect to
the issues relating to both the Local and the International
iti this case. He handled those and I think he handled
them well and effectively in the pre-trial and at the trial
of this case. From that standpoint it was very helptu! to
us and very beneficial to the class of plaintiffs to have
the Hvass firm participate in this case.
Secondly, when you are talking about the kinds of ex-
penses in a case such as this. well over $300,000 ‘n ex-
A-87
penses, it was very helpful to have another firm willing to
participate in those fees. The Hvass firm did that all along.
To me they are raising an issue which when you look at it
objectively has absolutely nothing to do with this settle-
ment proposal because they got very good, excellent rep-
resentation because of the Hvass firm.
THE COURT: Does that answer you, Ms. Roback?
MS. ROBACK: I don’t believe it does.
THE COURT: Why do we get involved in al of
these side issues. We have enough important problems
[198] here to resolve.
MS. ROBACK: I believe it :s not a side issue tnat is
involved. If the named plaintiffs and other class members
had felt that the class was benefited by the settlement and
were happy with the settlement as negotiated, I don’t think
it would be a proble ~ First of all, they never did know
about Mr. Williams’ reinvolvement until trial and they
have an affidavit that states so that is attached to our
Memorandum in opposition to the settlement. Secondly,
I don’t think the economic factor of sharing the costs jus-
tifies an ethical issue which is a firm that withdrew for a
conflict of interest. At least they believed it enough to
withdraw before the Court. I think the ethical considera-
tions, and the fact the disposition of this case so far has
not been favorable to the named plaintiffs and several
other class members, that the issues are intertwined and
they are a factor in the case.
THE COURT: You know, Ms. Roback, as weli as I
do, that we are very fortunate to have somewhat large
firms that are able to carry the costs and expenses in this
kind of a case. If Ms. Elliott or Ms. Ambrose had come to
n.i¢ and asked for your representation I, of course, would
A-88
have to say that you are not qualified. You don’t have the
ability to carry a case like this and [199] I would have
t> tell that to any fairly young lawyer and courts around
the country have been saying this. Maybe that is unfor-
tunate that only a substantial law firm can afford to par-
ticipate in a case like this because the experts want their
money and want to be paid. Some won't testify untii they
are paid. It takes a substantial law firm—perhaps as I
say, unfortunately—to carry this kind of a case. Your
firm couldn’t do it—maybe you could borrow the money
from the bank, I assume, and obligate yourselv:s for
$350,000.
MS. ROBACK: In response, Your Honor, I feel first
of ali we are in this now representing Ms. Elliott and Ms.
Ambrose for the purpose of objecting to the settlement.
We have no intention of retrying the case for them, for the
record. But I want to say, too, that I feel Title VII is a
method of vindicating social injustices and I don’t believe
the Legislature wanted it to be «a sell-out for economic
reasons.
THE COURT: Congress didn’t provide in enacting
Title VJI for any protection for lawyers that are willing
to carry an extended kind of litigation. For a small law
firm, of course, it is impossible. For a young lawyer, it is
impossible.
* * *
A-89
January 13, 1981
The Honorable Earl R. Larson
United States District Judge
Federal Courts Building
110 South Fourth Street
Minneapolis, Minnesota 55401
Re: Proposed stipulation of settlement in Elliott v. Sperry
Univac
4-74 Civ. 627
Dear Judge Larson:
We are the named plaintiffs in the above-referenced case.
We wish to give notice to the court that we have serious
objections to the proposed settlement agreement that will
be offered to the court. While we understand that we will
have an opportunity at a later date to present our objec-
tions in full to the court, we did not want to wait to make
known to the court the unusual circumstances that attend-
ed the settlement negotiations and the seriousness of our ob-
jections to the substantive conditions of settlement.
We were told that the settlement negotiations began on
or about October 27 when Mr. Doty and Mr. Dermott
White (Blue Bell, PA) conveyed a monetary offer to Mr.
Jones and Mr. Bland. Mr. Bland responded with a written
counter-proposal dated November 3, 1980. On or about
December 23, 1980 class representative, Delores Elliott,
visited the offices of plaintiffs’ counsel and talked with
Mr. Bradley Jones who informed her, to her surprise and
dismay, that Mr. Charles Hvass, Sr. was negotiating the
settlement. She asked why since Mr. Hvass, Sr. had with-
drawn from the position of plaintiffs’ counsel in 1973 be-
cause of a potential conflict of interest. He was counsel for
A-90
Teamsters and Teamsters were representatives of a local
at Univac. Mr. Jones said that the conflict of interest was
resolved two years ago. He indicated that Mr. Bland did not
care who negotiated the settlement. He further said that Mr.
Doty’s law firm had engaged Mr. Hvass, Sr. to represent
them in a suit involving an excessive fee complaint. On the
plane trip to and from the eighth circuit court in St. Louis
on which Mr. Doty, Mr. White and Mr. Hvass, Sr. were
cO-passengers it seems Mr. Doty decided that he would
prefer to negotiate with Mr. Hvass, Sr. as he had greater
rapport with him. Subsequently, Mr. Doty called Mr. Bland
to say he had hoped that he had not hurt Mr. Bland’s feel-
ings and that he hoped he didn’t mind. Inte1estingly, when
Mr. Bland gave his account of Mr. Hvass’ entrance into the
case, he said that Mr. Dermott White was on the same flight
to St. Louis and was impressed by Mr. Hvass and that Mr.
White was the one who wanted Mr. Hvass as the negotiator
for the plaintiffs. We expressed strong disapproval that Mr.
Hvass, Sr. was involved at all because of our concern that
his conflict of interest would color his judgment and be-
cause we felt that he was not sufficiently familiar with
our case. We also didn’t think it proper that the defendants
should make the choice of who our negotiator would be.
We expressed that we were not consulted nor was our ap-
proval sought at any point in time.
On December 30, 1980 we met with Mr. Bland to dis-
cuss the settlement offer. Briefly, he indicated that he had
set the minimum amount that would be acceptable and that
Mr. Hvass had negotiated a settlement above the minimum
We went over each point in the settlement as explained to
us by Mr. Bland. We expressed our opinions on each of
the terms at length and requested that further effort be
Di Soatein se raie indie shS eae DENA Silica > See ee ene
emitted ae
meets See Outed Am
SbkiA athe Vitel
A-91
made to improve the settlement. Mr. Bland said that there
was nothing else to be negotiated; the agreement was al-
ready final and the only thing negotiable was the language
that the defendant’s counsel was presently writing. Mr.
Bland asked us to make our decision and to advise him as
to what our decision would be.
With due consideration as to our role as class repre-
sentatives, we undertook the task of reviewing defendants’
expert’s, Mr. Hunter’s, analysis of the PAC analysis to the
best of our ability, we re-read Dr. Mendel’s testimony as to
the wage similarity as well as job task similarity or dis-
similarity within and between job classes, and reviewed all
aspects of the settlement. We were thus prepared to give
our decision in written and verbalized form to Mr. Bland.
A meeting was scheduled for January 6, 1981.
When we arrived at the offices of Mr. Bland, et al., we
learned that Mr. Hvass was to attend the meeting. We felt
that, rather than trying to explain the settlement to us. he
wanted to force us into settling. He made many comments
indicating he thought our case was weak. Among the most
startling was his comment that we had nearly been thrown
out of court on December 12 by defendant’s motion to
dismiss. When we asked him to explain why he thought so,
he said he didn’t have time to go into that. He also told us
that if we refused the settlement, none of our attorneys
would continue to litigate the case unless we raised $300,-
000 to pay them. He also told us that if we proceeded with
the case and lost, we would be held personally liable for
defendant’s costs of $100,000 to $200,000.
At that meeting, we stated our unwillingness to settle
the case until we received the job packets which we believe
would substantiate our claims that assemblers are perform-
A-92
ing the same or equivalent work of EMA or PMO. We be-
lieve that the job packets with rebuttal testimony will pro-
vide concrete demonstration of our claims. We were told by
our lawyers that they were not going to pursue job packets
since Univac was not going to use them in its case. Our
lawyers claimed this had always been their intention. We,
on the other hand, had always had the impression that we
would aggressively seek the job packets and present testi-
mony based on them. At our meeting with Mr. Bland and
Dr. Mendel it was determined that when the packets were
received we and other employees would describe the work
performed by the various job classes and the prints and
tools or other equipment utilized in given job operations.
We were to use a tape recorder, to the extent possible, in
the interest of saving time and having accurate statements
of persons currently engaged in the work. We still believe
that we have a right to review the job packets and that we
cannot really say what an appropriate settlement is until
we have evaluated how strong that evidence is.
On January 8, 1981 we met with Mr. Bland in an attempt
to obtain a copy of the proposed settlement. We were told
that the final draft was not ready. On January 12. we picked
up a copy of the settlement which is not the final draft
and we also learned that the hearing date remains sched-
uled for January 16, 1981.
On January 13 we spoke by telephone with Dr. Mende!
about the settlement. He said that he had been told by Mr.
Bland that we agreed with the settlement and that we had
had an opportunity to review the job packets and were un-
able to identify areas of overlap.
After careful consideration of all of the arguments which
have been made to us, it is our position that the proposed
A-93
Settlement does not serve the best interests of the class nor
does it serve the public interest. We have attached, hereto,
brief comments or objections to each paragraph that re-
lates to the current collective bargaining contract and set-
tlement payments to the class.
It is our wish that the trial proceed as scheduled while
both sides maintain an open door to settlement. Thank you
for your consideration of our concerns.
Respectfully submitted,
/s/ Delores E. Elliott
1429 Edgerton
St. Paul, Minnesota 55101
/s/ Helen M. Ambrose
3528 27th Avenue South
Minneapolis, Minnesota 55406
ec: Mr. J. R. Bland
Our comments are necessarily brief inasmuch as the
marginal comments are either unreadable or cause doubt as
to their intent or impact, and that the terms are too gen-
eral and are not performance specific. We are also brief for
the reason that we find the terms are unreasonable. inade-
quate, and inequitable.
1. (a) Changing the name of assemblers does not
get to the crux of the problem. It denies the
diverse, special, and sophisticated skills re-
quired in the class. Such broad job categor-
ies have an adverse impact upon females.
The protracted pay scale would continue to
have an adverse socio-economic impact up-
A-94
on females until such time as a fair mix of
males and females is achieved.
(b) Relieving the assembler class of one year
of protracted pay and placing the burden
upon another low paid job category is un-
acceptable.
(c) Univac has long desired a division of their
military and commercial divisions. The em-
ployees have strongly resisted those efforts
as it greatly diminishes job security. To
divide the assemblers into three groups does
still greater harm to job security. We strong-
ly object to Univac employing this means
to obtain that objective.
(d) No strong objection in consideration of the
special skills required in the new state of the
art in the computer industry.
(e) Margin notation not clear. No objection if
(f)
back pay is awarded based on 1973 griev-
ance and that the grievance on the new drill/
router machine is resolved independently.
No strong objection but believe a more gen-
erous time limit could be achieved based up-
on length of service.
Margin notations not clear. Willing to dis-
cuss Hay system versus PDRI. Believe moni-
tor group necessary. Is not performance spe-
cific.
Margin notes make intent and impact un-
clear.
A-95
4. No objection if fair method is first defined
with specificity and that the qualification
criteria established is not greater that that
held by the least qualified incumbent job
holder. Object that determining an affirma-
tive action goal is not performance specific.
5. No objection to greater notification to em-
ployees as to the availability of tuition re-
imbursement.
6. Object to limit of 1.5 million settlement
fund as inadequate and inequitable.
7 & 8. Object that the limit of five categories pay
point increments is inequitable as to fe-
males with greatest length of service.
* * *
We have an objection that the terms of the proposed
agreement does not address past injustices such as those
females as qualified but past over in promotion and those
persons layed off out-of-seniority.
GRIEVANCE FORM
Intess.ctional Brotherhood of Electrical Workers
Local No. 2047
Plant 1 Dept. Receiving Inspection Step 1
Date 7-13-82 Time 10 PM
Subject of Grievance: Job & Sex discrimination. General
Inspectors and Inspectors performing the same jobs—
Macrodata and Fairchild testers—at different rates of pay.
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Be advised that you are in violation of the following:
Article XII Sec. 10, Article XVI Sec. 1 App. A, Ar-
ticle XVII, the Equal Pay Act (1963), the Civil Rights
Act (1964) Title VII, and the Equal Employment Act
(1972).
In summary: Equal pay for equal work. An employ-
er cannot pay different pay rates to different sexes per-
forming the same job.
Also be advised that aggrieved employees may seek
relief under Title VII without invoking or exhausting
available alternative legal or internal contractual rem-
edies. (Caldwell v. National Brewing Co., 1971).
Charges will be filed with the E.E.O.C. if this issue
is not resolved immediately.
EMPLOYEE Shirley Walker Signed
Mary Ann Nelson Employee
Julie Drees
Lorie Fenton
Mary Shamp
STEWARD Mary Harrigan Signed
SUPERVISOR Dennis Timm Signed
(Business Manager
for steps 2 & 3)
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SUPREME COURT OF THE UNITED STATES
No. A-77
HELEN M. AMBROSE,
Applicant,
VS.
SPERRY RAND CORPORATION, ETC., ET AL.
ORDER EXTENDING TIME TO FILE PETITION
FOR WRIT OF CERTIORARI
UPON CONSIDERATION of the application of peti-
tioner,
IT IS ORDERED that the time for filing a petition for
writ of certiorari in the above-entitled cause be, and the
same is hereby, extended to and including September 10,
1985.
Dated this 2nd day of August, 1985.
/s/ Harry A. Blackniun
Associate Justice of the Supreme
Court of the United States
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.