IN RE: Westinghouse Electric Corporation Employment Discrimination Litigation

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BEFORE THE JUDICIAL PANEL oo
ON
MULTIDISTRICT LITIGATION 177 | .4 CS . : :
IN RE WESTINGHOUSE ELECTRIC CORPORATION ) DOCKET NO. 305 =
EMPLOYMENT DISCRIMINATION LITIGATION ) =n =
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OPINION AND ORDER == ma
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BEFORE JOHN MINOR WISDOM, CHAIRMAN, AND EDWARD WEINEFELD, Sox : eT
EDWIN A. ROBSON, JOSEPH S. LORD, III, STANLEY A. WEIGEL 1» a7 EE
ANDREW A. CAFFREY AND ROY W. HARPER, JUDGES OF THEZPANEL. =Z2
PER CURIAM
i |
This litigation consists of five actions pending in
two federal districts: Webb, Rivers, and Bradford in the ER E
Eastern District of Pennsylvania; and Warren and EEOC in Lo
the Middle District of North Carolina. Westinghouse Electric :
Corporation is the only defendant in Rivers, Bradford, Warren
and EEOC. Defendants in Webb include Westinghouse, several :
of its officers and managerial employees, two labor organi- PE
zations that represent various employees at Westinghouse's
Lester, Pennsylvania facility, and the Secretary of Labor.
The named plaintiffs in Webb are four Black hourly pro-
duction and maintenance workers employed by Westinghouse Co
1/ A sixth action, Bacon, filed in the Eastern District of
Pennsylvania,	was originally included in the motion before
the Panel. Shortly after the Panel hearing on this matter,
however, that action went to trial. Since transfer under
28 U.S.C. §1407 is for pretrial only, Bacon is no longer
appropriate for our consideration. : SL

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i at its Lester facility. The complaint in Webb alleges,
@ inter alia, a pattern and practice of racial discrim-ination against Black employees and applicants for
employment in Westinghouse's Steam Turbine Division.
Webb is brought as a class action on behalf of all past,
present and future Black applicants and employees within
the Division, which includes facilities at Charlotte and
Winston-Salem, North Carolina, and Orange, California,
as well as Lester, Pennsylvania. A motion for class
certification is now sub judice in Webb.
Rivers and Bradford are brought as individual
actions against Westinghouse by Black hourly employees
at the Lester plant. Plaintiffs in Rivers and Bradford
each allege that specific discriminatory acts on the
o part of Westinghouse resulted in the termination of their
employment at the Lester facility.
Warren is brought as a class action on behalf of all
Black applicants and employees at Westinghouse's Winston-
Salem facility. The complaint in Warren alleges both racial
and sexual discrimination against defendant Westinghouse.
No class determination has yet been made in warren. Finally,
the Equal Employment Opportunity Commission (EEOC) has filed
an action charging Westinghouse with racial and religious
discrimination at Westinghouse's Charlotte and Winston-
2/
Salem facilities.
2/ EEOC originally was filed in the Western District of
® North Carolina but was subsequently transferred to the MiddleDistrict of North Carolina pursuant to 28 U.S.C. §1404 (a).

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The named plaintiffs in Webb move the Panel for an
® order, pursuant to 28 U.S.C. §1407, transferring Warren and
EEOC to the Eastern District of Pennsylvania for coordinated
or consolidated pretrial proceedings with the actions
pending there. Plaintiffs in Rivers and Bradford join in
this motion. Westinghouse, all other defendants except one
of the labor organization defendants in Webb, plaintiffs
in warren and the EEOC oppose transfer.
Although we recognize that the allegations of racially
discriminatory employment practices in these five actions
may involve some common questions of fact, we are not
persuaded that these common issues would predominate
over individual factual issues. Moreover, Wwe
® have concluded that Section 1407 proceedings would notnecessarily serve the convenience of the parties and witnesses
or promote the just and efficient conduct of this litigation.
Movants argue that these actions share numerous questions
of fact concerning Westinghouse's alleged racial discrim-
ination in its Steam Turbine Division. Movants state
that the Steam Turbine Division is headquarted in Lester,
Pennsylvania, and they assert that the Westinghouse plants in
Charlotte and Winston-Salem are supervised by personnel
who work at the Lester facility. Moreover, movants state,
Webb and Warren have been brought on behalf of overlapping
®

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a. _ 4 -
classes and the complaint in the EEOC's action seeks, inter
® alia, relief for Black employees at Westinghouse facilities
included in the purported Webb and Warren classes. Thus,
absent Section 1407 transfer, there is a danger of con-
flicting class determinations and other pretrial rulings,
movants contend.
These arguments are not persuasive. Our thorough
review of the complaints in Webb, Rivers and Bradford,
the three Pennsylvania actions, reveals that, unlike the
Division-wide issues concerning racial discrimination
potentially involved in Webb, the factual issues in Rivers
and Bradford involve chiefly allegations of specific
discriminatory acts at the Lester facility relating to
® the named plaintiffs only. Similarly, in contrast toWebb, the complaints in the two North Carolina actions,
EEOC and Warren, are restricted to employment practices
at one or both of Westinghouse's North Carolina plants.
And unlike any other action in this litigation, the com-
plaint in EEOC includes allegations of religious, as
well as racial, discrimination, while the complaint in
Warren raises allegations of sexual, as well as racial,
discrimination. Any factual similarities among the
allegations in Webb, EEOC and Warren are further attenuated
by the fact that employment practices at the Lester
facility, unlike those at the Charlotte or Winston-Salem
®

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plants, apparently are in large part governed by
@® collective bargaining agreements with local unions,
whereas the parties' represent that there are no unions
or collective bargaining agreements at the Charlotte or
Winston-Salem facilities. Thus, we find that individual
rather than common factual questions predominate in this
litigation.
Furthermore, on the basis of the record before us, it
appears that discovery and other pretrial proceedings in
EEOC are nearly complete, that that action is near trial,
and that therefore the action should not be included in
coordinated or consolidated pretrial proceedings. See
In re Celotex Corporation "Technifoam" Products Liability
Litigation, 65 F.R.D. 502, 505 (FJ.P.M,L. 1975). Also, a
® cutoff date for all discovery was set by the North Carolina
court in Warren and that date has expired. Finally, we
emphasize that all parties to the two North Carolina actions
agree that those actions should remain separate from the
Pennsylvania actions and that thereby the North Carolina
actions will be promptly resolved.
We recognize that some members of the purported class
in Warren are included in the class sought in Webb, and that
the EEOC in its action has sought relief for, among others,
members of this same group. We are persuaded, nevertheless,
that the circumstances of this particular litigation do
not warrant transfer under Section 1407 and that communi-
® cation and cooperation between the two concerned district

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courts, coupled with the cooperation of the parties,
® will be sufficient to prevent any duplicative discovery
and eliminate the possibility of conflicting class
determinations or other pretrial rulings. See In re Roval
American Industries, Inc. Securities Litigation, 407
F. Supp. 242, 244 (J.P.M.L. 1976); Manual for Complex
Litigation, Part I, §5.40 (rev. ed. 1973).
IT IS THEREFORE ORDERED that the motion pursuant to
28 U.S.C. §1407 to transfer the two actions listed on the
following schedule A and pending in the Middle District of
| North Carolina to the Eastern District of Pennsylvania be,
and the same hereby is, DENIED.
®
®

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Schedule A MDL-305
[ EASTERN DISTRICT OF PENNSYLVANIA
Roland C. Webb, et al. v. Westinghouse Civil Action
Electric Corp., et al. No. 76-172
Robert Rivers v. Westinghouse Electric Civil Action
Corporation No. 76-3193
Rosa Bradford v. Westinghouse Electric Civil Action
Corporation No. 77-655
MIDDLE DISTRICT OF NORTH CAROLINA
Equal Employment Opportunity Commission Civil Action
v. Westinghouse Electric Corporation No. C77-174-WS
Bevery P. Warren, et al. v. Westinghouse Civil Action
Electric Corp. No. C77-57-WsS