Collective In Bargaining, Yes, But Insufficient Evidence To Support Class Treatment (For Now): Individual Union Members Fail In Their First Bid For Class Certification Against Service Employees International
This past week the U.S. District Court for the Northern District of California issued a decision denying class certification in Herrera et. al. v. Service Employees International Union Local 87, No. 3:10-CV-01888-RS (N.D. Cal. April 10, 2012), in which Plaintiffs alleged that their union violated Title VII and the California Fair Employment and Housing Act by discriminating on the basis of national origin. Both statutes make it an unlawful practice for a labor organization to discriminate based on national origin in membership and referral to employment, or to cause an employer to discriminate on the basis of national origin in the terms or conditions of employment.
Local 87’s members consist mainly of janitorial employees working under contracts between the union and building maintenance companies, which contract with buildings in which the union members work. The Union is the duly certified collective bargaining representative for its members and operates a “hiring hall” that is the exclusive means of hiring for positions that the members fill.
In denying class certification, the Court's decision in Herrera provides a virtual "road map" for how Plaintiffs could have certified their class claims. In that respect, the ruling contains an interesting analysis of Rule 23 issues in the wake of Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011).
Plaintiffs' Class Certification Theories And Evidence
Plaintiffs did not allege a formal policy of discrimination by Local 87; instead, they alleged nine distinct theories of discrimination formed a perceived “pattern” of discriminatory conduct by the Union’s leadership against current and former Hispanic union members by: (1) denying employment and/or referring inferior positions; (2) advancing members of certain other ethnicities and national origins in contravention of the Union's seniority rules; (3) failing to pursue grievances against employers on behalf of Hispanic members; (4) failing to hire representatives who would defend the interests of Hispanic members; (5) denying Hispanic members certain rights of union membership, such as the right to attend meetings and to hold union positions; (6) harassing and disparaging Hispanic members in the union hall; (7) providing fewer opportunities for training and support to Hispanic members than those given to non-Hispanic members; (8) requiring Hispanic members to take positions in less preferred locations as a condition of promotion or hiring; and (9) retaliating against those Hispanic members who complained of rules violations.
To demonstrate the alleged “pattern” of discrimination, the complaint alleged a number of discriminatory comments by two union leaders, and certain illustrative acts of discrimination against the twelve individually named class representatives. In support of their motion for class certification, Plaintiffs also submitted sworn statements by some of the named Plaintiffs relating their own experiences and those of fellow union members (containing inadmissible hearsay); however, Plaintiffs did not submit additional evidence to support their motion. For example, the Court recognized that Plaintiffs' counsel did not appear to have interviewed scores of potential class members, and did not present any statistical evidence.
Plaintiffs moved to certify a class defined as “all members of Local 87 in the period 2003 to the present who were of Hispanic national origin, also sometimes colloquially known as ‘Latinos.’” Id. at 4. The Court denied the motion for class certification without prejudice while laying out a roadmap for Plaintiffs to succeed in their next attempt.
The Court's Conclusion As To The Rule 23(a) Elements
The Court addressed each element of Rule 23 in turn. In evaluating whether Plaintiffs established numerosity under 23(a), the Court recognized that Plaintiffs' proposed class of over 1,600 Hispanic union members could meet numerosity. However, Plaintiffs' class definition that consisted simply of “all Hispanic members” was overbroad. The Court concluded that Plaintiffs made no effort to assess the number of Hispanic members actually exposed to or impacted by the alleged discrimination which took “many different forms.” Id. at 6. While “exact numbers” are not required, Plaintiffs mainly offered anecdotal evidence from a few named Plaintiffs who suffered discrimination under varying circumstances, which the Court found insufficient to satisfy the “rigorous analysis” necessary to establish numerosity. Id. The Court opined Plaintiffs could have shown numerosity by defining a narrower sub-class, but did not propose any, and while the Court had authority to create a sub-class, the approach was “largely foreclosed” because there was no indication in the record of how many individuals might fall within any such sub-class. Id.
In evaluating whether Plaintiffs established commonality, the Court recognized that Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011), requires “significant proof that an employer operated under a general policy of discrimination,” but that the proposed class in Herrera was “far less expansive” than Wal-Mart. Id. at 9. For example, Plaintiffs alleged many different theories of discrimination with some support in the record, and the source of the discrimination was the same - Local 87’s officers. Nevertheless, despite the fact that the class was less expansive than in other cases, Plaintiffs offered “far less substantial than the proof offered in other cases” by relying on a few declarations in a class of thousands of members. Id. at 10. While “there is no bright line requiring a particular number or ratio of anecdotes” proving discrimination, and “the inquiry is qualitative, rather than qualitative,” the Court found that the evidence did not “match the scope of the proposed class” and plaintiffs could not establish commonality. Id. (citing Wal-Mart).
The Court determined that Plaintiffs could not establish typicality for similar reasons. Plaintiffs alleged that “all members of the Class have an basically identical interest in nondiscriminatory treatment,” but Plaintiffs’ argument was “telling insofar as it drastically oversimplifies the nature of Plaintiffs’ many claims, the interests of hundreds of putative class members, and the potential injuries at issue,” and “[c]lass certification does not proceed at such a high level of generality.” Id. at 13.
Finally, the Court held that Plaintiffs failed to establish adequacy of representation because they did not provide evidence that the claims they advanced were common and typical to the entire proposed class. At the same time, the Court found that Plaintiffs could be adequate representatives of the proposed class, or “more likely, a narrower one,” but the record reveals “so little” that Plaintiffs failed to carry their burden to demonstrate adequacy. Id. at 15.
Roadmap To Meet Rule 23(b)
Plaintiffs relied on Rule 23(b)(2) because the Union had allegedly discriminated on grounds that applied generally to the class such that class-wide relief was appropriate, and Rule 23(b)(3) because common questions of law or fact predominated over issues and class adjudication would resolve their claims more fairly and efficiently than would separate actions.
The Court, however, found that the Plaintiffs failed to carry their burden to plead facts supporting a Rule 23(b)(3) class under any theory because the evidence was insufficient. Nevertheless, the Court laid out a roadmap for the Plaintiffs, and detailed how they should fix the allegations in any future motion for class certification. First, the Court recognized that it is possible that some of the kinds of claims they raise could support certification under Rule 23(b)(2) because they requested declaratory relief and injunctive relief , and the case could be certified as a “hybrid” action (a Rule 23(b)(2) class for equitable relief with a parallel and separate Rule 23(b)(3) class for damages). Id. at 16-17. Second, the Court recognized that individual damages calculations in post-liability proceedings were not fatal to class certification under the requirement to establish predominance under Rule 23(b)(3), and that Plaintiffs could rely on such a theory in any future motion provided they addressed why individualized damages assessments should not bar certification with much greater specificity
Implications Of Herrera
Herrera provides helpful insight for how to attack weak or insufficient allegations of class claims in opposition to a motion for class certification. It also demonstrates how claims of a “pattern” of discrimination can differ from allegations of a general policy of discrimination, and the type or extent of evidence required to establish the elements of Rule 23 when attacking class claims arising from multiple factual and legal theories.
One issue that was not addressed in the latest order in Herrera is why Plaintiffs' motion was denied without prejudice. Certainly, in litigation of any class action, defendants are well advised to avoid multiple rounds of certification briefing under any circumstances. This can be done by developing a record early so there is no argument that plaintiffs should be given additional discovery and/or additional opportunities to file motions for class certification. It can also be done by filing a motion to deny class certification based on a well developed record pursuant to Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935 (9th Cir. 2009).