INC.'s story "Feuding Families" (January) referred to Oakland Scavenger Co. as "a company for Italians; no others need apply." In fact, over 41% of the company's Teamster employees are black or Hispanic, and only about one-half of the Italian-surnamed workers are owners. Persons of Italian ancestry who are not stockholders enjoy no greater rights than minority employees.
Nor is it possible to "apply" to become a shareholder. Since 1967, the company has repurchased the shares of retiring shareholders, reducing the number of owners from 209 to the current 126. The one exception has been to permit the qualified sons (daughters are eligible) of shareholders to buy their fathers' shares.
When the current litigation began, there were enough owners that it was unnecessary to hire outside help for the head route driver positions. Today, one-half of those positions are filled by non-shareholders on a seniority basis. The statistics quoted in the article that writer Nelson W. Aldrich Jr. imputes to possible racism are simply a function of the requirement that owners work in the business. They highlight the underlying issue: whether a business's owners have the right to hold out the best positions for themselves and to pass the business on to their families. The Court of Appeals seemed to think they could, but only as long as there were fewer than 15 employees. We ask, "Should we care less for our children when our businesses grow to 50 employees, or 500?"
The article also says that the plaintiff's attorney, Bonheim Yturbide, "won his case for the plaintiffs on factual grounds." The Court of Appeals reversed a motion to dismiss, which means that it assumed without proof that the allegations were true. Such a motion is only decided on legal theory, and the defendant is not permitted to introduce contrary evidence. Plaintiffs can say anything in a complaint; it is another matter to prove it at trial.
"Running the Reality Principal" (FYI, January) spoke of testing values against the reality of the time. From the moment of conception, our parents pass to us qualities that no one else will share. The allocation of human intellect and skills is as arbitrary as it is natural. So it is with that bond of affection and responsibility that we as parents have for no one as much as our own children -- arbitrary perhaps, but a common theme throughout most of human experiences. To deny it is to construct an artificial, circumstantial, and precarious set of values. There is no reality in that.
The author replies:
Mr. McKae's letter is a reminder, timely and appropriate, that final judgment on the Oakland Scavenger case has still to be handed down. The long, expensive, and emotional litigation that began in U.S. District Court 10 years ago has now returned to that court -- there to be settled, as Mr. McKae points out, on the factual merits of each side's argument.
Mr. McKae is counsel for Oakland Scavenger Co. in this case. As such, he is concerned about the phrase, "a company for Italians; no others need apply," lest readers infer that Oakland Scavenger Co. bars employment to anyone at all who happens not to be of Italian origin. Mr. McKae is needlessly worried, I think. The phrase appears in the third paragraph of the article. A reader need only persevere beyond that point to learn that there are indeed non-Italians employed by Oakland Scavenger, but that only sons and daughters of the (Italian) owners need apply for ownership positions in the company.
The second major concern expressed by Mr. McKae refers to my statement that B. V. Yturbide, the lawyer for the plaintiffs and Mr. McKae's opponent in the case, won his victory in the appeals court "on factual grounds." He did not. He won his case on theoretical, or legal-definitional grounds, by persuading the court that the issue between the two sides was not an issue of ownership rights, as Oakland Scavenger contended, but rather an issue of employee rights.
However, it may be somewhat misleading to suggest, as Mr. McKae does, that "factual" matters had nothing to do with his defeat in the Court of Appeals. The statistics that Mr. Yturbide adduced in support of his argument may be untested, they may remain for the moment only allegations, but they served Mr. Yturbide's purpose well. And this was to cast serious doubt on Oakland Scavenger's contention that its alleged discriminatory practices were no more within the reach of the law than the usual discriminations practiced by families -- when they decide, say, which of the children should inherit grandfather's gold watch.
Much more than gold watches is at stake in the Oakland Scavenger case. Mr. McKae ends his letter with an appeal to what every reader knows: that life is arbitrary (in its distribution of intellect and skills) and that family affections may be equally arbitrary (in the way they bestow social and economical advantages on their children).
This fundamental arbitrariness is, he says, "natural." And so it is. But so are a great many things "natural" that we don't permit the law to condone -- violence, fraud, and many forms of unfairness. You may be sympathetic to the desire of Oakland Scavenger's owners to keep the privileges and responsibilities of ownership "in the family," or you may be sympathetic to the plaintiffs' desire that access to such privileges and responsibilities remain open to everyone. Both desires are "natural." The court must decide which is most just.