# Cormier v. P. P. G. Industries, Inc.

> District Court, W.D. Louisiana · June 18, 1981 · 519 F. Supp. 211

URL: https://www.frixlaw.com/law-library/cases/1427140

## Case

- **Full name:** Melvin J. CORMIER, Et Al. v. P. P. G. INDUSTRIES, INC. and Local 470 of the International Association of MacHinists and Aerospace Workers
- **Court:** District Court, W.D. Louisiana
- **Decided:** June 18, 1981
- **Citations:** 519 F. Supp. 211; 27 Empl. Prac. Dec. (CCH) 32,204; 26 Fair Empl. Prac. Cas. (BNA) 652; 1981 U.S. Dist. LEXIS 13634
- **Precedential status:** Published
- **Opinion:** Opinion by Veron
- **Judges:** Veron
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

OPINION
VERON, District Judge.
This class action was brought under the provisions of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C., Section 2000e, et seq. (Title VII) and under 42 U. S.C. Section 1981.
The court bifurcated the trial and tried the question of liability, leaving the damage question to be decided later, depending on the outcome of the question of liability.
Plaintiffs are black employees employed at the chemical plant operated by PPG Industries, Inc., in Lake Charles, Louisiana. On June 13, 1977, this Court defined the class of plaintiffs as follows:
(1) All present and former black employees employed as of or at any time after October 21,1974, by PPG Industries, Inc., at its Lake Charles Chemical Plant located on Columbia Southern Road near Lake Charles, Louisiana, in any maintenance or production department job classification covered by the collective bargaining agreement in effect or which at any material time has been in effect between Defendant PPG Industries, Inc. and Local 470 of the International Association of Machinists and Aerospace Workers, (2) All present and former black employees employed as of or at any time after October 21, 1974 by PPG Industries, Inc., at
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its Lake Charles Chemical Plant located on Columbia Southern Road near Lake Charles, Louisiana, in any job classification or position not covered by the collective bargaining agreements in effect or which at any material time have been in effect between Defendant PPG Industries, Inc. and Local 470 of the International Association of Machinists and Aerospace Workers.
Defendant, PPG Industries, Inc., (hereinafter PPG) is a diversified company engaged in the operation of the chemical plant involved in these proceedings.
Defendant, Local 470, International Association of Machinists, (hereinafter Local 470) is a labor organization within the meaning of Section 2(5) of the National Labor Relations Act, 29 U.S.C. § 152 (5), and represents the hourly employees in the production and maintenance jobs at the Lake Charles, Louisiana plant.
PPG is engaged in the manufacture of basic chemicals and chemical compounds, including chlorine, vinyl chloride, EDC, triethane, etc., through highly intricate and sophisticated procedures of breaking down and combining various chemicals. These chemicals are exceedingly hazardous. Many of the chemicals are highly volatile and explosive.
There were extensive pretrial proceedings in this case with ample opportunity for discovery and for the proper formulation of issues.
The following issues were pursued by the plaintiffs:
a. Whether the defendants discriminated against blacks in hiring and job assignment.
b. Whether the defendants unlawfully used tests to discriminate against blacks.
c. Whether the defendants instituted and/or maintained an unlawful seniority and transfer system that is not bona fide and/or had its genesis in racial discrimination.
d. Whether the defendants discriminated against blacks by denying them promotion to supervisory positions.
e. Whether defendants discriminated against blacks by failing or refusing to assign them to clerical, technical and/or craft jobs.
f. Whether defendants discriminated against blacks by denying them training on an equal basis as whites and requiring blacks to train whites who were then promoted to higher paying and more desirable jobs.
g. Whether defendants discriminated against blacks by paying them lower wage rates for performing essentially the same jobs as whites.
h. Whether defendants discriminated against blacks by discharging them unlawfully.
i. Whether defendant Local 470 has discriminated against blacks by failing to properly represent them without regard to their race or color.
At the close of the plaintiffs’ case both defendant PPG and defendant Local 470 filed a number of motions to dismiss certain issues and to redefine the scope of the class.
The court, for the reasons stated in its March 26, 1980 ruling, which are hereby adopted as findings of fact, decertified the plaintiffs as proper representatives of the sub-class of black employees not covered by the union contract as described in the original certification order dated June 13, 1977.
Only one of the named plaintiffs, Mr. Noah Lewis, was a member of this second sub-class. Plaintiffs were permitted to proceed with litigation of Mr. Lewis’ individual claim.
The court also dismissed plaintiffs’ allegation that Local 470 had failed to represent them without regard to their race or color. This ruling was based on the fact that a number of plaintiffs, and other black witnesses called on behalf of the plaintiffs, testified that representatives of Local 470 repeatedly responded to their grievances and complaints and assisted them in obtaining action from the company.
Plaintiffs in this case offered over forty employee witnesses. The testimony of
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these witnesses consisted almost entirely of opinion evidence. The plaintiffs repeatedly testified about things they “felt” or “believed” to be discriminatory. However, they offered little if any credible factual information to support this allegation.
The court also notes that there was almost a total absence of allegations of any overt racial harassment or other overt discrimination which occurred at the plant at anytime.
TIME PERIOD COVERED BY THIS ACTION
The earliest EEOC charge filed by an individual named plaintiff was on April 18, 1975. (PI. Exh. 1). One hundred and eighty days preceding April 18, 1975 is October 21, 1974.
Under the provisions of Title VII, an alleged illegal act by the Company is not timely and actionable unless it occurred on or after October 21, 1974. However, the court allowed plaintiffs to present testimony concerning incidents which occurred substantially before this period of time and received statistics for a five year period before this date in order to allow plaintiffs to attempt to show a pattern or practice of discrimination leading up to and continuing into the period covered by this suit.
Additionally, to the extent plaintiffs challenged the seniority system, plaintiffs were permitted to introduce evidence relevant to that issue without any time limitation.
THE CONTRACTUAL SENIORITY SYSTEM
Employees in jobs covered by the collective bargaining agreement are presently classified into 15 separate department or lines of progression. Employees enter these departments through one of two entry pool job classifications. Employees who qualify for the utility crew by passing two job related tests are eligible to go into the skilled power generation, chlorine — caustic production, organic (Plant B) silica, lead loader and maintenance lines of progression. Other employees, hired into the yard utility crew are eligible to enter the diaphragm, mercury, and glanor cell repair, pigments packer, pels shipper, and yard lines of progression. The system is depicted on pages 35 and 36 of Joint Exhibit 16.
Employees within each line of progression are promoted based on the amount of time they have spent within the department. Absent special circumstances employees are not allowed to transfer from one department to another. Employees are allowed to transfer from the yard utility crew to the utility crew, however, if they qualify for this position by passing the required tests.
To properly understand the development and operation of this departmental seniority system, it is necessary to review in detail the history of the system and the factors which were considered in structuring the system.
The plant commenced operations during 1947. At that time it was owned by Southern Alkali Corporation, a separate corporation, owned in part by PPG and American Cyanamid Company. It was purchased by PPG in 1951 when its name was changed to Columbia Southern Chemical Corporation. Approximately one year earlier Southern Alkali Corporation employed an experienced labor relations director, Mr. Clem White.
Mr. White was responsible for formulating and implementing labor relations policies for the new plant, including the determination of what job classifications would be created and how they would be organized into departments and progression lines. To insure the labor relations policies were developed in an orderly and systematic way, Mr. White wrote a twelve chapter book describing in detail the recommended steps he would follow in developing the labor relations policies.
In order to decide what job classifications should be created and how they should be organized into departments and progression lines, Mr. White recommended an analysis of the functions to be performed at the plant, a listing of the duties to be performed by employees with a detailed listing of the complexities and risks involved in the performance of those duties. Pursuant to
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the written procedures, Mr. White analyzed the functions to be performed at the plant, the duties employees would be expected to perform, and the complexity of those duties and risks of personal injury or damage to the equipment and processes if the duties were improperly performed.
In this connection, he interviewed supervisors employed by the company and experienced in the operation of a chemical plant similar to the one being constructed at Lake Charles. He also reviewed the proposed plant layout, kinds of equipment, and investigated the hazards involved in the chemical processes and electrical power generating facilities.
Mr. White also visited an existing plant producing the same type of chemicals with similar processes at Natrium, West Virginia and studied the job classifications, departments and progression lines at that facility.
After this detailed analysis, Mr. White recommended the creation of certain job classifications to be organized into the following departments and progression lines: (1) Production Department, (2) Power Department, (3) Shipping Department, (4) Maintenance Department, and (5) Labor Department.
Mr. White’s study and analysis of the equipment, functions, and expected employee duties involved with producing the chlorine gas and caustic soda convinced him the following job classifications should be created and organized into a separate production department as follows:
Based on his investigation of the equipment, functions and employee duties involved with operation of the large boilers and turbines used to generate the huge
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amounts of electricity needed to make chlorine gas and caustic soda and to otherwise operate the plant, Mr. White recommended the following classifications should be included in a separate progression line as follows:
This recommendation was based on Mr. White’s conclusion that all of the jobs were to be performed in a separate identified area of the plant complex and were all closely related and involved with operation of the equipment used to produce electricity. Further, it was based on his conclusion that the jobs were highly skilled and would require the frequent exercise of judgment, that if exercised improperly, could lead to wide-spread serious injury and death to the employees and could result in the destruction of equipment and the long term cessation of operations of the plant. The jobs were to be performed without close continuous supervision and would require extensive training, usually three to five years, before an employee would be competent to perform the higher level jobs in the progression line.
Mr. White’s study and analysis of the equipment, functions and employee duties involved with shipping the chlorine gas and caustic soda convinced him the following jobs should be created and included in a separate progression line as follows:
This recommendation was based on Mr. White’s conclusion that all of the jobs involved with shipping chlorine gas and caustic soda were closely related and involved operations of similar types of pumps and other pieces of equipment. Further, it was based on Mr. White’s conclusion that the jobs were highly skilled, and required the frequent exercise of judgment, that if exercised improperly, could lead to wide-spread serious injury and death to employees and to the public generally while the chlorine
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gas was in transit. It was further based on his conclusion that the jobs were to be performed without close continuous supervision, and it would usually take three to five years before an employee would be competent to perform the higher level jobs in the progression line.
Starting with the bottom jobs, the job classifications at each level and the progression lines in the Production Department, Power Department and Shipping Department were designed to provide necessary training to enable the employee to handle the increased complexities and responsibilities required in the next higher job in the progression line.
Based on his detailed analysis of the functions and job duties and his years of experience in labor relations, Mr. White concluded such a step by step progression of employees so as to provide training on the increased complexities of the jobs at each higher level in the progression line was essential for the safe and efficient operation of the plant.
Pursuant to this, he designed a promotional system under which employees would enter the bottom job and promote to each higher job in the progression line based on his length of service in the progression line.
Under the foregoing circumstances and particularly the very hazardous nature of the jobs and the considerable risk of explosion and injury to employees and destruction of equipment, we find the promotional system is essential to the safe and efficient operation of the chemical plant.
Based on his investigation, Mr. White recommended a separate department and progression line be created with the following job classifications to perform the maintenance and repair functions on the machinery and equipment at the plant:
Mr. White concluded that in order to effectively accomplish the maintenance objectives on all of the various types of turbines, pumps, and instrumentation in the plant, they would need skilled craftsmen with perfected skills in the following craft areas: carpenter, electrician, heavy equipment operator, rigger, machinist, painter, pipe fitter, and welder.
However, he specifically recommended a craftsman should not be limited to performing only his craft skill, but would be required to perform all types of maintenance work. Mr. White felt that because there would never be a constant volume of a particular type of craft work, such as electrical work, if employees were limited to performing work in their particular craft skill, depending upon the volume of work, either they would have insufficient work or other essential maintenance functions would not be accomplished.
Accordingly, all skilled craftsmen were classified as service mechanics and were expected to work in teams to perform whatever maintenance work needed to be accomplished.
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The general service helper job in the maintenance department progression line was designed as a job untrained employees would go into and, by working along with the skilled craftsmen, over a period of years would learn a craft skill.
Mr. White concluded these jobs should be created and included in a separate progression line because they were closely related and all involved performing the maintenance functions in the plant; were highly skilled, required many years of training, were to be performed without close continuous supervision, and frequently required the exercise of judgment, that if exercised improperly, could result in the serious injury and death to many employees and damage or destruction to equipment and the chemical processes.
Because of the highly skilled and hazardous nature of the jobs, the considerable risk to the safety of other employees and in some cases the public generally, as well as the risk of substantive damage to the equipment and chemical processes, Mr. White recommended and subsequently implemented requirements that all employees going into the Production Department, Power Department, Shipping Department and Maintenance Department undergo extensive screening procedures to determine if they had the qualifications to learn to perform the skilled jobs.
He testified without contradiction that it was not feasible to hire employees for these skilled jobs randomly off the street. In addition to the considerable cost involved with each turnover, the discharge of unsuitable employees, wasted training efforts, and administrative hiring burdens caused by the increased need for new employees; and because of the extended training time, there was a substantial risk employees may perform satisfactorily up to a certain level in the progression line but be incapable of performing any higher level jobs. If the employee were performing satisfactorily at his present level and could not be discharged this would result in clogging the progression of jobs and removing essential steps in the training process designed by Mr. White. Further, it could leave the company without adequate trained personnel to operate the plant.
To prevent the serious adverse consequences of random selection, the screening procedures included a thorough review of the applicant’s prior work history, an investigation of the applicant’s experience with prior employers, structured interviews designed to elicit information about the employee’s ability to perform the jobs, and paper and pencil tests designed to determine whether the applicant had substantial mental abilities sufficient to perform the higher level and more complex jobs in the plant.
The company retained Dr. Baker, Head of Industrial Psychology at the University of Texas, to advise them about what tests should be adopted. After an investigation of the jobs at the plant Dr. Baker recommended the use of a mechanical aptitude test and the Otis Test which was widely used by industry and also the Armed Forces.
Shortly after, based on the recommendations of Dr. Tydlaska, an Industrial Psychologist from the University of Texas, the company began using the Bennett Mechanical Aptitude Test to screen applicants for the skilled jobs. Since that time, all applicants, other than skilled craftsmen with four or more years of demonstrated journeymen craft skills, for jobs in the skilled progression lines have been required to pass the Bennett Mechanical Aptitude Test.
Once an applicant passed this rigorous screening for the skilled jobs he was placed in a utility crew job, a pool of employees from which employees were selected to go into the skilled progression lines.
Based on his analysis and investigation, Mr. White concluded there should also be a pool of unskilled employees to perform miscellaneous menial laboring type jobs such as clean-up, mowing the grass, and other similar jobs. Accordingly, he recommended the creation of a job classification called “yard labor.”
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He concluded this should be a separate job classification and should not be included in any of the departments containing the skilled jobs because the work was unskilled repetitive type work that could normally be learned in a few days and did not involve the exercise of any significant judgment that if performed improperly, would result in injury to a large number of employees or substantial damage to the equipment or chemical processes. Further, his investigation revealed this work was not meaningfully related to the work in the skilled progression lines and would not provide any meaningful training for the skilled jobs. He concluded, and we find the evidence establishes business considerations dictate, that these unskilled jobs should not be placed in the skilled progression lines.
His decision to create the yard labor job as a separate job and to not include it in the skilled progression lines was based in part on the fact that the Natrium, West Virginia plant he visited had a separate yard labor job classification to perform these unskilled type functions. At the West Virginia plant the yard labor job was held by white employees.
For similar reasons, Mr. White recommended the creation of a separate loader laborer job. The employees in the loader laborer job are primarily responsible for cleaning out and preparing for shipment the tank cars used to transport caustic soda. Although the job title was changed in 1977 to Caustic Rack Helper, the duties remained the same.
Based on his investigation, Mr. White concluded there should be a separate job classification for this work that should not be included in the departments containing the skilled jobs because the loader laborer work was unskilled repetitive type work that normally could be learned in a few weeks, did not involve the exercise of any significant judgment that if performed improperly would result in serious injury to employees or damage to the equipment or chemical processes, was not meaningfully related to work in the skilled progression line and would not provide meaningful training for the skilled jobs.
Mr. White’s recommendation was based in part on the fact that the Natrium, West Virginia plant he visited had a separate loader laborer job classification to perform these similar unskilled functions on the railroad cars used to transport caustic soda. At the West Virginia plant this job was held by white employees.
Plaintiffs claim the job was created as a separate job and excluded from the Shipping Department based on racial considerations. However, the evidence fully establishes and we find the job was created and placed in the unskilled Labor Department based on the sound business considerations discussed above and that racial considerations were not involved in the decision.
Based on his investigation, Mr. White also recommended the creation of the jobs of renewal man, cut-out laborer, and cell renewal laborer and their organization into a separate progression line as follows:
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He concluded these should be created and included in a separate progression line from the departments containing the skilled jobs because the work in each of these jobs involved repair work on the cells and was related, but was relatively unskilled, repetitive type work that could normally be learned in a few months, did not involve the exercise of any significant judgment that if exercised improperly would result in the injury to a large number of employees or extensive damage to the chemical processes or significant portions of equipment. Further, he concluded the duties of those jobs were not significantly related to the types of skills and duties performed by employees in the skilled progression lines and would not provide any meaningful training for the skilled jobs.
This conclusion was based in part on the existence of similar jobs classifications organized in a separate progression line at the Natrium, West Virginia plant. At the West Virginia plant these jobs were held by white employees.
Plaintiffs claim these jobs were excluded from the Production Department Progression Line based on racial considerations. In support of this, they introduced testimony showing that employees in both progression lines were involved with the Diaphragm Cells used to manufacture Chlorine and Caustic.
The evidence, however, established the duties, skills, and responsibilities of the two groups of jobs were completely different.
The employees in the bottom job, Cell Builders, in the Cell Renewal Progression Line rebuild the Diaphragm Cells. The cells, approximately 5 feet high and 6 feet square, are made of concrete and consist of two major components: the cell top which contains the anodes and the cell bottom which contains the cathode. By the flow of electricity through a solution of brine water, chlorine gas, caustic soda and hydrogen are created. As a result of this electrolytic source the anodes, cathodes and concrete tops and bottoms have to periodically be replaced.
All of the Diaphragm cells are constructed the same and have the same identical parts. Presently, of the approximately 1000 cells, there are two sizes. Other than the size the cells are identical.
The employees in the cell builder job rebuild the cells in an assembly line process. In this process one group of employees in the cell builder job pours cement in the steel molds, another group inserts the anodes and so on.
The jobs are repetitive and unskilled and plaintiffs admitted each of the jobs could be learned in a few days and all of the jobs in the process could be learned in a few weeks.
The employees in this job are not required to exercise any significant judgment, and improper performance of this job does not create a significant risk of injury to employees or destruction of large amounts of company property.
The employees in the next two jobs in the progression line, Cut-out Helper and Renewal man, work as a team to take the cell out of the chemical process area and transfer it to the rebuilding room.
Briefly, these jobs involve connecting a bypass wire around the cell and pulling a switch to cause the electricity to bypass the cell. The cell is then moved with an overhead crane to the rebuilding room. After the cells are rebuilt, they are replaced in the chemical process area and the electricity is again hooked up to the cell.
The tasks performed in each of the approximately one thousand diaphragm cells are identical and the work is repetitive and unskilled. Plaintiffs admit the jobs can be learned in a matter of a few weeks.
Other than the relatively minor discretion involved in insuring the anodes and cathodes do not physically touch each other when the cells are replaced in line in the chemical process area, and being careful not to touch the electrical circuits, these employees are not required to exercise any significant judgment, that if exercised improperly, could result in injury to employees or damage to the equipment or chemical processes.
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The Lead Cell Repairman, as the name implies, is a working leadman in the Cell Rebuilding area.
On the other hand, employees in the Production Department are responsible for actually controlling the chemical process through the manipulation of a number of variable factors such as an electrical current, brine content and flow of brine.
The chemical process is monitored and controlled by these employees through extensive instrumentation that registers and controls all of the pumps, valves, heat exchangers, turbines and other machinery involved with the manufacture of chlorine gas, caustic soda and hydrogen.
To control this process the employees in the Production Department Progression Line must understand how the chemistry and how all of the various parts of the process are related to each other.
In order to competently learn to perform the higher level jobs in the progression normally requires three to five years of on-the-job training in conjunction with some formal instruction.
These jobs require the frequent exercise of judgment that if exercised improperly could result in explosions and injury and death through the release of chlorine gas affecting many employees and damage to the chemical processes.
The inclusion of the unskilled repetitive jobs in the Cell Builder — Renewal Progression would destroy the step-by-step training process designed by Mr. White by clogging the progression line and discouraging qualified persons from remaining employed and could result in the unavailability of trained personnel to operate this sophisticated and hazardous chemical process.
The court finds the Cell Builder — Renewal Progression jobs were excluded from the Production Department for significant business reasons and that racial considerations were not involved in the decision.
Because of the unskilled nature of the loader laborer job and cell renewal jobs, Mr. White recommended, and later implemented, procedures so that employees for these jobs would be selected from the employees in the unskilled yard labor job, the pool of employees performing the unskilled laboring type work.
The separate unskilled Labor Department was organized as follows:
Employees going into these unskilled jobs were not required to pass the rigorous screening required of employees going into the skilled progression lines.
Based on his years of experience in labor relations and analysis of the jobs in the proposed plant, Mr. White testified without contradiction, and the court finds, the efficient and safe operation of the plant was significantly furthered by organization of related jobs into separate progression lines and by separating the progression lines into those containing skilled jobs requiring a high degree of judgment and responsibility and those containing unskilled repetitive type jobs, and by imposing more stringent
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hiring qualifications for employees being hired for the skilled jobs.
The grouping of jobs into those requiring a high degree of skill and those that do not and establishing different hiring criteria for each group is a logical and efficient way of organizing jobs within the plant.
Although the evidence establishes that after the organization of the progression lines into skilled and unskilled lines was recommended by Mr. White and subsequently adopted by the company, black applicants were only hired into the unskilled jobs; in view of the convincing testimony of Mr. White that the manner in which the jobs and progression lines were organized was because of significant business considerations; the extensive evidence confirming that this organization is necessary for the safe and efficient operation of this plant; and the fact that the decision was based in part on the organization of jobs at the similar Natrium, West Virginia plant where the unskilled jobs were held by white employees; the court finds the jobs were created and organized into these skilled progression lines and unskilled progression lines based on sound business considerations and that racial considerations were not involved in the decision.
Mr. White testified, and the court finds that racial considerations, or the race of employees subsequently hired to fill the jobs, was not a factor in the decision about what jobs would be created or how they would be organized into departments and progression lines and that his decision and recommendations were based solely on the important business considerations described above and not contradicted by plaintiffs.
On September 10, 1948, approximately one year after the plant commenced operations, the employees in the following described bargaining unit voted to have Local 1317 of the International Association of Machinists represent them for purposes of collective bargaining:
All hourly paid production and maintenance employees of Company employed at its Lake Charles, Louisiana, plant excluding clerical office workers, technically trained laboratory employees, plant guards, plant protection firemen, temporary employees . . . and all supervisory employees with the authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of such employees, or effectively recommend such acts.
(Joint Exhibit 1, page 4).
All employees in the bargaining unit, white and black, voted in the election and Local 1317 (later changed to Local 470) represented all employees, white and black, for all purposes in negotiations with the company and in processing grievances under the collective bargaining agreement.
At the time of the NLRB election and for a number of years after, the black employees had their own separate local, Local Union 2002, for purposes of internal union affairs.
However, for purposes of negotiations, processing grievances and all other dealings with the company, black employees participated on the Local 1317 negotiating committee and as Local 1317 Union Stewards for processing of grievances and, as required by the National Labor Relations Act, the Company dealt only with Local 1317 as representatives of all employees, white and black.
During the negotiations leading up to the first collective bargaining agreement, the 1949 contract (Joint Exhibit 1), the parties agreed to the departmental and progression line seniority system initially recommended by Mr. White and adopted by the
company
including the restrictions on transfer from one progression line to another.
Plaintiffs suggest in their proposed findings based on certain portions of the 1966 contract (Joint Exhibit 10) and the 1969 contract (Joint Exhibit 11), that until 1969 the employees in the Labor Department, all of whom were black, did not acquire progression line seniority rights even if they entered the cell builder — cell renewal progression line, whereas employees in the Power, Production, Shipping and Maintenance Department, all of whom were white,
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acquired seniority upon entering the progression line.
The evidence, however, establishes that once an employee entered the cell builder— cell renewal progression line, the only progression fed from employees in the yard crew at that time, he likewise acquired seniority in the progression line and was promoted and demoted based on that seniority.
In addition to the testimony at trial, this is borne out by language in the collective bargaining agreement and the seniority lists.
Thus, in the first agreement negotiated in 1949, Joint Exhibit 1, at page 11:
(c) The beginner job in each department will be filled from qualified employees in the utility or yard labor crews in accordance with the established progression schedules.
Employees in the yard labor crew
and utility crew
who have established seniority credit
in accordance with paragraph (f)
will be given preference for higher jobs
when they have a satisfactory merit rating,
according to the progression line.
(d)
Progression beyond the beginner job
will be on departmental progression lines and
will be based on departmental seniority
credit and satisfactory performance rating according to the merit rating methods now in effect.
(e) All departmental employees are on trial for the first forty-five (45) days of work on any job assignment. An employee who does not satisfactorily complete his trial period may be returned to his former job in the departmental progression line.
(f) In event of curtailment of working forces, the reduction shall be by a reverse operation of the progression procedure in the Production, Power and Shipping Departments. In the event of reduction of forces in the Service Department, lay-offs will be made in accordance with departmental seniority credit within the affected groups. Forces will be reduced in such proportion as the work available justified and from those classifications short of work usually handled by the group. Pipefitters, machinists, welders, electricians and other mechanics as well as apprentices laid off may use their seniority credit to displace a general service helper who has less departmental service credit. Employees being reduced may be returned to the utility crew or yard labor crew in accordance with the reverse order of the progression schedule.
It was established through testimony that as used in the collective bargaining agreement the term “departmental seniority” was synonymous with “progression line seniority.”
Although, as is true with most negotiated collective bargaining agreements, the instant agreement is not a model of clarity and must be interpreted in light of the actual practices, the language certainly suggests that employees in the yard crew would enter the cell builder-cell renewal progression line and would be promoted within the progression line based on seniority-
This was confirmed by testimony and by seniority lists (PPG Exhibit 177a) for the Cell Renewal Department which show seniority dates for employees in the progression line of 1948, 1949, 1950, 1951, 1952 and so on. If, as plaintiffs claim, black employees could not acquire seniority in this progression line prior to 1969, then clearly they could not have seniority dates prior to 1969.
Pursuing this same theme, plaintiffs point to the fact that employees in the pool of unskilled labor type jobs originally called yard labor, and subsequently identified as yard crew, classified and unclassified labor, and yard utility crew, worked in the labor pool for many years but did not receive progression line or departmental seniority until the 1969 contract.
However, as is discussed hereafter, the reason for this is simply that there were no other progression lines being fed by the labor pool until 1969 and these employees were not in a progression line and could therefore not acquire progression line seniority until they were in fact in a progression line.
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The court finds that the departmental progression line system originally created based on Mr. White’s recommendations was based on sound business considerations and also finds the genesis of the seniority system was not based on racial considerations.
The seniority system adopted by PPG and the union confirmed the progression lines and promotional procedures originally recommended by Mr. White. Under those procedures employees going into the skilled jobs were hired into the Utility Crew and, as need arose, thereafter entered the bottom job in one of the skilled progression lines. Employees would thereafter be promoted to each higher level of jobs in the progression line based on his date of seniority within the line.
Employees going into the unskilled jobs were hired into the Yard Crew and thereafter, as the need arose, entered the cell cut-out and cell renewal progression line. Employees would thereafter be promoted to each higher level job in the progression line based on his date of seniority within the line.
During the first five years of the plant’s operation, the job classifications, progression line and promotion system recommended by Mr. White proved to serve the significant business efficiency and safety objectives except in two areas: (1) employees in the Service Helper job in the Maintenance Department were not learning to be skilled craftsmen merely by working with the Service Mechanics and it became apparent a formal apprenticeship training program was necessary; and (2) a separate job needed to be created in the Labor Department for the repetitive work involved in oiling the pumps, engines and similar pieces of equipment.
In the Maintenance Department, based on five years experience, the company concluded an individual could not learn to be a good service mechanic merely by working with a skilled Service Mechanic and that a formal, structured training program was necessary.
To solve this problem the company instituted a formal four year apprenticeship program approved by the United States Department of Labor to train employees to be skilled Service Mechanics and negotiated a separate Service Apprentice job in the Maintenance Department progression line.
The Service Apprentice job was included in the 1952 collective bargaining agreement in the Maintenance Department as follows:
Mr. White testified, and we find, the Service Apprentice job was created and included in the Maintenance Department progression line for sound business reasons and that racial considerations were not involved in the decision.
Based on the company’s experience it was also concluded oiling of the equipment must be done in a systematic way and could best be accomplished by having the same employees perform the job each day.
The job had been performed by employees in the yard labor job, and would continue to be an unskilled, repetitive job of put
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ting oil in the machinery according to a set schedule and would not involve the exercise of judgment that if exercised improperly would result in injury or death of employees or significant damage to substantial amounts of equipment or chemical processes.
Accordingly, a separate job called the oil-er job was created and was included in the Labor Department progression line as follows:
Employees were selected from the pool of unskilled employees in the yard labor job. A similar separate “dead end” job existed at the Natrium, West Virginia plant where the job was held by white employees.
Other than the addition of a few jobs in the Production Department progression line, caused by the addition of new equipment, the jobs and progression lines remained unchanged until 1960.
From 1960 to the present there have been substantial changes in the size of the plant and a number of new chemical processes involving different techniques and equipment have been added resulting in corresponding changes in the skilled jobs and progression lines.
Although for the most part plaintiffs offered no evidence challenging that the formation of these new skilled jobs and progression lines was based on sound business considerations, they nevertheless challenge how these jobs are organized into progression lines and claim the seniority system is not bona fide.
As detailed below, the evidence fully establishes these new jobs were created and organized into progression lines as new equipment and chemical processes were added in order to safely and efficiently operate these very hazardous chemical processes.
The first significant addition occurred in 1960 when the company completed construction of the equipment used to manufacture an entirely new organic chemical, ethylene dichloride, at the plant.
To operate this new process, two new jobs were created, lead operator and auxiliary operator, and included in a separate line of progression called the EDC Department.
Both of these jobs were highly skilled jobs requiring the regular exercise of discretion and judgment that if exercised improperly created a substantial risk of injury to a large number of employees and damage to the equipment and the chemical processes. Both jobs were involved in operating the equipment and chemical processes used to manufacture ethylene dichloride and were performed in a separate identified portion of the plant complex.
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When the new chemical process was commenced in 1960, there were two employees assigned to each shift for a total of nine employees responsible for operating the continuous twenty-four hour, seven-day a week chemical process.
The initial employees for this chemical process were selected from among employees that bid on the job from the other skilled lines of progression and who already had some experience with operation of pumps, valves and other similar types of equipment that would be operated in the new department.
Although plaintiffs have generally claimed the seniority system is not bona fide and was otherwise designed to restrict blacks to certain job classifications, they have not specifically challenged the creation of the separate jobs and their organization into a separate line of progression to operate the ethylene dichloride chemical process. In any event, the court finds the evidence clearly establishes these jobs were created and organized into a separate progression line based on sound business considerations and that race of the employees was in no sense a factor in the company’s decision.
Similar to the other skilled lines of progression, the jobs were organized so that the lowest level job provided training to perform the more complex and more difficult duties in the higher level job in the progression line.
During the negotiations leading up to the 1961 contract, the progression line created by the company was included in the contract as follows: (Joint Exhibit 8).
Subsequent to the 1961 negotiations, the company added another operating unit used to manufacture hydrogen chloride to the ethylene dichloride chemical process.
At this same time, the company added an operator classification to the progression line to operate this related but additional operating unit.
In the negotiations leading up to the 1963 contract, the contract was amended to reflect the addition of this new job classification as follows: (Joint Exhibit 9, at page 41).
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Plaintiffs offered no evidence which would indicate the addition of this job to the progression line was for any reason other than sound business considerations. The court finds racial considerations were not involved in the creation of this job as its addition to the progression line.
In accordance with the company’s initial plans to use ethylene dichloride as a basic chemical to manufacture a number of other related organic chemicals, after the start-up of the ethylene dichloride manufacturing process in 1960, the following additional and related chemical processes were added in the following years: HCL, hydrogen chloride — 1963; methyl chloroform (or tri-ethane) — 1965; perchloroethylene — 1964—1965; trichloroethylene — 1964-1965; ethyl chloride — 1966; vinyl chloride — 1966-1967; vinylidene dichloride — 1969-1970; OHC— ethylene dichloride by a different process— 1969; the addition of a pollution unit; the addition of a new tri-ethane plant for the manufacture of the chemical by a different process — 1978-1979.
In addition, at the time of the trial the company had under construction equipment that will be used to produce additional vinyl chloride and ethylene dichloride.
All of the chemical processes used to produce these various chemicals are closely integrated. The manufacturing process is a continuous twenty-four hour, seven day week process and the by-products from the manufacture of one chemical are the basic chemicals used to manufacture the other chemicals.
The chemical processes used to manufacture all of these chemicals are similar and require the operation of similar types of machinery and equipment. The jobs are performed in a separate identified part of the plant complex.
Because of the substantial expansion of this portion of the plant into these new product lines, a number of new jobs were created and included in what was originally the ethylene dichloride or EDC Department.
Subsequently, the department name was changed to Plant B to more accurately reflect that the chemical processes were not concerned solely with the manufacture of ethylene dichloride.
Starting with the bottom jobs, the jobs were placed in the progression line based on their complexity and level of skill and responsibility required so that the performance at one level of jobs would provide necessary training to perform the more complex and hazardous duties in the next higher level of jobs in the progression line.
Because of the considerable growth in the number of jobs, in the negotiations resulting in the 1979 collective bargaining contract, the jobs were divided into two separate progression lines, called Plant B — 1 and Plant B-2.
The progression lines were divided into separate progression lines because the administration of the employees in one progression line became too unwieldy from the standpoint of supervision and training. The number of jobs was too many for one superintendent to effectively supervise.
The equipment and chemical processes in both the Plant B-l and Plant B-2 progression lines are similar, and the jobs in the two separate progression lines were divided primarily based on their relationship to a particular part of the chemical process and their different physical location within the plant complex.
The jobs were organized within the new progression lines so that each level of jobs provided necessary training in order to perform the more complex and hazardous duties in the next higher level of jobs in the progression line.
Each higher level job requires the employee to have a greater understanding of
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how the chemical process operates to produce the chemical compounds, and the employee must exercise increasing degrees of judgment that if exercised improperly would result in increasing risks of personal injury and death to other employees and damage to the equipment or chemical processes. It was clearly established the jobs in these two progression lines are highly skilled and hazardous jobs requiring extensive training of three to five years before employees are competent to perform the higher level of jobs in the progression line. These employees are routinely called upon to exercise judgment that if exercised improperly could result in serious injury and death to a number of employees and destruction of the equipment and the chemical processes.
This was demonstrated by the explosion and resulting death of five employees and destruction of equipment costing the company millions of dollars that occurred as a result of operator error a few years ago. In view of the business considerations, and particularly the very hazardous nature of these jobs and possible injury and death to employees and damage to equipment, the court finds the creation of these jobs and the manner in which they were organized into lines of progression is essential for the safe and efficient operation of these organic chemical processes, and that racial considerations were not involved in the decision.
The court further finds the promotional system created by the company was not in any sense included in the collective bargaining agreement or maintained in successive collective bargaining agreements based on racial considerations and that the system is bona fide.
As a part of the large plant expansion, shortly before the negotiations leading up to the 1969 contract, the company completed a separate plant within the plant complex to manufacture silica pigments, an entirely new product made from molten glass. The product is used in various products, including cosmetics and tires.
To operate this new chemical process the company created the following job classifications and included them in a separate line of progression in a new silica pigments department:
The employees in this progression line are responsible for the operation of a large furnace used to produce molten glass at extremely high temperatures and to manipulate the mixture of various chemicals, heat and pressure in order to produce the final product. Through the information recorded and controlled through complex instrumentation, the employees are required to manipulate a number of variables including heat, pressure, flow and mixture of various liquids and chemicals in order to produce the product safely and to the proper specifications.
Testimony clearly established these employees are required to routinely exercise considerable judgment, and that if the judgment is exercised improperly it could
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result in injury to employees and destruction of the oven used to produce the glass as well as the entire chemical process.
All of the jobs in the progression line are performed in a separate identified area of the plant complex and relate to operation of the equipment and chemical processes used to manufacture silica pigments.
The jobs are highly skilled, and were organized in the progression line so that starting with the bottom job each job provides necessary training for the more complex and hazardous duties of the next level of jobs in the progression line. It normally takes three to five years to train someone to competently perform the higher level jobs in the progression line.
The new jobs and their organization into the separate silica pigments progression line was agreed to by the union and was included in the collective bargaining contract during the negotiations leading up to the 1969 contract.
Although plaintiffs do not specifically challenge the creation of these jobs and their organization into the separate silica pigments progression line, they do generally challenge the bona fides of the seniority system. The court finds the evidence clearly establishes the jobs in the silica pigments progression line were created on sound business considerations. In view of the fact that improper exercise of judgment by the employees in this progression line could result in losses of millions of dollars to the company, the court finds that the job classifications and the manner in which they have been organized into a separate progression line as well as the promotional procedures are essential to the safety and efficiency of the company’s operations. The court further finds that racial considerations were in no way involved in the decision about which jobs should be created and how they should be organized into a separate progression line, and that racial considerations were in no way involved in the negotiations to include the jobs in a separate progression line in the 1969 collective bargaining agreement or any subsequent agreement.
Because of the substantial expansion of the plant, it became apparent during the early 1970’s the company would be forced to significantly increase its ability to produce electrical power. To meet these new needs, the company added huge new boilers and turbines to their existing power generating facilities. The boilers are a number of stories high and the turbines are several hundred feet long and are capable of generating enough electricity for five or more cities the size of Lake Charles, Louisiana.
Similar to the existing boilers, turbines and related power generating equipment, although on a larger scale, the new equipment requires a very high degree of skill and judgment to operate.
Through information recorded and controlled through complex instrumentation, operators in the Power Department are required to frequently make judgments about a number of different variables, including steam flows and pressures, air flows, fuel consumption, and the interrelationship with the public utility electrical grid system.
If the employees in these operator positions in the Power Department improperly exercise this judgment, it can easily result in massive explosions and injury or death to many employees and the destruction of equipment. Additionally, loss of the power generating capabilities through such an explosion could result in the inability to operate certain of the chemical processes. For example, one of the basic raw ingredients used to manufacture chlorine gas and caustic soda is electricity and destruction of a portion of the power generating capabilities could severely affect the company’s ability to continue these chemical processes. Because of the long time needed to replace a boiler or turbine, normally more than a year, the possible financial losses are enormous to PPG, the employees who would be laid off and to the community.
With the substantial increase in the amount of equipment, prior to the 1977 negotiations the company created a number of new jobs and organized them in a separate progression line and identified the two
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separate progression lines as Power Plant A and Power Plant C as follows:
The job classifications in each of the progression lines involve the operation of the equipment used to generate electrical power, steam, compressed air, and high pressure cooling water for the entire plant complex through certain complex instrumentation.
The jobs are divided into the two separate progression lines based on their interrelationship and location of the equipment controlled by the employees in the progression line within the plant complex.
All of the jobs in both progression lines are highly skilled jobs requiring the exercise of considerable judgment that if exercised improperly could result in injury and death to many employees and destruction of equipment and the chemical processes.
Because of the level of skill and responsibility of these employees it takes three to five years to train an employee to competently perform the higher level jobs in the progression line.
The jobs were created and organized within the progression lines so that each level of jobs would provide necessary training to perform the more complex and hazardous duties and greater responsibilities at each successive higher level of jobs in the progression line.
Although plaintiffs do not specifically challenge the jobs created in the Power Department and how they were organized into progression lines, the plaintiffs do generally attack the bona fides of the seniority system.
The evidence clearly establishes, and the court finds, the jobs created and the manner in which they were organized into two progression lines in the Power Department is essential for the safe and efficient operation of the plant and that racial considerations were in no way involved in the decision about which jobs would be created or how they would be organized in the progression lines.
The court further finds that racial considerations were in no way involved in the initial inclusion of these jobs in the collective bargaining agreement or subsequent collective bargaining agreements.
In 1976, the company also completed construction of Plant C, a new plant designed to produce chlorine and caustic through an entirely new type of cell called a glanor cell.
To operate this new chemical process the company created the following jobs and included them in a separate progression line which was included in the 1977 collective bargaining agreement as follows:
Similar to the earlier process, employees in these operator jobs are required to manipulate a number of variables including voltage, current, brine levels and flows,
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through information recorded and controlled through complex instrumentation.
The employees must understand the chemical processes and the operation and interaction of the hundreds of valves, pumps, heat exchangers and other types of machinery involved in the process.
The jobs are highly skilled and require the frequent exercise of judgment that if exercised improperly could result in explosion or the release of chlorine gas and injury or death to a number of employees and destruction of equipment and the chemical processes.
All of the jobs in this separate progression line involve the operation of the equipment used to produce chlorine and caustic through the glanor cell process and are located in a separate identified area of the plant complex.
The jobs are organized within the progression line so that starting with the bottom job each level of jobs provides necessary training to perform the more complex, higher skilled and more hazardous jobs at each higher level in the progression line.
In addition to the operator jobs, the company also created two jobs and organized them into a separate progression line to accomplish the repair and rebuilding of these new types of cells as follows:
Similar to the cell builder jobs in the Diaphragm Cell Builder — Renewal Progression Line, the jobs in this progression did not involve operation of the chemical processes and did not involve manipulation of the variables through instrumentation. The glanor renewal jobs involved repetitive, unskilled tasks of taking apart, cleaning and renewing the identical glanor cells.
The jobs required very little skill or judgment and could be learned in a few weeks. These employees were not required to exercise any significant judgment and improper performance of their job did not have the serious widespread consequences of injury to employees or destruction to equipment if performed improperly.
Although plaintiffs argued significant skill is involved with transporting the large glanor cells back to the cell renewal area, the evidence established a special transporting device had been constructed for this purpose that required minimal skill and judgment to operate and employees in the job could seriously damage a cell only by almost intentional carelessness about how they operated the vehicle.
Accordingly, the court finds that these jobs were created and organized into separate progression lines based on sound business considerations and that racial considerations were in no way involved in the decision to create these jobs or progression lines or their subsequent inclusion in or maintenance in the collective bargaining agreement.
The court further finds the organization of the skilled operator progression line as a separate progression line is essential to the safe and efficient operation of the company.
As the plant grew and with the advent of more sophisticated safety equipment and extensive regulation of employee safety
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practices by the Occupational Safety and Health Administration, an agency of the Federal Government, during the 1977 negotiations the company and union agreed to move the safety repairman job from the unskilled Labor Department to the Maintenance Department so that new employees going into the job would have to pass the more stringent screening procedures applicable to employees going into the skilled progression lines.
The complexities of the job had increased considerably over the years preceding this change and it was anticipated would increase much more in the coming years. Because of this the company concluded it was essential that future employees performing maintenance of the safety equipment have the same level of aptitude as employees maintaining other equipment in the plant.
Plaintiffs argue this transfer of the safety repairman job from the unskilled labor department to the maintenance department was for racial reasons and proves the way jobs are included within progression lines is arbitrary and grounded on racial discrimination. Plaintiffs introduced no evidence in support of this contention and did not dispute the increasing complexity and responsibility of the job.
The court finds that the transfer of the safety repairman job to the Maintenance Department was for sound business considerations and was not based on racial considerations.
Plaintiffs also point to the transfer of the winch truck operator job in the Maintenance Department to the Labor Department in the 1977 negotiations as evidence that the placement of jobs is arbitrary and based on racial considerations.
A representative for the company during negotiations testified the job was moved because they concluded the skill level of the job was not as high as other jobs in the Maintenance Department, and the risk involved if the job was performed improperly was not as significant as the other jobs in the Maintenance Department.
Although plaintiffs offered some testimony that the job was similar to the heavy equipment operator job in the Maintenance Department, the evidence clearly established this was not true. While the winch truck operator operates a winch truck capable of lifting small pieces of equipment normally less than a ton a few feet off the ground and usually in open spaces, the heavy equipment operator operates a number of different types of large cranes to lift huge pieces of equipment weighing sixty to seventy tons sometimes 70 to 80 feet off the ground. The machinery often must be lifted in areas where the chemical processes are continuing and the lifting must be accomplished within tolerances of less than an inch. The job is exceedingly hazardous and if the employee does not exercise his judgment it can quickly result in explosion and injury or death to many employees and destruction of equipment and the chemical products.
Accordingly, the court finds that there is a significant difference in the level of skill and judgment required of employees in the winch truck operator job and the heavy equipment operator job and that the consequences of improper performance of duties by the heavy equipment operator is significantly greater than the winch truck operator job.
The court does not find it significant that over a period of 30 years the company mistakenly placed one job in a skilled line of progression and decided to rectify the mistake by transferring it to unskilled progression line.
Accordingly, we find the winch truck operator job was transferred to the unskilled labor department progression line for business considerations and that racial consider
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ations were in no way involved in the decision. This conclusion is further supported by the fact that at the time this position was moved both black and white employees occupied the job and performed the job both before and after it was moved.
The primary thrust of plaintiffs’ attack on the seniority system is that there is no logical or business reason for the way jobs were created or organized in the unskilled progression lines and that some of the jobs in the unskilled lines were in fact skilled and provided helpful training to perform certain of the skilled jobs and should therefore have been included in the skilled progression line.
With respect to the first point, the evidence establishes quite clearly how the jobs evolved in the labor department. As the plant grew, and there was a larger volume of certain types of unskilled work, such as janitorial work and loading of drums onto rail cars, the same employees from the yard labor pool were assigned to perform the same work each day. When there became a consistent pattern of assigning the same yard crew employees to the same jobs each day the union, during negotiations, would insist these employees were performing more important work than miscellaneous laboring duties and should have a separate job classification with a slightly higher pay rate. The company acceded to these demands and separate unskilled job classifications were created.
As a result of this process, during the negotiations leading up to the 1961 contract the unskilled employees who performed janitorial work were placed in a separate job classification of janitor. Additionally, employees performing essentially the same laboring functions each day were called classified labor and were paid 22V2 cents more per hour. To reflect this the progression line chart in the collective bargaining was changed as follows:
The employees assigned to the janitor job were responsible for sweeping floors and similar cleaning work previously done by the employees in the unskilled yard crew. The work was unskilled, did not require the exercise of any significant amount of judgment that if exercised improperly would jeopardize the safety of employees or result in extensive damage to the equipment or chemical processes. The job required only a few days of training.
The evidence clearly establishes the work performed by employees in the janitor job was not meaningfully related to work in any of the skilled lines of progression,
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would not provide helpful training to perform any of the skilled jobs, and that inclusion of the job in the skilled progression lines would have serious adverse consequences on the safe and efficient operation of the plant.
Plaintiffs offered no evidence that the janitorial job was created and included in the Labor Department based on racial considerations.
Accordingly, we find the janitor job was created and was included in the Labor Department based on sound business considerations and that racial considerations were not involved in the decision.
For similar reasons, we find the creation of the separate categories “classified labor” and “unclassified labor” were based on sound business considerations and that racial considerations were not involved in the decision.
Employees in the classified labor job performed various miscellaneous unskilled tasks including driving a flat bed truck, painting drums, loading drums onto rail cars, working in the storeroom, fastening the cable to loads for the winch truck, cleaning the gas masks, and oiling and greasing motor vehicles.
This work did not require any significant degree of skill or judgment, could normally be learned in a few days, and the improper performance of these jobs did not involve large risks of serious consequences to the safety of employees or destruction of equipment or the chemical processes.
As the plant continued to grow over the period from 1961 to 1969 a number of the tasks performed by employees in the classified labor job increased in volume and needed to be performed on a more consistent day by day basis. The same employees were assigned to perform these jobs.
This resulted in pressure from the union at negotiations to create separate new job classifications encompassing the identifiable work tasks and to pay employees in these jobs at a slightly higher rate.
As a result of this process, in the negotiations leading up to the 1963 contract, a separate job of garage attendant was created and the employees previously in the classified labor group responsible for changing oil and greasing motor vehicles were included in this job.
Again, it was fully established the duties of this job were repetitive and could be learned in a few weeks and did not require the exercise of any significant judgment that if exercised improperly could result in injury to employees and destruction to large amounts of equipment or machinery.
Although plaintiffs claim this job is similar to the work performed by the Service Mechanics in the Maintenance Department, the evidence clearly established otherwise. The Service Mechanics are responsible for completely disassembling and overhauling various types of engines and other machinery and diagnosing mechanical problems and determining proper solutions. Unlike the repetitive, unskilled work done by employees in the garage attendant job, the Service Mechanics were constantly required to make judgments about repair of the complex machinery and equipment. It required an individual between three and four years in the formalized apprentice training program in order to properly learn to perform this job.
Accordingly, the court finds that the garage attendant job was created and included within the Labor Department for sound business reasons and that racial considerations were not involved in the decision.
The court further finds that the duties of that job are not meaningfully related to the duties of the Service Mechanics in the garage and provide no significant useful training for that job.
In the negotiations leading up to the 1966 contract, the list of job classifications and wage rates was amended to change the title “classified laborer” to “general workmen,” although the job duties and employees performing the job remained the same.
In the negotiations leading up to the 1969 contract, the classified labor title was abolished and the employees consistently performing the same tasks on a day by day basis were classified into the following spe
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cific job classifications: Truck Driver; Painter Specialist; Pigment Packers; Janitors; Swamper; Safety Repairmen.
As a result of negotiation of the pay rates for these jobs, they were organized within the Labor Department into the following progression line:
Although plaintiffs offered no evidence disputing how and why these separate jobs were created and organized into the yard department progression line, they argue it should be inferred that it was done for racial reasons in order to keep the black employees in the yard department because some of the jobs are related to jobs in the skilled progression lines.
As discussed below, the evidence fully established there is no meaningful relationship between the duties in these jobs and any of the jobs in the skilled progression lines. There are very clear differences in the level of skill, judgment and training time required in these jobs as compared to the jobs in the skilled progression lines. In no case would the performance of these jobs provide any significant helpful training to perform any of the skilled jobs. Equally important, the consequences to safety of the employees and public and the possibility of extensive damage to the equipment and chemical processes was significantly less in these jobs than in the skilled jobs.
When the plant first began operations, Mr. White decided to create a separate department, called a labor department, to perform these repetitive, unskilled tasks drawing in part from the organization of the jobs at the plant in Natrium, West Virginia. He testified, and the court finds, that the inclusion of these duties in the skilled department progression line would have serious adverse consequences on the safety and efficiency of the plant operations.
The court finds this to be equally true when the tasks were broken down into separate job classifications in the 1969 collective bargaining contract.
The court further finds that for the reasons discussed below these jobs were created and were included in the yard department progression line for sound business reasons and that racial considerations were not involved in the decision.
Plaintiffs offered no evidence and made no claim the truck driver or general workman jobs were related to jobs in the skilled progression line. The evidence clearly establishes there is no meaningful relationship. The truck driver is responsible for driving the flat bed truck to deliver supplies and run errands. The general workmen stocks parts in the warehouse.
Plaintiffs did claim the remaining jobs of painter specialist, pigment packer, garage attendant, janitors, swampers and safety repairmen are closely related to jobs in the skilled progression lines and, notwithstanding how the jobs evolved, the company and the union left the jobs in the yard department progression line based on racial considerations.
The court finds this contention to be without merit. A review of the job duties clearly establishes they did not in fact have any significant relationship with and would not provide any significant training for jobs in the skilled progression line.
While plaintiffs claim the duties in the painter specialist job are similar to the
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duties of the Service Mechanic who has a primary craft skill of painter, the evidence fully established the job duties and responsibilities are completely different.
Service Mechanics are responsible for accomplishing all of the various types of sophisticated maintenance necessary in a large chemical plant. Employees in this job having a primary craft skill of painter are required to know when and how to apply the many different types of coatings used at the plant, are required to use cutting torches, sand blasting and other equipment in and around the chemical processes, and are required to repair their own equipment.
Improper performance of these duties, such as the incorrect use of the cutting torch around the hundreds of pipes used in the chemical processes could result in an explosion and serious injury to employees and damage to equipment valued in the millions of dollars. In addition to the application of protective coatings, employees in the Service Mechanic job are assigned to work as a team with the other Service Mechanics to accomplish other types of maintenance at the plant.
In order to learn this job employees are required to complete the four year formal apprenticeship program.
This is far different than the yard crew employee assigned to paint drums. The employee works in one location, repetitively applying the same coating on the same item, a drum. There is very little skill, the job can be learned in a few days, and there are no serious consequences if the employee improperly performs the job.
Plaintiffs also claim the duties performed by employees in the Pigment Packers job are related to work performed by employees in the Lead Loader line of progression in the Shipping Department.
The work performed by employees in the Pigment Packers job consists of the operation of a truck similar to a fork lift truck but with a special lifting device to transport drums from the warehouse to the rail car. This job was previously performed by unskilled employees in the yard crew.
The job is repetitive and unskilled and can be learned in a few days. The job is not hazardous and does not require the exercise of judgment that if exercised improperly creates any significant risk of injury or death of employees or substantial damages to equipment or chemical processes.
Although plaintiffs offered some general testimony that since the job involves shipping, the work is therefore related to work in the Lead Loader line of progression in the Shipping Department, they offered no evidence showing the jobs duties were similar or related.
Evidence offered by the company clearly established the skill level, responsibilities, and duties in the Pigment Packers job are completely different from the jobs in the Lead Loader line of progression. Employees in the Lead Loader line of progression have final responsibility for loading chlorine gas in rail cars, trucks and barges and insuring the vehicles are safe and properly secured, with operable safety valves, so that the chlorine gas will not cause hazardous conditions in public areas while in transit. Improper exercise of judgment in these jobs could result in serious injury and death to employees and the evacuation and possible serious injury to the public generally. To competently perform this job requires three or more years of training and employees in the higher level jobs must qualify and pass the tests required in order to become a licensed tankersman by the United States Coast Guard.
Accordingly, the court finds the inclusion of the Pigment Packer job in the yard department was for sound business reasons, that racial considerations were not involved, and that the job is not related to and would not provide useful training for jobs in the Lead Loader line of progression in the Shipping Department.
Plaintiffs also claim the duties of employees in the Swamper job were like the duties of employees in the Service Mechanic job in the Maintenance Department whose primary craft skill is rigger.
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The Service Mechanic with craft skills as a rigger works as a team with the Heavy Equipment Operator Service Mechanic to move very large pieces of equipment sometimes in excess of 10 to 15 feet in diameter, often weighing over 100,000 pounds with varying configurations in and out of the operating areas and up to heights of 60 to 80 feet. Frequently, the machinery has to be moved in the operating area while the chemical processes are continuing. Often the moves have to be made within tolerances of less than one inch and under circumstances where the consequences of the improper performance of their duties could easily result in explosion and injury and death of a number of employees and damage to equipment and the chemical processes. Additionally, the Rigger and Heavy Equipment Operator work as a team to perform considerable maintenance work on the many different types of large cranes and other lifting devices at the chemical plant.
On the other hand, the Swamper works with the Winch Truck Operator. He is responsible for fastening the cable to relatively small items, usually less than a few tons. The items are only lifted a few feet off the ground. The work is performed away from the operating areas, does not involve work with close tolerances and there is not the serious risk of severe consequences to the safety of employees or damage to equipment inherent in the rigger Service Mechanic job. Nor does the Swam-per perform any maintenance functions on the equipment.
Accordingly, the court finds the Swamper job is significantly different from the Service Mechanic rigger job and that there is no basis to infer racial considerations were involved in the decision to leave the Swam-per job in the Labor Department.
The next significant change in the unskilled jobs occurred in the negotiations leading up to the 1973 collective bargaining agreement when, because of the greater production of caustic pels and silica pigments and the more frequent and consistent assignment of employees in the yard crew to that work, the union and company agreed to create the following additional job classifications: Pels Lead Packer; Pels Packer; Pels Shipper; and Pigments Shipper.
These jobs were included in the yard department as follows:
Plaintiffs did not offer any testimony that these jobs were created or included in the Yard Department based on racial considerations. Nor did they offer any evidence proving these jobs were related to jobs in the skilled progression lines although they did claim since the jobs involved shipping of a product, they should be included in the Shipping Department.
As discussed previously, employees in the Lead Loader line of progression in the Shipping Department have final responsibility for handling the hazardous chlorine gas and by 1969 the added responsibility of handling and loading tri-ethane, perchloroethylene, trichloroethyene, and vinyl chloride, the latter of which is highly flammable and with improper handling can result in the formation of an explosive vapor cloud.
On the other hand, employees in the Pels and Pigments jobs handle inert pels and silica in powder form. The material is not hazardous, and is poured into hopper rail cars or packaged in bags or drums and loaded onto the rail cars with fork lift type
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trucks. The job requires no significant skill or judgment and can normally be learned in a few weeks.
We find these jobs were created and included into the Yard Department progression line for sound business reasons and that racial considerations were not involved in the decision.
In the 1973 negotiations the parties also placed the Loader Laborer, Oiler and Truck Driver jobs in a single progression line with other jobs fed by the Yard Crew as follows:
The jobs were organized into a single progression line as a result of bargaining demands by the union that this be done and in accordance with the normal give and take in negotiations.
Plaintiffs offered no evidence showing a discriminatory purpose. In view of the way the jobs first evolved, and the fact that they are all unskilled jobs fed by the Yard Crew, the court finds no basis to infer a discriminatory purpose from these changes.
In the negotiations leading up to the 1977 collective bargaining agreement, the company created a new job of “Pigment Lead Packer,” and changed the name of the “Loader Laborer” job classification to “Caustic Rack Helper.”
The company and union further agreed to split the jobs involved with loading of pels and pigments into two separate lines and include the “Pigment Lead Packer” job and “Caustic Rack Helper” job in the progression lines as follows:
The Pels Lead Packer job is a working leadman type job over the Pels Packer and Pels Shipper jobs and performed the same type of duties. For the reasons previously discussed, the court finds the job was not created or included in this progression line based on racial considerations.
The “Caustic Rack Helper” job was initially created by Mr. White and called a Loader Laborer when the plant first began operating in 1947. For the reasons previously discussed, the court finds the job was created and placed in the Labor Department for sound business reasons and that racial considerations were not involved in the decision.
Nor do we find any basis for concluding changing the job title to Caustic Rack Helper and placement of the job in the Pels Shipper Packer progression line was for ra
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cial reasons. Plaintiffs offered no evidence to show a discriminatory purpose. The job had been in the Labor Department since inception of the plant and its pay rate logically placed it above the Pels Packer job.
Plaintiffs argue a racial motive should be inferred because the duties of the Caustic Rack Helper are not related to the duties of the Pels Packer or Pels Shipper. However, the evidence fully establishes the jobs in the Labor Department and their formation into the progression line evolved over a period of years through negotiations and gradual growth of the amount of these miscellaneous unskilled functions.
As stated previously, at the time the plant commenced operation, as well as presently, business considerations dictated that these unskilled jobs be included in a separate department. We find this consideration applies equally to the Caustic Rack Helper job.
In the negotiations leading up to the 1977 collective bargaining agreement, the company and union also agreed to split the cell renewal progression line into two progression lines as follows:
As reorganized, the employees in the Mercury Cell Progression Line continued to perform the cell cut-out and cell renewal work on the mercury cells, a different type of cell used to manufacture chlorine and caustic which was installed during 1968, and the employees in the diaphragm cell progression line continued to perform the cell cut-out and cell renewal work on the diaphragm cells.
The cell renewal progression line was split into two progression lines primarily at the request of the employees in the progression line because the employees with the greater progression line seniority wanted to exercise this seniority so that they would only have to work in the more desirable mercury cell area.
Plaintiffs did not offer any evidence specifically attacking the splitting of the cell renewal progression line into two separate lines, although they did present evidence from which they argue the employees in the Mercury Cell Renewal progression line, similar to the work involved with renewal of the Diaphragm Cells, is related to the work done by operators in the chlorine — caustic progression line and should be included in that line.
The evidence establishes the contrary. The work performed by employees in the Mercury Cell Renewal progression line, although performed on a completely different type of cell than the Diaphragm cell, is similar in that it is repetitive work requiring little skill or judgment. In most instances all of the jobs can be learned in a few months and it does not require the exercise of significant judgment that if exercised improperly could result in the injury or death to many employees or destruction of large amounts of costly equipment. Nor does this work provide any meaningful training for the operator jobs.
The operators, on the other hand, control the chlorine — caustic manufacturing process through complex instrumentation that records and controls the various aspects of the continuous chemical process. Through this instrumentation and his knowledge of the intricate chemical process the operator is required to control a number of variables such as the electrical current and voltage,
*242
flow of brine water, brine content, and a large number of pumps, valves, turbines and heat exchangers in order to efficiently and safely produce the chlorine, hydrogen and caustic. These employees are frequently required to exercise high levels of judgment that if exercised improperly could cause the injury or death of many employees and the destruction of equipment. It requires three to five years to train employees to competently perform the higher level operator jobs.
Accordingly, the court finds the organization of the cell renewal progression lines as separate progression lines from those responsible for production of chlorine and caustic was based on sound business considerations, that racial considerations were not involved, and that this organization is essential to the efficient and safe operation of the plant.
In their proposed findings and brief, plaintiffs assert racial discrimination exists because black employees have worked in predominantly white departments such as the Production Department, Shipping Department and Maintenance Department, but have not been permitted to accumulate seniority in those departments.
In support of this, they point to how the progression line charts are drawn showing the yard crew and jobs fed by the yard crew in the Service Department, and Pigments and Pels Packer job in the Shipping Department. They further point to earlier contracts containing the identifying numbers and letters 30-A by the oiler job indicating it was in the Shipping Department, and 8-A by the Cell Renewal progression line indicating it was in the Production Department.
The evidence, however, clearly shows that promotions were made within progression lines based on progression line seniority. As the terms are used in the collective bargaining agreement, progression line and progression line seniority are used interchangeably with department and departmental seniority, but they mean exactly the same thing; the amount of time someone has been in that particular progression line.
For the reasons previously discussed the manner in which these progression lines are organized is based on sound business considerations. The evidence further establishes that promotions within these progression lines have been made based on seniority and totally without regard to an employee’s race.
Accordingly, to the extent plaintiffs suggest black employees have worked within departments as the term is used in the collective bargaining agreement and have not earned seniority within that department, the record is devoid of any evidence to support plaintiffs’ contention.
To the extent plaintiffs suggest the way the progression line charts were drawn proves these unskilled jobs were related and should have been included in the skilled progression lines, for the reasons previously cited about how and why the progression lines were formed, and the differences between the skilled and unskilled jobs, the court finds their contention is without merit.
The progression line charts merely reflected who had ultimate supervision over these employees. In view of the other record evidence about how and why the progression lines were formed and their relationship, the existence of the same ultimate supervision over both skilled and unskilled jobs does not establish that it makes business sense to combine the skilled and unskilled progression lines.
Plaintiffs also claim the following language in the 1969 contract and certain prior contracts prove the seniority system was designed for a discriminatory purpose:
Section 2. The purpose of the Yard and Utility Crews is to provide a pool of workmen from which to select needed replacements for the beginner’s job in all departments of the plant. Employees in the Utility Crew remain on trial until such time as they have satisfactorily completed their trial periods on the beginner jobs in a department. Upon satisfactory completion of the initial trial period in a department, such employee shall have
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Company service credit or seniority credit accruing from the date of his original employment. Employees in the Yard Labor Crew, upon satisfactory completion of forty-five (45) consecutive days of actual work, will accumulate service credit from the date of their employment..
Section 3. The seniority of an employee entering a department from the Utility Crew shall begin on the day he enters the department provided he satisfactorily completes his trial period.
The court cannot and does not infer a discriminatory purpose from this language. The language, on its face, is applicable to all employees and employees going into the yard and utility crew are given seniority dates from their initial date of employment if they successfully complete the probationary or trial period. The only difference is that employees in the yard crew are no longer probationary employees and begin accruing seniority at the end of 45 days whereas employees in the utility crew must first be assigned to a beginning job in a progression line and must successfully pass the trial period in that job. The reason for the difference is that because of the skilled nature of the jobs fed from the utility crew, and the more stringent requirements for employees going into these jobs, there was no specific trial period. We do not infer from this any discriminatory purpose.
In any event, in the 1971 contract, Joint Exhibit 12, the company and union adopted a standard 90 day trial period for all jobs. Although subsequently extended to 100 days, it has been uniform for all jobs during all periods covered by this lawsuit.
Specifically, plaintiffs claim that showing the Oiler job in the Maintenance Department and the Loader Labor job in the Shipping Department on the 1969 diagram of progression lines proves the jobs were actually in the Department and were kept separate only because of racial considerations.
The evidence, however, fully established from the very inception, of the plant these jobs were always under the same supervision and that how the jobs were shown on the progression line charts did not at any time change the supervision, type of work, and had no other meaningful significance.
As the plant grew and new jobs were created and organized into these skilled and unskilled progression lines, the collective bargaining contract was extended to cover these new jobs and progression lines.
There was no evidence offered by plaintiffs suggesting these progression lines were included in the collective bargaining contract for racial purposes and in view of the convincing evidence that these progression lines were organized for sound business reasons and are necessary for the safe and efficient operation of the plant, the court finds the inclusion of these lines and separate line for seniority purposes, was for sound business reasons and that racial considerations were not involved in the decision.
As was true since inception of the plant, promotion within each progression line was based on the employee’s length of service in that progression line. The record fully establishes this was equally true for black and white employees in the progression line, and that employees were promoted within the progression lines based on their progression line seniority and without regard to race.
There are and have been during all periods covered by this lawsuit substantial numbers of whites and blacks in all of the progression lines, and to the extent that having a progression seniority system discourages employees from transferring from one progression line to another, it does so for all employees.
Departmental Seniority Systems have, since passage of the Wagner Act in 1935, been widely used in industry, and promotional preference to employees within a particular department are widely prevalent in petrochemical plants throughout the United States. (PPG Exh. 22).
Accordingly, the court finds the seniority system in this case is bona fide within the meaning of
Teamsters v. United States,
431 U.S. 324 , 97 S.Ct. 1843 , 52 L.Ed.2d 396 (1977).
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HIRING AND JOB ASSIGNMENT
Plaintiffs contend that blacks have been discriminated against because “defendants have instituted and/or maintained a practice or policy of failing to employ blacks because of their race or color and by failing to assign them to jobs on an equal basis as whites in violation of Title VII and/or 42 U.S.C. § 1981 .”
In support of this contention plaintiffs introduced Company reports filed with the Equal Employment Opportunity Commission (EEO-1 reports) showing the following number and percentage of blacks were employed by the plant as of March 31 of each year covered by this lawsuit:
total EMPLOYMENT black EMPLOYEES
1974 1154 239
20.71%
1975 1212 252
20.79%
1976 1310 269
20.53%
1977 1529 305
19.95%
1978 1794 358
19.96%
However, a comparison of the percentage of blacks hired to those available for employment clearly establishes PPG has employed blacks in proportion to their availability for employment.
To assist the Court in analyzing the company’s employment practice, the court was presented with (1) a statistical comparison between the percentage of blacks employed in the work force and the percentage of blacks in the relevant labor market and (2) a statistical comparison between the percentage of blacks applying for jobs and the percentage of blacks hired in those jobs. These statistics fully establish there was no pattern of discrimination in the hiring or job placements of blacks.
The relevant labor market for evaluating PPG’s hiring practices is Calcasieu Parish. This is the same geographical area as the Lake Charles Standard Metropolitan Statistical Area (SMSA) for which census figures are reported by the United States Bureau of the Census. (PPG Exh. 20 PPG’s Request for Admissions Nos. 2 — 4). The 1970 census report is the most recent study of the population of Calcasieu Parish. (PPG Exh. 20 — No. 6).
In 1970 17.7% of the Lake Charles SMSA labor force was black. (PPG Exh. 20, PPG Requests for Admissions Appendix A., Pg. 4 last line.) This 17.7% work force statistic is a more appropriate figure for use in analyzing PPG’s hiring and employment practices than the 21.6% general population figure offered by the plaintiffs because the general population figure includes all persons including children, military personnel, and all others who are not, in fact, available for work.
The following table compares the percentage of blacks on PPG’s payroll as of March 31 of each relevant year to the Lake Charles area work force figure:
BLACK % OF PPG EMPLOYEES
*
BLACK % OF LAKE CHARLES SMSA WORK FORCE
**
1974 20.71% 17.7%
1975 20.79% 17.7%
1976 20.53% 17.7%
1977 19.95% 17.7%
1978 19.96% 17.7%
These figures show that, during each year covered by this lawsuit for which statistics are available, the percentage of blacks in PPG's work force exceeded the percentage of blacks in the general work force in the Lake Charles Area.
Even if the plaintiffs’ proposed population figure of 21.6% is accepted, it is apparent there is no substantial disparity between the racial composition of PPG’s work force and the general population figure. The following table demonstrates this:
BLACK % OF PPG EMPLOYEES BLACK % OF LAKE CHARLES POPULATION
1974 20.71% 21.6%
1975 20.79% 21.6%
1976 20.53% 21.6%
1977 19.95% 21.6%
1978 19.96% 21.6%
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Accordingly, the court finds that there is no evidence of any discrepancy between the percentage of blacks employed by PPG and the percentage of blacks in the relevant labor market work force or the percentage of blacks in the Lake Charles area general population. To the contrary, the evidence shows that at all times during the period covered by this lawsuit PPG has had a work force which is racially comparable to the Lake Charles area work force and population. This suggests that race is not a factor in the company’s employment practices.
Plaintiffs also attempted to offer evidence on the hiring issue through a compilation and analysis of PPG’s personnel records. This exhibit, PI. Exh. 21, was demonstrated to be laden with errors, based on hearsay and on factual assumptions never shown to be true.
The court cannot and does not give any weight to Plaintiffs’ Exhibit 21.
Plaintiffs also offered some limited testimony in support of their contention that PPG failed to hire blacks. However, this testimony failed to identify a single black person who applied for a job at PPG and was denied employment. Other plaintiffs testified they personally knew blacks who applied for work at the plant and were employed.
Based on the foregoing, the court finds that blacks were not denied employment at PPG because of their race.
Plaintiffs further allege blacks are discriminated against by being initially assigned to less desirable departments at PPG.
Plaintiffs allege blacks were not assigned to the following allegedly desirable job categories:
a. Utility Crew
b. Craft (Service Mechanic) Jobs
c. Clerical Jobs
d. Technical Jobs
It is undisputed applicants seeking hourly positions at PPG apply for and are hired directly into three job categories: Utility Crew; Yard Utility Crew; and as Service Mechanics (Craft Jobs).
The Utility Crew is an entry pool of employees who are hired to fill vacancies in the lowest jobs in the following departments:
1. Department 5A - Power A
2.
Department 5C - Power C
3. Department 10A - Chlorine Production A
4. Department 11A - Shipping
5. Department 16A - Chlorine Production C
6. Department 60A - Organics Plant B-I
7. Department 60A - Organics Plant B-II
8. Department 80A - Silica Pigments
9. Department 30A - Maintenance
Although plaintiffs contend blacks have been denied positions in the Utility Crew because of their race, the hiring statistics for October of 1969 through June of 1978, admitted by plaintiffs and introduced into evidence as PPG Exhibit 20, Appendix B-l, shows the following numbers of white, black and other employees were hired and initially assigned to the Utility Crew:
HIRING OF UTILITY CREW EMPLOYEES AT PPG’S LAKE CHARLES PLANT, OCTOBER 21,1969 - JUNE, 1978
YEAR WHITE HIRED BLACK OTHER
1969 8 0 0
Oct-Dec
1970 4 1 0
1971 25 8 0
1972 22 9 0
1973 9 8 1
1974 21 13 0
1975 16 8 1
1976 61 17 1
1977 86 24 1
1978 44 11 4
Jan-June
As shown by the following table, the percentage of blacks assigned to the Utility Crew during the almost 10 year period of time for which statistical information was introduced compares as follows to the 17.7% black work force in the Lake Charles SMSA.
BLACK % IN WORK FORCE BLACK % ASSIGNED TO UTILITY CREW BY PPG
1969 17.7%
Oct-Dec
1970 17.7% 20%
17.7% 24.24%
17.7% 29.03%
1978 17.7% 44.44%
1974 17.7% 38.23%
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BLACK % IN WORK FORCE BLACK % ASSIGNED TO UTILITY CREW BY PPG
1975 17.7% 32.00%
1976 17.7% 19.10%
1977 17.7% 21.62%
1978 17.7% 18.64%
Jan-June
TOTAL 17.7% 24.65%
In every year (except the four months of 1969) for which statistics were offered and for the total period of October 1969 through June of 1978, the percentage of black persons assigned to the Utility Crew exceeded the available percentage of blacks employed in the work force in the Lake Charles SMSA.
Even if the plaintiffs’ general population figure is used for comparison purposes, the percentage of blacks assigned to the Utility Crew during this 10 year period of time is greater than the 21.6% 1970 census population figure submitted by plaintiffs.
This analysis demonstrates and the court finds, blacks were not excluded from Utility Crew jobs because of their race.
Plaintiffs do not contend they were denied entrance into the Yard Utility Crew.
Plaintiffs do allege blacks were not initially assigned to Service Mechanic jobs because of their race. The Service Mechanics are the plant’s skilled craftsmen. They perform the highly skilled and complex maintenance work necessary to keep the plant running in a safe and efficient manner.
In order to be hired as a Service Mechanic an applicant must show he has four years of experience in one of the craft skills utilized by the Company. The company thoroughly investigates the background and experience of the individuals applying for these positions by contacting previous employers, and through an interview designed to elicit whether the person has the type of knowledge required of a person with that craft skill. No one is hired as a Service Mechanic unless they have this experience.
Because of the high skills required and the very hazardous nature of the jobs and the chemical processes, it is essential that the plant hire people who are qualified to perform these jobs in order to insure the maintenance work done is performed in a safe and efficient manner.
Tt is impossible for the plant to train all of its Service Mechanics because of the long training time and inability to project needs that far in advance, the cost of training, and the adverse consequences on existing maintenance if incumbent Service Mechanics are diverted from maintenance functions in order to train new Service Mechanics. Although PPG does train some of its own Service Mechanics, in order to adequately perform the maintenance functions, it must hire some experienced Mechanics.
The record fully establishes the very high skill levels needed to perform the job of Service Mechanic at the plant and that not everyone in the population possesses the skills and knowledge to be a craftsman.
Nine and one-half percent of the “Craft and Kindred Workers” in the Lake Charles area were black according to the 1970 census (PPG Exh. 20 App. A Pg. 3, 5th line).
Based on the EEO-1 reports the following numbers of blacks and whites were employed by PPG as skilled Service Mechanics as of March 31st of each year relevant to this action:
WHITE BLACK OTHER
1974 405 28 1
1975 447 34 1
1976 471 40 3
1977 515 53 4
1978 602 81 7
Based on these figures, the following table compares the percentage of black craftsmen in PPG’s workforce to the percentage available in the Lake Charles area:
PPG’S WORK FORCE LAKE CHARLES AREA
1974 6.45% 9.5%
1975 7.05% 9.5%
1976 7.78% 9.5%
1977 9.26% 9.5%
1978 11.73% 9.5%
This is the appropriate comparison for examining whether PPG excludes blacks from craftsman positions. These figures do not show any or gross disparity between the percentage of black craftsmen in PPG’s work force and the percentage of black
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craftsmen available in the relevant labor market.
Most of PPG’s craft employees have been hired directly as craftsmen. Each year a number of employees start to train to be craftsmen by entering the apprenticeship program.
There is no statistical evidence showing blacks are excluded from the job of service mechanic.
Plaintiffs also alleged that PPG unlawfully excluded blacks from technical positions.
Although plaintiffs assert that blacks were denied technical positions in the pretrial order, they offered no testimony on the issue; failed to identify a single black who desired a technical position; failed to identify what position they considered to be technical; and failed to offer any statistical analysis on the issue.
The only credible evidence relating to this issue offered by the plaintiffs were the plant’s EEO-1 reports. The EEO-1 (PI. Exh. 3) reports show the following racial breakdown of employees employed as Technicians by PPG as of March 31 of each year covered by this lawsuit:
TOTAL BLACK
1974 35 9
1975 28 6
1976 32 6
1977 38 9
1978 46 11
The following table compares the percentage of black “Technicians” to the 17.7% black workforce figure and the 21.6% black general population figure:
% BLACK TECHNICIANS AT PPG % BLACK WORKFORCE % BLACK POPULATION
1974 25.71% 17.7% 21.6%
1975 21.43% 17.7% 21.6%
1976 18.75% 17.7% 21.6%
1977 23.68% 17.7% 21.6%
1978 23.91% 17.7% 21.6%
These figures fully establish that at all times relevant to this action the percentage of black “Technicians” employed at PPG exceeded the percentage of blacks in the Lake Charles area work force, and was often higher than the percentage of blacks in the general population of the Lake Charles area.
Accordingly, the court finds there is no statistical evidence to support the conclusion that blacks were excluded from “Technician” jobs at PPG.
Plaintiffs also alleged that blacks were excluded from Clerical positions at PPG.
Although plaintiffs asserted that blacks were excluded from clerical positions in the Pre-Trial Order they offered no testimony on the issue; failed to identify a single black who desired a clerical position; and failed to offer any statistical analysis on the issue.
Plaintiffs also failed to identify the clerical positions at the plant and to describe the type of work and the skills necessary to perform the work.
It is clear, and we find that not everyone in the general population is capable of performing nor has the desire to perform clerical work.
Plaintiffs offered over 40 witnesses but none of them testified they desired to perform clerical work. Six and six-tenths percent of the Lake Charles area Clerical and Kindred Workers were black according to the 1970 census. (PPG Exh. 20 Item 15). The only evidence on this issue offered by plaintiffs consisted of information contained in the EEO-1 reports.
The EEO-1 reports show the following number of Total and Black “Office and Clericals” were employed by PPG as of March 31 of each year covered by this lawsuit:
TOTAL BLACK
1974 80 8
1975 85 9
1976 96 13
1977 107 16
1978 135 23
The following table show the percentage of blacks “Office and Clerical” employers in PPG’s workforce as of March 31 of each year as compared to the percentage of black clerical employers in the Lake Charles area:
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%
BLACK PPG % BLACK - LAKE CHARLES AREA
1974 10% 6.6%
1975 10.59% 6.6%
1976 13.51% 6.6%
1977 14.95% 6%
1978 17.04% 6%
Accordingly, these figures clearly establish at all times covered by this lawsuit PPG employed a higher percentage of black clerical employees than the percentage of black clericals employed in the Lake Charles area.
In addition to the static comparisons made above, the court was presented with a flow analysis which examined the racial impact of the actual hiring selections made by PPG for each of the categories from which plaintiffs alleged blacks were excluded.
PPG presented evidence, admitted as true by plaintiffs, showing the number and racial makeup of the applicants and persons hired for craft (Service Mechanic), Utility Crew, Office and Clerical, Technical Employees and Service Workers as follows:
CRAFTSMEN (SERVICE MECHANICS)
YEAR APPLICANTS HIRED
WHITE BLACK OTHER WHITE BLACK OTHER
1969/ 21 1 0 0
Oct — Dec
1970 99 3 13 0 0
1971 176 2 14 0 0
1972 294 10 17 0 0
1973 126 7 25 2 0
1974 214 13 36 3 0
1975 247 6 30 3 2
1976 280 19 46 2 0
1977 309 25 68 3 1
1978/ 168 22 37 2 2
Jan-June
(PPG-Exh. 20 Attachments B-5 and D-5)
UTILITY CREW
YEAR APPLICANTS HIRED
WHITE BLACK OTHER WHITE BLACK OTHER
1969/ ' 108 20 0 8 0 0
Oct-Dec
1970 759 180 0 4 1 0
1971 826 212 0 25 8 0
1972 794 336 0 22 9 0
1973 818 362 0 9 8 1
1974 1261 567 0 21 13 0
1975 1287 572 0 16 8 1
1976 2375 1134 0 61 17 1
1977 2499 1050 0 86 24 1
1978/ 909 390 0 44 11 4
Jan-June
(PPG-Exh. 20 Attachments B-l and D-l)
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OFFICE CLERICAL
YEAR APPLICANTS HIRED
WHITE BLACK OTHER WHITE BLACK OTHER
1969/ 26 3 0 0
Oct-Dec
1970 210 34 6 0 0
1971 182 46 9 3 0
1972 161 44 8 3 0
1973 149 74 6 1 1
1974 269 141 10 3 0
1975 260 89 7 3 0
1976 419 176 20 7 0
1977 745 373 19 7 0
1978/ 258 195 4 1 0
Jan-June
(PPG-Exh. 20 Attachments B-3 and D-3)
TECHNICAL JOBS
YEAR APPLICANTS HIRED
WHITE BLACK OTHER WHITE BLACK OTHER
1969/ 36 1 0 1 0 0
Oct-Dec
1970 128 2 0 2 0 0
1971 72 14 0 5 0 0
1972 68 13 0 3 2 0
1973 65 18 0 5 0 0
1974 42 10 0 1 0 0
1975 43 17 0 4 1 0
1976 93 14 0 1 1 0
1977 152 42 0 17 2 0
1978/ 125 34 0 3 0 0
Jan-June
(PPG-Exh. 20 Attachments B-6 and D-4)
SERVICE WORKER
YEAR APPLICANTS HIRED
WHITE BLACK OTHER WHITE BLACK OTHER
1969/ 0 0 0 0 0 0
Oct-Dec
1970 12 2 0 0 0 0
1971 16 4 0 0 0 0
1972 33 2 0 4 1 0
1973 25 5 0 2 0 0
1974 32 6 0 3 0 0
1975 25 8 0 3 0 0
1976 72 24 0 7 1 1
1977 50 13 0 4 2 0
1978/ 47 14 0 5 2 0
Jan-June
(PPG-Exh. 20, Request for Admissions, Attachments B-7 and D-6)
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The foregoing statistical information shows the flow of persons by race into the job categories from which plaintiffs allege blacks are excluded.
This information was subjected to analysis and interpretation by Mr. William Ruch. Mr. Ruch, recognized as an expert statistician by the court, testified concerning a “standard deviation” statistical analysis he performed on the employment statistics of the company. Mr. Ruch testified about whether the number of blacks hired for each of these jobs was within two to three standard deviations of the number of blacks expected to be hired based on chance for those jobs under the formula approved by the Supreme Court in
Castaneda v. Partidas,
430 U.S. 482 , 97 S.Ct. 1272 , 51 L.Ed.2d 498 (1977) and
Hazelwood School District v. United States,
433 U.S. 299 , 97 S.Ct. 2736 , 53 L.Ed.2d 768 (1977).
For each category from which plaintiffs alleged blacks were excluded, Mr. Ruch prepared an exhibit showing the standard deviation analysis. (PPG-Exh. 195 — 200). Mr. Ruch explained in detail how he performed this analysis using the craft job category (PPG-Exh. 195) as an example. PPG-Exh. 195 is as follows:
STANDARD DEVIATION ANALYSIS
Craft
Year % Black in RLM
*
Total Actual Hires Total Black Hires Hypothetical Black Hires Deviation Standard Deviation Conclusion
(
10 0.00 0.00 Actual value is within 2 standard deviations of hypothetical.
1970 2.94 13 0.38 0.61 Actual value is within 2 standard deviations of hypothetical.
1972 0.56 -0.56 Actual value is within 2 standard deviations of hypothetical.
1973 5.26 1.42 0.58
1974 5.73 2.23 0.77
1975 2.37 35 0.83 2.17
1976 6.35 48 3.05 -1.05 Actual value is within 2 standard deviations of hypothetical
1977 7.49 72 5.39 -2.39 2.28 Actual value is within 2 standard deviations of hypothetical.
1978 11.58 4.75 -2.75 2.05 Actual value is within 2 standard deviations of hypothetical.
1969-1978
5.24
307 15 16.09 -1.09 Actual value is within 2 standard deviations of hypothetical.
To perform this analysis Mr. Ruch first determined the percentage of blacks in the Relevant Labor Market (RLM) (Column 2) by calculating the percentage of blacks who applied for Craft jobs using the information, admitted by plaintiffs and introduced as PPG-Exh. 20, Attachment D-5.
Mr. Ruch then determined the total actual number of persons and actual number of blacks hired into Craft jobs (Column 3 and 4) during each year. This was also determined from information admitted by plaintiffs and introduced as PPG-Exh. 20 — Attachment B-5.
The remainder of PPG-Exh. 195 (Columns 408) were calculated by Mr. Ruch using the standard deviation analysis.
Mr. Ruch first calculated the number of “Hypothetical Black Hires” (Column 5) by multiplying the percentage of blacks in the
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relevant labor market (Column 2) times the total number of persons hired (Column 3). This figure gives the hypothetical number of blacks which should be hired if hiring decisions were based strictly on chance.
The next figure calculated by Mr. Ruch was the “Deviation” (Column 6).. This is the difference between the number of blacks actually hired (Column 4) and the hypothetical number based on chance (Column 5).
Mr. Ruch next calculated the standard deviation using the formula described by the Supreme Court in
Hazelwood
and
Castaneda .
This formula was introduced into evidence as PPG-Exh. 204. Mr. Ruch found that in no instance did the results of this analysis show that the number of blacks hired for craft jobs was more than 2 to 3 standard deviations below the number expected by chance.
After calculating the standard deviation (Column 7) Mr. Ruch compared this deviation to the standard deviation to reach his conclusion using the standard of 2 to 3 standard deviations set by the Supreme Court. Mr. Ruch reached a conclusion as to whether the observed deviation (Column 6) was within two standard deviations (Column 7).
Mr. Ruch also explained why for certain years he did not calculate a standard deviation nor make a conclusion. In connection with PPG-Exh. 195 this occurred in 1969, 1973, 1974 and 1975. In these years the number of blacks selected was actually equal to or exceeded the number which one would expect based on chances. Since the issue being analyzed was whether blacks were disproportionately excluded from craft positions, there was no need to analyze these years.
Mr. Ruch repeated the above described analysis for each of the categories from which plaintiffs alleged blacks were excluded:
Utility Crew (PPG-Exh. 197)
Office and Clerical (PPG-Exh. 198)
Technical Employees (PPG-Exh. 199)
Service Workers (PPG-Exh. 200)
*
Mr. Ruch also testified that he performed a more sophisticated statistical analysis on the date calculating the Fischer exact probability statistic.
Based on all his analysis, Mr. Ruch concluded that there was no statistical evidence to support the conclusion that blacks were excluded from Craft (Service Mechanic), Utility Crew, Office and Clerical, Technical, or Service Worker jobs because of their race and further, that the statistical analysis supported the conclusion that race was not a factor in the selection of employees for each of these job categories.
The plaintiffs’ expert, Dr. James Outtz, reviewed the Standard Deviation analysis prepared by Mr. Ruch. He also reviewed some of the calculations for accuracy and found them to be correct.
Dr. Outtz further testified that if the information on PPG-Exh. 195 — 200 in the column marked “relevant labor market” were accurate and appropriate, he would come to the same conclusions as Mr. Ruch did in connection with these exhibits.
The court finds that Mr. Ruch accurately gathered the information for use in his analysis and appropriately calculated the standard deviations for each of the job categories examined in the tables marked PPGExhs. 195, 197, 198, 199, and 200.
The information in the “Relevant Labor Market” column on PPG-Exhs. 195 — 200 came from information which was admitted to be true by the plaintiffs.
The court credits the testimony of Mr. Ruch concerning the statistical analysis and the conclusion to be drawn from the results. Further, the court’s own nontechnical review of the statistics shows that there is no pattern of exclusion from any of the categories from which plaintiffs complain blacks were excluded.
For each job category, although blacks were selected in some years in numbers and
*252
percentages slightly lower than their availability in the applicant pool, in other years blacks were selected in numbers and percentages higher than their availability.
Blacks were selected for Service Mechanic jobs in a proportion equal to or higher than their availability in the relevant applicant pool in 1969, 1973, 1974 and 1975.
Blacks were selected for Utility Crew positions in a proportion equal to or higher than their availability in the relevant applicant pool in 1970,1971, 1973, 1974 and 1975.
Blacks were selected for Office and Clerical positions in a proportion equal to or higher than their availability in the relevant applicant pool in 1971, 1972, 1975.
Blacks were selected for Technical positions in a proportion equal to or higher than their availability in the relevant applicant pool in 1972 and 1976.
Blacks were selected for Service Worker positions in a proportion equal to or higher than their availability in the relevant applicant pool in 1969, 1970,1971, 1972, 1977 and 1978.
The court finds that there is no statistical evidence to support plaintiffs’ allegation that blacks were excluded from craft or Service Mechanic jobs. Rather, the analysis of the flow statistics offered by PPG shows that race was not a factor in the selection of employees for these jobs.
The court finds that there is no statistical evidence to support plaintiffs’ allegation that blacks were excluded from the Utility Crew. Rather, the analysis of the flow statistics offered by PPG shows that race was not a factor in the selection of employees for these jobs.
The court finds that there is no statistical evidence to support plaintiffs’ allegation that blacks were excluded from Office and Clerical jobs. Rather, the analysis of the flow statistics offered by PPG shows that race was not a factor in the selection of employees for these jobs.
The court finds that there is no statistical evidence to support plaintiffs’ allegation that blacks were excluded from Technical jobs. Rather, the analysis of the flow statistics offered by PPG shows that race was not a factor in the selection of employees for these jobs.
The court finds that there is no statistical evidence to support plaintiffs’ allegation that blacks were excluded from Service Workers jobs. Rather, the analysis of the flow statistics offered by PPG shows that race was not a factor in the selection of employees for these jobs.
There is no evidence to support a finding that blacks are discriminated against in terms of job assignment. Blacks entering the work force are assigned to each of the different categories in numbers and percentages which are not substantially less than and in some cases actually exceed the percentage of blacks who apply for these jobs.
As demonstrated by the foregoing, the court finds that both the static examination of PPG’s employment figures and the flow analysis of the selection figures during the time period relevant to this suit prove that PPG has employed and assigned blacks to all job categories without regard to their race.
Plaintiffs failed to offer any meaningful evidence tending to prove the company discriminated against blacks in hiring or job assignment.
With respect to some of the job categories from which plaintiffs alleged blacks were excluded, plaintiffs did little if anything more than offer statistics obtained from the Company’s EEO-1 reports.
With respect to clerical and technical jobs, pla

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1427140. Public record. Not legal advice.