United States v. HK Porter Company

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND OPINION

•ALLGOOD, District Judge.

Invoking section 707 of Title VII of the Civil Rights Act of 1964,

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the plaintiff brought this action against the H. K. Porter Company (herein referred to as “the Company”) alleging a pattern or

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practice of resistance at the Company’s Connors Steel plant in Birmingham, Alabama. The United Steelworkers of America and its Local Union No. 2250 (herein collectively referred to as “the Union”) were thereafter joined as defendants pursuant to order of the court as parties needed for just adjudication under Rule 19 of the Federal Rules of Civil Procedure.

It has been observed with some truth that judges are too busy to write short opinions and therefore write long ones. At the outset, therefore, the court should say that the length of this opinion is in direct relation to the substantial, complex, and important dimensions of the case, both in the proceedings before trial, in the trial itself, and in study by the court of the evidence and the briefs following completion of the trial.

The pre-trial proceedings included not only enough use of the discovery procedures to fill several court files but the holding of two pre-trial conferences as well. The first pre-trial conference was adjourned by the court at the joint request of counsel to permit the preparation of a proposed order defining the issues of fact to be tried. When this was not productive of agreement, the court held another conference and at that time entered a pre-trial order based upon the proposed order which had been originally prepared by the plaintiff.

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Moreover, when the matters covered during the trial raised issues which had not been set forth in the pre-trial order, the court allowed their introduction in the interest of full and final adjudication and has considered them as issues in the case as if they had been embodied in the pre-trial formulation of the issues.

The case was tried before the court on eight days between August 12 and August 21, 1968 in a comprehensive and exhaustive presentation of the evidence. Thereafter, following several extensions of time requested by the plaintiff, the post-trial briefs were filed in November.

Through a pre-trial brief filed by the Company, several briefs filed by the plaintiff during the trial, and the post-trial briefs, the court has had the benefit of comprehensive briefing. It has similarly been most helpful to the court in analyzing the legislative history of Title YII in context to have been provided both with photocopies of the pages of the Congressional Record setting forth the prepared explanations and analyses of the provisions of this title and with the compilation of the legislative history which has been prepared and published by the Equal Employment Opportunity Commission.

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I.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Based on careful observation of the witnesses and consideration of their testimony during the trial and on detailed

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study of the evidence and the briefs since the trial, the court is firm in entering the findings of fact and the conclusions of law which follow therefrom.

Before doing so, the court should comment on the approach which has been taken in deciding this case.

The court is aware of the fact that through the litigation of section 707 cases, the Attorney General is seeking to establish general propositions regarding the application of Title VII to certain employment situations and actions.

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But while recognizing the desirability for enforcement purposes of having general propositions answered by the judiciary in categorical terms one way or the other, the court is convinced that both the proper administration of the statute and the goal of equality in employment opportunities will best be served by the essentially pragmatic approach of judging each case in the light of its own facts and the actual problems to be resolved. As the Supreme Court said in declining the Government’s request for the promulgation of definitive standards in the context of a tax statute, “while the principles urged by the Government may, in nonabsolute form as crystallizations of experience, prove persuasive to the trier of facts in a particular case, neither they, nor any more detailed statement than has been made, can be laid down as a matter of law * * * the question here remains basically one of fact, for determination on a case-by-case basis.”

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Moreover, the mechanistic approach urged by the Attorney General would be manifestly incompatible with the traditional principle of equity jurisdiction that decrees are to be molded to the circumstances of the particular case. The thought expressed by Justice Douglas is a sound proposition although set forth in a dissenting opinion, and it speaks equally to the subject here: “If the federal court is to be merely an automaton stamping the papers an Attorney General presents, the judicial function rises to no higher level than an IBM machine. Those who grew up with equity and know its great history should never tolerate that mechanical conception.”

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The court further believes that some of the concepts which have been urged as the solutions in this area provide more academic interest than practical answers to actual problems. The concepts of “status quo”, “rightful place”, and “freedom now” provoke stimulating thought, but they are, after all, no more than labels which can too easily lend themselves to serving as substitutes for critical analysis or, in the words of Judge Learned Hand, as “anodynes for the pains of reasoning.”

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For these reasons, the findings, conclusions, and order which are here entered are based on the particular evidence of this case and not on categorical answers to the broad propositions urged by the Attorney General.

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The court will set forth these findings and resulting conclusions in the order which provides the most logical development of the facts in their entirety. This order of analysis should therefore not be taken as an expression of the relative importance of any subject or fact in the case.

To expedite reference to specific subjects, the court will prepare and attach to this opinion an index of the subjects herein analyzed.

A. General:

1. (a) The pattern or practice averred by the complaint and amended complaints is alleged to have been engaged in at the Company’s Connors Steel plant located in this judicial district, and the employment records relating thereto are maintained and administered in this district.

(b) The Attorney General is authorized to have brought this action by section 707 of Title VII, the Company and the Union are both within the coverage of the provisions of Title VII, and the court has jurisdiction of the parties and the subject matter of this action.

2. The Company is engaged at its Connors Steel plant in the production of steel products, consisting primarily of bars, angles, and shapes. Described in brief outline, the production process follows the sequence of melting raw materials in electric furnaces to produce molten metal, casting the molten metal into billets by means of a four story high continuous casting facility known as the tower (which was installed in 1964 as one of the first such facilities in the country), rolling the billets on the rolling mills to the specified sizes and shapes, and then fabricating and finishing the products.

3. (a) The jobs and the employees which are the subject of this case are primarily in the production and maintenance bargaining unit, for which the Union is and has been the collective bargaining representative since the early 1940 s. The only non-supervisory employees who are not within the production and maintenance unit are the guards, supply house employees, and clerical personnel.

(b) There are some 739 production and maintenance employees, of which 418 are white and 321 are Negro.

4. The Union contract which was in effect at the time that this case was tried was a three year agreement which had become effective on October 1, 1965 and expired on September 1, 1968. Since then, the Company and the Union negotiated and entered into a new contract which became effective on September 1, 1968.

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5. (a) The operations of the Company’s plant are set up on a departmental basis in accordance with the type of work performed by each department and in common with the organizational structure of plants in the steel industry generally. The departments, and their basic functions, are as follows, in alphabetical order:

(1) Brickmason, which relines and maintains the furnaces, ladles, tundishes, and related equipment used in the melting and casting operations.

(2) Building Maintenance, which maintains the plant buildings and facilities.

(3) Cold Draw, which produces cold drawn bars to a close tolerance finish by drawing or pulling semi-finished bars through dies.

(4) Electric Furnace, which produces the billets by melting the raw materials in electric furnaces and casting the molten metal through the continuous casting tower.

(5) Electrical, which consists of the electrician jobs and the craneman jobs which operate the overhead cranes throughout the plant.

(6) Fabricating, which shears, bends, and forms bars to be- used as concrete reinforcing material.

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(7) Finishing, which performs such finishing operations as angle straightening, reshearing operations, weighing, and shipping. This department is also referred to as the Hoop Shop, which is the name used in the days before the creation of the departments.

(8) Laboratory, which performs chemical and metallurgical analyses of the molten metal, continuous casts, billets, and finished products.

(9) Mechanical, which consists of the machine shop, carpenter shop, blacksmith shop, mechanics, welders, and mill-rights.

(10) Mill Auxiliary, which performs auxiliary functions before, during, and after the rolling of the steel products on the rolling mills.

(11) Mill Rolling, which performs the rolling functions on the rolling mills. This department is also referred to as Mill Tonnage because the incentive rate of the department is based on the tonnage of steel products which are rolled.

(12) Rail Yard, which cuts scrap with acetylene torches and moves billets to storage areas in the yard. This department is also referred to as the Railbreaker because one of the functions formerly performed there was the breaking of rails.

(13) Roll Shop, where the rolls which are used on the rolling mills are machined to the specified tolerances on roll turning lathes.

(14) Switch Yard, which consists of the locomotive engine used in the switching of railroad cars and the locomotive crane used to deliver scrap metal to the Electric Furnace department to be melted.

(15) Supply, which receives and stores materials used in the plant operations.

(16) Guard (also known as Plant Protection), which consists of the watchmen. (Supply House and Guard are listed last because they have not been the subject of any allegations or argument).

(b) The court finds from the evidence that the jobs within each department require skills and abilities which differ from one department to another and that each department has a specific function of its own in the overall operations of the plant. The court similarly finds that the departmental structure of the plant provides the benefit to the Company and to employees of becoming proficient in and accustomed to the particular type of operations performed by a department.

(c) The departmental structure was for the most part created from the then existing shops and crews when the Union was organized in the early 1940’s. For example, the Electric Shop became the Electrical department, the Fab Shop became the Fabricating department, the Hoop Shop became the Finishing department, the Mill Auxiliary Crew became the Mill Auxiliary department, and the Mill Rolling (also referred to as Tonnage) Crew became the Mill Rolling department.

There are three departments which were established subsequent to the organization of the Union. They are the Building Maintenance department, the Cold Draw department, and the Switch Yard department.

6. (a) The majority of the jobs are arranged in lines of progression within their departments, by which employees advance from the entry job through the progression line to the highest rated jobs in the department.

There is one line of progression in each of the departments except the Mechanical department, which is composed of the Machine Shop progression line, the Blacksmith progression line, the Millwright-Welder progression line, the Mechanic progression line, and the Carpenter Shop progression line.

(b) The evidence shows that with one exception, which is discussed below, the jobs in the lines of progression provide training and experience for the successive higher rated jobs in the progression line and that the employees holding jobs in a line of progression are dependent upon one another both for the proper performance of their jobs and for their safe

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ty in this hazardous steel producing industrial plant, and the court so finds.'

An example is provided by the jobs of Rougher and Manipulator Operator in the Mill Rolling department. The Roughers are stationed on the breakdown mill on moving tilt tables which are controlled from an overhead pulpit by the Manipulator Operator. The Roughers are dependent upon the Manipulator Operator to raise and lower the tilt tables at the proper times, in coordination with the movement of bars through the mill, and if the Manipulator Operator should fail to do so, one result would be the delivery of the red hot bar in the face of the Rougher.

(c) The only evidence to the contrary consisted of the position, expressed by the Company in the argument of a grievance several years ago, that the jobs in the Carpenter Shop “were not such that they afforded training for employees to become qualified carpenters.” Based on this evidence, the court finds that the jobs in the Carpenter Shop line of progression constitute an exception to the fact that the jobs in the lines of progression provide training for the successive jobs in the progression line.

7. Advancement in the lines of progression is by means of temporary step-ups and advancement on permanent assignments.

The temporary step-ups take place daily and constantly by reason of such factors as temporary increases in operations, vacations, and absenteeism. The result is that unlike the situation in some industrial plants, where an employee holds and works a definite job until selected for promotion to the next higher job, the procedure at this plant is that there are daily step-ups and that an employee may therefore work several jobs in a progression line in one work week.

An employee is regarded as having advanced to a job on permanent assignment when, at a normal level of operations and with all of the employees working, he is regularly scheduled to work that job or higher rated jobs and will not be scheduled to work a lower rated job.

8. (a) An employee may decline to advance in the line of progression and thus freeze himself voluntarily on a job, for such reasons as preferring the work or desiring to stay on the shift to which he is assigned on the job.

(b) An employee who is deemed by the Company to lack the ability to perform the duties of the job which he is working is subject to being disqualified and thus involuntarily frozen on the job below it in the progression line.

(c) An employee who has voluntarily frozen has the right to unfreeze himself and to resume advancing in the line of progression. An employee who has been involuntarily frozen similarly has the right to another try at the job from which he was disqualified and to resume advancing in the line of progression if he can satisfactorily perform the job. An employee who has been involuntarily frozen has the further right to file a grievance through the Union challenging the disqualification.

9. There is a Labor Pool, which is composed of employees who work in general labor jobs such as truck driver and fork lift operator and newly hired employees who start in the Labor Pool before transferring to departments.

10. Prior to the Fall of 1962, there was racial segregation in the jobs, so that in departments having employees of both races, there was one line of progression composed of white employees and another line of progression composed of Negro employees. In the Fall of 1962, the Company signed a compliance agreement under Executive Order No. 10925, which had been issued by President Kennedy in 1961 and provided for equal employment opportunity by companies entering into and holding Government contracts, and, in implementation of the Order, the Company and the Union integrated the lines of progression in October of 1962.

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The Attorney General has argued that this merger of the lines of progression placed the Negro employees “at the bottom of each line of progression.” However, this argument is not sustained by the evidence. Instead, the evidence shows, and the court finds, that the standard which was adopted and applied by the Company in determining the placement of jobs in this integration of the progression lines was the base wage rate of the jobs and that the result of the application of this standard was that in three of the integrated progression lines, Negro employees were placed in higher rated jobs ahead of white employees in lower rated jobs and have since then continued to progress ahead of the white employees.

11. This case has more than once given the impression of being concerned with different frames of reference from the standpoint of time, with the Attorney General having introduced considerable evidence and having placed substantial reliance on events occurring prior to July of 1965 when Title VII became effective and, for that matter, prior to October of 1962 when the lines of progression were integrated. Therefore, before proceeding to analysis of the specific facts, it would be in order to comment on the period of time encompassed by the case.

On this point, the court is of the opinion that because the present cannot be fully analyzed and understood without consideration of the past, evidence of past events antedating the effective date of Title VII is competent and relevant. In this case, therefore, the evidence regarding events antedating both the effective date of Title VII in 1965 and the integration of the progression lines in 1962 was admitted and has been considered by the court for this purpose.

B. Reports by the Equal Employment Opportunity Office:

The status of the Company’s compliance with the Executive Order was under the jurisdiction of the Equal Employment Opportunity Office of the Army Materiel Command, which in turn functioned under the then President’s Committee on Equal Employment Opportunity. Beginning in 1963 and continuing into 1965, the Company’s equal employment opportunity program was the subject of periodic reviews, inspections, investigations, and discussions which were for the most part conducted by Dr. Hugh A. Brimm, who was at the time Chief of the Equal Employment Opportunity Office and is now with the Civil Rights Office of the Department of Health, Education and Welfare.

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The result of these contacts by the Equal Employment Opportunity Office was a series of written reports expressing the findings or opinions that the Company was in compliance and was not discriminating against Negro employees.

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For example, the general ten- or of these reports may be illustrated by one report which stated that “Negroes have moved into some of the jobs very close to the top” and by another report which stated that “It is believed that Connors Steel Division has a good equal employment opportunity posture and the Company is attempting to improve constantly.”

The contacts by the Equal Employment Opportunity Office further included the advice, received by the Company in 1964, that “Your testing program appears to be appropriate and properly administered” and the advice, received by the Company in 1965, that the adoption of a transfer privileges procedure (hereinafter to be discussed) “will achieve the desired compliance posture”.

The Company’s introduction of evidence regarding these matters and the

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Attorney General’s insistence that the evidence was completely immaterial brought about still another contested issue in this complex case.

The initial ground of the Attorney General’s objection to this evidence consisted of the argument that the status of compliance with the Executive Order must be treated as irrelevant to the determination of compliance with Title VII and that the actions taken by the Equal Employment Opportunity Office could not be binding on the court.

The court is fully in agreement with the Attorney General that the status of compliance under the Executive Order is in no way conclusive or binding on the court. The question of compliance vel non must be measured solely within the framework of Title VII, and it is therefore both the right and duty of the court to adjudicate this case within the framework of Title VII and without being bound in the least by the status of compliance as determined by the agencies administering the Executive Order. The court therefore holds, in agreement with the Attorney General, that the reports by and advice from the Equal Employment Opportunity Office are in no way res judicata, binding, or grounds of estoppel.

But it is quite another and different matter to say that evidence regarding the actions taken by the Company to comply with the Executive Order and the reports and approvals by the Equal Employment Opportunity Office must be treated as “irrelevant and not pertinent to the issues in the case” as urged by the Attorney General.

The Company has argued that this evidence is relevant with respect to the element of section 707 that the alleged pattern or practice be intended to deny the exercise of rights, in that statements such as “the Company is attempting to improve constantly” may be considered on the issue of intent. It is further argued by the Company that compliance with the Executive Order may be considered in connection with compliance with Title VII for the reason that Senator Humphrey spoke of the title as being “much less stringent language, and much less in coverage than what was provided by the executive order”.

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However, it is not necessary for purposes of this case to resolve these points. The Attorney General has based its case almost entirely on the situation which existed-before October of 1962 and on the argument that the steps taken by the Company in October of 1962 were inadequate to constitute compliance with Title VII when it became effective in 1965. Therefore, with the Attorney General having opened this door in presenting its case, it would be most anomalous to close this door to the defendants in presenting their case.

At the trial, the Attorney General raised the further contention that in advising the Company that its testing program was proper and fairly administered and that the adoption of the transfer procedure would achieve the desired compliance posture, Dr. Brimm acted beyond the scope of his authority as Chief of the Equal Employment Opportunity Office. However, since the court has held, in agreement with the plaintiff, that the actions taken by Dr. Brimm are in no way binding in the case, this question is academic.

The Attorney General’s third point on this issue, argued in the briefs, is that the reports written by Dr. Brimm were based on “inadequate investigations”. But this argument speaks to the weight to be given to the evidence and not to the question of admissibility. Moreover, the only evidence touching on this point was Dr. Brimm’s testimony that “My contact with the company was a continuing contact over a period of approximately two years.”

In sum total, the court agrees with the Attorney General that the reports and approvals are not in the least binding or conclusive, but it cannot agree that they are completely immaterial and

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must be entirely disregarded. The court is instead of the opinion that they may properly be considered as another item of evidence together with all of the other considerable evidence in the case. At the same time, however, the court has at no point in analysis of this case relied on any finding or opinion expressed by these reports and advice.

C. Advancement in the lines of progression:

1. Following the integration of the lines of progression, the Negro employees who were then employed began advancing in the merged lines of progression into jobs which had theretofore been held by white employees, with the result that in the month of October of Í962, there were 63 shifts worked by Negro employees in jobs which had previously been held by white employees.

The Negro employees who have been hired and who have transferred into departments subsequent to October of 1962 have similarly been advancing in the integrated lines of progression.

2. The Attorney General has emphasized in argument the fact that there are no Negro employees in the Building Maintenance department, Laboratory, Machine Shop, and Mechanic progession line and that the Negro employees in the Blacksmith Shop and Roll Shop have not advanced. The court agrees with these facts emphasized by the Attorney General but cannot find that they show denials of equal opportunities in employment. For example, there are only three employees in the Building Maintenance department, seven employees in the Laboratory, three employees in the Blacksmith Shop, and two employees in the Mechanic progression line. Similarly, it was shown by the evidence that the reason the Negro employee in the Roll Shop has not advanced was that he was disqualified from the Crane-man job in 1963, and there is no evidence or argument from which it might be inferred that such action was improper.

3. Having considered this argument relied on by the Attorney General, the court should now consider the evidence regarding the advancement of the Negro employees in the other departments of the plant. On this point, the court finds that as the result of the fact that they have been advancing in the integrated lines of progression since October of 1962, the jobs to which Negro employees had advanced at the time of the trial were as follows, with the level of the jobs in the progression lines being set forth to provide an explanation of the situation:

(a) In the Brickmason department, to Brickmason, which is, except for the Leaderman, the highest rated of the four jobs in the department.

(b) In the Carpenter Shop, to Painter, which is the third job from the top of the seven jobs in the department.

(c) In the Cold Draw department, to Record Clerk, which is the third job from the top of the twenty-one jobs in the department.

(d) In the Electrical department, to Spell Craneman — Charging and Charging Maintenance, which is the seventh job from the top of the twenty-six jobs in the common line and the craneman line of the department.

(e) In the Electric Furnace department, to Melter Helper (also known as Furnace Operator), which is the second job from the top of the twelve jobs in the department.

(f) In the Fabricating department, to Tagman, which is the third job from the top of the twenty-one jobs in the department.

(g) In the Finishing department, to Straightner Operator, which is the second job from the top of the fifteen jobs in the department.

(h) In the Mechanical department, to Millwright, which is, except for the Leaderman and the Foreman, the highest rated of the seven jobs in the common line and the Millwright line of the department.

(i) In the Mill Auxiliary department, to Inspector, which is the highest rated of the twenty-one jobs in the department.

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(j) In the Mill Rolling department, to Layover, which is the thirteenth job from the top of the nineteen jobs in the department.

(k) In the Rail Yard department, to Burner, which is now the highest rated of the seven jobs in the department. (Scarier, which was the highest rated job, is no longer in operation).

(l) In the Switch Yard department, to Locomotive Crane Operator, which is the highest rated of the four jobs in the department.

The court similarly finds that as a result of the fact that they have been advancing in the lines of progression since October of 1962, Negro employees were at the time of the trial holding permanent assignments on jobs which are among the higher rated jobs in the plant. Such jobs held by Negro employees on permanent assignment include the jobs of Locomotive Crane Operator in the Switch Yard department, Brickmason in the Brickmason department, Millwright in the Mechanical department, Towerman in the Electric Furnace department, Weighman in the Finishing department, Shear Leaderman in the Fabricating department, Draw Bench Operator in the Cold Draw department, and Craneman in the Electrical department.

4. While not disagreeing with the evidence regarding these jobs which are held by Negro employees, the Attorney General has responded to it by the argument that the Company was defending on the ground that “improvement” in employment opportunities is enough.

The court fully agrees with the Attorney General that improvement in employment opportunities cannot in and of itself constitute compliance with the rights secured by Title VII. But at the same time, the court has heard nothing from the defendants, in argument or in evidence, from which it could be inferred that exoneration was being sought on a defense of improvement. Moreover, with the Attorney General having placed considerable reliance in argument and in evidence on events antedating October of 1962, the court could not fairly or reasonably deny the defendants the right to present evidence regarding events which have taken place since October of 1962.

D. Transfers between departments:

1. Prior to the negotiation of the Union contract in 1965, an employee who transferred from one department to another lost the seniority which he had accumulated in the department from which he transferred. Therefore, if he subsequently returned to that department, he had to start over again as a new employee at the bottom of the departmental seniority list. For this reason, employees who transferred to another department and then found they did not like or could not perform the work in the new department could not return to their former departments and regain their seniority. Similarly, in case of a reduction in force in their new departments, employees ran the risk of being laid off because they could not return to their former departments and work there with their retained seniority.

This was illustrated in the evidence by cases of employees (who were white) who transferred prior to 1965 from one department to another, were cut back due to reductions in force in their new departments, and returned to their former departments as new men at the bottom of the seniority list.

2. This- matter was the subject of discussions in 1965 between the Company’s Vice-President B. Campbell Blake and Dr. Brimm of the Equal Employment Opportunity Office. As related in more detail in one of the reports produced by the Attorney General pursuant to Rule 34 discovery in this case, the circumstances were that “the Negro complainants most frequently referred to the fact that in order to transfer from one line of progression, they would have to give up their seniority in the line that they were leaving” so that “in the event of a cut-back or lay-off, then they would be faced with the possibility of having to go out on the street” and that “This bar

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rier to transfer was pointed out to Management”.

The result of these discussions was that Vice-President Blake proposed to Dr. Brimm the adoption of a new transfer procedure to encourage transfers between departments by the Negro employees. Specifically, he proposed that the Company would adopt a procedure by which employees who transfer between departments would retain in the department from which they transferred the seniority they had accumulated so they could then return and regain their accumulated seniority if they wished to do so or if they needed to do so because of a reduction in force.

3. This proposed transfer procedure was drafted and submitted by the Company to Dr. Brimm for review, and he advised the Company in reply that he had discussed the proposal with his Washington office and that “I have a concurrence from them that this change will achieve the desired compliance posture.”

The Company thereafter presented this proposed procedure to the Union in the contract negotiations which were being held in that year. The procedure was then agreed to, incorporated in the contract as the transfer privileges section, and became effective as of October 1, 1965.

This new transfer procedure was called to the attention of the employees by being printed in bold face type in the contract as printed in the Employees Handbook distributed to employees by notices which were posted on the bulletin boards, and by notices which were enclosed in the employees’ pay envelopes. It was also discussed at Union membership meetings at the time it was negotiated and placed in the Union contract.

4. There can be no doubt from the evidence, there is no contention to the contrary, and the court finds that this transfer privileges section was adopted by the Company and the Union for the benefit of the Negro employees and to encourage Negro employees to transfer to departments providing greater opportunities for earnings and advancement.

The evidence before the court similarly provides several examples of the advantages offered by this transfer privileges section. For one, the evidence shows cases of Negro employees who have transferred and then have returned to their former departments with their retained seniority. Another advantage shown by the evidence is that because of this transfer privileges section, employees are now provided with steady work while they build up enough seniority in their new departments to be regularly scheduled, in that they are able to work in their former department as well as in their new department. This was illustrated by the testimony of one of the witnesses for the Attorney General that he had transferred from the Mill Auxiliary department to the Mill Rolling department some three weeks before the trial and was at the time of the trial working in both departments until, he had enough seniority to be scheduled regularly in the Mill Rolling department.

5. The fact that a procedure which has been adopted for the benefit of Negro employees is unique is certainly a long way from proving compliance with the law, since that is a question which must be answered in terms of the requirements of the statute and not in terms of the situation within the industry. At the same time, it is relevant, as a point bearing on the circumstances of the proposal and adoption of the transfer privileges section, that the common situation in the steel industry is that employees forfeit their seniority when they transfer and are not able to hold seniority rights in more than one department or promotional sequence and that the transfer section adopted by this Company and Union is unique.

6. With this background, the court will now consider the arguments advanced by the Attorney General in attacking the transfer privileges section.

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By way of preface, it should be said that in analyzing this issue, the court has excluded from consideration both the fact that the transfer section was proposed by the Company for the benefit of Negro employees and the fact that the Company was advised that the adoption of this transfer section would achieve the desired compliance posture.

7. To begin with, during the pre-trial stages of the case, there was some contention by the Attorney General to the effect that the transfer privileges section imposed requirements on Negro employees to which white employees are not subject.

However, the evidence conclusively established that white employees are identically and equally subject to each of the requirements for transfer. The evidence shows that white employees must meet the minimum aptitude standards of the departments to which transfer is requested, that there has been no relaxation of this requirement for white employees, and that there have been white employees whose transfer requests have been denied on this ground at the same time that Negro employees have been transferred to the departments unsuccessfully requested by the white employees. The evidence likewise shows that white employees who transfer must start in the entry job in the new department and from there work their way up the line of progression, must take a wage reduction where the rate of the entry job in the new department is less than the rate of the job which they held in-the former department, and do not take with them in transferring the seniority which they accumulated in the department from which they transferred. The court therefore finds that these are the facts.

Moreover, the pre-trial contention on this aspect of the subject may now properly be regarded as having been withdrawn, since the Attorney General has agreed in the post-trial brief that the requirements for transfer apply to both white and Negro employees.

8. Instead, the theory which the Attorney General urges in the post-trial brief is that there should be no requirements for transfer, that “unrestricted transfers should be permitted to vacant jobs”, and that the court should order the abolishment of the departmental seniority structure and the creation of a new plant-wide seniority and job bidding system.

This theory is the principal point of the Attorney General’s comprehensive post-trial brief. The argument is that the transfer privileges section should be abolished and replaced by an “unrestricted transfer” plan by which the present system of departmental seniority would be abolished and replaced by a system of plant-wide seniority and by which the present procedure of advancement in the lines of progression would be abolished and replaced by a plant-wide bidding procedure.

This result is necessary, in the Attorney General’s view, to compensate the Negro employees for the segregation which existed prior to October of 1962 and to achieve a more proportionate racial balance in the departments.

To illustrate this point, the Attorney General’s brief compares the employment histories of Negro and white employees who were hired in years prior to 1962 and argues that the Negro employees must be given these unrestricted plant-wide transfer and bidding rights to place them where they might have been had it not been for the situation which existed prior to 1962. For one example, the Attorney General compares the employment history of a Negro employee in the Electric Furnace department who was hired in 1953 with the employment history of white employees who were also hired in 1953 and argues that the plant-wide transfer and bidding plan is necessary to compensate for the fact that the white employees were able to work their way up to their present status during the years before 1962.

Similarly, to illustrate the point of the theory that the transfer and bidding plan

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is necessary to achieve a proportionate racial balance throughout the departments, the Attorney General has prepared and relies on numerical and percentage distributions of Negro and white employees in each of the departments.

With the Attorney General proposing this plant-wide bidding system as the means of compensating Negro employees for the years prior to 1962 and to achieve a proportionate racial balance, the initial question which is raised is whether Title VII should properly be construed as speaking prospectively or retroactively from the time it became effective in July of 1965.

The theories which have thus far been expressed on this question have tended to view the matter in terms of absolute and immutable concepts.

The concept urged by the Attorney General is that Title VII must be construed as requiring that Negro employees be placed where they might have been today had it not been for segregation which existed before Title VII became effective. For this concept, the Attorney General relies on the decisions of Judge Heebe in the

Crown Zellerbach

case and of Judge Butzner in the

Philip Morris

case

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and the law review espousals of the “rightful place” concept.

13

Another view of the matter is that Title VII should properly be construed as having a prospective and not retroactive operation and that it was not intended to require the realignment of rights of seniority as they existed when the title became effective.

This view is represented by several passages of the legislative history, including the memorandum which was prepared by the Justice Department for the co-floor manager of Title VII and which expressed the position that “It has been asserted that Title VII would undermine vested rights of seniority. This is not correct. Title VII would have no effect on seniority rights existing at the time it takes effect * * * This would be true even in the case where owing to discrimination prior to the effective date of the title, white workers had more seniority then Negroes”

14

and by the explanation set forth in the interpretative memorandum of the title by its co-floor managers that “Title VII would have no effect on established seniority rights. Its effect is prospective and not retroactive.”

15

This view is similarly represented by the interpretations expressed by Judge Hogan in the

Dobbins

case,

16

by Judge Meredith in the

Sheet Metal Workers

*63

case,

17

and by Judge Gordon in the

Duke Power

case,

18

as illustrated by the passages that “The Civil Rights Act of 1964 was not intended to penalize unions or others for their sins prior to the effective date of the Act. It is prospective only” and that “In providing for prospective application only, Congress faced the cold, hard facts of past discrimination and the resulting inequities. Congress also realized the practical impossibility of eradicating all the consequences of past discrimination.”

Having carefully studied this matter and the authorities speaking on the subject, the court has reached the firm conviction that the dogmatic approach of attempting to fit a case into the confines of one or the other theoretical concept is not the answer. We are entering an area of the law which has quite accurately been characterized as a yet uncharted sea,

19

and nothing could be more productive of erroneous results and more detrimental to the purposes spelled out by Congress in the enactment of this statute than to adopt the mechanistic approach of applying one or the other concept.

For example, with specific reference to the subject of transfers, the Attorney General relies on the

Philip Morris

case

20

while the Company relies on the

Duke Power Co.

case.

21

But the fanciful prediction of the day when the judges of our judicial system will be replaced by computers

22

has not yet come, and the courts cannot be expected to sit in computer-like fashion and be fed a control card marked

Philip Morris

on the one hand or

Duke Power Co.

on the other hand to produce the proper decision in every case concerning transfers. That may be the easy approach to the judicial resolution of a case, but it is most assuredly not the proper discharge of the responsibilities that a court has under Rule 52.

For this reason, and consistent with the overall approach taken in resolving the issues in this case, the court will not select one or the other concept as the answer to this question but will resolve the issues in terms of the particular facts of this case.

The court has no doubt that from having heard the evidence in the

Philip Morris

case, Judge Butzner reached the result which was proper on the facts of that case. But this is another case and another set of facts, and this court is thoroughly convinced from having heard the evidence in this case that the facts here will not sustain the result sought by the Attorney General.

This is so for several reasons which do not stand separate and independent of one another but will be discussed separately in the interest of analysis.

(a) First, this is not a case where there have been no opportunities for advancement and higher earnings for Negro employees in the departments to which they were originally assigned and where the only means of advancement has therefore been through transfers to other departments.

A district court judge, more than anyone else, should be mindful of the limitations inherent in attempting to recapture and relate in the pages of a written opinion the total composite of the ingredients of a trial, consisting not only of the recorded evidence but as well the impressions and subleties resulting from the questions of counsel and the answers of the witnesses. As Justice Frankfurter has said, “no finder of fact can see

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through the eyes of any other finder of fact.”

23

Despite these limitations, the opinion in the

Philip Morris

case shows that the court was there dealing with a factual setting where the only route of advancement for the Negro employees was by means of transfer to other departments.

Thus, the facts of the case, as set forth in the opinion, were that the Negro employees with respect to whom relief was granted were in departments composed entirely of jobs which had previously been held by Negro employees. The departments contained no higher rated jobs which had previously been held by white employees, there was accordingly no opportunity for upward mobility within these departments, and the result was that the only means of providing job advancement to the Negro employees in these departments was through transfers to other departments. This was accordingly the result reached by the court in that case.

The facts of this case, on the other hand, are quite different. Each of the departments in which Negro employees were working in 1962 contained higher rated jobs which had until then been held by white employees, the Negro employees with respect to whom relief is here sought have been and are provided with substantial opportunities for job advancement by means of progression into these higher rated jobs, and their advancement into these jobs has been substantial.

(b) Second, the fundamental premise relied on by the Attorney General for the plant-wide transfer and bidding program is the argument that the Negro employees are “locked in low-opportunity departments” without the means of transferring and that the plant-wide bidding program is necessary to enable them to “break out” of the departments in which they are allegedly locked.

There may well be cases where this argument will be based on a factual foundation. The

Philip Morris

case, for one, presented a situation where the opportunities for departmental transfers which were available to Negro employees were obviously limited. This fact is reflected in the court’s findings that “Until January 1, 1966 the Company, with token exceptions, established its departmental seniority system on the basis of racial discrimination in its hiring policy,” that “not until March 7, 1966 did the Company and the Union amend the collective bargaining agreement to allow employees to transfer from prefabrication under a note of intent at the rate of one a month when vacancies exist to basic labor jobs in warehouse shipping and receiving”, that transfers under the note of intent procedure to the fabrication department were within the discretion of management and the recommendation of the employees’ supervisors, and that transfers under the six months agreement procedure were limited to four transfers every six months.

But there is nothing in the least comparable in the evidence in this case, and having heard the evidence in this case, the court could not properly accept the argument that Negro employees are “locked in” departments.

The evidence in this case first shows, and the court finds, that since October of 1962, the opportunities for transfer available to the Negro employees have been on an identical equality with the opportunities available to the white employees. The evidence similarly shows, and the court finds, that the adoption of the transfer privileges section in 1965 substantially broadened the transfer opportunities available, that the Negro employees have without discrimination availed themselves of the opportunities available under this transfer section, and that those who have done so have advanced substantially in the departments to which they have transferred.

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While not disagreeing with the evidence establishing these facts, the Attorney General has instead placed reliance on the fact that the majority of the jobs in the Finishing, Fabricating, and Mill Auxiliary departments were held by Negro employees prior to October of 1962 and that because most of those Negro employees who were employed in 1962 have not transferred, the majority of the employees in those three departments are Negro.

It is certainly true that “In the problem of racial discrimination, statistics often tell much, and Courts listen.”

24

But the courts cannot be expected to listen to only part of the evidence.

If the evidence had shown nothing more than the statistical fact that a majority of the employees in the Finishing, Fabricating, and Mill Auxiliary departments are Negro, then a factual predicate for the Attorney General’s theory might have been established. But that is not the situation presented by the evidence in this case.

The court must in the first place listen to the evidence that the Negro employees have been able to avail themselves without difficulty of the transfer rights provided by the transfer privileges section.

Arguing for a contrary finding on this point, the Attorney General points to the testimony at the trial of a Negro employee that he was not aware of the transfer privileges section until February of 1968, when he saw a notice on the bulletin board regarding openings in several departments. He further testified that he discussed the matter of transfer rights with Personnel Director Norman Wagner at that time, “was pleased with his explanation”, and applied for a transfer to the Mill Rolling department, to which he was transferred about a week later.

However, there is no dispute with the testimony that the transfer privileges section was specifically called to the attention of the employees by notices which were placed in the employees’ pay envelopes and which were posted on the bulletin boards, that the Employees Handbook containing the transfer section was made available to the employees, and that the transfer section was discussed and explained at Union membership meetings. Moreover, when this witness was asked if he had ever looked at the Employees Handbook, he replied that he had not done so. Based on the evidence, therefore, the court finds that the Company has adequately publicized the transfer rights available.

The court must similarly find from the evidence that the Negro employees who have availed themselves of the transfer rights available have benefited substantially by doing so. On this point, the evidence shows that at the time of the trial, Negro employees who had transferred from the Finishing, Fabricating, and Mill Auxiliary departments were working in such jobs as Brickmason in the Brickmason department, Crane-man in the Electrical department, Ladle-man in the Electric Furnace department, and Ringout Saw Operator and Roll Changer Grade III in the Mill Rolling department.

The court must likewise find from the evidence that the transfer rights available provide the opportunity for increased earnings. For example, there is the evidence regarding a Negro employee in the Fabricating department who applied for and received a transfer to the Mill Rolling department in December of 1966 and who had a higher average hourly wage rate during the first six months of 1968 than all but one of the white employees who remained in the Fabricating department when he transferred. The evidence on this point similarly shows that three of the white employees who had lower hourly earnings were hired before he was and that the one

*66

white employee who had higher hourly earnings is a foreman who was hired in 1936.

In the second place, the argument that Negro employees are “locked” in the Finishing, Fabricating, and Mill Auxiliary departments disregards the fact that the employees who are allegedly “locked” in these departments consist primarily of men who have elected not to progress within these departments or who have not requested transfers. Thus, the evidence shows, and the court finds, that the majority of the Negro employees in the Fabricating, Finishing, and Mill Auxiliary departments have voluntarily frozen themselves on jobs and thereby elected not to progress in these departments and similarly that the majority of the Negro employees in these departments have not applied for transfers.

The argument that the Negro employees are “locked” in the Fabricating, Finishing, and Mill Auxiliary departments furthermore disregards the fact, which the court finds from the evidence, that of the Negro employees who have applied for transfers from these three departments during the period since 1962, there have been 9 who were not eligible for transfer while there have been 23 who were eligible for transfer and who were transferred to the departments which they requested, including the Mill Rolling, Electric Furnace, Brick-mason, Electrical, and Mechanical departments.

The testimony further established that employees have declined the Company’s offers of training for the higher rated jobs of Inspector, Assistant Foreman, and Yardman in the Mill Auxiliary department or have voluntarily given up the jobs after they had been trained. For example, the Attorney General called four Negro employees who are in the Mill Auxiliary department as witnesses. Of these employees, one testified that the Company offered him training on the Yardman job, which he declined because of ulcers, and that the Company then offered him training on the Assistant Foreman job, which he accepted. Another testified that the Company trained him on the Yardman job in 1962 and also trained him on the Inspector job but that he voluntarily gave up both jobs in 1964. Another testified that the Company offered him training on the Inspector job, which he declined, and that he had also elected to decline training for the Yardman and Assistant Foreman jobs as well as the Inspector job. The fourth witness testified that he had received a notice from the Company saying he could become Assistant Foreman.

This is not to say that failure to take advantage of existing opportunities may in every case be a factor militating against the type of result here sought by the Attorney General. There may well be cases where it would not do so, such as where the opportunities available are minimal or essentially illusory or otherwise properly to be regarded as a case of too little and too late. What the court is saying is that given the facts of this case, establishing beyond question that substantial and meaningful opportunities have been available for years and that those who have availed themselves of these opportunities have proven that the opportunities are real, the Attorney General’s argument for the plant-wide transfer and bidding plan for those who have elected not to avail themselves of the existing opportunities has little to commend it.

(c) Third, the Attorney General has further argued this case on the premise that the departmental structure of the Company’s plant is not based on legitimate operational considerations and could therefore be properly replaced by the plant-wide transfer and bidding program.

On this point as well, the argument fitted the facts of the

Philip Morris

case. There were three departments at issue in that case — prefabrication, fabrication, and warehouse shipping and receiving— and the opinion gives no indication of there having been evidence of significant differences in the skills and abilities

*67

required between the departments. On the contrary, the court pointed out that the plaintiff in that case was seeking a truck driver job and that this job “does not depend upon progression from one classification to another in the warehouse shipping and receiving department.” Therefore, as Judge Gordon observed in the

Duke Power Co.

case, the factual situation was that “the policy at Philip Morris represented only a relaxation of earlier restrictions based on race” and that “Philip Morris exhibited no business purpose or reason for its transfer restrictions.”

But the facts of this case do not in the least lend themselves to the argument. There is on the one hand no evidence from which it could be inferred that the requisite skills and abilities do not differ from one department to another. On the other hand, based on the evidence which it has heard on the point, the court finds that the requisite skills and abilities differ in substantial measure from department to department, that satisfactory job performance in one department is not an accurate predictor of satisfactory job performance in another department, and that the departmental structure of this plant is in fact based on the particular and distinctive type of work performed by each of the departments.

(d) The plant-wide transfer and bidding plan sought by the plaintiff would similarly mean that an employee who has been working in another department performing duties unrelated to the duties of the vacant job would be entitled to claim the job. This might be a perfectly proper result in a case where the circumstances otherwise justified it and where the jobs in the departmental progression lines are not dependent on the prior jobs in the line for training and experience for the job to be filled.

However, this case is one where the factual circumstances do not otherwise justify this result and where the court has found the facts to be that with the exception of the Carpenter Shop, the jobs in the departmental lines of progression provide significant elements of on-the-job training and experience for the successively higher rated jobs in the progression lines. Indeed, there is no dispute with this fact, as the Attorney General has agreed that “The record demonstrates that training is acquired in this plant on the job” and that “the job skills in the plant are acquired by on-the-job training.”

For one example, the jobs of Utility-man and Ladle Helper in the Electric Furnace department provide training for the next higher rated job of Ladleman, so that the employees who have worked their way up through the Utilityman and Ladle Helper jobs are prepared to step into the Ladleman job and perform it satisfactorily and without creating a danger of injury to themselves and their fellow employees. But under the unrestricted plant-wide transfer and bidding system which the Attorney General has proposed, an employee who has been, working in another department in a totally unrelated job and has absolutely no training, experience, or familiarity with the hot metal ladles or their operation would be entitled to claim the Ladle-man job in accordance with his length of service with the Company.

There is nothing but the arguments in the briefs that this could be accomplished, and the arguments of counsel, no matter how compelling, are not acceptable substitutes for evidence. Furthermore, there is on the contrary the evidence from which the court has found that the men working jobs in the progression lines at this plant are in fact dependent upon one another for their safety in a hazardous industry.

It likewise cannot be assumed, in the absence of evidence, that the employees in this steel mill are in no danger of injury from the performance of the jobs around them by employees with less than the full amount of experience, including as it does jobs which require contact with ladles containing hot molten metal, the operation of equip

*68

ment moving red hot bars through the rolling mills, the operation of overhead cranes, and the operation of pickle tanks filled with acid. For the courts as well, it must necessarily require more than speculation and arguments in briefs before assumptions can be made about the experience needed for the proper and the safe performance of jobs in a steel mill, and the record in this case simply will not justify such an assumption.

25

The sum total of the matter is that this case, perhaps uniquely, combines the factual points that substantial opportunities of upward mobility have been provided through progression into the higher rated jobs, that substantial opportunities of horizontal mobility have been provided through the rights of transfer existing since 1962 and broadened by the adoption of the transfer privileges section in 1965, that there are significant differences in the skills and abilities required between departments, and that the employees with respect to whom the Attorney General here seeks relief have for the most part elected to decline the progression opportunities available to them in their present departments or have not sought to take advantage of the transfer opportunities available to them.

Therefore, based on the combined total of these factual points which the court has found from the evidence, the court is firm in finding that the position urged by the Attorney General is entirely inappropriate in the factual setting of this case. Given the evidence in this case, even if the court applied the philosophy expressed in the

Philip Morris

ease that “Congress did not intend to freeze an entire generation of Negro employees into discriminatory patterns that existed before the Act”, the facts here would not sustain the result there reached, for here the Negro employees are not frozen into discriminatory patterns and to the contrary have and have had substantial opportunities of transfer, training, and progression available to them.

9. While the facts of the case are enough without more, the court should for complete analysis comment on the Attorney General’s theory that the plant-wide transfer and bidding plan is necessary to achieve a proportionate racial balance throughout the various departments.

This theory in the first place assumes that Negro employees have not had any meaningful opportunities of departmental transfers. However, the evidence in this case will not sustain that assumption, and the court has found from the evidence that the facts are to the contrary.

Moreover, entirely aside from that aspect of the matter, it is difficult to reconcile this theory with the teaching of the legislative history. In a speech delivered in the Senate in January of 1964, Senator Hill pointed out the objections which he had to the provisions of Title VII of the then pending bill, including the objections of preferential treatment, racial balances, and alterations in seniority systems. It was in specific reply to this speech in opposition that Senator Clark, as co-floor manager of Title VII, placed in the Congressional Record a memorandum prepared by the Department of Justice “in rebuttal to the argument made by the Senator from Alabama to the effect that title VII would undermine the vested rights of seniority * * * and that title VII would impose the requirement of racial balance.” This memorandum explained that “Title VII would have no effect on seniority rights existing at the time it takes effect” and that “There is no provision, either in ti-

*69

tie VII or in any other part of this bill, that requires or authorizes any Federal agency or Federal court to require preferential treatment for any individual or any group for the purpose of achieving racial balance.”

26

It was similarly reiterated in further chapters of the legislative history that “The proponents of this bill have carefully stated on numerous occasions that title VII does not require an employer to achieve any sort of racial balance in his work force by giving preferential treatment to any individual or group”

27

and that “The title does not provide that any preferential treatment in employment could be given to Negroes or to any other persons or groups. It does not provide that any quota systems may be established to maintain racial balance in employment. In fact, the title would prohibit preferential treatment for any particular group.”

28

Therefore, in the light of this legislative history, it is difficult indeed to escape the conclusion that in seeking the abolition of departmental seniority and the creation of the unrestricted plant-wide seniority and bidding plan for the stated purpose of compensation for the years prior to 1962 and to achieve a racial balance, the Attorney General is asking the court not only to disregard the facts of the ease but further to decree, not remedial relief, but the preferential treatment and racial balance which the principal sponsors of the legislation carefully explained was not the way the title was to be construed.

10. There is another aspect of the matter which should be discussed for complete analysis. Speaking through the then Chief Judge Hutcheson and Judges Rives and Wisdom, the Court of Appeals for this Circuit has pointed out that “fairness is not achieved by treating the white incumbents unfairly,”

29

and this, as Judge Lynne has observed, “should remain a polestar to guide the courts through yet uncharted seas.”

30

The plant-wide transfer and bidding program which the Attorney General has proposed would have elements of unfairness to the white employees who, having worked their way up to their positions in the lines of progression, would be subject to being in effect frozen there while employees from other departments bid in for the jobs above them in the progression lines. The Attorney General impliedly agrees that this will be the result of the plan he proposes but says that it is justifiable unfairness necessary to compensate the Negro employees for the past.

However, the Attorney General has said nothing regarding the effect that the proposed transfer and bidding plan would have on the Negro employees who have taken advantage of the opportunities to advance into the higher rated jobs and to transfer between departments. This point cannot properly be disregarded, for unlike the situation which would be presented if there had been no significant progression or transfer opportunities, the facts of this case are that there have been a substantial number of Negro employees who have progressed into the higher rated jobs and who have transferred and who would be in the identical position of having worked their way up to jobs in the lines of progression and then being frozen there while employees from other departments bid in for the jobs above them under

*70

the plant-wide transfer and bidding plan proposed by the plaintiff.

Therefore, given the factual circumstances of this case, the plant-wide transfer and bidding program which the plaintiff seeks would result in unfairness, not only to white employees, but as well to Negro employees who have taken advantage of the progression and transfer rights available to them. That, in the court’s opinion, is a result which is neither required nor proper on the facts of this case.

11. The court has further considered the evidence regarding the administration of transfer requests by the Company and can find no evidence of discrimination. Indeed, the only evidence of possible discrimination in the administration of transfer requests consisted of cases in which the complaint was that the Company had given Negro employees preference over white employees in the handling of transfer requests.

12. There remains one further matter on the subject of transfers. During the course of the trial, one of the plaintiff’s attorneys remarked that the Company had been making transfers rapidly in preparation for the case. The point has not been mentioned in the Attorney General’s post-trial brief, but since the remark is on the record, it should be analyzed, for if the charge were substantiated, a different light might well be cast on the subject of transfers.

31

The court has to say, however, that there is no evidence which lends substance to the charge and that it was most likely attributable to the heat of trial advocacy.

It may be reasonably assumed that the remark had reference to the Negro employees who transferred during the period between the time the suit was filed and the time it was tried. If these had been the only transfers of Negro employees since 1962, that would be one thing, but the fact is that there have been transfers of Negro employees throughout the years since 1962. Specifically, the transfers during the time the suit was pending were to the Brick-mason, Cold Draw, Electrical, Mill Rolling, Mechanical, and Switch Yard departments, and the evidence shows that Negro employees had transferred into these departments prior to the time the suit was filed.

To analyze the matter in more detail, it appears that there were more transfers of Negro employees into the Mill Rolling and Electrical departments during the pendency of this suit than there were before the suit was filed. However, the evidence will not support an inference that this was attributable to the filing of the suit.

The basic point is the fact that transfers are initiated by the request of employees and not by the action of the Company. Therefore, the number of transfers which are made to any given department during any given period of time is governed in the first instance by the number of employees who have requested transfers to that department at the time in question.

On this point, the evidence shows that the employees who transferred to the Mill Rolling and Electrical departments during the period the case was pending had for the most part not applied for transfers until after the case had been filed. There were eight Negro employees who transferred to the Electrical department while the case was pending, and five of them applied for transfer after the case had been filed. Similarly, there were five Negro employees who transferred to the Mill Rolling department while the case was pending, and all of them applied for transfer after the case had been filed.

Moreover, the court is satisfied that the officials of the Company and the Union have been genuinely interested in promoting the transfer of Negro

*71

employees. This is in part an intangible impression based on having heard and observed them on the stand, but it is as well based on objective factors, such as the adoption of the transfer privileges section and the Company’s retesting of Negro employees to qualify them for transfer to the departments requested by them.

E. Aptitude tests:

1. The use of aptitude tests by this Company goes back to 1953, when Personnel Director Norman Wagner was instructed by the Company to attempt to upgrade the quality of the work force and obtain employees who would have the potential ability to advance to the highest jobs in the departments without freezing or becoming disqualified along the way.

At that time, employees were hired through the State Employment Service, which then — -as now — administered the General Aptitude Test Battery developed and published by the United States Employment Service (referred to in the trial and here as the “USES test”).

32

Therefore, to obtain an evaluation of the value of aptitude tests, the Company had the State Employment Service refer applicants who had taken the USES test during, the two year period from 1953 to 1955. The performance on the job of the employees who had been tested was then reviewed by Personnel Director Wagner in the light of their scores on the aptitude test.

Based on the results of this evaluation, the Company concluded that the use of aptitude tests would be productive of a higher quality employee complement. It accordingly established the policy in 1955 that white applicants for employment would take the USES test administered by the State Employment Service, and the USES test was thereafter used during the period from 1955 to 1962.

This policy, as adopted in 1955, was not applied to Negro applicants. Therefore, while the white employees hired during the period from 1955 to 1962 were required to have taken the USES test, the Negro employees hired during that period of time were not tested.

2. The integration of the lines of progression in 1962 created the situation of there being on the one hand the group of white employees who had been aptitude tested and on the other hand the Negro employees who had not been tested. Faced with this situation, the Company’s initial decision — which remained in effect for ten months — was that because the white employees hired since the institution of the testing program had been aptitude tested, the Negro employees who had been hired during that same period of time should likewise take the test to determine their qualifications to advance on a permanent basis in the integrated progression lines.

This policy was applicable only to advancement by means of permanent assignments and was not applicable to advancement by means of temporary step-ups. Therefore, all of the Negro employees were eligible to and did advance on temporary assignments without regard to aptitude tests during the period of ten months that this policy was in existence.

There has been some contention by the Attorney General that this policy was not limited to the Negro employees who had been hired during the period of time that white employees were required to take the aptitude test and that all of the Negro employees were required in 1962 to be aptitude tested to advance on permanent assignments. However, based on the evidence, including the testimony of one of the Attorney General’s witnesses that he was not required to take the test to advance because he had been hired in 1950, it is the finding of the court that this policy adopted in 1962 was in fact applicable only to such of the then incumbent Negro employees as

*72

had been hired during the period of time that the white employees had been taking the aptitude test.

3. This policy was revoked by the Company in August of 1963 after having been in effect for ten months. Acting on the belief that the policy had seemed fair on the surface when initiated as the means of obtaining a parallel situation between the white employees who had been tested and the Negro employees who had not been tested but that it was subject to suspicion on the part of the Negro employees, Vice-President Blake concluded that the policy was a mistake and revoked it at that time.

The court finds that this decision was carried out and that since August of 1963, all of the Negro employees who were integrated into the progression lines in 1962 have been eligible to advance on a permanent as well as a temporary basis without regard to the aptitude test and that they have been and are in fact doing so.

4. (a) The USES test measures the following aptitude factors, which are usually referred to by the applicable letter prefix:

G (General intelligence)

V (Verbal aptitude)

N (Numerical aptitude)

S (Spatial aptitude)

P (Form perception)

Q (Clerical aptitude)

K (Motor coordination)

F (Finger dextrity)

M (Manual dextrity)

(b) The factors which are considered by this Company for hiring purposes are G (general intelligence), K (motor coordination), M (manual dextrity), and N (numerical aptitude).

The factors which are applicable for purposes of transferring into a department are based on the particular abilities and skills required for the work of that department.

There was no argument or evidence that the aptitude factors applicable for purposes of hiring and for purposes of transferring into departments are not related to the duties of the jobs in the plant and in the particular departments. On the contrary, from the evidence which was presented on the point, the court finds that the aptitude factors which are applicable are based on the abilities required in the performance of the jobs in the plant and within the departments. For example, the aptitude factors applicable to the Cold Draw department were and are G (general intelligence), K (motor coordination), M (manual dextrity), and N (numerical), with the other factors not being considered.

5. During the period of time from 1955 to 1962 that the USES test was being used, the State Employment Service furnished the Company with the scores on each of the aptitude factors. By thus having the score for each factor, the Company was able to evaluate the degree of ability and potential for advancement in terms of the job requirements of each department.

The Company was then advised by the State Employment Service in 1962 that because of a change in policy, it could no longer furnish the scores but could only advise whether the person taking the test had passed or failed. The effect of this change in policy was that the Company was no longer able to evaluate the degree of ability and aptitude, and, upon receiving this advice from the State Employment Service, the Company concluded that it could no longer use the USES test.

Based on the evidence showing that the aptitude and ability requirements differ from department to department, the court finds that the Company reasonably concluded that having the aptitude factor scores was necessary to evaluate the degree of potential ability in terms of the particular requirements of each department and that it was for this reason that the Company stopped using the USES test in 1962.

6. The Company thereupon attempted to obtain another aptitude test battery which would be comparable to the USES

*73

test. For this purpose, Personnel Director Wagner reviewed the USES test and the tests available from testing concerns and, based on this review, selected as the most equivalent to the USES test a battery of tests published by Science Research Associates (referred to in the trial and here as the “SRA test”).

The SRA test was thereafter used during the period from 1962 to early 1968.

7. Following the institution of the SRA test in 1962, the equivalency of the USES test and the SRA test was measured by the Company by comparing the scores of employees who had taken both of the tests. From this comparison, it was determined by Personnel Director Wagner that the use of a 12th grade norm on two of the factors, as had been the case with the USES test, resulted in lower scores on the SRA test, and he therefore lowered the norm on these factors to a 10th grade norm to produce scores equivalent to the scores on the USES test.

8. The SRA test which was used during the period from 1962 to 1968 was reviewed on two occasions for the purpose of determining that it was not racially discriminatory and was equivalent to the USES test.

(a) The first review was conducted in 1963 by Dr. James Tanner, an industrial psychologist in Birmingham. He testified that he was contacted by the Company and asked to review the SRA test and that he reviewed the testing program to satisfy himself that it was appropriate for the tasks for which it was being used and that it did not discriminate on any basis other than ability. Based on this review, he advised the Company that he found the test to be valid but that “In your zeal to be fair and non-discriminating you have perhaps lowered your test standards too much.”

(b) The second review of the SRA test was conducted in 1964 under the auspices of Dr. Brimm of the Equal Employment Opportunity Office.

It was the purpose of this review to obtain the opinion of psychology professors, including one from an institution having a predominately Negro enrollment, with regard to the equivalency of the SRA test and the USES test. For this purpose, Dr. Brimm arranged for the test to be reviewed by Dr. Randolph Sailer, who was head of the psychology department at Miles College, and by Dr. Robert Hites of Birmingham-Southern College. Dr. Sailer and Dr. Hites accordingly reviewed the tests and reported their opinions to Dr. Brimm. The Company was in turn advised by Dr. Brimm in April of 1964 that “These two (2) professional psychologists have indicated to this office in written statements that the battery of tests now used by the H. K. Porter Company ‘measures the same factors as those measured by the United States Employment Service’ tests.”

9. While Personnel Director Wagner and the Company’s attorney were at the State Employment Service in early 1968, they were advised that there had been another change of policy and that the scores on the aptitude factors of the USES test could once again be furnished. Acting on this advice, the Company thereupon returned in early 1968 to the use of the USES test administered by the State Employment Service.

Therefore, to summarize in chronological order, the USES test was used from 1955 to 1962, the SRA test was used from 1962 to 1968, and the USES test is now again being used.

There has been some suggestion by the Attorney General that this return to the USES test in early 1968 was motivated by an attempt to “build a defense” for this case. However, having observed Personnel Director Wagner in testifying on the point, the court is fully satisfied that the Company resumed the use of the USES test because of the fact that the State Employment Service advised it could again furnish the scores on the aptitude factors.

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10. Before the trial opened, it was the Attorney General’s position that the only issue in the case regarding aptitude tests was whether there was any difference as between Negro and white applicants or employees in the tests used or in the minimum standards for employment and transfer.

On this point, the evidence conclusively established that there is no element of discrimination. The testimony showed that the identical aptitude tests and the identical minimum standards for hiring and for transfer are now and have since 1962 been in effect for both Negro and white applicants and employees and that there is and has been neither difference nor distinction as between Negro and white applicants and employees in the minimum standards, the aptitude tests used, the administration of the tests, or the grading of the tests. The court accordingly so finds.

11. During the trial of the case, the Attorney General raised additional allegations regarding aptitude tests. Since there was no motion for a continuance when these allegations were raised,

33

and in the interest of complete adjudication of the case, these allegations have been considered as if asserted before the trial.

It was first alleged that the SRA test which the Company had used from 1962 to 1968 was not a professionally developed ability test. However, the court finds from the evidence on this point, including the testimony of the Attorney General’s expert witness Dr. Richard Barrett, that each of the tests comprising the SRA test battery used by the Company was developed by recognized professional psychologists and is a professionally developed ability test in the sense that it was prepared and developed by professional psychologists.

It was not contended that the USES test used by the Company from 1955 to 1962 and at the present is not a professionally developed ability test in this sense.

12. It was further alleged during the trial that an aptitude test cannot be regarded as a professionally developed ability test within the meaning of section 703(h) of the title unless and until it has been test validated. For this argument, the Attorney General places reliance on the Guidelines on Employment Testing Procedures issued by the Equal Employment Opportunity Commission, on the testimony of its witness Dr. Barrett, and on the report, entitled “Differential Selection Among Applicants from Different Socioeconomic or Ethnic Backgrounds”, which was co-authored by Dr. Barrett under the sponsorship of the Ford Foundation.

A test validation, as described in the Commission’s guidelines, is a “process from the determination of behavioral requirements of the job through careful job analysis, the selection and/or development of instruments to measure these critically important abilities, the administration of these instruments to applicants for the job or employees on the job, the identification or development of measures of effective job performance (the criteria), to the comparison of individual employee scores with their criterion performance.”

There is, as Dr. Tanner remarked in testifying, “a lot of jargon” used by the psychology profession in this field. Phrased in practical terms, the procedure consists of determining the objectives for which an aptitude test is being used, analyzing the duties and requirements of the jobs, selecting objective criteria by which to measure the performance on the jobs of employees who have taken the test, and determining the degree of accuracy with which the test

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and test standards measure the skills and abilities required for the duties of the job.

It is perfectly obvious that entirely apart from racial considerations, a test validation would be a useful means of determining the extent to which an aptitude test is measuring the factors which it is designed to measure. (It is equally obvious that it might be a rather expensive procedure if conducted by professional psychologists, since Dr. Barrett testified that he spent several days in analyzing the duties of only one job as just one of the steps of a test validation).

The question, however, is not the usefulness of a test validation per se but rather whether Title VII should be construed, as urged by the Attorney General, as outlawing the use by the Company of aptitude tests because they have not been validated by a professional psychologist.

This argument is based on the theory that aptitude tests inherently discriminate against members of a culturally disadvantaged minority group. As articulated in one of the Attorney General’s briefs, “it is well known that minority groups are not as ‘test wise’ as the majority.” It follows, according to the argument, that although Negro and white applicants and employees take the identical aptitude test under the identical circumstances and although the identical standards are applicable to both, the Negro is at a disadvantage in relation to the white because the test may consist of questions oriented to the cultural and educational background of the white race.

34

A test validation is therefore required, according to the conclusion of the argument, to insure that the questions and standards are related to and set in accordance with the duties of the jobs.

To illustrate the point of this theory, the Attorney General calls attention, through argument and through Dr. Barrett’s testimony, to the so-called “chit-ling test.” This test consists of questions supposedly oriented to the Negro race or to persons with a culturally or economically deprived background, takes its name from the question asking the length of time that chitlings should be cooked so they will be edible, and is designed to show that tests can discriminate against white applicants and employees in relation to Negro applicants and employees.

The court recognizes that one of the general propositions which the Attorney General is attempting to establish through the litigation of section 707 cases is the theory that aptitude tests may not lawfully be used unless they have been validated. On this point, it has been held by another court that Title VII cannot properly be interpreted as conditioning the use of professionally developed ability tests on their having been validated.

35

There is considerable legislative history for that answer to the question, such as the explanation set forth in the interpretative memorandum of Title VII, prepared by its co-floor managers, that “There is no requirement in Title VII that employers abandon bona fide qualification tests where, because of differences in background and education, members of some groups are able to perform better on these tests than members of other groups.”

36

Nevertheless, this court would not say, as an absolute and categorical proposition, that Title VII could in no case and under no circumstances be construed as requiring the validation of an aptitude

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test. It is quite conceivable there might be such a case.

However, as applied to the factual circumstances of this case, there are several difficulties with the Attorney General’s argument:

(a) If it is assumed for purposes of analysis that Title VII should be construed as requiring test validation, the facts of this case would satisfy such a requirement.

Neither the Commission’s guidelines nor the “Standards for Educational and Psychological Tests and Manuals” adopted by the Commission have taken the position that test validations must necessarily be performed by professional psychologists. It would without doubt be preferable to have test validations conducted by professional psychologists, just as it would be preferable to have contracts prepared by attorneys and medical services performed by physicians. But it would require an extraordinary degree of self-delusion to deny that there are some laymen who are also qualified to perform those functions. By the same token, it would require the plainest statutory terms or legislative history before it should be said that the Congress has enacted a law providing that professionally developed aptitude test may be used, but only on the condition and at the expense of having been validated by professional psychologists.

If this statute is to be construed as requiring test validation, the important aspect of the matter is not to be able to say that it has been conducted by a professional psychologist but to be satisfied that it has been conducted fairly and properly. Moreover, the court received the firm impression from hearing the witnesses testify on-the subject that because familiarity with the duties of jobs and with the job performance of employees are essential elements in a test validation, a layman having this knowledge and some experience in testing would be qualified to' conduct a test validation.

This is certainly not to say that as a principle of general application, a layman would be qualified in every case to conduct a test validation. But this case is one in which it may and should properly be found from the evidence that this Company’s personnel director has the requisite qualifications and that while he has not conducted a test validation as such, he has taken the steps which comprise the basic elements of a validation. The evidence shows that he has been in the personnel department since 1951, that one of the subjects in which he majored in college was psychology, that he observed the duties of the jobs for purposes of test analysis, and that he determined and studied the performance on the job of employees who had been tested in light of their test scores.

There is this further fact as well: When Dr. Sailer of Miles College wrote the Equal Employment Opportunity Office in 1964 regarding the review which he and Dr. Hites of Birmingham-Southern College had conducted of the SRA test, he stated that “I have full confidence in Mr. Wagner’s integrity”. From having observed Mr. Wagner during the many hours that he was on the witness stand testifying in this case, the court shares Dr. Sailer’s evaluation and is convinced of Mr. Wagner’s integrity in using fair and non-discriminatory aptitude tests and in setting standards reasonably related to the requirements of the jobs.

The court accordingly finds that if it is assumed for analysis purposes that Title VII conditions the use of aptitude tests on their having been validated, the essential steps of a validation, consisting of relating the tests to the requirements of the jobs, have been taken in this case.

(b) The courts must decide the cases which come before them on the evidence and not on abstract propositions. For a court to find racial discrimination in the use of aptitude tests

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which have not been validated, there should be at least some evidence that the use of an aptitude test which has not been validated has resulted in discrimination and not merely the abstract proposition that test validation is desirable.

The only such evidence in this case consists of the deposition testimony of Assistant Personnel Director James Harris that during the period of time he gave the SRA test for pre-employment purposes, approximately 20l% of the white applicants and 10 or 15% of the Negro applicants passed. However, a reading of the deposition shows that this period of time during which he gave the test was the several months from August of 1967 until the Company returned to the USES test in early 1968. Moreover, there was no evidence in the deposition or at the trial from which it might be inferred that these percentage approximations would be typical of the test results during a more representative period of time than the several months in question. It may be that they would be typical, but the court is not prepared on the record in this case to base a finding of fact on such speculation. It would be more accurate to say on the record here, as the plaintiffs attorney said during the trial, that there is no set pattern to the performance of Negro employees on the aptitude test, in that some scored higher and some scored lower.

Moreover, entirely apart from that aspect of the matter, the court would have to disregard the Attorney General’s own evidence to find discrimination from a difference in test results alone. The basic premises, as stated in the Ford Foundation study which Dr. Barrett co-authorized, are that “differences in test scores do not indicate anything regarding the fairness of the tests” and that “a test may be considered to be unfairly discriminatory against members of a minority group only if the minority group members obtain significantly lower test scores than non-minority applicants and the minority applicants would m fact be as successful [on the job] as the non-minority applicants.”

The point, as amplified through the testimony, is that differences in test results may be attributable to differences in the aptitudes and capabilities of the persons taking the test and that such differences

do not

mean the test is discriminatory or unrelated to the requirements of the jobs. It may mean instead that the test is fulfilling the intended purpose of selecting the applicants who have the required aptitudes for the jobs which they will be performing in the plant or in a specific department of the plant.

This was illustrated by the hypothetical example posed to Dr. Barrett of five Negro and five white applicants taking the test for purposes of transfer to the Brickmason department, with the result that the five Negro applicants fail and the five white applicants pass. According to Dr. Barrett’s testimony, this result would mean nothing more than the fact that five white applicants passed and five Negro applicants failed. Before it could be concluded that the test discriminated on the basis of race rather than on the basis of ability, there would have to be something to show that the five Negro applicants who failed had the capabilities for an equal probability of successfully performing the requirements of the jobs in the department in question. In the words of one of the authorities quoted in the Ford Foundation study, “discrimination is not unfair if people who are less likely to do well on the job are less likely to be hired.”

The point was similarly expressed by Dr. Barrett when asked whether a test on which Negroes scored lower than whites could be used without discrimination against the Negro. Answering this question, Dr. Barrett testified that if the performance of the Negroes on the job was not equal to that of the whites, the test could be valid and fair because the objective is to predict performance on the job.

Therefore, applying these principles to this case, the fact there were

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some 5-10% more Negro applicants than white applicants who failed the SRA test during a period of several months could not properly be taken as showing that the test is discriminatory or not related to the job requirements or that the standards are too high. This fact may actually mean that the test was fulfilling the intended purpose of selecting the applicants having the required aptitudes for the satisfactory performance of the jobs in this steel mill.

Moreover, there is neither allegation nor evidence that any Negro employee has been denied a transfer because of the departmental standards being set too high or being unrelated to the duties required to perform the jobs in the departments. The evidence further shows that some 33 of the Negro employees who have applied for transfers during the period since 1962 have not met the aptitude test standards of the departments to which they requested transfer, but it shows as well that some 58 of the white employees who have requested transfers have likewise failed to meet the aptitude test standards of the departments to which they requested transfer.

(c) The thesis of the Commission’s guidelines is that “The Commission interprets ‘professionally developed ability test’ to mean a test which fairly measures the knowledge or skills required by the particular job' or class of jobs which the applicant seeks, or which fairly affords the employer a chance to measure the applicant’s ability to perform a particular job or class of jobs.” Accepting this interpretation for purposes of analysis, and applying it to the record in this case, the result is that there is not sufficient evidence here from which it could be properly said that the SRA and the USES tests used by the Company do not fairly measure the knowledge or skills required by the jobs.

The court agrees in principle with the proposition that the aptitudes which are measured by a test should be relevant to the aptitudes which are involved in the performance of jobs, and it is not difficult to conceive of cases where the factors which are used here would be irrelevant. For example, in a case where the jobs in a plant are unskilled or semiskilled, such factors as spatial aptitude and numerical aptitude might well be found to be irrelevant.

But in this case, the court has found from the evidence that the aptitude factors which are applicable for purposes of hiring and for purposes of transfers to departments are related to the abilities required for the performance of the jobs.

To elaborate on this point, the only evidence to the contrary consisted of the testimony of one of the Negro employees in the Mill Rolling department that he is working the job of Roll Changer Grade III in that department and that in doing so he is not required to read instructions or use mathematics. Although there has been no argument or discussion in the Attorney General’s briefs regarding the matter, the court has posed to itself the question of whether, in light of this testimony, the standards for the Rolling department properly include the G (general intelligence) and N (numerical aptitude) factors.

The court finds that it could not reasonably answer this question in the negative. The employee in question had been in the Rolling department for only six months at the time of the trial, the Roll Changer Grade III is the entry job in the line of progression of the Rolling department, and the fact that the reading of instructions and the use of mathematics are not required in this job is hardly evidence that they are not required in the higher rated jobs in the department.

On the other hand, there is the evidence which shows that the aptitudes which are measured are relevant to the jobs in the plant and in the departments and that where they are not relevant, they are not used. For example, there are no' jobs in the Brickmason department or in the Switch Yard department which involve numerical computations,

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and the N (numerical) factor is therefore not applicable for transfer to those departments.

Similarly, to apply the approach of a validation study of determining the performance on the job of employees who have been tested, the evidence provides the illustration on this point of two employees in the same department who had taken the SRA test, with the result that the employee who failed the test thereafter failed to perform the jobs in the department satisfactorily while the employee who passed the test thereafter satisfactorily performed each job in the line of progression and has advanced to the higher rated jobs in the. department.

On the record in this case, the sum and substance of the matter is that the plaintiff would have the court enter a finding of racial discrimination on the basis, without more, of the hypothetical proposition that the use of aptitude tests without validation necessarily equals discrimination, and this the court cannot properly do.

(d) The overall conclusion reached by the Ford Foundation study co-authored by Dr. Barrett was that “tests should be validated separately for each ethnic group” and that “either different standards of selection or different selection instruments should be used with different ethnic groups in most instances.”

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This conclusion, as developed through the testimony, was that the “different selection instruments” means the use of one test for Negroes and another test for whites and that the “different standards of selection” means the use of lower standards for Negroes than for whites.

The Attorney General has likewise urged this proposition on the court in the argument that “with the general understanding that Negroes do not score as well as whites on tests, to use unvalidated tests and require the same scores of Negroes and whites will necessarily discriminate against Negroes.”

However, it is obvious enough that the use of different tests or different standards for Negroes and whites would itself constitute prohibited discrimination. Recognizing that this might be true, it was Dr. Barrett’s recommendation that “the laws should be changed.” This may ultimately be the answer, but it will have to be the Congress and not the courts which change the law to reach this result.

13. There was no allegation or argument in this case with regard to the Company’s hiring procedures, and there was accordingly no attack on the use of aptitude tests for hiring purposes.

The use of aptitude tests for transfer purposes was attacked by allegations raised during the course of the trial, and the court will now discuss the arguments and the evidence on this subject.

The background facts are as follows: If an employee who applies for transfer from the Labor Pool to a department or from one department to another has previously taken either the SRA or the USES test and has scores which meet the minimum standards of the department to which the transfer is sought, he is eligible for transfer without more. If he has not previously taken the SRA or USES test or has taken one of the tests but has less than the minimum standards of the department to which the transfer is sought, he will be retested on such of the factors as are required and will be eligible for transfer upon meeting the minimum standards by means of the retest. For example, a score of 80 on the K (motor coordination) factor is the minimum standard for hiring purposes and for transfer to all of the departments except the Rolling department, which requires a higher degree of coordination in the performance of the jobs and has a standard of 90 on the K factor. There

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fore, if an employee has been hired with a score of 80 on the K factor, he will be retested on that factor if he applies for transfer to the Rolling department, while if he scored 90 or more on the K factor when he was tested for hiring purposes, no retest is given.

Since the Company is now using the USES test, the employees who are retested for transfer purposes take the USES test at the State Employment Service. This is illustrated by the testimony of one of the Negro employees that he was tested at the State Employment Service when he requested (and received) a transfer to the Mill Rolling department in 1968.

There is no question about the fact that this procedure is applicable to and is followed with respect to both Negro and white employees alike and that there is no difference as between Negro and white employees in the test used or in the minimum standards of the departments. There is no argument to the contrary, but as one of the steps of the unrestricted transfer and bidding program which the Attorney General seeks, it is argued that the use of aptitude tests for transfer purposes is discriminatory and should be eliminated. The court will therefore analyze the points relied on by the Attorney General for this result and the evidence relating to each:

(a) The principal point relied on by the Attorney General is the contention that incumbent employees stand on a different footing than applicants on the street and should not be required to meet aptitude test standards in order to transfer from one department to another.

The premise of this argument is certainly true enough. Furthermore, the court might agree as well with the conclusion in a case where the departmental structure is artificial or unrelated to the actual functions of the jobs in the departments or where there are no appreciable differences in the skills and abilities required from one department to another.

But that is not this case. From the evidence in this case, the court has found that the departmental lines here are not artificial but are based upon the distinctive type of work performed by each department and that there are substantial and significant differences between the departments in the skills and abilities required.

For example, having heard the witnesses explain the functions of jobs in the Rolling department in conjunction with the graphic illustrations of the testimony provided by photographs of the jobs, there is no doubt in the court’s mind that the Rolling department requires a higher degree of motor coordination and manual dexterity than is required by other departments because of the intricacy of the functions performed by the jobs in that department in the rolling of steel. Another example is the fact that some of the departments require spatial ability, as is illustrated by the obvious importance of this aptitude in the employees who operate the overhead cranes, while for departments which have no jobs requiring this aptitude, the S factor is not relevant and therefore is not applicable.

The point is further illustrated by the evidence applicable to the Attorney General’s argument that the K (motor coordination) factor should not be relevant for transfer purposes because, according to the argument, the Company should be able to tell from having observed the job performance of an employee whether or not he has enough coordination to perform the jobs in the department to which transfer is requested. This argument would have merit in a case where the evidence shows that there is no appreciable difference between jobs in different departments with respect to the degree of coordination required. But that is not the showing of the evidence in this case. An employee who has been working as a Bundler, for instance, needs only the degree of coordination necessary to place bars in a pile for bundling, and it could not be rea

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sonably said that this would show the degree of coordination required to perform such jobs as operating the overhead cranes or operating the rolling mill equipment.

There may well be cases brought under Title YII in which, after having heard the evidence, the finder of fact may rightfully say that satisfactory job performance in one department is enough to show potential ability for satisfactory job performance in another department. But that cannot be said on the evidentiary record in this case. Instead, based on the facts of this case, the court must find that satisfactory job performance in one department is not enough to justify an inference that the employee has the requisite skills and abilities for satisfactory job performance in another department.

(b) It is further argued that it should be enough for the Company to rely on the opinions and recommendations of employees’ supervisors in determining their ability to perform the jobs in the department to which transfer is requested.

The court is not at all convinced to begin with that it would be the preferable procedure in any ease and under any circumstances to rely on the subjective opinion of a supervisor as opposed to the objective standard which is provided by an aptitude test. It was Dr. Tanner’s observation in testifying that no aptitude test is a perfect means of employee selection but that because of the objective standard which it provides, the company which uses aptitude tests is less likely to discriminate than is the company which uses subjective opinions as the means of selection rather than aptitude tests and that “you just can’t imagine the many kinds of injustice when you don’t have some kind of objective procedure.”

This impresses the court as an accurate and reasonable view, and to apply that thought to the Attorney General’s argument here, it is at the least conceivable that the idea of basing transfer requests on subjective evaluations of ability by supervisors could lend itself to discriminatory results. The court has observed Personnel Director Wagner on the stand and is convinced that he would be fair in the rendering of subjective evaluations of employee ability, but the court obviously could not have observed all of the supervisors on the stand and cannot say that the Attorney General’s proposal to base transfer requests on their subjective evaluations would be the proper approach to the matter.

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Moreover, entirely aside from this doubt concerning the desirability of basing transfers on the recommendations of supervisors, the argument is not applicable to the facts of this case because the Company no longer has any discretion to reject a transfer request on the judgment of management or supervisors that the employee is not qualified. Before the transfer privileges section was adopted in 1965, the Company had the discretion to deny transfer requests on grounds such as the applicant not being recommended by supervision or the applicant’s attitude or productivity, and the evidence shows several cases prior to 1965 of requests for transfer by employees (who were white) being denied on the ground that they were not recommended for transfer by supervisors. However, this discretion no longer exists, because the transfer privileges section gives an employee the absolute right to be transferred according to seniority to openings in departments upon meeting the minimum aptitude standards.

It therefore cannot be said here that the Company should rely on the recommendations of supervisors, for even if

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an employee is not recommended for transfer by supervision, he nevertheless has the right under the transfer privileges section to be transferred upon meeting the minimum aptitude standards. The requirement of meeting the minimum aptitude standards is accordingly the only means that the Company has to measure ability to perform the work of the department to which transfer is requested.

(c) The fact that the Company has no discretion to deny the transfer applications of employees who meet the minimum aptitude standards is another reason that the

Philip Morris

case, relied on by the Attorney General, is not applicable to the facts of this case. There, as another court has pointed out, the company “exhibited no business purpose or reason for its transfer restrictions.”

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But the evidence in this case establishes that because of the provisions of the transfer privileges section adopted in 1965, the aptitude standards serve the legitimate purpose of providing the only means of determining the potential ability of employees to perform the requirements and duties of the jobs within the departments.

(d) Another of the arguments on this subject has been the allegation that the use of tests for transfer purposes was instituted to inhibit the transfer of Negro employees.

It was initially argued that the use of tests for transfer purposes was adopted in 1965. However, since there is no dispute with the evidence showing cases prior to 1965 of white employees whose requests for transfer were denied because they failed to meet the minimum aptitude standards of the departments to which they requested transfers, that argument could not be sustained.

It was then argued that while the aptitude test was required for hiring purposes since 1955, it was not used for transfer purposes until 1962 when the lines of progression were merged.

It is a reasonable assumption that there is more than one employer in this country which began using aptitude tests at the time that jobs were integrated or at the time that Title VII was enacted. However, that could hardly be said to constitute discrimination in and of itself, particularly in light of the amendment which was adopted in the Senate to authorize the non-discriminatory use of professionally developed ability tests.

Moreover, there is no dispute with the fact that this Company began using aptitude tests in 1955, and the Attorney General has pointed to no evidence substantiating the allegation that tests were not required for transfer purposes prior to 1962. The closest that the evidence came on the point was when the witnesses referred to the test ■ requirement which was in effect during the period from 1955 to 1962 as “pre-employment testing”, but it would require considerable conjecture to assume from this characterization that an employee who had been hired before 1955 could transfer between 1955 and 1962 without taking the aptitude test. Furthermore, there is on the other hand testimony that during the period from 1955 to 1962, the aptitude test was not only required for hiring purposes but was also required of employees who had already been hired, including an instance of an employee who “applied for employment on a permanent basis or for transfer to some other department.”

(e) The remaining argument on this subject is not directed to the requested abolition of the use of tests for transfer purposes but is rather directed to the proposition that if their use for this purpose is proper, the standards should be set in accordance with the degree of the abilities required for the jobs at the bottom of the lines of progression only.

This argument is based on the theory that not every employee who enters a department will be able to hold the

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highest jobs in the departmental lines of progression. For example, it is pointed out that there are six employees who are holding the Roller job — which is the highest paying job in the plant — and that there is not room in the Roller job for every employee who enters the Rolling department.

To this argument, the Company replies that the use of aptitude tests has from the outset in 1953 been designed to measure ability to progress to the top and to eliminate the undesirable consequences of an employee voluntarily freezing or being disqualified on the way up and, with reference to the example of the Rolling department, that it would like to have the Negro employees who have in the past transferred and may hereafter transfer to that department go all the way up to Roller.

However, it is not necessary to decide this question, because the matter has been satisfactorily resolved by the Company and the Union. It was brought out during the trial that in the then recently concluded negotiations in the basic steel industry in Pittsburgh, the steel companies and the unions had agreed on a new section of their contracts providing that tests used for transfer purposes shall be directed to measurement of the knowledge or ability required for the entry job and the next job above the entry job in the department to which transfer is sought. It was Dr. Tanner’s opinion that this was a generally sound approach to the matter of transfers, and the court is in agreement with that opinion.

Thereafter, this provision which had been added to the basic steel contract was also agreed upon by this Company and Union and added to their contract, where it is set forth in the transfer privileges section. Under this amendment, therefore, the aptitude standards are set in accordance with the abilities required for the bottom two jobs only in the departmental lines of progression.

The court should emphasize in ruling on this subject that the adoption of a contractual provision could never provide immunity against injunctive relief. However, it would not be appropriate to issue an injunction confirming the requirements of this provision adopted by the Company and the Union, because it is most doubtful that the court could have upheld the argument that the standards were improperly set before the adoption of this provision. There is something to be said for both sides of the matter, but there is more to be said for the proposition that given the fact the standards were identical for Negro and white employees, it was not unlawful for the Company to have measured potential ability to advance to the top of the progression lines without freezing or being disqualified on the way up.

In the first place, it was explained during the Senate’s consideration of this legislation that “An employer may set his qualifications as high as he likes, he may test to determine which applicants have those qualifications, and he may hire, assign, and promote on the basis of test performance”

40

and that “The employer will outline the qualifications to be met for the-job. The employer, not the Government, will establish the standards.”

41

In the second place, there is neither allegation nor evidence that any Negro employee was denied a transfer because of the departmental standards being set in accordance with the abilities required for the higher rated jobs.

By way of summary, the court has found from the evidence that the skills and abilities required for the performance of jobs differ from department to department, that since employees have the absolute right under the transfer privileges section to be transferred to

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openings in departments in accordance with their seniority on meeting the aptitude standards and since the Company thus has no discretion to deny a transfer request on subjective grounds, the requirement of meeting the aptitude standards is the only means that is available to measure ability to perform the work of the department to which transfer is requested, and that this itself is now limited to the ability required for only the bottom two jobs in the departments. Therefore, based on these facts, the court finds that the use of aptitude tests for transfer purposes is reasonable in the factual circumstances of this ease.

14. There is no allegation or evidence that the departmental aptitude standards have been any higher during the period since 1962 than they were during the period from 1955 to 1962. On the contrary, the court finds from the evidence on the point that the Company set the minimum aptitude standards in 1962 in accordance with the lowest scores made by any white employee in the department who was hired during the period from 1955 to 1962 and that there has been no change in these minimum standards as set in 1962.

15. In the interest of complete analysis, the court has reviewed the evidence regarding transfer requests which have been denied by reason of the departmental aptitude standards, although there is no allegation or argument on the point.

This evidence establishes that there has been no deviation from the requirement that applicants for transfer meet the minimum departmental standards. For example, in 1964, a Negro employee was transferred to the Electric Furnace department while a white employee was denied a transfer to that department because he was below the minimum aptitude standards; in 1966, three Negro employees were transferred to the Cold Draw department while two white employees were denied transfers to that department because they were below the minimum standards; in 1967, a Negro employee was transferred to the Electric Furnace department while a white employee was denied a transfer to that department because he was below the minimum standards.

This is further illustrated by the evidence regarding two white employees who were placed in the Labor Pool when their department was closed. They both applied for transfers in 1966 to several departments, and although they had more than ten years seniority, their transfer requests were denied because they could not meet the aptitude standards of the departments to which they requested transfers.

The court accordingly finds from the evidence that there has in fact been no^ deviation from the requirement that employees requesting transfers meet the minimum standards of the department to which transfer is requested and that this requirement is applied equally to both Negro and white employees.

F. Arithmetic tests for four jobs:

1. This issue concerns arithmetic tests which the Company developed and used to measure the ability of employees to be trained for and to perform the arithmetical computations of the four jobs of Weighman in the Finishing department and Inspector, Assistant Foreman, and Yardman in the Mill Auxiliary department.

There is no contention that these arithmetic tests were used with respect to any jobs other than the four jobs in question.

2. Since these arithmetic tests were developed by the Company, the court holds at the outset and without hesitation that they cannot be considered as professionally developed ability tests within the meaning of section 703(h) and that this provision of the statute can provide no protection for their use.

3. The tests themselves were not introduced into evidence. However, the testimony is in agreement that they consisted of several questions based on the type of arithmetic problems which are encountered in the day-to-day perform

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anee of these four jobs. In the words of one of the employees who testified for the Attorney General, they were “based on what you would do on the job, like multiplying, adding, subtracting, and dividing.”

The evidence similarly establishes that the four jobs of Inspector, Assistant Foreman, and Yardman in the Mill Auxiliary department and Weighman in the Finishing department involve arithmetical computations in the performance of their- duties. For example, a Negro employee who has worked the Weighman job in the Finishing department testified that the job involves such functions as figuring the weight of a bar from the weight per foot, then figuring the weight of the total number of bars needed to fill the customer order, and then telling the Bundler the number of bars to place in the bundle.

4. From the evidence on the point, the court finds that the circumstances leading to the use of these arithmetic tests were as follows:

Following the merger of the lines of progression, the Company began training and assigning Negro employees in late 1962 or early 1963 to the jobs of Weighman in the Finishing department and Inspector, Assistant Foreman, and Yardman in the Mill Auxiliary department without prior screening or selection to determine ability to be trained for the arithmetical computations of the jobs.

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This training consisted of placing the trainees on the jobs for periods of one and two weeks, during which they were paid the rate of the job they were regularly working.

According to the testimony for the Company, this initial procedure of training and assigning employees to the four jobs beginning in late 1962 or early 1963 without preliminary screening to determine their arithmetical ability produced the disappointing and abortive results of employees voluntarily giving up the jobs or not being able to perform the required arithmetical computations after having been trained. Thereafter, the Company developed and began using the arithmetic tests as the means of selecting the employees who had the potential to be trained for the arithmetical computations required in the performance of the jobs.

This evidence is not contradicted, and it is furthermore substantiated by the testimony of one of the plaintiff’s witnesses that the Company trained him for the Inspector and Yardman jobs without requiring a test and that he thereafter voluntarily gave up both jobs.

The court is satisfied from the testimony heard at the trial that these arithmetic tests were adopted and used, not to inhibit or limit the advancement of Negro employees into the jobs, but rather for the purpose of screening to select the employees who could be successfully trained for the arithmetical computations of the jobs. Similarly, taking into consideration the background of the initial experience of attempting to train employees for these jobs without screening, and the fact that the training given by the Company involved a not inconsiderable time and expense, the court is of the opinion that the use of these arithmetic tests was not unreasonable under the circumstances which then existed and was at the time a legitimate means of selecting the employees who had the arithmetical ability to be trained for the jobs.

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5. It is argued by the Attorney General that the use of these tests was discriminatory in that they had not been required of white employees who had held the jobs prior to 1962.

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The court would be inclined to agree with the argument if the tests had been required initially of Negro employees and if the Company had not trained and assigned Negro employees to the jobs without using these tests. However, the evidence conclusively establishes that such was not the case and that the Company at first trained and assigned Negro employees to the jobs in 1962 and 1963 without the use of the tests and that the tests were thereafter developed as a screening procedure to determine ability to be trained.

6. The remaining argument on this subject is based on the fact that two white employees (Ed Collier and Charles Niven) transferred from the Labor Pool to the Mill Auxiliary department in 1966 and have been working the Inspector, Assistant Foreman, and Yardman jobs on temporary assignments without taking the arithmetic tests.

This is a circumstance which certainly calls for the most careful scrutiny, and the court has critically considered the evidence on the issue.

If the evidence had shown that Collier and Niven had been trained for or had worked these jobs at a time that incumbent Negro employees had not been afforded opportunities to be trained for them, the court would not hesitate in upholding the Attorney General’s argument. The difficulty is that on the one hand, there was no such evidence and that on the other hand, the evidence is that they were trained for and assigned to the jobs only after all of the incumbent Negro employees had been surveyed, during the preceding three years since 1962, and had either trained for the jobs and were working them, or had declined offers of training, or had been unable to perform the jobs after training, or had voluntarily given up the jobs and, in sum total, that the Company had completely exhausted the department for employees to work the jobs. The court accordingly so finds.

The court further listened and searched carefully for evidence from which it might be inferred that they were not given the tests because of their race. But the difficulty is that there is no such evidence and that the reason established by the evidence is that the numerical factor of the aptitude test taken by Collier was sufficient and was relied on as demonstrating that he had the arithmetical ability for the jobs.

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The court would similarly agree with the Attorney General on this issue if the evidence had shown that Collier and Niven had displaced any Negro employees on these jobs. But here again, there is on the one hand neither allegation nor evidence to this effect and there is on the other hand the evidence which is not disputed and from which the court finds that the jobs have continued to be worked by Negro employees as well.

Moreover, the fact that these two white employees have worked the jobs without taking the arithmetic tests should properly be weighed in balance against the fact that at least three Negro employees in the Mill Auxiliary department have likewise been trained for and worked the jobs without taking the tests.

7. To summarize this subject, the court finds from the evidence that the four jobs in question involve arithmetical computations in the performance of their duties, that the Company at first trained and assigned Negro employees to these four jobs without screening and thereafter developed the tests because of the results of the initial phase of training without prior screening, that the tests consisted of the type of problems encountered in the performance of the duties of these four jobs, and, based on these facts, that the use in the past of the tests was a legitimate means of se

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lecting the employees who had the arithmetical ability to be trained for these four jobs.

Therefore, the court has found on the evidence before it that the use in the past of the arithmetic screening tests was not discriminatory and could stop at this point without more. However, the court is not satisfied to do so.

It is one thing to have used these tests as a screening procedure to select the employees to be trained. That use, in the circumstances present at the time, has been found to have been reasonable and legitimate. But the court believes that if they continue to be used, there would be a potential ground for discrimination. To take one example which comes to mind, if the tests should be given to any Negro employee in the Mill Auxiliary department who has a score on the numerical factor of the USES or SRA aptitude test comparable to the scores of Collier and Niven, that would certainly constitute discrimination.

The record is not explicit on the question of whether these arithmetic screening tests will continue to be used. There was no testimony on this question at the trial, and the most which was established by the deposition testimony is that the tests had not been used for some time but would “probably” be in effect for an employee who had not made a satisfactory score on the N (numerical) factor of the pre-employment aptitude tests.

The court could not justifiably enjoin the use of these arithmetic tests in the future on the ground of speculation about potential discrimination. But the court may and will direct the Company to advise the court whether it will or will not use these tests again. If the answer is in the affirmative, then the court will take the matter under further consideration.

G. Procedures for progression:

There is no allegation of discrimination in the procedures by which employees advance in the lines of progression with respect to Negro employees who have entered departments since October of 1962. However, it is alleged that the Negro employees who were employed prior to October of 1962 and are in the same department as they were then are discriminated against in the procedures for progression.

1. This allegation is based on the theory that when the lines of progression were integrated in 1962, the Company and the Union allegedly “created a new standard of ‘job seniority’ for progression in place of the existing standard of departmental seniority.”

The points which are established by the evidence regarding this allegation are as follows:

(a) The subject here at issue is the procedure that the first man to reach a job is in turn the first man to advance from there to the next job in the line of progression. To take the Electric Furnace department for purposes of example, the employee who first works the Ladle Helper job will be the first to advance to the Ladleman job, although he may have less departmental seniority than another employee who reached the Ladle Helper job after him. It is, in brief, a procedure of “first in-first out.”

The evidence will not sustain the argument that this was a new procedure created in 1962. Instead, the witnesses for the Attorney General as well as for the defendants testified without hesitation and convincingly to the fact that in every situation, the first man to reach a job is the first man to advance to the next job, although another man may have more departmental seniority.

For one example, the Company and the Union entered into an agreement in 1960 which was known as the “roll change agreement” and which provided, inter alia, that employees working the jobs of Roll Changer Grade II and Grade III pursuant to the agreement would not gain seniority on other employees by reason of having done so. This agreement was revoked in 1965, and the-employees who had been working these jobs were thereupon displaced by employees with more departmental seniority because of the fact that they had worked

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the. jobs under the agreement that they would not gain seniority rights by doing so. The result was that while they were the first men to reach those jobs, the operation of the normal procedure for progression was suspended as to them by reason of the provisions of the roll change agreement.

The procedure is further illustrated, as between white employees, in the merger and the creation of lines of progression having no connection with race, in that when the Painter and Carpenter jobs in the Carpenter Shop were merged and when the Switch Yard department was created, the employees who had first worked jobs higher in the lines of progression had job seniority over employees having more departmental or Company seniority.

(b) At the trial, the Attorney General introduced a substantial amount of evidence regarding the way that the Company and the Union resolved a dispute regarding rights to the job of Catcher in the Mill Auxiliary department after it was upgraded in 1965 to a higher wage rate.

The facts regarding this matter are that several employees had voluntarily frozen on the Catcher job before it was upgraded and that several other employees had accordingly obtained job seniority on them by advancing to the then higher rated jobs while they were frozen on the Catcher job. When the Catcher was upgraded, these employees who had obtained job seniority were scheduled on the job and displaced the senior employees who had frozen on it while it was a lower rated job. These displaced employees in turn filed grievances protesting their displacement, and the Company and the Union held a meeting to arrive at a resolution of the grievances. At this meeting, it was agreed in settlement of the grievances that “the employees should be scheduled on this job in accordance with their departmental seniority.” The result was that the employees who had been working the job before it was upgraded were allowed to stay on the job after it had been upgraded.

The point which the Attorney General was seeking to establish through this evidence has not been articulated in argument or in the briefs, but it may reasonably be assumed that the intended point was to show a case where a job was assigned to the employees with the most departmental seniority in preference to the employees with job seniority.

However, this agreement which was reached in settlement of the grievances is not proof of the precedence of departmental seniority over job seniority even as applied to the one situation in question. It is explained by the evidence that this grievance settlement was based on the proposition that the senior employees had elected to remain on the Catcher job before it was upgraded and that they should be allowed to remain with the job after it was upgraded, and this is not inconsistent with the procedure that the first man to a job is the first man to advance to the higher rated jobs, because at the time the junior employees obtained job seniority over the employees who elected to remain on the Catcher job, it was not then a higher rated job. This is accordingly the court’s finding.

(e) The Attorney General places considerable reliance on the argument that since the Union contract contains no provision regarding job seniority and provides that promotions will be based on the factors of departmental seniority, physical fitness, and ability to perform the work, the application of this progression procedure “is in direct violation of the collective bargaining agreement.”

The reliance which the Attorney General has placed on this argument would be more appropriate in a case where the evidence is not as conclusive as it is here that this procedure has always been in effect and has been applied in every context. Given the evidence in this case, the Attorney General’s argument would have the court adopt a senseless triumph of form over substance. Moreover, the Un

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ion contract itself expressly provides for progression procedures which have been in effect but are not set forth verbatim in the contract.

(d) In a similar argument, the Attorney General has called attention to the fact that the seniority section of the Union contracts prior to 1965 contained a sentence stating that “An employee’s seniority in his department shall be determined by his length of continuous service in that department” and that this sentence was omitted from the 1965 contract. Based on this fact, the Attorney General argues that the omission was deliberate and was the result of the alleged creation of the “new standard of job seniority.”

Having observed and heard the testimony of the Company and Union representatives who negotiated the contract in 1965, the court is satisfied and finds that this omission was entirely inadvertent and that it resulted from the fact that because of the adoption of the transfer privileges section in 1965, the preceding sentence of the contract, which provided before 1965 that “No employee shall hold seniority in more than one department,” was rewritten in 1965 to provide that employees who transfer under the transfer privileges section will hold seniority in more than one department.

(e) The only inconsistent item of evidence on this point consists of the fact that the president of the local Union is quoted in the minutes of a Company-Union meeting as having said that “No employee could gain squatters rights on any job.” However, since this quoted remark was made in the course of the argument of a grievance, it is questionable that the statement should properly be read as more than a claim advanced in arguing the grievance, especially in light of the fact that the grievance in question was thereafter taken to arbitration and was denied by the arbitrator. Moreover, although the president of the local Union testified and was cross-examined by the Attorney General, he was not asked on cross-examination about the meaning or the reference of this statement.

In sum total, based on the evidence and on observation of the witnesses in testifying on this point, it is the finding of the court that the argument that there was a new standard of job seniority created in connection with the merger of the progression lines to give preference to white employees is untenable on the facts of this case.

2. Although it is not a proposition argued by the Attorney General, the court is itself of the opinion that even though this was no more than an application of the uniform standard' of progression, there must further be considered the question of whether it was applied in the merger of the lines of progression for the sole benefit of white employees.

The answer established by the evidence in this case is that it was not and that it was instead applied for the benefit of Negro employees as well.

The evidence shows that in the Electric Furnance department, there were some thirty-five Negro employees who were placed in the integrated line of progression in 1962 ahead of white employees and that the white employees have not been allowed to displace such Negro employees, although one of those white employees had greater departmental seniority than the Negro employees placed in the line of progression ahead of him. Instead, the Negro employees have been and are advancing in the line of progression ahead of the white employees.

Similarly, when the progression lines in the Fabricating department were integrated in 1962, the jobs of Bender Operator and Gauger, which were then held by Negro employees, were integrated in the progression line ahead of the job of Tagman, which was then held by white employees. The Negro employees in the Bender Operator-Gauger jobs therefore advanced to the then next higher rated job of Shear Leaderman ahead of the white employees. The result is that when there is a reduction in force in the Fabri

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eating department, a white employee who was in the Tagman job in 1962 is rolled back to the Labor Pool or works the lower rated Bundler job while Negro employees who had been in the Bender OperatorGauger jobs in 1962 work the Shear Leaderman job.

3. It is the Attorney General’s further position on this subject that only white employees benefit from the operation of the procedure that the first man to a job is the first to advance. But that argument could be sustained on the record in this case only by the impermissible procedure of considering part of the evidence and then disregarding all the rest of the testimony which the court has heard.

For example, the Attorney General relies on the fact that in the Finishing department, James Norman, a Negro employee having a 1961 seniority date, will advance from the Weighman job to the Straightner Operator job behind Charles Brewster, a white employee having a 1962 seniority date, and will continue to do so until Brewster voluntarily freezes or is disqualified or one or the other retires, quits, dies, or is discharged.

If this were the total of the evidence on the point, it would be said that the procedure operates for the exclusive benefit of white employees. But this is not the total of the evidence, and the courts cannot be expected to base their findings on bits and pieces of testimony. Instead, the evidence provides comparable examples of white employees with more departmental seniority who work behind Negro employees with less departmental seniority and who will continue to do so until the Negro employees voluntarily freeze or are disqualified or one or the other retires, quits, dies, or is discharged.

Therefore, based on the complete evidence in the case, the court must properly find that this procedure is not a racial standard but is instead a standard which operates for the benefit of the employee, Negro or white, who first reaches a job.

4. The Attorney General cites the

Crown Zellerbach

case as controlling authority on this allegation.

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However, for the reasons which have been expressed at the outset, the court cannot accept this mechanistic approach. It may well be that the

Crown Zellerbach

case reached the precisely proper result in the context of the facts which were there presented to the court, but as Judge Heebe pointed out in his opinion in the case, he found that “job seniority is certainly not inherently prejudicial to Negroes” and that the seniority system there at issue was discriminatory “In the circumstances of this case”.

The determinative point is that in the circumstances of this case, the facts as found by the court from the evidence here presented comprise a factual setting which will not sustain the theory urged by the Attorney General.

Moreover, there is another fact which the court cannot disregard in this analysis. In

Crown Zellerbach,

the court’s initial finding of fact was that the defendants had “actively engaged, prior to January 1966, in a pervasive pattern of discrimination against the Negro employees”. Therefore, as Chief Judge Lynne has pointed out, the conclusions reached in the

Crown Zellerbach

case emanated from this initial and basic finding of fact.

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In this case, in contrast, the facts as found by the court are that the Negro employees have been advancing in the integrated lines of progression since October of 1962 and that the positions to which Negro employees have today advanced are the result of the fact that they have been advancing in the lines of progression since that time.

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5. To reach the result sought by the Attorney General, the court would have to disregard still another fact which is present in this case.

The procedure that the first man to reach a job is the first to progress to the next job provides employees with the longest period of time of learning the duties and responsibilities of each job before progressing to the next job. This would not be material in a case where by working a job, an employee would not acquire any meaningful knowledge of the next job. In such a case, it could be said that an employee could work one day on a job and be ready to move to the next job.

In this case, however, the evidence shows and the court has found that the jobs in the lines of progression provide elements of on-the-job training for the next jobs in the progression lines, and the Attorney General has agreed that “the job skills in the plant are acquired by on-the-job training.” This fact, in turn, means that through the operation of the procedure that the first man to reach a job is the first to advance to the next job, the employee who advances is the one who has had the most on-the-job training for the next job.

It means as well that the abolition of this procedure would advance employees who might have the least time on a job and therefore the least training for the next job. This is a result which requires the assumption that with less than the amount of on-the-job training now acquired by reason of the progression procedure, employees could move into the jobs in the progression lines and perform those jobs satisfactorily and — more importantly — without danger of physical injury to themselves and their fellow employees, and that is not a permissible assumption on the record in this ease.

6. In summary, the court finds from the evidence on this subject that the progression procedure in question was not a new standard created in 1962 in connection with the integration of the lines of progression, that the procedure has been and is applied in every context to give first advancement to the first man who has reached a job, and that this progression procedure operates for the benefit of the employee, Negro or white, who first reaches a job, with the result that there are Negro employees with less departmental seniority who have been and are progressing ahead of white employees with more departmental seniority.

H. Mill Rolling and Mill Auxiliary departments :

The allegation on this subject is that “The Company has classified its rolling mill employees artificially into two separate departments, called ‘mill tonnage’ and ‘mill auxiliary’, so as to exclude Negro employees from the higher paying rolling mill jobs.” The court finds the facts regarding this issue to be as follows:

1. There are two mills which are in operation at the Company’s plant. They are referred to as the No. 2 Mill and the No. 3 Mill, the No. 1 Mill having been taken out of operation some 30 years ago. There is also a smaller mill which is referred to as the “Web Mill” but which was not in operation at the time of the trial and had not been used for some time.

2. The rolling of steel is an intricate process by which rough slabs known as billets are elongated, reduced, and shaped by being passed through sets of rolls which contain grooves (known as “passes”) and which, in successive stages, form the billet to the size and shape of the end product.

The rolling process on the mills at the Company’s plant is in general terms as follows: When the billet has been heated to the proper rolling temperature in the heating furnaces,

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it is transferred on to the rolling mills and is moved by conveyors to the breakdown

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mill, which is so named because it elongates and breaks down the rough form of the billet and begins forming it to the shape of the end product. After completing several passes through the breakdown mill, the bar travels to the roughing mill and then to the strand mill on the No. 2 Mill and to the finishing mills on the No. 3 Mill, where it is rolled to the specified size and shape. From the last stand of the rolling mills (which is the strand mill on the No. 2 Mill and the finishing mills on the No. 3 Mill), the bar is then run out through the conveyor troughs located in the middle of the hotbeds.

Since the shape and specifications of the bars which are being rolled are determined by the rolls and the passes in the rolls, the various shapes and sizes of the Company’s products are produced by changing the rolls and moving and adjusting the guides which direct the bars into the proper passes of the rolls. It is further necessary to set and adjust the rolls and guides in their proper positions in order to produce bars that will meet the required close tolerance specifications to which they must be rolled.

The Mill Rolling or Tonnage department is composed of the jobs which perform the functions involved in this rolling process on the mills and in the changing, setting, and adjusting of the rolls and guides. For example, the Roughers turn the bar at the proper angles necessary to enter the passes of the breakdown mill, the Manipulator Operators operate the controls which move the bar back and forth through the passes of the breakdown mill, and the Ringout Saw Operators control the movement of the bars from the breakdown mill to the roughing mill and the finishing mills and operate the hot saw.

The line of progression in the Rolling department leads up to the job of Roller, which is the most highly skilled and highest paid job in the plant.

3. The court finds from the evidence that the equipment which operates in connection with but not actually within the rolling process is known in the industry generally as well as at the Company’s plant as mill auxiliary equipment and that the Mill Auxiliary department is composed of the jobs which perform these auxiliary functions.

For example, prior to the rolling process, the Yardman selects the proper grade and size of the billets required for the type of products to be rolled, the Skidman pulls the billets down skids to the heating furnaces, and the Charger operates the conveyor which takes the billets into the heating furnaces. During the rolling process, the Serapman performs such duties as pulling off from the mill the bars that have to be scrapped, and the Ingot Straightner stands to the side of the breakdown mill on the No. 2 Mill to straighten bars as and when needed. After the rolling process, the bars are inspected, sheared, bundled, and weighed by jobs such as Inspector, Shearman, Bundler, Gauger, Trucker, and Assistant Foreman.

The line of progression in the Auxiliary department leads up to the job of Inspector.

4. The allegation that the Rolling and Auxiliary departments are an artificial classification is based initially and principally on the argument that the employees in these departments work in and around the same mill building and under common supervision and in geographical proximity to one another. To illustrate this point, the Attorney General prepared a diagram of the mills and had its witnesses attach red stickers representing the location of the Rolling jobs and green stickers representing the location of the Auxiliary jobs.

The fact of geographical proximity and common supervision of the Rolling and Auxiliary jobs is certainly true enough on the surface of the matter, but it is equally true, as Chief Judge Brown has phrased it, that “the surface is seldom

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the stopping place.”

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Going beyond the surface, the evidence on this point is as follows:

(a) Employees who are in departments other than the Rolling and Auxiliary departments likewise work in the mill building and in geographical proximity to the Rolling and Auxiliary jobs. For example, Millwrights from the ¡Mechanical department perform repair and maintenance duties on the mill equipment and work in the mill building in geographical proximity to the employees in the Rolling and Auxiliary jobs.

(b) The job of Mill Operator, which is in the Electrical department, was shown by the testimony not only to be in closer geographical proximity to the Rolling jobs than are the majority of the Auxiliary jobs but further to perform functions which are more closely related to the rolling process than are the functions performed by the Auxiliary jobs.

(c) The Rolling and Auxiliary departments are not the only departments in the plant which work in and around the same building and in geographical proximity to one another. Instead, the evidence shows that the Brickmason department and the Electric Furnace department work in the same furnace building and that the Roll Shop department and the Machine Shop (which is in the Mechanical department) likewise work in the same building.

(d) The Rolling and Auxiliary departments are not the only departments in the plant which are concerned with related phases of the production operations. For one, the Finishing, Fabricating, and Cold Draw departments are jointly concerned with the finishing operations. Similarly, the Brickmason department and the Electric Furnace department are both concerned with the maintenance and production functions in the melting and casting operations and are as closely related to one another as are the Rolling and Auxiliary departments, if not more so.

(e) There are jobs in the Auxiliary department which work in closer geographical proximity to jobs in departments other than the Rolling department. For example, the evidence shows that the Yardman and the Crane Follower work in close geographical relation to the jobs in the Electric Furnace department and that jobs such as Bundler and Trucker work in close geographical relation to jobs in the Finishing department.

(f) The Rolling and Auxiliary departments are not the only departments which have common supervision. The Finishing departments consist of the separate Finishing, Fabricating, and Cold Draw departments, and they have common supervision. The Furnace departments consist of the separate Electric Furnace and Brickmason departments, and they have common supervision. The Yard departments consist of the separate Switch Yard and Rail Yard departments and they have common supervision.

Therefore, taking into consideration the complete facts regarding this point and not merely the surface appearances, the court could not properly find from the fact that the jobs work in geographical proximity and under common supervision and in connection with related phases of the production process that the Rolling and Auxiliary departments are an artificial classification.

5. While it is not a point argued in the post-trial brief, some of the testimony elicited by the Attorney General at the trial was evidently directed to an attempt to show a functional relationship between the Rolling and Auxiliary jobs.

This would be true in the sense that the production of bars by the Rolling department depends at the one end on the delivery of billets to the heating

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furnaces and at the other end on the shearing and bundling and related operations performed on- the rolled bars and in the sense that the Auxiliary department would have no function at all without the production of bars by the Rolling department. But if this is to be taken as a factor showing an artificial classification, it could not be confined to these two departments. It would instead have to encompass other departments as well, such as the Electric Furnace department, which produces the billets that are obviously essential to the Rolling department, and the Finishing and Fabricating departments that perform the operations necessary to produce the finished product.

It is true also that some jobs in the Auxiliary department work in conjunction with some jobs in the Rolling department, such as the Scrapman who is stationed in the area of the breakdown mill and the finishing mills. However, having heard the functions of the jobs explained by the testimony and illustrated in connection with the testimony by the photographs and diagrams of the jobs, the court cannot agree that this shows an artificial classification, for the fact remains that the functions which are being performed are quite different.

6. The theory which the Attorney General has urged in the post-trial brief is the argument that the Rolling and Auxiliary departments were in actuality created in October of 1962 when the lines of progression were merged throughout the plant and that before then, there was merely a single “mill department”.

The points relied on by the Attorney General for this theory, and the evidence with respect to each, are as follows:

(a) The Attorney General places the principal reliance for this theory on Company records. For one, the Attorney General relies on the so-called “kardex cards”, which are generally prepared by a secretary in Personnel Office and show for each employee hired such information as name, address, dependents claimed for withholding purposes, department in which hired, and date hired. With respect to these records, the Attorney General points to the use in these cards of the terms “mill” and “mill department”. The • Attorney General similarly places considerable reliance on the minutes of a Company-Union meeting in 1961 which quoted Personnel Director Wagner as having stated in answer to a grievance that “within the Mill Department there are two distinct Progression and Regression Groups: Auxiliary and Rolling.”

If this had been all of the evidence on the point, it might have justifiably been said that the Rolling and Auxiliary jobs had actually been regarded as one “mill department” at the time these records were prepared. But it is by no means the total of the evidence, and with the evidence which the court has heard and cannot disregard, the most that can justifiably be said is that the terminology which has been used in reference to the departments at the plant has been highly loose and considerably less than accurate and consistent, both in the Company records and orally as well.

To be specific, the evidence shows that just as the Mill Rolling and Mill Auxiliary departments have been referred to in Company records as the “mill” and “mill department”, so also have the Company records referred to other separate departments by a single term. For example, although there is no dispute with the fact that the Furnace and Brickmason departments are separate, there are Company records using the term “Furnace” when the accurate reference should be to the Brickmason department. Similarly, although there is no dispute with the fact that the Switch Yard and Rail Yard departments are separate, several of the same kardex cards that use the terms “mill” and “mill department” also use the term “yard” without distinguishing between the Switch Yard department and the Rail Yard department.

The fact that the Rolling and Auxiliary departments have not been consis

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tently referred to as departments and have also been referred to as crews or as progression and regression groups has a similarly minimal evidentiary weight in view of the evidence that the other departments have likewise not been consistently referred t

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