Petition — United States Steel Corp. v. United Steelworkers of America

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APR 13 1976 |

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N THE ore

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

No. O5- 14 ras

UNITED STATES STEEL CORPORATION,

Defendant-Petitioner,

and

UNITED STEELWORKERS OF AMERICA, et al.,

Defendants-Respondents,

V

JOHN S. FORD, et al.,

Plaintiffs-Respondents.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Fifth Circuit

JAMES R. FORMAN, JR.

1600 Bank for Savings Building

Birmingham, Alabama 35203

Attorney for Petitioner United

Of Counsel for Petitioner States Steel Corporation

THOMAS, TALIAFERRO, FORMAN,

BURR & MURRAY

1600 Bank for Savings Building

Birmingham, Alabama 35203

WILLIAM K. MURRAY

D. FRANK DAVIS

JOSEPH W. LETZER

St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477

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TABLE OF CONTENTS

Page

PE GEE behead Weenddeneéeeaboosesnceces se l

IE re er et eee ee re 2

Caniann Fe. 66 6:06sesncerewbeetensdseewnss 2

CG PE OCR ee ey eee Tee eee Tee ee ee 3

POPC ET CERT CCT ECCT RT CCC 3

Reasons for Granting the Writ ..............0 cee eeee 7

1. The Decision Below Conflicts With the Decisions of

ee I ED obec ccicéanecdéonsneesene 7

2. The Decision Below Raises Significant and Recurring

Problems Concerning the Scope of F.R.C.P., Rule

EE a ee ee Tee 9

3. The Decision Below Conflicts With the Class Action

Tolling Rule Enunciated by This Court in American

Pipe v. Utah, and Conflicts With Decisions by Other

oF PPPOE TTT CT TOTTI TT eee 11

4. The Decision Below Regarding Back Pay Conflicts

With Decisions of This Court, Decisions of Other

Courts of Appeals, and Usurps the Equitable Discre-

tion of the District Court Under Title VII ........ 15

0 Pry ee ee Pe er eee eee 29

Appendices:

et EE oi vc tun nascceanntaubanwsen A-l

Amendment to the Ford Complaint ............... A-13

POULT TTT Tee eee CT eer ee A-16

Decree of the District Court .............cccccces A-18

Opinion of the District Court ....... ES POET TT pee A-42

Notice of Appeal by John S. Ford ................. A-73

Opinion of the Court of Appeals .................. A-75

Opinion of the Court of Appeals Clarifying Its Previous

Opinion and Denying Rehearing ............... A-103

Statutory Provisions Involved

TABLE OF AUTHORITIES

Cases

Albemarle Paper Co. v. Moody, — U.S. —, 95 S.Ct. 2362

RI ape Pe tals 2, 15, 16, 17, 18, 19, 20, 26, 28

American Pipe and Construction Co. v. Utah, 414 U.S. 538

DE dcccs Peae eemcae sc Ta 2, 11, 12, 13, 14, 15

Archulete v. Duffy's, Inc., 471 F.2d 33 (10th Cir. 1973) .. 12

Bailey v. Patterson, 369 U.S. 31 (1962) .............. 8-9

Cleveland v. Douglas Aircraft Co., 509 F.2d 1025 (9th Cir.

1975)

Draper v. U. S. Pipe & Foundry Co., — F.2d —, 11 FEP

Cas. 1106 (6th Cir. 1975) ...... 0... ccc cece cece, 18

Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) ..10, 12, 14

Flast v. Cohen, 392 U.S. 83 (1968) .................. 8

Franks v. Bowman Transportation Co., 44 U.S.L.W. 4355

Se PU ts HUE 5 ss kod add uds deadeceedecec: 26

Genovese v. Shell Oil Co., 488 F.2d 84 (Sth Cir. 1973) .. 13

Goodman v. City Products, 425 F.2d 702 (6th Cir. 1970) 12

Hairston v. McLean Trucking Co., 62 FRD 642 (M.D.

ok, Re ee ee ee ee i3

Hairston v. McLean Trucking Co., — F.2d —, 11 FEP

ce Sf Le yer rrrr errr reer rer 18

Hall v. Beals, 396 U.S. 45 (1969) ..... 6... eee eens 8

Hansberry v. Lee, 311 U.S. 32 (1940) ........6.- eee. 10

Head v. Timken Roller Bearing Co., 486 F.2d 870 (6th

CE eau phe <¥eee skh ne ev eed PORE ee eee ees 18

Jimenez v. Weinberger, 523 F.2d 689 (7th Cir. 1975) . .12, 13

Johnson v. Railway Express, — U.S. —, 95 S.Ct. 1716

0 Pre ere TT rrr rr rer rae ery et he 13

Jurinko v. Wiegland Co., — F.2d —, 12 FEP Cas. 203

fo ee re ae ere ree 18

Kober v. Westinghouse Electric Corp., 480 F.2d 240 (3rd

Pe CE op oboe cS bees wenseeseneneeedveseees 18

Machinists v. United Aircraft Corp., — F.2d —, 90 L.R.

PW. ZA72 (BS Cle. ESTE) occ ccercvevcccscccccs 27

Matter of Bethlehem Steel Corporation, OFCC Dkt. 102-

7. " & .) Frere rrerrrerrrriey rie 25

Monarch Asphalt Sales Company v. Wilshire Oil Co., 511

F.2d 1073 (10th Cir. 1975) ....... cece eee eee enee 14

Moody v. Albemarle Paper Co., 474 F.2d 134 (4th Cir.

PPR reer ever ee T errr Se se rer 16, 19

Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972) ..... 8

Peritz v. Liberty Loan Corp., 523 F.2d 349 (7th Cir. 1975) 13

Pettway v. American Cast Iron Pipe Company, 494 F.2d

elo A ) errr r rer rrr rr reer 18, 19, 27

Slack v. Stiner, 358 F.2d 65 (Sth Cir. 1966) .......... 14

Sierra Club v. Morton, 405 U.S. 727 (1972) ...........

Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7th Cir.

SVE) vcccecucecsnesectutued ieee 10, 13, 14

United States v. Allegheny Ludlum Industries, Inc., 517

Foe C26 Ga Cle. GF vcs cesevtsssse eee 6, 28

United States v. Bethlehem Steel Corporation, 312 F.Supp.

FTE CURLY. COT oc ccvuvisectuceenel 24-25

United States v. H. K. Porter Company, 296 F.Supp. 40

ee re 24

United States v. H. K. Porter Company, 491 F.2d 1105

CO Cle. 197FG) .. occ ecceeneseyeucenee 25

United States v. St. Louis & S. F. Ry., 474 F.2d 301 (8th

Cir. 1973), cert. denied, 409 U.S. 1116 (1973) ...... 18

U. S. v. N. L. Indus., Inc., 479 F.2d 354 (8th Cir. 1973) 26

U. S. v. Richardson, 418 U.S. 166 (1974) ............ 8

Whitfield v. United Steelworkers of America, 263 F.2d 546

(Sth Cir.), cert. denied, 360 U.S. 902 (,.. es 23, 24

Other Authorities

28 USL. §1296@ ..........00.0.,005 2

ee eee + - 12

42 UBC. $0083... 0055. .200005s 3, 4, 13, 27

42 USC. §§2000e-5 and 6... a

ee) ec 15

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

ee

UNITED STATES STEEL CORPORATION.

Defendant-Petitioner,

and

UNITED STEELWORKERS OF AMERICA, et al.,

Defendants-Respondents,

Vv

JOHN S. FORD, et al.,

Plaintiffs-Respondents.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Fifth Circuit

The petitioner, United States Steel Corporation, respectfully

prays that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the Fifth

Circuit entered in this proceeding on October 8, 1975.

OPINIONS BELOW

The opinion of the District Court is reported at 371 F.Supp.

1045, and set forth at A. 42. The opinion of the Court of

= =

Appeals is reported at 520 F.2d 1043 and is set forth at A.

75. The Court of Appeals’ clarifying opinion issued on denial

of rehearing is set forth at A. 103, and is not yet reported.

JURISDICTION

The judgment of the Court of Appeals was entered on

October 8, 1975. A timely petition for rehearing and rehearing

en banc was denied on January 14, 1976, and this petition

was filed within 90 days of that date. This Court's jurisdiction

is invoked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether a person has standing to represent a class on

appeal when he does not appeal for himself?

2. Whether Federal Rules of Civil Procedure (F.R.C.P.)

Rule 23(c)(1) authorizes the substitution of new plaintiff class

members and the addition of new defendants, where these class

alterations are (1) after trial at judgment and (2) without notice

or a hearing?

3. Whether the decision below by permitting the addition

of a large number of previously unidentified persons to an on-

going class action after the expiration of the Statutory time

limitation on filing suit, conflicts with the class action tolling

rule enunciated by this Court in American Pipe and Construc-

tion Co. v. Utah, 414 U.S. 538 (1974) and with the decisions

of other courts of appeals?

; 4. Whether the Fifth Circuit’s continued adherence to the

special circumstances” test in Title VII back pay determina-

tions, comports with this Court's decision in Albemarle Paper

Co. v. Moody, — US. —, 95 S.Ct. 2362 (1975) and with

the decisions of other courts of appeals?

5. Whether a district court may in its equitable discretion

consider difficulty of ascertaining a sufficient causal connection

between ine employer's conduct and alleged damages, and dif-

ficulty of ascertaining any amount of back pay lost by a par-

ticular claimant as a result of employer conduct, in determining

the propriety of an award of back pay under Title VII?

6. ‘Vhether a district court may in its equitable discretion

in part consider employer good faith, lack of notice of alleged

discrimination, and reliance on the state of the law in deter-

mining the propriety of an award of back pay under Title VII?

STATUTES INVOLVED

The statutes involved herein are Title VII to the 1964 Civil

Rights Act, as amended, 42 U.S.C. §§ 2000e-5 and 6 (A. 105),

and 42 U.S.C. § 1981 (A. 121). Also involved are Rules 23

and 25 of the Federal Rules of Civil Procedure (A. 122).

- STATEMENT OF THE CASE

On October 7, 1966, respondent John Ford, an employee of

the Pratt City Car Shop at the Fairfield Steel Works,’ filed a

clearly described private class action for himself and a small

class of Rail Transportation employees,” all members of Local

| The Fairfield Works is one of the largest units of United States

Steel Corporation and consists of nine separate facilities in Jefferson

County, Alabama. Two plants process raw materials (Ore Condi-

tioning; Coke and Coal Chemicals); two are basic steel-producing

facilities (Ensley and Fairfield); and four make finished products

(Tin; Wire; Sheet; Bessemer Rolling). The ninth facility provides

rail ee services for the other eight (Rail Transportation ).

See A. 43.

2 The Ford complaint, filed on October 7, 1966, defined the

class as black persons “in the Rail Transportation Department” who

were “members of Local 1733.” A. 3. An amendment to the com-

a poe

1733, United Steelworkers of America, against petitioner, the

United Steelworkers of America, and Local 1733 (U.S.W.A.),

alleging Section 1981 and Title VII violations. Mr. Ford’s

class was certified by the District Court on August 2, 1967, as

consisting of the thirty-five employees described in his com-

plaint,* and subsequently in all pleadings, motions, pretrial hear-

ings, discovery, orders, and evidence was treated by the District

Court, all plaintiffs, and all defendants, as limited to these thirty-

five employees.

Eventually, Ford’s class action and the McKinstry and Hardy

class actions filed a few months before Ford’s were consolidated

for trial with three other private class actions, these six consoli-

dated private cases involving a total of 464 black employees.

plaint filed September 29, 1967 stated that the action was brought on

behalf of blacks “employed in the Rail Transportation Depart-

ment.” A. 13.

* The order dated August 2, 1967 defined the class as consist-

ing of “employees in the Employer’s Car Shop, Rail Transportation

Department.” -

' Each private class action was filed against petitioner, the United

Sicelworkers of America, and a local U.S.W.A. union. Other than

Ford, these actions, their date of filing, class, and local union de-

fendant were:

1) the McKinstry class action, May 30, 1966, on behalf of

black employees at the Plate Mill Department of the petitioner’s

Fairfield Plant, with Local 1013 as a defendant:

2) the Hardy class action, July 7, 1966, on behalf of black

employees at the Blast Furnace Department of petitioner’s Ens-

ley Plant, with Locai 1489 as a defendant:

3) the Brown class action, February 13, 1967, on behalf

of black employees of the Maintenance of Way Department of

the Rail Transportation and Material Handling Division of

petitioner's Fairfield Works, with Local 1733 as a defendant;

4) the Love class action, April 15, 1968, on behalf of black

millwright helpers at petitioner’s Ensley Plant, with Local 1489

as a defendant; and

5) the Donald class action, March 24, 1969, on behalf of

machine shop hookers in the Shop and Construction Depart-

ment of petitioner's Fairfield Plant, with Local 1013 as a de-

fendant.

= pe

Also consolidated for trial was a government “pattern or prac-

tice” suit filed in 1970 seeking injunctive relief and back pay

for the approximately 2700 remaining blacks at the Fairfield

Works.”

The consolidated trial of these cases began in June, 1972. A

jury trial was requested, but denied. In December, 1972, “after

hundreds of witnesses, more than 10,000 pages of testimony,

and over ten feet of stipulations and exhibits (the bulk being in

computer or summary form),”* the parties rested.

Five months after trial, the District Court awarded back pay

to sixty-one members of the Ford, McKinstry, and Hardy class

actions. The District Court denied back pay in the other three

private class actions. Furthermore, in its decision, for the first

time, without pleading, notice, or hearing, it summarily created

a “new” Ford class consisting of all black employees at Fair-

field prior to January 1, 1973, who were not otherwise repre-

sented in a private class action (i.e., the pattern or practice

group), and added eleven (11) local unions as additional de-

fendants to this new class action. The pattern or practice group,

or the new Ford class, was denied back pay.‘

* The government “pattern or practice action was filed on

cember 16. 1970, ei. $ 707 of Title VII, 42 U.S.C. § —o

and named as defendants, petitioner, the United Steelworkers :

America, and Locals 1013, 1131, 1489, 1700, 1735, 2122, 2210,

2405, 2421, 2927, 3662, and 4203, United Steelworkers of America.

* A. 43.

7 The District Court’s decree defined the Ford and “new” Ford

class as: | ey

A]ll black persons who have at any time prior to cd,

1973, been caataned in the former Pratt City Car Shop line

of promotion; and, for the purpose of this Decree, the ——

herein represent a class consisting of all black persons w ;

have at any time prior to January 1, 1973, been. employe

at the Fairfield Works (except to the extent they may be other-

wise included as a class member under subparagraphs (a)

DLE SCSOSYY&Z&SSSSSSSae

_—

The District Court denied back pay in its equitable discre-

tion after finding an insufficient causal connection between peti-

tioner’s allegedly wrongful conduct and any amount of dam-

eae 28° alleged to be a result of that conduct. The District Court

. .cher considered in its equitable discretion the good faith ef-

forts of petitioner to comply with Title VII, petitioner's lack of

notice of alleged discrimination, and reliance on the state of the

law.

The government appealed the denial of back pay, but later

withdrew its appeal in favor of the nationwide steel industry

settlement in United States v. Allegheny Ludlum Industries, Inc..

et al., ©17 F.2d 826 (Sth Cir. 1975). Mr. Ford appealed the

back pay issue for the new Ford class without appealing for more

back pay for himself or his original class.

The Fifth Circuit rejected petitioner's argunients that Mr.

Ford had no standing to appeal for a class of persons when he

did not appeal for himself, and that the creation of the new

Ford class was improper. The Court of Appeals further reversed

and remanded the District Court’s denial of back pay to the

new Ford class, and issued guidelines to the court to consider

on remand.

through (f) [these being persons represented in the private

class actions}). (Emphasis added )

A. 38.

The Fifth Circuit described the District Court's creation of the

“new” Ford class as:

The substitution was accomplished by Judge Pointer in the

May 2 decree, wherein he summarily enlarged the “original”

Ford class so as to include in a F.R.Civ.P. 23(b)(2) class

action judgment all blacks employed at Fairfield prior to Jan-

uary 1, 1973 who were not otherwise represented in a private

class action. Thus, the district court designated in practical

and legal effect a “new” Ford class.

A. 77.

REASONS FOR GRANTING THE WRIT

1. The Decision Below Conflicts With the Decisions of This

Court on Standing.

The Fifth Circuit disposed of the question of Mr. Ford's

standing on appeal with the simple ruling, “Initially, we reject

appellee United States Steel’s argument that appellant Ford

lacks standing as a matter of law to represent any class of black

employees broader than the ‘original’ Ford class, in which his

personal! back pay claim has been satisfied.” A. 85. In so doing,

the Court of Appeals rejected the legal proposition that in order

to have standing a class representative must have a personal

stake in the controversy and be a member of the class he pur-

ports to represent. The emasculation of previous rulings of this

Court on standing by the Fifth Circuit's failure to dismiss the

instant appeal of a class representative who appealed for a class

of employees, but not for himself, merits the grant of certiorari

to review the judgment below.

The lack of personal interest and class membership of class

representative Ford on appeal is clear. In the District Court's

decree Mr. Ford and other employees at the Pratt City Car

Shop were certified as members of a class action (original Ford

class). Mr. Ford, who was awarded back pay, neither appealed

for himself nor for his original class. See Ford’s Notice of Appeal

to the Fifth Circuit, A. 73. However, Mr. Ford did appeal as

purported representative of the separate and different class certi-

fied by the District Court (new Ford class) that consisted of the

government pattern or practice group of which Mr. Ford was

not a member by the District Court's class definition, which Mr.

Ford never previously sought to represent, and which was denied

back pay by the District Court.

A serious constitutional question is presented by the Fifth

Circuit allowing an appeal by a class representative who re-

EEE S':Ss=~<«~C_-=~ oe

—_—

ceived a satisfactory adjudication of his claim, does not ap-

peal for himself, but nevertheless attempts to prosecute an

appeal on behalf of a class of persons other than himself. Such

a representative cannot be a proper party plaintiff or appellant

where the relief he seeks for the class would be of no benefit

to him personally.

This Court has written on standing:

“The ‘gist of the question of standing’ is whether the

party seeking relief has ‘alleged such a personal stake in

the outcome of the controversy as to assure that concrete

adverseness which sharpens the presentation of issues

upon which the court so largely depends for illumination

of difficult constitutional questions. Baker v. Carr, 369

U.S. 186, 304, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962).

In other words, when standing is placed in issue in a

case, the question is whether the person whose standing

is challenged is a proper party to request an adjudica-

tion of a particular issue and not whether the issue itself

is justiciable.”

U.S. v. Richardson, 418 U.S. 166, 173 (1974): Sierra Club

v. Morton, 405 U.S. 727, 731-32 (1972); Flast v. Cohen,

392 U.S. 83, 99-100 (1968) (emphasis added). How can a

person who does not appeal for himself, in appealing for a

class of others, have this requisite personal stake in the out-

come of the controversy?

Specifically regarding class actions, this Court has consist-

ently held that in order to have standing a class representative

must be a member of the class he seeks to represent. See, €.8.,

Moose Lodge No. 107 vy. Irvis, 407 U.S. 163, 166 (1972)

(“Appellee has standing to seek redress for injuries done to

him, but may not seek redress for injuries done to others.” ) ;

Hall v. Beals, 396 U.S. 45, 49 (1969) (“The appellants ‘can-

not represent a class of [which] they are not a part.’”); Bailey

—_— wn

v. Patterson, 369 U.S. 31, 32-33 (1962) (same). A repre-

sentative who receives back pay, does not appeal his award,

yet appeals for those who received no back pay, is not a mem-

ber of the appellant class. He is an officious volunteer with

no personal interest and no standing.

2. The Decision Below Raises Significant and Recurring

Problems Concerning the Scope of F.R.C.P., Rule 23(c)(1).

The Fifth Circuit held, regarding the District Court's sum-

mary creation at judgment of a new Ford class consisting of

all blacks employed at Fairfield prior to January 1, 1973, who

were not otherwise represented in a private class action (the

government pattern or practice group), and the addition of

eleven (11) local unions as defendants to this new class, “[nJor

do we accept the argument that the designation of a ‘new’

Ford class constituted inherent error or an unauthorized sub-

stitution of parties.” The Court of Appeals further decided:

Rule 23(c)(1) does require the court to determine the

propriety of a class action “[a]s soon as practicable” after

its commencement, but the rule adds that the order “may

be conditional, and may be altered or amended before

the decision on the merits.” . . . The modification itself

is not unique in either its purpose or its timing. It is

literally authorized by Rule 23, provided other constitu-

tional and procedural safeguards are satisfied.

A. 85. In permitting, under Rule 23(c)(1), a massive substi-

tution of parties by the District Court, which created the new

Ford class at judgment without notice or a hearing, the Fifth

Circuit has raised serious questions deserving of this Court's

consideration on certiorari regarding the scope and meaning of

that Rule.

Initially, the recent trial court practice, engaged in by the

District Court in this case, of altering class action certifications

=

at judgment appears contrary to the terms of Rule 23(c)(1),

which provides in pertinent part, “An order under this subdi-

vision may be conditional, and may be altered or amended be-

fore the decision on the merits.” F.R.C.P., Rule 23(c)(1) (em-

phasis added). See, ¢.g., Sprogis v. United Air Lines, Inc., 444

F.2d 1194, 1207 (7th Cir. 1971) (dissenting opinion of Judge

Stevens, now Justice Stevens). How can a class action deter-

mination at judgment be “before the decision on the merits”

within the terms of Rule 23(c)(1)? This practice of certifying

classes at judgment is directly analogous to the formerly widely

used procedure of failing to distribute notices to individual class

members in Rule 23(b)(3) class actions, a practice which was

engaged in despite the express terms of Rule 23(c)(2), and

was corrected by this Court in Eisen v. Carlisle & Jacquelin,

417 U.S. 156 (1974).

Moreover, beyond the terms of Rule 23(c)(1), the District

Court's substitution of 2700 new plaintiff class members for a

class consisting of 35 members and addition of eleven (11)

new defendants, without notice and a hearing and after trial at

judgment, is suspect on pure constitutional due process grounds.

Since Rule 23(c)(1) class alterations and amendments dictate

who will be bound by the res judicata effect of the action, some

due process protections are, of course, necessary. See, ¢.g.,

Hansberry v. Lee, 311 U.S. 32 (1940). The Fifth Circuit,

while voicing this fundamental principle in its opinion, however,

has determined that a motion, notice, or a hearing is not re-

quired, without specifying or even hinting what constitutional

protections are mandatory under Rule 23(c)(1). Such deter-

mination is ripe and necessary for this Court's guidance.

Finally, it is highly speculative and deserving of this Court's

attention whether Rule 23(c)(1) is broad enough to authorize

the complete substitution of plaintiff class members by the Dis-

trict Court in creating the new Ford class, even if said substi-

tution had been achieved before a decision on the merits and

—

with proper constitutional protections. A complete substitution

of the party plaintiff is not authorized by Rule 25, and no case

has been found where it was permitted or even attempted under

Rule 23(c)(1) prior to the decision below.

The proliferation of class action suits over the past ten years

is a matter of judicial notice. In view of this increased use of

and need for clarification of Rule 23, the decision below war-

rants the grant of certiorari to decide the meaning of the “before

a decision on the merits” provision of Rule 23(c) (1), to specify

procedural due process limits under 23(c)(1), and to delineate

the scope of permissible class action alterations under this Rule.

3. The Decision Below Conflicts With the Class Action Toll-

ing Rule Enunciated by This Court in American Pipe v. Utah,

and Conflicts With Decisions by Other Courts of Appeals.

The redefinition of the Ford class seven years after the com-

plaint was filed to bring in 2700 new plaintiff class members,

conflicts directly with this Court’s class action tolling rule

enunciated in American Pipe and Construction Co. v. Utah,

414 U.S. 538 (1974):

We are convinced that the rule most consistent with fed-

eral class action procedure must be that commencement

of a class action suspends the statute of limitations as to

all asserted members of the class. . . . The policies of in-

suring essential fairness to defendants and of barring a

plaintiff who “has slept on his rights,” (citations oinitted )

are satisfied when . . . a named plaintiff who is found to

be representative of a class commences a suit and thereby

notifies the defendants not only of the substantive claims

being brought against them, but also of the number and

generic identity of the potential plaintiffs who may par-

ticipate in the judgment. Within the period set by the stat-

—_— we

ute of limitations the defendants have the essential ‘infor-

mation necessary to determine both the subject matter and

size of the prospective litigation. . . . (Emphasis added).

Id. at 554-55. In summary the American Pipe rule is that the

filing of a class action complaint suspends the applicable limi-

tations period :only as to asserted class members of the class

capable of being identified by number and generic description

before the expiration of the limitations period. See Eisen v.

Carlisle & Jacquelin, 417 U.S. 156, 176 (1974) (citing Ameri-

can Pipe, “commencement of a class action tolls the applicable

Statute of limitations as to all members of the class”).

American Pipe was cited by the Seventh Circuit in a recent

social security case as controlling on a tolling issue where a

class action complaint was filed and the applicable statute pro-

vided that suit had to be brought within 60 days after the mail-

ing of a notice of decision by the Agency (42 U.S.C. §405(g)).

Jimenez v. Weinberger, 523 F.2d 689, 696 (7th Cir. 1975).

Title VII contains an almost identical Statutory limitation on

the time within which suit must be brought for employment dis-

crimination:

A civil action may within thirty days (amended to 90 days

in 1972) [after notification of conciliation failure by the

EEOC] be brought against the respondent.

42 U.S.C. §2000e-5 (1970).* Unlike Jimenez, however, the

_* The 30 day (90 day after 1972 amend i

limitation on filing suit po Moth in Section 2000-5 . we roe

language mandatory and has been held to be so by every circuit

- considering the issue. See, e.g., Goodman v. City Products

425 F.2d 702 (6th Cir. 1970); Cleveland v. Douglas Aircraft Co..

509 F.2d 1025 (9th Cir. 1975); Archulete v. Duffy's, Inc., 471 F.2d

33 (10th Cir. 1973). Speaking to the dat ,

time limitation the Fifth Circuit itself has wvltien: oo a

There is no room here for liberal or strict st

0 | atut -

tion since it is clear from the language of 42 USC § 0000.5

Fifth Circuit in the decision below did not even consider, or if

considered did not distinguish, American Pipe, citing only the

district court decision in Hairston v. McLean Trucking Co.,

62 FRD 642, 663-64 (M.D. N.C. 1974), as authority. A. 86.

McLean was decided eleven months prior to this Court's Amer-

ican Pipe case.

Prior to American Pipe the Seventh Circuit seemed to agree

with the Fifth Circuit’s conclusion that the filing of any action

no matter how limited in scope tolls a statutory limitations period

on filing suit for all persons who may later be added as plaintiff

class members. For example, in Sprogis v. United Air Lines,

444 F.2d 1194, 1201 (7th Cir. 1971), the Seventh Circuit's

leading decision prior to American Pipe on the issue, a two

judge majority held, in effect, that the filing of an individual ac-

tion for sex discrimination tolled the statute on behalf of a class

not created until five years later. Judge Stevens dissented. On

remand the District Court concluded that it would be unfair to

defendants to allow such a tardy class action, declined to so alter

the action, and no further appeals were taken.

In at least two recent decisions the Seventh Circuit has itself

cast doubt on the continued viability of its Sprogis decision after

American Pipe. Specifically, the Seventh Circuit in Jimenez v.

Weinberger, 523 F.2d 689, 698 (7th Cir. 1975), discussing

American Pipe, cited the dissenting opinion in Sprogis with ap-

parent approval, and in Peritz v. Liberty Loan Corp., 523 F.2d

349, 353 (7th Cir. 1975) the Seventh Circuit stated “[w]e need

not assess here the continued viability of [Sprogis] in face of

that the thirty-day requirement for the filing of suit is manda-

tory and jurisdictional.

Genovese v. Shell Oil Co., 488 F.2d 84, 85 (Sth Cir. 1973).

The fact that Ford also made claim under § 1981 does not moot

this issue. Remedies under the two statutes are different. See John-

son v. Railway Express, — U.S. —, 95 S.Ct. 1716 (1975). Claims

under § 1981 would be limited by similar reasoning to one year

prior to the date the new Ford class was created.

) ———

—

the subsequent Supreme Court opinions in American Pipe and

Eisen.”

In addition to recent Seventh Circuit references to Sprogis,

the decision below directly conflicts with the recent decision by

the Tenth Circuit in Monarch Asphalt Sales Company v. Wil-

shire Oil Co., 511 F.2d 1073 (10th Cir. 1975), where persons

sought to intervene as plaintiffs in a class action in which they

were not members of the class as previously defined by the court

and were held barred by the limitations period. The decision be-

low also conflicts in principle with the Fifth Circuit's own prior

decision in Slack v. Stiner, 358 F.2d 65 (Sth Cir. 1966), where

it was held that an action filed on behalf of an individual could

not be amended after the running of a limitations period to in-

clude a class allegation.

In applying American Pipe to the instant case, it seems clear

that the 30-day limitation period should have been tolled only

on behalf of the 35 members of the original Ford class, since

these persons were the only class members who were or could

have been identified by “number” and “generic description” prior

to the expiration of the limitations period under 42 U.S.C. §

2000e-5. It is undisputed that the Ford class for seven years

included only 35 individuals. For at least four years (until the

filing of the government pattern or practice action) the defend-

ants (and also seemingly plaintiff Ford) had no notice of any

kind that the 2700 members of the new Ford class would make

any claim against them.

The gross modification of the Ford class seven years after

expiration of the statutory time limitation on filing suit fails to

comport with American Pipe’s policy “of insuring essential fair-

ness to defendants.” 414 U.S. at 766. The Circuit Court below

in permitting this modification has, without justification or even

discussion, totally disregarded this Court’s American Pipe hold-

ing.

~~

o_ 1§ —

It is submitted that, because the decision below is contrary to

the rule enunciated by this Court in American Pipe, and con-

trary to the decisions of other courts of appeals on this matter,

a writ of certiorari is justified. Moreover, the manner and extent

to which the filing of a class action tolls a federal statutory time

limit on filing suit is an issue of such dominant national impor-

tance that a writ of certiorari would be justified even in the ab-

sence of the conflicts noted above.

4. The Decision Below Regarding Back Pay Conflicts With

Decisions of This Court, Decisions of Other Courts of Appeals,

and Usurps the Equitable Discretion of the District Court Under

Title VII.

A. Title VII provides that if a district court finds that an em-

ployer has intentionally engaged in an unlawful employment

practice, it “may enjoin the respondent from engaging in such

unlawful employment practice, and order such affirmative action

as may be appropriate, which may include, but is not limited to,

reinstatement or hiring of employees, with or without back pay,”

42 U.S.C. § 2000e-5(g) (emphasis added). In Albemarle

Paper Co. v. Moody, — U.S. —, 95 S.Ct. 2362 (i975) this

Court interpreting the above language vacated the application

by the Fourth Circuit of a so-called “special circumstances” test

and established the controlling discretionary standard to be used

by district courts in Title VII cases to determine when back pay

should be awarded or denied.

The district court in Albemarle Paper had entered injunctive

relief but denied back pay stating two reasons: (1) the defend-

ant had not acted in bad faith and (2) plaintiff's original com-

plaint did not claim back pay and was not amended to include

a prayer for back pay until five years after suit was filed. On ap-

peal, the Fourth Circuit reversed the district court, stating that

the district court erred because it should have applied the fol-

lowing “special circumstances” test:

—"

[A] plaintiff or a complaining class who is successful in ob-

taining an injunction under Title VII should ordinarily be

awarded back pay unless special circumstances would ren-

der such an award unjust. Newman v. Piggie Park Enter-

prises, 390 U.S. 400 (1968).

Moody v. Albemarle Paper Co., 474 F.2d 134, 142 (4th Cir.

1973). Finding further that if the “special circumstances” test

had been applied by the district court back pay would neces-

sarily have been awarded, the Fourth Circuit directed the dis-

trict court on remand “to include an award of back pay in its

order.” /d. at 142.

The Albemarle Paper defendants petitioned this Court for a

writ of certiorari contending that the Fourth Circuit's “special

circumstances” test, as applied, abrogated the traditional equi-

table discretion of a district court to determine whether back

pay is appropriate in a particular case. Certiorari was granted,

and on review this Court found the “special circumstances”

standard inapplicable to a back pay determination, vacated the

circuit court judgment, and stated:

Relying directly on Newman v. Piggie Park Enterprises, 390

U.S. 400, 88 S.Ct. 904, 19 L.Ed.2d 1263, the Court of

Appeals reversed [the district court], holding that back

pay could be denied only in “special circumstances.”

* * * * * * *

{This} Court held there that attorneys’ fees should “ordi-

narily” be awarded—i.e., in all but “special circumstances”

—to plaintiffs successful in obtaining injunctions against

discrimination in public accommodations, under Title II of

the Civil Rights Act of 1964. While the Act appears to

leave Title II fee awards to the District Court’s discretion,

42 U.S.C. § 2000a-3(b), the Court determined that the

great public interest in having injunctive actions brought

could be vindicated only if successful plaintiffs, acting as

=o {9 «=

“private attorneys general,” were awarded attorneys’ fees in

all but very unusual circumstances. There is of course an

equally strong public interest in having injunctive actions

brought under Title VII, to eradicate discriminatory em-

ployment practices.

But this interest can be vindicated by applying the Piggie

Park standard to the attorneys’ fees provision of Title VII,

42 U.S.C. §2000e-5(k), see Northcross v. Board of Ed-

ucation, 412 U.S. 427. 428, 93 S.Ct. 2201, 2202, 37 L.

Ed.2d 48. For guidance as to the granting and denial of

backpay, one must, therefore, look elsewhere.

95 S.Ct. at 2370. See id. at 2389 (concurring opinion by Mr.

Justice Blackmun) (“Today the Court rejects the ‘special cir-

cumstances’ test adopted by the Court of Appeals . . .”).

In place of the “special circumstances” standard, this Court

acknowledged the equitable discretion of a district court and

concluded that that discretion should be applied in the follow-

ing manner:

It follows that, given a finding of unlawful discrimina-

tion, backpay should be denied only for reasons which, if

applied generally, would not frustrate the central statutory

purposes of eradicating discrimination throughout the

economy and making persons whole for injuries suffered

through past discrimination. The courts of appeals must

maintain a consistent and principled application of the

backpay provision, consonant with the twin statutory ob-

jectives, while at the same time recognizing that the trial

court will often have the keener appreciation of those facts

and circumstances peculiar to particular cases. (Emphasis

added ).

95 S.Ct. at 2373. The clear result of the Albemarle Paper de-

cision was to signal, at least in those circuits ther applying the

ee

—

“special circumstances” test, an increased deference to a trial

court's discretion in equitable matters relating to back pay. See,

e.g., Jurinko v. Wiegland Co., — F.2d —, 12 FEP Cas. 203,

207 (3rd Cir. 1975) (Albemarle Paper's effect is to “empha-

size the equitable nature of an award of back pay in cases un-

der Title VII").

Prior to Albemarle Paper three circuits, the Fourth, Fifth

and Sixth, had applied the “special circumstances” test. See,

e.g., Albemarle Paper, supra; Pettway v. American Cast Iron

Pipe Co., 494 F.2d 211, 253 (Sth Cir. 1974): Head v. Tim-

ken Roller Bearing Co., 486 F.2d 870, 876 (6th Cir. 1973).

Other circuits had applied a discretionary standard. See, é.2.,

Kober v. Westinghouse Electric Corp., 480 F.2d 240 (3rd Cir.

1973); United States v. St. Louis & S.F. Ry., 464 F.2d 301

311 (8th Cir. 1973), cert. denied, 409 U.S. 1116 (1973). Two

of the pre-Albemarle Paper “special circumstances” circuits,

the Fourth and Sixth, have now quietly abandoned that test in

favor of the Albemarle standard. See. e.g., Hairston v. McLean

Trucking Co., — F.2d —, 11 FEP Cas. 91, 94 (4th Cir. 1975);

Draper v. U.S. Pipe & Foundry Co., — F.2d —, 11 FEP Cas.

1106, 1111 (6th Cir. 1975).

In the decision below, however, the Fifth Circuit continues

to apply the now discredited “special circumstances” test. A.

101 and n.1. Indeed, the Fifth Circuit applied in the decision

below, and is applying in other decisions, the “special circum-

stances” test in a manner even more restrictive on the discre-

tion of a district court than was the Fourth and Sixth Circuit's

application of that test before this Court's Albemarle Paper de-

cision. In the decision below the Fifth Circuit unequivocally

States:

The only “special circumstance” we have recognized is that

of a conflicting state statute which required the employer

to violate Title VII.

aw 19

Id. The decision below discusses for many pages a “two stage”

procedure which it directs the District Court to use on remand to

determine back pay. A. 86-92. It should be noted that this

two stage procedure, outlined in detail by the Fifth Circuit, con-

tains no reference to any point during the procedure at which

the District Court is to consider whether to award or deny back

pay under the Albemarle Paper standards. Instead, the Circuit

Court simply states that the necessity of a back pay award is

“nearly certain, if not ‘automatic or mandatory.” A. 91.

The Fifth Circuit itself, in the decision below acknowledged

that its continued adherence to the “special circumstances” test

“perhaps” conflicts with this Court's Albemarle decision, but

suggests the conflict to be “superficial.”

[Pjerhaps, as the union argues, some degree of conflict

now exists, compare Moody, supra, — U.S. at —, 95

S.Ct. at 2371-72, 45 L.Ed.2d at 296-97, with Pettway,

supra, 494 F.2d at 253 [“The district court's reasons for

denying back pay must next be examined for evidence of

‘special circumstances’ ”], we believe that the inconsistency

is superficial to this case.

A. 102. It seems curious that the Fifth Circuit acknowledges a

possible conflict with a three month old decision by this Court

and then proceeds without regard to its existence, “superficial”

or not. But, in any event, the conflict between the Fifth Cir-

cuit’s continued application of a “special circumstances” test

and this Court’s Albemarle Paper standard cannot correctly be

rated “superficial.” By only recognizing the single “special cir-

cumstance” of a state statute requiring the defendant to violate

Title Vil as a justification for denying back pay, the Fifth

Circuit is totally abrogating the equitable discretion of its trial

courts requiring, in effect, mandatory awards of back pay in

direct conflict with the opinion and result in Albemarle Paper.

B. The Fifth Circuit should have considered the District

Court decision in the case at bar under the Albemarle Paper

CE

=

standard, with due regard for the principle stated in Albemarle

Paper that a district court’s exercise of discretion is to be re-

versed only where “clearly erroneous.” 95 S.Ct. at 2375. Upon

such proper consideration it should have affirmed the decision

of the District Court.

Written two years prior to this Court’s Albemarle Paper

decision, the back pay analysis in the District Court decision

is surprisingly similar to the approach specified by this Court

as proper in Albermarle Paper. The District Court began its

analysis with this paragraph:

Back pay is properly viewed as an integral part of the

whole of relief, which seeks not to punish the defendant,

but to compensate the victim of discrimination. United

States v. Georgia Power Co., 474 F.2d 906 (CA 5 1973).

Cf. Moody v. Albemarle Paper Co., 474 F.2d 134 (CA 4

1973) (in view of strong congressional policy successful

plaintiffs should ordinarily be awarded back pay unless

special circumstances would render the award unjust).

A. 60. It then stated that this policy “guides the court in

its exercise of equitable discretion.” A. 60. Compare, e.g.,

Albemarle Paper, 95 S.Ct. at 2370 (“It is true that back pay

is not an automatic or mandatory remedy; like all other reme-

dies under the Act, it is one which the courts ‘may’ invoke.”).

Following these general comments, the District Court pro-

ceeded to award back pay in three private class actions (a

later hearing was held on individual calculations), and to ar-

ticulate specific reasons for the denial of back pay in the re-

maining cases.

(1) The first reason specified by the District Court for its

denial of back pay was the failure of the evidence to prove

economic injury resulting from discrimination, or, as stated

by the Circuit Court below, the District Court’s “inability to

identify and disting.ish the various causes of class members’

— »

economic losses.” A. 86. The District Court found that al-

though “equity may for purposes of injunctive relief presume

damages from the invasion of a legal right . . . compensatory

monetary awards [require] . . proof that the claimant has

actually sustained a loss from the defendant's improper con-

duct.” A. 60-61.

At trial in the District Court the government introduced

statistics which showed a difference in gross earnings by race.

No effort was made by the plaintiffs to analyze the reasons

for this difference. They simply asserted that since whites had

higher average gross earnings than blacks, back pay was ap-

propriate.

Petitioner accounted for the difference in gross earnings

through an exhaustive statistical analysis which revealed nu-

merous factors other than discrimination that contributed to

the gross earnings’ differential, such. as failures to bid into

lines of progression,” education,'” voluntary “freezing” within

lines of progression in lower-paying jobs,'' craft training,'*

* The statistical evidence showed that blacks voluntarily refused

to bid on higher paying jobs more often than did whites. In many

cases blacks could have obtained higher paying jobs on the basis

o! their seniority alone had they bid.

10 Blacks at Fairfield had 2.8 years less formal education than

whites. National data showed level of education to be directly re-

lated to earning capacity.

11 Freezing consists of such factors as voluntary requests for de-

motion to lower paying jobs, refusals of training opportunities for

higher paying jobs, and refusals to accept higher paying jobs. The

evidence showed that more black employees “froze” themselves into

lower paying jobs than did white employees. Most higher jobs in-

volved different, less familiar duties, loss of opportunity to work

with familiar associates, and required the initiative that is necessary

to assume more responsibility for more money. Some employees of

both races were less ambitious than others. Some liked their jobs

and did not want to go to the trouble of working harder for more

money.

12 White employees were shown to have on the average 1.02

years of craft training more than blacks.

" j ———_

=

and education achievement level.'* The summary of the im-

pact of these factors is contained in Company Exhibit 1013'*

which shows a statistically estimated dollar value for each fac-

tor without regard to race, and accounts for the differences in

earnings between white and black employees by reasons other

than discrimination. The Company study and the plethora of

other statistical and testimonial data submitted by defendants

at trial are confirmed by the post-trial record required by the

District Court to be maintained, compiled, and reported by

petitioner.'®

The Circuit Court, without disputing the District Court's

finding that the plaintiffs did not prove a causal relationship

between the somewhat lower average earnings for blacks and

discriinination by defendants, stated that this rationale “must

fail” as a “general” defense. A. 87.

(2) The second, and somewhat related reason stated by the

District Court for its denial of back pay was that even if in-

jury to the class were assumed:

{I]n the particular context of this case the assessment of

back pay [to individuals] for pre-1963 discrimination

systematically perpetuated . . would be fraught with

speculation and guesswork.

* * * * * * *

If . . . am accurate determination—or even a reasonably

accurate estimate—of individual rights is to be the corner

1 National data showed that for equal years of schooling, a

black-white achievement differential existed, to the detriment of the

earning capacity of blacks.

4 A. 16.

1° The post-trial statistics showed that blacks are voluntarily

freezing within lines of progression at a ratio of three times that of

whites and at a job class 2.67 job classes lower than whites. The

difference in earnings due to an employee freezing at 2.67 job

classes lower approximates $555.36 per year.

_—

stone for back pay awards, then, with the exception of the

three specific situations noted, this cannot be done in the

present case... .

A. 67-68. The Circuit Court, however, rejected this analysis

in favor of an initial burden of proof on plaintiffs of only

showing a reasonable inference of “cognizable [economic] dep-

rivations.” A. 91.

The Circuit Court’s abrogation of the traditional require-

ment that a plaintiff prove a causal connection between an

alleged damage and a wrongful act by the defendant, and its

dismissal through a contrived two step analysis of the District

Court's discretionary concern over the speculative nature of

individual assessments of back pay raise important and sub-

stantial issues warranting review by this Court.

(3) The third reason stated by the District Court for its

denial of back pay was the defendant's good faith, reliance

on the state of the law, and complete lack of notice of any

allegedly discriminatory practices in violation of Title VII and

Section 1981.

The District Court noted that prior to its decision the rule

which prevailed nationwide and more particularly in the Fifth

Circuit was that the lack of plant-service seniority, upon which

the government ultimately based its discrimination claims, was

not a discriminatory practice in the steel industry. This steel

industry rule began with Whitfield v. United Steelworkers of

America, 263 F.2d 546 (Sth Cir.), cert. denied, 360 US.

902 (1959), a pre-Act case.

In Whitfield, the Fifth Circuit approved a 1956 agreement

between the union and Armco Steel Corporation whereby seg-

regated lines of promotion were merged and substantial pref-

erential rights were afforded to black transferees. 263 F.2d

at 549. In response to objections raised by five black em-

= =

ployees, the court found that the then Armco seniority system

as modified was not discriminatory:

Such a system [as merged] was conceived out of business

necessity, not out of racial discrimination. An employee

without the proper training and with no proof of poten-

tial ability to rise higher, cannot expect to start in the

middle of the ladder, regardless of plant seniority.

263 F.2d at 550.

The Fifth Circuit made it clear that the Armco system

should serve as a model for steel seniority systems:

If there is racial discrimination under the new contract,

it is discrimination in favor of Negroes.

* * * * * * *

[The company and union] have a contract that from now

on is free from any discrimination based on race. Angels

cou!d do no more.

263 F.2d at 549, S551.

The changes endorsed by the Fifth Circuit in Whitfield were

instituted throughout the steel industry with few exceptions. In

1962 and 1963, changes were made at petitioner’s Fairfield

Works which were modeled upon and even exceeded the changes

made at Armco.'®

Whitfield’s endorsement of the Armco system was upheld

by the first three Title VII decisions involving steel plants on

the basis of business necessity. United States v. H. K. Porter

Company, 296 F.Supp. 40, 66-67 (N.D. Ala. 1968); United

16 LOPs were reorganized and merged, plant wide bidding was

used for entry-level job', and broad pools were created increasing

opportunities and giving protection from layoffs to longer-serviced

employees. A. 55.

States v. Bethlehem Steel Corporation, 312 F.Supp. 977 (W.D.

N.Y. 1970) (Lackawanna plant of Bethlehem Steel); Matter

of Bethlehem Steel Corporation, OFCC Dkt. 102-68 (Dec. 18,

1970) (Sparrows Point plant of Bethlehem Steel).

Even the Fifth Circuit observed in the opinion below that

until June 21, 1971, the date of the Second Circuit’s opinion in

Bethlehem Steel, the remedy of plant-service seniority was

unanimously held inapplicable to the steel industry due to the

dangers and complexities of the steel manufacturing process.

A. 98. Moreover, until the District Court decision below and

the Fifth Circuit's opinion in H. K. Porter, 491 F.2d 1105 (Sth

Cir. 1974), granting seniority benefits between different lines

of progression was considered, if anything, discriminatory to

whites. See, e.g., 263 F.2d at 550.

Considering this lack of notice of any alleged discriminatory

defects in the Fairfield seniority system, the District Court wrote:

Here, the company—particularly at upper management

levels—and the unions—particularly at the international

level, and their representatives—have been in the fore-

front of expanding employment opportunities for blacks.

There is no need to recount the evidence which establishes

the many initiative steps taken by them to eliminate racial

discrimination, albeit still falling short by today’s standards.

They have modified the employment practices at Fairfield

periodically to comply with all legal requirements as from

time to time they with reason understood them to be. .

They had good reason to believe that the seniority system

at Fairfield, lauded in Whitfield v. United Steelworkers,

263 F.2d 546 (Sth Cir. 1959), also was consistent with

Title VII, at least in this circuit. Though not a defense,

reasonable good faith efforts at compliance merit some

consideration, in equity, particularly where a purpose of

back pay awards is to encourage non-judicial solutions.

=

A. 66-67 (footnote omitted). However, the Fifth Circuit “thor-

oughly rejected” the District Court’s equitable consideration of

good faith, reliance on the state of the law. and lack of notice.

A. 99.

The decision below, by rebuffing totally the District Court's

analysis, is in conflict with this Court's opinion in Albemarle

Paper:

Where an employer has shown bad faith—by maintaining

a practice which he knew to be illegal or of a highly ques-

tionable legality—he can make no claims whatsoever on

the Chancellor’s conscience. But, under Title VII, the

mere absence of bad faith opens the door to equity; it does

not depress the scale in the employer's favor.

95 S.Ct. at 2374. Furthermore, the Fifth Circuit's decision con-

flicts in principle with Franks v. Bowman Transportation Co.,

44 U.S.L.W. 4355 (U.S. March 24, 1976). “We are not to be

understood as holding that an award of seniority status [or simi-

larly back pay] is requisite in all circumstances. The fashioning

of appropriate remedies invokes the sound equitable discretion

of the district courts.” 44 U.S.L.W. at 4363.

Additionally, the Fifth Circuit’s decision conflicts directly

with the Eighth Circuit’s opinion in U.S. v. N.L. Indus., Inc.,

479 F.2d 354 (1973). In N.L. Industries, despite a lengthy

analysis and a finding that back pay would otherwise be appropri-

ate, the Eighth Circuit nonetheless denied back pay because of a

lack of notice of discriminatory practices by the employer:

In this Circuit the law in regard to backpay has not been

adequately defined to provide employers and unions with

notice that they will be liable for a discriminatee’s economic

losses due to continuation of past or present discriminatory

policies. However, where an employer and union have had

ample opportunity to remedy an unlawful employment prac-

—

tice, they should be put on notice that they will be held

responsible for the economic losses accruing to the p«.ties

injured by such unlawful employment practices.

479 F.2d at 380.

Moreover, the blind imposition of back pay advocated by the

Fifth Circuit, upon an employer who did not intentionally en-

gage in alleged unlawful employment practices, who relied upon

the clear legal precedent which existed at the time endorsing its

employment practices, who willingly took every affirmative action

suggested by the law short of instituting LOP reforms which

would under the Whitfield opinion prove both unfair to skilled

workers already in the LOPs and to unskilled workers who would

be thrust in positions which they were untrained to fill, is clearly

contrary to numerous decisions on retroactivity. For example,

the Fifth Circuit itself has denied retroactive application to 42

U.S.C. § 1981, by holding that an award of back pay under §

1981 is inappropriate prior to the eficctive date of Title VII

because “substantial injustice” would result from lack of notice

to employers. Pettway v. ACIPCO, 494 F.2d 211, 255 (Sth Cir.

1974). Recently, the Second Circuit, in an action under the

National Labor Relations Act, denied retruvactive application to

certain new decisions, holding:

Because Laidlaw and Fleetwood imposed duties on em-

ployers which had not theretofore existed, it would be un-

just to use those cases to impose [monetary] liability fifteen

years after the events at issue transpired.

Machinists v. United Aircraft Corp., — F.2d —, 90 L.R.R.M.

2272, 2296 (2d Cir. 1975).

Aggravating defendant’s lack of notice under existing case law

is the fact that defendant had no knowledge that respondent Ford

would claim back pay for a group larger than 35 persons until

1973, inasinuch as Ford had never purported to represent the

— =

new Ford class before judgment. Petitioner had no notice of a

back pay claim on behalf of the new Ford class, at least until

December 1970 when the government filed its action. And the

government, of course, withdrew its appeal in favor of the Al/-

legheny settlement. This Court in Albemarle Paper held under

similar circumstances:

The respondents here were not merely tardy, but also in-

consistent, in demanding back pay. To deny back pay

because a particular cause has been prosecuted in an ec-

centric fashion, prejudicial to the other party, does not

offend the broad purposes of Title VII.

95 S.Ct. at 2375.

Clearly, petitioner was prejudiced by reliance on the state of

the law under Title VII and the lack of any back pay claim for

the pattern or practice group until almost 1971. The decision

below, in refusing to recognize the equitable discretion of the

District Court to fashion relief by in part considering employer

good faith, lack of notice, and reliance on the state of the law,

is contrary to the decisions of this Court, of other courts of ap-

peals on retroactivity, and to the purposes of Title VII itself—

to encourage employers and unions to voluntarily endeavor to

comply with the Act. See, e.g., Albemarle Paper, 95 S.Ct. at

2387-88 (1975) (concurring opinion of Chief Justice Burger).

These conflicts warrant review by this Court.

In view of the foregoing, the decision below of the Court of

Appeals for the Fifth Circuit should be reversed, and the Dis-

trict Court's decision reinstated. In the alternative, if this Court

has any doubt regarding the propriety of the District Court's

denial of back pay, it should correct the erroneous standards

applied by the Fifth Circuit and remand the case with appropri-

ate instructions.

— =

CONCLUSION

For the foregoing reasons, it is respectfully requested that this

Court issue a writ of certiorari to review the decision below.

Respectfully submitted

JAMES R. FORMAN, JR.

1600 Bank for Savings Building

Birmingham, Alabama 35203

Attorney for Petitioner

Of Counsel for Petitioner

THOMAS, TALIAFERRO, FORMAN,

BURR & MURRAY

1600 Bank for Savings Building

Birmingham, Alabama 35203

WILLIAM K. MURRAY

D. FRANK DAVIS

JOSEPH W. LETZER

APPENDIX

— <

ORIGINAL FORD COMPLAINT

In the

United States District Court for the

Northern District of Alabama

Southern Division

John S. Ford, Wilhe Cain, Willie L. 5

Coleman. Joe N. Taylor, Robert

Cain, David Bowie and Earl Bell,

Plaintiffs,

United States Steel Corporation, a Cor-

poration, United Steelworkers of

America, AFL-CIO, an Unincorpo-

rated Association; Local 1733 of

United Steelworkers of America,

AFL-CIO, an Unincorporated As-

sociation and William A. Daniels,

President of Local 1733 of the

United Steelworkers of America,

AFL-CIO,

Civil Action.

No. CA 66-625.

Defendants. }

Complaint

I

Jurisdiction of this Court is invoked pursuant to 28 U.S.C.

s 1343(4) and 42 U.S.C. § 2000e-S(f). This is a suit in equity

authorized and instituted pursuant to Title VII of the Act of

Congress known as “The Civil Rights Act of 1964”, 42 U.S.C.

$$ 2000e et seq. Jurisdiction of this Court is invoked to secure

SS

the protection of and redress the deprivation of rights secured

by 42 U.S.C. §§ 2000e et seq., providing for injunctive and

other relief against racial discrimination in employment.

II

Plaintiffs bring this action on their own behalf and on behalf

of other persons similarly situated who are employed by the

United States Steel Corporation at its mills, plants, and/or

other facilities located in the State of Alabama and in and

around the City of Birmingham, and who are members of the

United Steelworkers of America, AFL-CIO, and Local 1733

of the United Steelworkers of America, AFL-CIO, pursuant

to Rule 23(b)(2) of the Federal Rules of Civil Procedure. There

are common questions of law and fact affecting the rights of

other Negroes in this class who are and have been limited, classi-

fied and discriminated against in ways which deprive and tend

to deprive them of equal employment opportunities and other-

wise affect their status as employees because of race and color.

These persons are so numerous as to make it impracticable to

bring them all before this Court. A common relief is sought.

The interests of said class are adequately represented by plain-

tiffs.

Ill

This is a proceeding for a preliminary and permanent injunc-

ton, restraining defendants from maintaining a policy, practice,

custom or usage of: (a) discriminating against plaintiffs and

other Negro persons similarly situated because of race or color

with respect to compensation, terms, conditions and privileges

of employment and (b) limiting, segregating and classifying em-

ployees of defendant United States Steel Corporation who are

members of United Steelworkers of America, AFL-CIO, and

Local 1733 of the United Steelworkers of America, AFL-CIO,

— *

in ways which deprive plaintiffs and other Negro persons simi-

larly situated of employment opportunities and otherwise ad-

versely affect their status as employees because of race and color.

IV

A. Plaintiffs John S. Ford, Willie Cain, Willie L. Coleman,

Joe N. Taylor, Robert Cain, David Bowie and Ear! Bell are

Negro citizens of the United States, residing in the City of

Birmingham in the State of Alabama.

DB. Plaintiffs and the class they represent are presently em-

ployed in the Rail Transportation Department of defendant

United States Steel Corporation’s Fairfield Works.

C. Plaintiffs and the class they represent have been at al!

times material to this action members of defendant Local 1733

of the United Steelworkers of America, AFL-CIO, and through

their membership in Local 1733 are members of defendant

United Steeiworkers of America, AFL-CIO.

Vv

A. Defendant United States Steel Corporation (hereinafter

referred to as “the Company”) is a corporation doing business

in the State of Alabama and the cities of Birmingham and Fair-

field. The Company operates and maintains plants, mills and/or

other facilities located in and around the cities of Birmingham

and Fairfield in the State of Alabama. The Company is an em-

ployer within the meaning of 42 U.S.C. § 2000e-(b) in that

the Company is engaged in an industry affecting commerce and

employs more than 100 persons.

B. Defendant United Steelworkers of America, AFL-CIO

(hereinafter referred to as “the Steelworkers”) is a labor organi-

zation within the meaning of 42 U.S.C. §§ 2000e(d) and (e)

—_—-

in that the Steelworkers is engaged in an industry affecting com-

merce and exists, in whole or in part, for the purpose of deal-

ing with the Company concerning grievances, labor disputes,

wages, rates of pay, hours and other terms or conditions of em-

ployment of employees of the Company at its mills, plants and/or

other facilities located in various cities and states throughout the

United States, including employees of the Company’s mills,

plants and/or other facilities in and around the cities of Birming-

ham in the State of Alabama. The Steelworkers has more than

one hundred members.

C. The defendant Local 1733 of the United Steelworkers of

America, AFL-CIO (hereinafter referred to as “Local 1733”)

is a local subordinate of the Steelworkers and is a labor organiza-

tion within the meaning of 42 U.S.C. §§ 2000e-(d) and (e) in

that Local 1733 is engaged in an industry affecting commerce

and exists, in whole or in part, for the purpose of dealing with

the Company concerning grievances, labor disputes and other

terms or conditions of employment of employees of the Com-

pany at its mills, plants, and/or other facilities in and around

the cities of Birmingham and Fairfield in the State of Alabama.

Local 1733 has more than one hundred members.

D. Defendant William A. Daniels is the President and Chair-

man of the Grievance Committee of Local 1733.

VI

A. All matters regarding compensation, terms, conditions and

privileges of employment of the plaintiffs and the class they rep-

resent have been at all times material to this action, governed

and controlled by collective bargaining agreements entered into

between the Steelworkers and the Company and/or local sup-

plemental agreements (hereinafter referred to as “Agreements”)

entered into between Local 1733 and the Company under and

pursuant to the terms of the aforementioned agreement the de-

—~

fendants have established a promotional and seniority system,

the design, intent and purpose of which is to continue and pre-

serve, and which has the effect of continuing and preserving the

defendants’ long-standing policy, practice, custom and usage of

limiting the employment and promotional opportunity of Negro

employees of the Company because of race or color.

B. The Rail Transportation Department of the Company, in

which plaintiff and the class they represent are employed, is es-

sentially a small railroad company which operates within the

confines of the Company's Fairfield Works. This Department

consists of three subdivisions: (1) Road Operations, which con-

sists of several hundred Engineers, Firemen, Conductors and

Switchmen; (2) Maintenance of Way, which consists of track re-

pairmen and equipment operators; (3) Car Shops, which consists

of employees who build and repair railroad cars used by the

Company in its operations throughout the: ‘ipany’s complex in

and around the cities of Birmingham and Fairfield. The plain-

tiffs are employees in the Company’s car shop department known

as the Pratt City Rail Transportation Department of Fairfield

Steel.

C. Job classifications in the Pratt City car shop have been

given grade numbers which determine the particular job an

employee performs and the rate of pay he receives. Job class

members range from Job Class 1 through Job Class 14. The rate

of pay increases with the Job Class number. Promotion from one

Job Class to a higher Job Class is essentially based on the

seniority standing of an employee in a given line of promotion.

The seniority standing also determines which employees are laid

off first in the event of a reduction of the work force.

D. Up to and through part of 1963 the Company maintained

segregated seniority lines of promotion based on race. The

Negro line of promotion was limited to Job Class 1 through Job

Class 6. Negro employees were initially employed as Laborers

—_—"

in the car shop and could only enter the line of promotion

limited to Negro employees. The white line of promotion con-

sisted of Job Class 5 through Job Class 14. All white employ-

ees were initially hired in Job Class 5 and were promoted from

Job Class 5 directly to Job Class 8. Although there was a

Job Class 5 in both the Negro and white lines of promotion,

the work performed in Job Class 5 in the white line of promotion

was different from the work performed in Job Class 5 in the

Negro line of promotion. No whites were employed in Job Class

6. Pursuant to the policy, practice, custom and usage of de-

fendants, Negro employees were precluded from jobs in the white

line of promotion on the basis of race.

D. On or about August 5, 1963, the Company and Local

1733 entered into a written agreement which would have the ef-

fect of completely merging the separate seniority lines based on

race. The merger would have resulted in one line of promotion

consisting of all Job Classes theretofore separated on the basis

of race. Pursuant to the terms of the August 5, 1963 agree-

ment, there was to be a two-year period in which seniority

rights were to be exercised by Negro and white employees in the

former segregated lines of promotion only. At the end of the

two-year period, from the date of August 5, 1963, Negro em-

ployees would have been allowed to bid for any Job Class va-

cancy in the merged line of promotion, notwithstanding the

previous segregated lines of promotion based on race. At the

time the August 5, 1963 agreement was executed, the Company

was operating at less than full capacity and a number of em-

ployees, both Negro and white, were on layoff status.

E. On or about June 3, 1964, at about the time the Com-

pany began to recall a number of employees who had been laid

off, the Company and Local 1733 executed a subsequent agree-

ment which, in effect, abrogated the terms of the August 5,

1963 agreement. Under the terms of the June 3, 1964, agree-

ment, which is currently in operation, three lines of promotion

—

were established; lines 1A, 1B and 1C. The 1A line of promo-

tion includes most of the job classes always heretofore limited to

white employees, namely, Job Classes 8 through 14. The 1B line

of promotion includes two job classifications, both of which are

Job Class 5, which were always heretofore limited to white

employees. The 1C line of promotion includes the job classifica-

tions which had always been limited to Negro employees, namely,

Job Classes 5 and 6. Under operation of the June 3, 1964

agreement, Negro employees are purportedly given the oppor-

tunity for promotion to jobs 1A and 1B lines of promotion.

However, Negro employees must enter at the bottommost job in

the 1A and 1B lines of promotion and their seniority standing

dates from the time of initial entry into 1A or 1B jobs although

some Negro employees have more seniority than many of the

white employees in the 1A and 1B lines of promotion.

Vil

A. The effect, purpose and intent of the agreement executed

by the Company and Local 1733 on June 3, 1964, was to con-

tinue and render permanent the advantage that white employ-

ees had over Negro workers, which existed prior to August 5,

1963, because of the overt and public discriminatory policy of

the defendants. This effect, purpose and intent were continued

on and after July 2, 1965 through failure and refusal of the

defendants on and after that date to cancel the agreement of

June 3, 1964, and still continue to the present time. Plaintiffs

believe and allege that the Company and Local 1733 agreed,

conspired and acted in unison, and continue to conspire and act

in unison, to violate Local 1733’s duty under federal law to

represent the interest of its Negro members fairly, and honestly

and knowingly agreed and conspired, and continue to agree and

conspire, to suppress and limit the opportunities of Negro em-

ployees to obtain equal employment opportunities with the

Company. Plaintiffs believe and allege that the principal mecha-

—*

nism and device of this conspiracy, concert and agreement, is

the execution and continued adherence to the June 3, 1964

agreement which abrogated the terms of the August 5, 1963

agreement.

B. Subsequent to the execution of the June 3, 1964 agree-

ment, an ad hoc committee of Negro employees of the Com-

pany sought to get a copy of this agreement so as to petition for

the assistance of the officers of Local 1733 and the Steelworkers

in an effort to present a grievance for the purpose of cancelling

the June 3, 1964 agreement. The committee was advised by

Officials of the Company, the Steelworkers and Local 1733

that no such agreement existed. It was not until months later

when a copy of the June 3, 1964 agreement was printed and

distributed that the plaintiffs learned, as a matter of fact, that

the August 3, 1963 agreement had been abrogated.

C. On or about January 18, 1964 a group of Negro em-

ployees filed a complaint pursuant to the grievance procedure

set up under the collective bargaining agreement protesting the

execution of the June 3, 1964 agreement. On or about January

21, 1965, the grievance petition was returned to the committee

by an official of Local 1733 who advised the committee that

an Official of the Steelworkers had requested that the petition

be returned inasmuch as it would violate terms of a contract

agreement of September 30, 1964. The failure of the Steel-

workers and Loca! 1733 to actively press the grievance was

intended to deny, and had the effect of denying Negro em-

ployees fair representation as members of the unions on the

basis of race.

Vill

On or about January 6, 1965 the Company posted bids for

job classifications in the 1A line of promotion. Negro em-

ployees submitted bids for these jobs. However, they were ad-

Hinde ae cin >

A-9 —

vised by the Company they would have to take and pass a test

before they would be considered for the job vacancies. Here-

tofore, no test had been administered for promotion purposes in

any of the jobs currently listed in the 1A, 1B or 1C lines of

promotion. Several of the Negroes who agreed to take the test

and were successful have been allowed to fill some job vacancies

in the 1A and 1B line of promotion on a temporary basis. Plain-

tiffs believe and allege that the test is not professionally devel-

oped as required under 42 U.S.C. § 2000e-2(h) and that the

test, its administration and action upon the results, is intended

to discriminate against Negro employees because of race and

color.

IX

A. Neither the Company nor either of the defendant labor

unions has made any efforts or attempts since June 3, 1964, and

through or since July 2, 1965, to correct, modify or disavow

the policy, practice, design or purpose perpetuated by the dis-

criminatory agreement of June 3, 1964.

B. All of the practices herein alleged existed prior to and

have continued to exist subsequent to July 2, 1965. The way

in which the lines of progression are presently structured is in-

tended to discriminate, and has the effect of discriminating

against the plaintiffs and the class they represent in ways which

deprive plaintiffs and the class they represent of equal employ-

ment opportunities because of race and color in violation of

42 U.S.C. §§ 2000e et seq.

xX

Plaintiffs and the class they represent are qualified for pro

motions and for training which could lead to promotion on the

same basis as such opportunities are provided for white em-

ployees.

— i

XI

The Company maintains racially segregated bath and toilet

facilities in violation of Title VII of the Act known as “The

Civil Rights Act of 1964”, 42 U.S.C. §§ 2000e et seq.

XII

A. On or about February 19, 1966 plaintiffs filed a com-

plaint with the Equal Employment Opportunity Commission

alleging a violation by the defendants of their rights under Title

VII of “The Civil Rights Act of 1964”, 42 U.S.C. §§ 2000e et

seq. On July 18, 1966 the Commission found reasonable cause

to believe that a violation of the Act as alleged by the plainti is

had occurred by the defendant. The Commission notified the

plaintiffs under date of September 8, 1966 that the Commission

had not achieved voluntary compliance by the defendant through

conciliation, as provided by Title VII of “The Civil Rights Act

of 1964” and that plaintiffs were entitled to initiate a civil

action in a United States district court, as provided by § 2000e-

5(f) of “The Civil Rights Act of 1964.”

B. Neither the State of Alabama, nor the City of Birming-

ham, nor the City of Fairfield have a law prohibiting the unlaw-

ful employment practices alleged herein.

XIII

Plaintiffs and the class they represent have no plain, adequate

or complete remedy at law to redress the wrongs alleged herein

and this suit for a preliminary and permanent injunction is their

only means of securing adequate relief. Plaintiffs and the class

they represent are now suffering and will continue to suffer ir-

reparable injury from the defendant’s policy, practice, customs

and usages as set forth herein.

— A-ll —

Wherefore, plaintiffs respectfully pray this Court advance this

case on the docket, order a speedy hearing at the earliest prac-

ticable date, cause this case to be in every way expedited and

upon such hearing to:

1. Grant plaintiffs and the class they represent a preliminary

and permanent injunction enjoining the defendants, United

States Steel Corporation, United Steelworkers of America, AFL-

CIO, Local 1733 of the United Steelworkers of America, AFL-

CIO, their agents, successors, employees, attorneys and those

acting in concert with them and at their direction from con-

tinuing to enforce, give effect to, or operate under the provisions

and terms of the June 3, 1964 agreement heretofore described.

2. Grant plaintiffs and the class they represent a preliminary

and permanent injunction enjoining the defendants, United

States Steel Corporation, United Steelworkers of America, AFL-

CIO, Local 1733 of the United Steelworkers of America, AFL-

CIO, their agents, successors, employees, attorneys and those

acting in concert with them and at their direction from using or

agreeing to any seniority agreement other than (a) the August 5,

1963 agreement heretofore described; or (b) a seniority arrange-

ment which recognizes the seniority rights of all employees

without regard to race or color.

3. Grant the plaintiffs and the class they represent a pre-

liminary and permanent injunction enjoining the defendants.

United States Steel Corporation, United Steelworkers of Amer-

ica, AFL-CIO, and Local 1733 of the United Steelworkers of

America, AFL-CIO, their agents, successors, employees, attor-

neys and those acting in concert with them and at their direction

from continuing or maintaining any policy, practice, customs or

usages of denying, abridging, withholding, conditioning, limiting

or otherwise interfering with the rights of the plaintiffs and others

similarly situated to enjoy equal employment advancement or

training for advancement as secured by Title VII of “The Civil

Rights Act of 1964”, 42 U.S.C. §§ 2000¢ et seq.

aw p83 aw

4. Grant plaintiffs and the class they represent a preliminary

and permanent injunction enjoining the defendant, United States

Steel Corporation, its agents, successors, employees, attorneys

and those acting in concert with them and at their direction from

continuing or maintaining the policy, practice, custom and usage

of maintaining racially segregated bath and toilet facilities.

5. Allow plaintiffs their costs herein, including reasonable

attorneys’ fees and other additional relief as may appear to this

Court to be equitable and just.

Respectfully submitted

/s/ OSCAR W. ADAMS, JR.

OSCAR ADAMS, JR.

1630 Fourth Avenue, North

Birmingham, Alabama

JACK GREENBERG

LEROY D. CLARK

ROBERT BELTON

10 Columbus Circle

New York, New York

Attorneys for Plaintiffs

ae a en .

— A-13 —

AMENDMENT TO THE ORIGINAL

FORD COMPLAINT

In the United States District Court

For the Northern District of Alabama

Southern Division

John S. Ford, et al., >

Plaintiffs,

> Civil Action No. 66-625

United States Steel Corporation,

et al.,

Defendants. /

Amendment to the Complaint

Come now the plaintiffs, by their undersigned counsel, pur-

suant to the Order of the court of August 2, 1967 and here-

with file an amendment to their complaint in accordance with

the opinion of the court of August 2, 1967 on the designation

of the class:

Amending Paragraph II to read as follows:

Plaintiffs bring this action on their own behalf and on be-

half of other Negro persons similarly situated, who are em-

ployed in the Rail Transportation Department of the United

States Steel Corporation, whose promotion and seniority rights

are governed by the seniority arrangements which are alleged

herein to be structured or maintained in violation of their in-

dividual rights and rights of the members of the class, pursuant

to Rule 23(b)(2) of the Federal Rules of Civil Procedure. There

are common questions of law and fact affecting the rights of

other Negroes in this class who are, have been, and continue

a= frl4 =

to be limited, classified and discriminated against in ways which

deprive and tend to deprive them of equal employment op-

portunities and otherwise affect their status as employees be-

cause of race and color. These persons are sO numerous as

to make it impracticable to bring them all before this Court.

A common relief is sought. The interests of said class are

adequately represented by plaintiffs.

Amending Paragraph IV to read as follows:

Plaintiffs and some members of the class they represent have

been at all times material to this action members of defendant

Local 1733 of United Steelworkers of America, AFL-CIO,

and through their membership in Local 1733 are members

of defendant United Steelworkers of America, AFL-CIO.

This 28th day of September, 1967.

Respectfully submitted,

OSCAR W. ADAMS

1630 Fourth Avenue North

Birmingham, Alabama

JACK GREENBERG

LEROY D. CLARK

ROBERT BELTON

10 Columbus Circle

New York, New York 10019

Attorneys for Plaintiffs

— A-15 —

Certificate of Service

I hereby certify that a copy of the foregoing Am ondment

to the Complaint has this day been served upon:

Jerome A. Cooper, Esq.

Cooper, Mitch & Crawford

1025 Bank for Savings Building

Birmingham, Alabama 35203

attorneys of record for defendants United Steelworkers of

America, AFL-CIO; Local 1733 of United Steelworkers of

America, AFL-CIO; and Orville M. Duggan, President of Lo-

cal 1733 of United Steelworkers of America.

— A-16 —

COMPANY TRIAL EXHIBIT 1013

Summary of the Impact of Various Factors on Earnings

Differences According to Color

Estimated Impact of Factor of

White-Black Earnings Differential

Factor Lower Estimate Upper Estimate

SD. FD PR oo cc wccesses $80 $137

ee CR GTN osc ccccvece $69 $344

3. Quantity of Schooling’ ..... $351 $400

4. Craft Training’ ........... $450 $521

5. Corporate Service® ........ ($117) ($104)

6. Achisvement® .....cccccees $188 $496

ME 6<ecinecdskeuess $1021 $1794

* The estimates for this factor were derived assuming that whites

(a) froze at the same rate as blacks and (b) froze at the same job

class as blacks. The lower estimate assumes that 7.9 per cent of all

white employees froze at job class 5.9 and that their earnings were

therefore reduced by $1014, the differential between the projected

earnings of the average white freezees and the projected earnings for

job class 5.9. The 7.9 per cent multiplied by $1014 yielded the

lower estimate of $480. Alternatively, since the average job class

of all white employees in the line of progression is 13.0, the carnings

reduction of the additional 5.1 per cent white “freezees” would be

greater than $10.4. The upper estimate assumes that 5.1 per cent

of the hypothetical white freezees experienced reduced earnings of

$2151—the projected earnings differential between job class 13.0

(the average job class of whites in the LOP)—and job class 5.9 (the

average job class of black freezees). Therefore, 2.8 per cent multi-

plied by $1014 plus 5.1 per cent multiplied by $2!51 yields the

upper estimate of $137 (See Table 15).

_" Missing bids has a negative impact on earnings. Table 17 es-

timates that for each bid missed 1970 earnings were reduced by

an Spt? <

$3.05. The 98 per cent confidence, interval of this estimate was

$2.25 to $3.85 (See Table 17). The lower estimate for this factor

‘merely multiplies the black-white differential number of “missed

bids” (Table 16) by the minimum 98 per cent confidence estimate

for the impact of “missing bids” on earnings (i.e., 32.8 multiplied

by $2.25 = $69.)

The upper estimate utilizes the estimated impact of spending

“additional days in the pool” on earnings. Table 17 estimated that

each additional day in the pool resulted in a decrease in 1970 earn-

ings of $0.29. The 98 per cent confidence interval for this estimate

is $0.258 to $0.322. Multiplying the maximum negative impact of

additional days in the pool on earnings—$0.322 by the black-white

differential number of days in the pool (1068—See Table 16)

yielded the upper estimate of $344.

* Additional years of schooling were estimated to have increased

the 1970 earnings of Fairfield employees by between $125.2 and

$142.8 (98 per cent confidence, see Table 20). Multiplying the

minimum estimate by the white-black schooling differential (2.8,

Table 19) yields the lower estimate of $351. Multiplying the maxi-

mum estimated impact of education on earnings ($142.8), yields

the upper estimate of $400.

“ Whites have 1.02 more years of craft training than blacks (see

Table 19). An additional one-half year of craft training was esti-

mated to result in between $220.4 and $255.6 additional earnings

in 1970 (see Table 20). Therefore, 1.02 additional years of craft

training would be expected to result in between $450 ($220.4 mul-

tiplied by 1.02/.5) and $531 ($255.6 multiplied by 1.02/.5) addi-

tional dollars of earnings for a Fairfield employee.

* Blacks have 2.3 more years of corporate service than whites.

An additional year of corporate service is estimated to result in be-

tween $45 and $51 of additional earnings in 1970 (see Table 20).

Therefore, 2.3 additional years of corporate service should result

in between $104 ($45 multiplied by 2.3) and $117 ($51 multiplied

by 2.3) additional dollars of earnings.

‘ In terms of equal achievement years of schooling, national data

estimate the white-black differential to be between 1.4 and 3.7 (see

Table 3). Given the estimated impact of a year of schooling on

earnings for Fairfield employees ($134, see Table 20), an achieve-

ment differential between 1.4 and 3.7 years of schooling could be

expected to result in between $185 ($134 mutliplied by 1.4) and

$496 ($134 multiplied by 3.7) lower earnings for those with the

lower achievement levels.

— A-18 —

DECREE OF THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

United States District Court, Northern District of Alabama

Southern Division

United States of America, ’

Plaintiff; | Civil Action No. 70-906

Luther McKinstry, et al.,

Plaintiffs; | Civil Action No. 66-343

William Hardy, et ai.,

Plaintiffs; | Civil Action No. 66-423

John S. Ford, et al.,

Plaintiffs; | Civil Action No. 66-625

Elder Brown, et al.,

Plaintiffs; | Civil Action No. 67-121

Elex P. Love, et al.,

Plaintiffs; + Civil Action No. 68-204

Thomas Johnson, et al.,

Plaintiffs; | Civil Action No. 69-68

James Donald, et al.,

riaintiffs; | Civil Action No. 69-165

James Fillingame,

Plaintiff, | Civil Action No. 71-131

VS.

United States Steel Corporation,

et al.,

Defendants. |

Decree

It is hereby ORDERED, ADJUDGED and DECREED as

follows:

1. Generai Injunction.—The defendants, the United States

Steel Corporation (hereinafter the Company or Management),

at aA Nn ae cama

— A-19 —

the United Steelworkers of America, AFL-CIO-CLC, and Lo-

cal Unions 1013, 1131, 1489, 1700, 1733, 2122, 2210, 2405,

2421, 2927, 3662, and 4203, United Steelworkers of America,

AFL-CIO-CLC, (hereinafter the Union) and each of them, their

officers, agents, members, employees, successors and all persons

in active concert or participation with them be, and hereby are,

permanently enjoined and restrained at the Company’s Fair-

field Works from:

(a) Failing or refusing to hire, promote, upgrade, assign,

recall or transfer any individual because of such individu-

al’s race or color;

(b) Discharging, demoting, laying-off or otherwise ad-

versely affecting any individual’s status as an employee,

because of such individyal’s race or color;

(c) Limiting, segregating or classifying any employee or

employees in any manner which would deprive or tend

to deprive them of equality in the terms, conditions, privi-

leges, and opportunities of their employment because of

their race or color;

(d) Engaging in any acts or practices which have the

purpose or effect of discriminating against any individual

because of his race or color, or which perpetuate or tend

to perpetuate the effects of past practices which discrimi-

nated against individuais because of their race or color;

(e) Discriminating or retaliating in any manner against

any employee or applicant for employment who has fur-

nished information, testified or participated in any respect

in the investigation and prosecution of this action or any

other Title VII matter; and

(f) Failing or refusing to fully implement, or to partici-

pate and co-operate in the implementation of, the provi-

sions set forth in the body of this Decree.

— A-20 —

2. Definitions.—For purpose of this Decree, the following

definitions shall apply:

(a) The term “production and maintenance” or “P&M”

employees refers to all employees covered, or who previ-

ously have been covered, by the Basic Steel P&M Agree-

ments between the Company and the Union, the most cur-

rent of which is dated August 1, 1971.

(b) The term “trade and craft” refers to those P&M oc-

cupations which are so classified under the Basic Steel

P&M Agreement.

(c) Except as hereinafter modified by paragraphs 4(f)

and 4(g) of this Decree, the term “plants and divisions”

(referred to in the singular as “plant”) of the Fairfield

Works refers to the following facilities.

(1) Ensley Steel Plant

(2) Bessemer Rolling Mill

(3) Fairfield Steel Plant

(4) Coke and Coal Chemicals Division

(5) Fairfield Sheet Mill

(6) Fairfield Tin Mill

(7) Fairfield Wire Mill

(8) Rail Transportation Division

(9) Ore Conditioning Plant

(d) Except as otherwise specified, the term “salaried

clerical and technical jobs” refers to those clerical and

technical jobs within the bargaining unit represented by

Local 2210 of the United Steelworkers of America and the

term “excluded clerical and technical jobs” refers to those

clerical and technical jobs at the Fairfield Works which

are not represented by the Union.

— A-21 —

(e) The term “plant protection jobs” refers to those jobs

within the Plant Security Department which are within the

bargaining unit of Local 2927 of the Uni--d Steelworkers

of America.

3. Implementation Committee.—Within 10 days after the

entry of this Decree, the Company and Union shall each desig-

nate an individual to be a member of a three person Implementa-

tion Committee. Such Company and Union representatives shall

be the individuals having chief responsibility for handling griev-

ances at the Fairfield Works under the Basic Steel Agreements

at the Step Four level or, in their unavoidable absence, their

respective designees who shall be the available persons who

are most familiar with the operation of all collective bargaining

agreements in effect at the Fairfield Works and with the terms

and conditions of this Decree. The third person on such com-

mittee shall be a black employee of the Company who is a mem-

ber of the Union. Such person shall be appointed by the Court

after considering nominations by the various parties hereto, and

shall, when performing services on such committee, be com-

pensated at the expense of the Company at a rate comparable

to the income which would have been received by him had he

remained on his regular assignment.

(a) It shall be the responsibility of the Implementation

Committee to insure the dissemination of information and

explanations concerning the rights and procedures provided

for by this Decree. In carrying out this function, the Com-

mittee shall work in co-operation and regular consultation

with counsel for the United States in order that there may

be agreement between the parties to this action as to the

application and implementation of this Decree. In addition,

the Committee and counsel for the United States shall seek

as far as possible to resolve without resort to the Court

any problems which may arise in the effectuation of this

Decree. Meetings of the Committee with counsel for the

t

—_—Y

United States shall be held in Birmingham, Alabama,” a~’

the office of the Company’s Step Four representative at the

request of any member of the Committee or of counsel for

the United States upon five days’ notice, or at such other

place and upon such other notice as the participants may

agree to. At such meetings the Committee shall make

available to counsel for the United States all records of the

Committee, or other information, dealing with the matters

handled by or pending before the Committee or which are

otherwise the subject of the meeting. Counsel for private

plaintiffs shall likewise be consulted, advised and informed

as to the matters having unique significance to their clients.

(b) During the two weeks prior to and the three weeks

subsequent to the effective date of the substantive provisions

of this Decree (the effective date being 90 days after entry)

the Committee shall meet regularly at the Fairfield Works

Employment Center to advise employees and other inter-

ested persons of the rights and procedures provided for by

this Decree.

(c) At least 45 days prior to the effective date of the

substantive provisions of this Decree, the Company and the

Union shall address letters to each employee of the Fair-

field Works. The letters shall explain and outline in general

terms the provisions of this Decree and procedures estab-

lished by it. The letters shall also advise of the establish-

ment of the Implementation Committee, the identity and

business address of its members, and the dates, times and

place at which its members will be available to provide

further information and explanations concerning this De-

cree and its implementation. The text of such letters shall

be reviewed by counsel for the United States prior to their

issuance. Nothing herein shall prevent the United States,

the Co:npany or the Union from sending appropriate in-

formation to employees of Fairfield Works at any time.

_Y

(d) Subsequent to the effective date of the substantive

provisions of this Decree, any employee of the Fairfield

Works who feels aggrieved in regard to the application of

this Decree shall have the right to make a complaint to his

appropriate grievance committeeman or assistant grievance

committeeman. Such grievance committeeman or assistant

committeeman shall promptly write up such complaint on

a customary grievance form and it shall be stamped or

marked as one arising under this Decree. A copy of such

a grievance shall be made immediately available to the

Committee. All actions taken with respect to such griev-

ance shall be promptly reported in writing to the Committee

for its review and, if appropriate to effectuate this Decree,

its immediate action: Copies of all such grievances and

reports, and notifications of any additional action by the

Committee, shall be promptly mailed or otherwise delivered

to counsel for the United States. Action taken pursuant to

the grievance procedure or by the Committee on any griev-

ance shall not bind the United States in any subsequent

proceedings brought before this Court to enforce or other-

wise effectuate this Decree and the purposes and objectives

of Title VII of the Civil Rights Act of 1964.

4. Seniority—A model set of Seniority Rules and Regula-

tions to be applicable to each of the plants and divisions of the

Fairfield Works (other than Train Operations) is hereby estab-

lished in the form of Appendix “A”, attached hereto and made a

part of this Decree by reference. Lines of Progression in the

form of Appendix “B”, attached hereto and made a part hereof

by reference, are hereby established. Seniority Rules and Regu-

lations and Lines of Progression for the Plant Security Depart-

ment are attached hereto as Appendix “C” and made a part

hereof by reference. Seniority Rules and Regulations for Train

Operations are attached hereto as Appendix “D” and made a

part hereof by reference.

—

These Seniority Rules and Regulations and Lines of Progres-

sion may be altered or added to by the parties thereto, provided

that any such alteration or addition is consistent with the pur-

poses of this Decree and the principles of seniority established

herein, and provided further that copies of any such alteration

or addition shall be filed with the Court and served on the United

States at least 60 days prior to its proposed adoption.

(a) Occupational seniority in the Ore Conditioning Plant,

Fairfield Tin Mill and Fairfield Steel Plant, and line of pro-

motion and departmental seniority at the Ensley Steel Plant,

Bessemer Rolling Mill, Coke and Coal Chemical Division,

Fairfield Sheet Mill and Rail Transportation Division (ex-

cept for Train Operations) are eliminated. Except where

the Basic Steel P&M Agreement or other agreements en-

tered into between the Company and the Union provide for

the use of Company continuous service or some greater

measure of continuous service than plant continuous serv-

ice, plant continuous service shall be used, subject to the

provisions of subparagraph (c) hereof and to the limitations

contained in the attached Seniority Rules and Regulations,

for all purposes in which continuous sérvice is utilized

among all production and maintenance employees including

promotion, demotion, layoff and recall.

(b) Reductions and Recalls —An opportunity for pro-

motion shall be afforded in the event of a reduction in force

(or elimination of an occupation) and the subsequent recall

situation in the following circumstances:

(1) On a reduction in force (or elimination of a job)

an employee who would otherwise go “to the pool” or

“to the street” shall, if he has greater plant continuous

service than an employee on an occupation which is

immediately above his occupation, be retained in the

line and the junior employee be displaced; provided,

however, that the promotion to the vacancy created

lewis pine fete oo

— A-25 —

by such displacement shall be given to that employee

of the same occupation having the greatest seniority.

(2) On a recall following a reduction employees

shall return to work in order of their relative plant

continuous service dates; and an employee may exer-

cise his seniority to step up one job above the highest

job he had held on a permanent basis prior to the

reduction if he has relative ability and physical fitness

to perform the job in question.

(3) Critical jobs, being defined broadly as ones in

which a high degree of skill is required on the most

responsible jobs in a given operation, are identified on

Appendix “B”. As an exception to the above pro-

visions, no “bumping up” to a critical job shall be

permitted under (1) above except by an employee

who has previously been permanently assigned to

such job; and on a recall following layoffs the same

experienced people shall return to the critical jobs

up to the normal level of operations (so indicated on

Appendix “B”) in the same positions relative to each

other that existed prior to the layoff notwithstanding

the provisions of (2) above.

(4) There shall be only one promotion per em-

ployee under (1) and (2) above in any given reduc-

tion-and-recall cycle, and only two such promotions

per employee in any twelve month period. These

restrictions, and the limitation of a single step-up on

recall in (2) above, apply only so long as there are

sufficient other employees available for promotion

who have previously worked the occupations in ques-

tion on a permanently assigned basis and are still hold-

ing seniority rights in the line of promotion.

(5) No promotional opportunity is afforded under

(1) above on a layoff expected to last less than 15

— A-26 —

days or under (2) on a recall following a layoff which

in fact lasts less than 15 days.

The principles declared in this subparagraph are imple-

mented and detailed in Appendix “A”.

(c) Whenever an employee by successful bidding enters

a new line of promotion, his continuous service date for

promotional purposes in the new line shall, for the period

of one year following the date he begins work in such new

line on a permanent basis, be the date on which he so

begins work in such line. After the expiration of sucu

year his continuous service date for promotional purposes

in such line shall be his plant continuous service date,

which said date shall even during such first year be his

seniority date for purposes of retention or recall to such

line. On a reduction in forces or elimination of job dur-

ing such first year he may utilize his plant continuous

service date to remain in the line unless that would require

his “bumping up” under subparagraph (b)(1) above; and

on a recall during such first year he may utilize his plant

continuous service to return to a position to which he was

permanently assigned, but not to promote to a higher job

in the line using such service date under (b)(2) above.

(d) Temporary vacancies in entry level and other jobs in

lines of promotion which are to be filled by employees

working in the pool shall be filled by the most senior

employee (using plant service) in the pool on the turn in

the area in which a temporary vacancy occurs. These

areas shall not cover a geographical area larger than a

production department, and the service units that operate

across a plant or division shall be divided for this purpose

to coincide with the geographical boundaries of a pro-

ducing department, as indicated in Appendix “B”.

(e) The Conductors and Switchmen are hereby merged

into Local Union Number 3662 which shall represent all

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—- ro

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—_Y

Switchmen, Conductors, Train Operator Helpers and Train

Operators. For such affected employees, their continuous

service factor shall be their Rail Transportation-Train

Operations continuous service date.

(f) The Bessemer Rolling Mill shall be a department

(Area 8) within the Fairfield Steel Plant, and the affected

P&M employees shall be represented by Local 1013. For

such affected employees, their Bessemer Rolling Mill plant

continuous service date shall become their Fairfield Steel

Plant age in accordance with Appendix “A”.

(g) The Maintenance of Way Department of the Rail

Transportation Division shall be placed in the Fairfield

Steel Plant and the affected P&M employees shall be repre-

sented by Local 1013. For such affected employees, their

Rail Transportation plant continuous service date shall

become their Fairfield Steel Plant age in accordance with

Appendix “A”.

(h) All seniority units involving a 1A-1B arrangement

are hereby eliminated by merger, and those mergers and

other mergers to effectuate Title VII are indicated on

Appendix “B” by asterisks next to the unit number and

by a designation of the unit in which each job was pre-

viously located. Mergers effected by the Company and

Union prior to this action or prior to the Act, are indicated

in Appendix “B” by double asterisks next to the unit

number.

5. Transfers to Unionized Salaried Positions.—Within 90

days of the entry of this Decree, the Company shall post notices

upon the bulletin boards at each entrance to the plants to the

effect that each production and maintenance employee who is

not presently permanently assigned to a “salaried clerical or

technical job” or to the Plant Security Department shall have

the opportunity, during the next 120 days following such post-

— A-28 —

ing, to signify his desire to transfer to “salaried clerical and tech-

nical jobs” or to the Plant Security Department. Any produc-

tion and maintenance employee seeking a transfer pursuant to

this paragraph must indicate, on a form to be provided by the

Company, within said 120 days after said posting, the lines of

promotion containing salaried clerical and technical jobs or

within the Plant Security Department to which he wishes to

transfer. When a permanent vacancy occurs (created by death,

quit, discharge, retirement, or transfer out of the unit) in the

“salaried clerical and technical” or Plant Security units which

is not filled by an employee with rights in those units, employees

who have signified such desire to transfer, in such manner as pro-

vided herein, shall be considered by the Company. If ability

and physical fitness are relatively equal, such employee with the

greatest continuous service in his respective plant shall be offered

the assignment. The employee selected to fill such vacancy shall

have as his continuous service date in the new unit for seniority

purposes the plant continuous service date which he held in

the plant from which he transferred, provided, however, that for

promotional purposes during the first year following the date

he enters such new unit his service date shall be the date on

which he so begins work in such unit.

6. Training Opportunities.—The Company shall provide all

employees with such appropriate training and learning oppor-

tunities as are necessary to enable them to take full advantage

of the promotional and other advancement opportunities pro-

vided for by this Decree.

(a) The Company shall provide to those black employees

at Fairfield Works with Works seniority dates prior to Janu-

ary 1, 1963, who have worked 24 months or more in any

of the “helper” of “helper type” jobs identified in Appendix

“E” to this Decree, an opportunity to demonstrate whether

they are qualified to promote into the trade or craft occupa-

tion associated with such jobs as indicated on the Appen-

he ete ne wR

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— A-29 —

dix. Those who demonstrate the ability to perform as

journeyman shall be eligible to bid on vacancies in the ap-

propriate trade or craft in the same manner as provided

for craftsmen and apprentice graduates by Appendix “A”.

Those who demonstrate that they possess the basic knowl-

edge of the trade or craft but are not able presently to per-

form as journeyman shall be provided with the opportunity

(subject to reasonable limitations to be established by the

Implementation Committee, bearing in mind the number

of employees so eligible and ihe foreseeable requirements

for the trade or craft at the Works) to perfect their trade

or craft skills through on-the-job experience and training

or accelerated apprentice training and, upon successful

completion thereof (if, or as soon thereafter as, they have

48 months of experience on the “helper” or “helper type”

job and such training program), shali be eligible to bid on

vacancies in the appropriate trade or craft in the same man-

ner as provided for craftsmen and apprentice graduates by

Appendix “A”.

(b) The Company shall make available additional oppor-

tunities for training in, and advancement to, the position

of Car Repairman Welder and report its plan therefor to

the Court within thirty days after the entry of this Decree.

7. Affirmative Action.—The Company’s “Affirmative Action

Compliance Program,” which was effective May 1, 1972, pro-

vides goals for employment of approximately 28% black em-

ployees in defined categories of employment at Fairfield Works

in which under-utilization of minorities has been found to exist.

On the present record, the Court finds such goals to be in reason-

able compliance with the purposes of the Act; and said goals

are hereby incorporated into this Decree and made binding upon

the Company, provided that the goals referred to below shall be

made applicable to the occupations and positions set forth in the

following subparagraphs and shall be implemented, to the extent

— A-30 —

there are qualified black applicants or candidates available, as

indicated therein.

(a) Future Vacancies in the Apprentice Program: The

Company shall, to the extent there are qualified black ap-

plicants available who are incumbent P&M employees,

select at least one black applicant for every white applicant

selected to fill future permanent vacancies in the Appren-

tice Program until such time as approximately 25% of the

employees in Trade and Craft positions are black.

(b) Future Vacancies in Salaried C&T Jobs: Provided

there are no employees who pursuant to paragraph 5 qualify

and desire to fill permanent vacancies in entry level salaried

clerical and technical occupations within the work jurisdic-

tion of Local 2210, and provided further that such va-

cancies are not filled pursuant to the Local C&T Seniority

Rules and Regulations presently in effect, the Company

shall, to the extent there are qualified black applicants

available, assign one black applicant for every white ap-

plicant assigned to fill all future permanent vacancies in

entry level clerical and technical occupations until such

time as approximately 20% of the employees in salaried

clerical and technical positions are black.

(c) Future Vacancies in Excluded C&T Jobs. The Com-

pany shall, to the extent there are qualified black applicants

available, assign one black applicant for every white appli-

cant assigned to fill all future permanent vacancies in those

excluded clerical and technical occupations which have cus-

tomarily been treated as entry level occupations until such

time as approximately 20% of the employees in excluded

clerical and technical positions are black.

(d) Future Selection of Management Trainees: To the

exterit there are qualified black candidates available from

the ranks of P&M employees, the Company shall, begin-

ning with the 1973 management trainees, if any, select

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8. Earnings Retention.

— A-31 —

one black candidate for every two white candidates selected

from the ranks of P&M employees for entry into the Man-

agement Training Program at Fairfield Works until such

time as approximately 20% of the employees in supervisory

positions at the general foreman level or below are black.

(e) Future Direct Appointment to Supervisory Positions:

To the extent there are qualified black candidates available,

the Company shall appoint one black for every two white

employees appointed directly to supervisory positions at the

general foreman level and below from the ranks of P&M

employees until such time as approximately 20% of the

employees in supervisory positions at the general foreman

level and below are black.

(f) The Company shall not fail to meet the above re-

quirement for selection or appointment of black applicants

on the ground that such applicants are not qualified if they

possess qualifications equal to or exceeding those which

were possessed by a white applicant for the same or like

position who in the past was selected or appointed and who

has performed successfully in such position. In addition,

the Company shall provide an appropriate pre-apprentice

Or pre-journeyman course of instruction for those appli-

cants referred to in subparagraphs 6(a) and 7(a) above de-

signed to enhance the ability of an applicant to qualify for

the Apprentice Program or for obtaining craftsman status.

Any black employee at Fairfield

Works with a Works seniority date prior to January '1, 1963,

shall, in the event during the three years following the effective

date of this Decree he, upon or after entering a new line of pro-

motion, obtains such line as his home seniority unit, be pro-

vided with the following earnings protection: —

(a) Following such change in home seniority unit there

shall be added to the compensation paid such employee in

_—<

any pay period the product obtained by multiplying the

hours worked by him during such pay period times the

amount. if any, by which his prior hourly rate exceeds his

actual hourly rate for such pay period. “Hourly rate” for

this purpose shall be computed by dividing the base and

incentive earnings (but not shift, overtime or holiday pre-

miums) for a pay period by the number of hours worked

during such period; and “prior hourly rate” shall mean the

average of the hourly rates of such employee, so computed,

for the six pay periods immediately preceding his entering

the new line of promotion. Future general increases in the

standard hourly rate shall not diminish the amount of a dif-

ferential except to the extent of that portion of a general

increase which is designated in a Basic Steel Agreement as

an “increase in increment” between job classes (i.e., in-

creases in the amount of money separating one job class

from the next).

(b) If the transferring employee’s “prior hourly rate,”

computed under the above paragraph, would exceed the

“prior hourly rate,” similarly computed, of every employee

in the line of promotion to which he is transferring, no ad-

ditive in compensation under subparagraph (a) shall be pro-

vided.

(c) The additive in compensation under subparagraph

(a) shall terminate and cease upon the earliest of the fol-

lowing: ‘

(1) Fifty-two weeks after the transfer.

(2) After six consecutive pay periods in which the

employee works but is not entitled to any additive.

(3) Upon voluntarily thereafter transferring into or

entering some other line of promotion, seniority unit

or pool job. (For emphasis, an employee having rights

under subparagraph (a) who is involuntarily rolled

—_

back into the pool from his new line or unit will not

for that reason lose any entitlement to the additive.)

(4) Upon refusing, or failing to take an opportunity

for, a permanent promotion to a higher job in his line

of promotion or seniority unit unless less than 30 days

have elapsed since entry into such line or unit or since

his last preceding permanent promotion in such line or

unit.

(5) Upon twice failing to qualify for a permanent

position in an available higher job in the new line

or unit, provided, however, that two or more failures

to qualify within one thirty day period shall count as

only one failure.

9. Reports.—In accordance with the schedules set forth be-

low, the Company shall file the following reports with the Court

and serve copies upon all parties:

(a) Prior to March 1, 1976, a report shall be filed setting

forth for all P&M, C&T and Plant Security employees:

(1) A current seniority roster for each line of pro-

motion, seniority unit, and area pool within each

plant which reflects for each employee thereon: (A) his

name, badge number and race; (B) his plant continu-

ous service date established under this Decree; (C)(i)

the title, job class and line of promotion or area pool

of the job (using the designations appearing in Ap-

pendix “B”) on which he worked most frequently dur-

ing the last completed payroll period prior to August

1, 1973, and (ii) on the basis of the last 26 completed

payroll periods prior to August 1, 1973, his total hours

worked and his average hourly rate for (1) base, (2)

base plus incentive, and (3) total occupation earnings

during those periods; and (D) (i) the title, job class

and line of promotion or area pool of the job on which

ay X * ye

he worked most frequently during the last completed

payroll period prior to February 1, 1976, and (ii) on

the basis of the last 13 completed payroll periods prior

to February 1, 1976, his total hours worked and his

average hourly rate for (1) base, (2) base plus incen-

tive, and (3) total occupation earnings (in 1973 con-

stant dollars) during those periods.

A we eles et 1 OE eww. |

— A-35 —

was provided an opportunity to qualify and whether

or not he qualified; and (E) if assigned to a journey-

man occupation, the date, plant and unit of the as-

signment.

(3) A list of all members of the affected class who

have entered an on-the-job or other training program

pursuant to paragraph 6(a), with an indication for each

of: (A) his name and badge number, (B) the trade or

craft and the type of training program involved; (C)

his original home plant and his plant continuous serv-

(b) One year after the entry of this Decree, and annually

thereafter, a report shall be filed setting forth the following

information:

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(1) For each vacancy in an entry level or other job

within a line of promotion (other than apprentice va-

cancies) which is posted in accordance with the proce-

dures in Appendix “A”; (A) the title of the job and

the plant and line of promotion involved: (B) the

closing date for bidding; (C) a list of all bidders, in

order of their plant continuous service dates and in-

dicating for each: (i) his name, badge number, race,

and home plant; (ii) his plant continuous service date;

and (iii) whether or not his bid was successful. In any

instance where a black P&M employee has a plant

continuous service date which would have entitled his

bid to be successful but he is nevertheless not awarded

the vacancy, the reason or reasons for his non-selec-

tion shall be set forth in detail. If a Trade and Craft

vacancy is not filled, the reason for not doing so shall

be stated.

(2) A list of all members of the affected class who

have been given the opportunity to qualify pursuant

to paragraph 6(a) as journeymen with an indication

for each of: (A) his name and badge number; (B) the

trade or craft to which his “helper” or “helper type”

job was related; (C) his original home plant and his

plant continuous service date therein; (D) the date he

ice date therein; (D) his current status in the program;

and (E) his present plant, unit, job assignment and

continuous service date as an apprentice if he is an

apprentice. If an employee is dropped from a training

program provided for by paragraph 6(a), the reason

for such dropping shall be indicated.

(4) A list of all apprentice vacancies which are

posted for bids pursuant to Appendix “A” with an

indication for each of (A) the trade and craft in-

valved; (B) a list of all persons bidding on or other-

wise considered for each vacancy and for each such

person: (i) his name, badge number, race and home

plant; (ii) his plant continuous service date; (ili)

whether or not he was selected; and (iv) if most senior

and not selected, the reason why.

(5) A list of all persons newly hired into clerical

and technical positions with an indication for each of:

(A) his name, badge number and race; (B) the unit,

title and job class of the job involved and whether

it is an “included” or “excluded” position; (C) his date

of hire; and (D) his employment status as of the close

of the reported period.

(6) A list of all persons enrolled in the Company’s

management trainee program with an indication for

— A-36 —

each of: (A) his name and race; (B) the date of his

enrollment; (C) whether he was recruited from the

ranks of wage employees, from college, or from some

other source; (D) his employment status and the

plant, department and position to which he was as-

signed as of the close of the reported period.

(7) A list of all P&M employees who have been

directly appointed to supervisory positions from the

ranks of P&M employees during the reported period

with an indication for each of: (A) his name, badge

number, race and plant continuous service dates as

a wage employee; (B) the date of his appointment;

(C) the plant, department and supervisory position

to which he was appointed and the plant, unit and

job from which he was appointed; and (D) his em-

ployment status as to the close of the reported period.

(8) A list of all supervisory personnel at the Gen-

eral Foreman or comparable level and below with an

indication for each of: (A) his name and race; (B)

date of appointment as a supervisor; and (C) his em-

ployment status and place, department and position

to which assigned as of the close of the reported

period.

(9) A list of all reductions in force of 14 days

and, separately, of 15 or more days, with an indi-

cation for each of: (A) the plant and unit involved;

(B) the nature and extent (e.g., 15 to 10 turns, spe-

cific jobs if less than all, etc.) of the reduction; (C)

the duration of the reduction; and (D) if the reduc-

tion is of 15 or more days, for each employee who

promotes pursuant to paragraph 4(b)(2), (i) his name,

badge number, race and plant continuous service date

and (ii) the job to which promoted and the highest

job previously held on a permanent basis.

—_—<

(10) A list of all members of the affected class

transferring with “red circle” earnings protection pur-

suant to paragraph 8 with an indication for each of:

(A) his name, badge number and home plant; (B) the

unit or pool area from which he transferred and the

unit to which he transferred; (C) the date of his trans-

fer; (D) his “red circle” rate; and, (E) the current

earnings rate of the job he is working during the last

completed and closed payroll period prior to the date

of the report.

(c) Within sixty (60) days of the entry of this Decree,

the Implementation Committee shall: (1) compile by jobs

listed in Appendix “E” the names, badge number, address,

telephone number, plant rd plant continuous service date

of those members of the affected class referred to in para-

graph 6(a); (2) prepare a plan for the implementation of

paragraph 6(a) which shall indicate the period during which

the opportunities to qualify for journeyman status shall

be offered, the tests or other criteria to be used for deter-

mining qualifications, and the nature and length of the

on-the-job training or experience opportunities to be of-

fered; and (3) for the Pre-Journeyman and Pre-Apprentice

training opportunities provided for by paragraph 7(f), in-

dicate their nature, duration and manner in which they

will be offered.

10. Records.—The Company shall maintain all personnel

and payroll records necessary to compile the reports called for

by this Decree and shall also maintain all manning schedules

setting out temporary and permanent assignments in all lines

of promotion where such schedules in the past have been pre-

pared. Such records shall be made available for inspection

and copying by the United States or, to the extent pertinent, by

private plaintiff, during regular business hours and upon rea-

sonable notice. The court retains jurisdiction for a period of

— A-38 —

five years from the effective date of this Decree for the purpose

of resolving any disputes that may arise under this paragraph.

11. Class Actions.—The Court concludes that the following

actions are due to be maintained as class actions for the classes

indicated, finding that in each the prerequisites of Federal Rule

23(a) are satisfied and that in addition the provisions of Federal

Rule 23(b)(2) are applicable:

(a) McKinstry et al. v. U.S. Steel Corp., et al., CA 66-

343: the class being all black persons who have at any

time prior to January 1, 1973, been employed in the Plate

Mill department of the Fairfield Steel Plant.

(b) Hardy et al. v. U.S. Steel Corp., et al., CA 66-423:

the class being all black persons who have at any time

prior to January 1, 1973, been employed in the Blast Fur-

nace department of the Ensley Steel Plant.

(c) Ford et al. v. U.S. Steel Corp., et al., CA 66-625:

the class being all black persons who have at any time prior

to January 1, 1973, been employed in the former Pratt

City Car Shop line of promotion; and, for the purposes of

this Decree, the plaintiffs herein represent a class consist-

ing of all black persons who have at any time prior to

January 1, 1973, been employed at the Fairfield Works

(except to the extent they may be otherwise included as a

class member under subparagraphs (a) through (f)). This

latter class shall also include all black persons who have

unsuccessfully sought employment at Fairfield Works prior

to January 1, 1973.

(d) Brown et al. v. U.S. Steel Corp., et al., CA 67-121:

the class being all black persons who have at any time

prior to January 1, 1973, been employed in the Mainte-

nance of Way department of the Rail Transportation and

Material Handling Division of Fairfield Works.

—_<

(e) Love et al. v. U.S. Steel Corp., et al., CA 68-204:

the class being all black persons who have at any time

prior to January 1, 1973, been employed as Millwright

* Helpers at the Ensley Steel Plant.

(f) Donald et al. v. U:S. Steel Corp., et al., CA 69-165:

the class being all black persons who have at any time

prior to January 1, 1973, been employed as Machine Shop

Hookers in the Shops and Construction Department of the

Fairfield Steel Plant.

Although the classes are defined broadly and inclusively, as

above indicated, these actions, and this Decree, relate only to

claims of discrimination which are systematic in nature; claims,

if any, of class members of individual discrimination at vari-

ance with and contrary to the regular policies and practices are

not affected by these actions or the decree herein.

12. Notice.—A copy of this Decree and the relevant attach-

ments shall be maintained at the Superintendent’s office in each

plant and division. In addition, a copy of this Decree and its

attachments shall be made available at the Fairfield Works Em-

ployment Center to any employee, to any black former employee

and to any unsuccessful black applicant for employment prior to

January 1, 1973, who within six months after the date of this

Decree requests a copy. The Implementation Committee shall

take reasonable steps to inform such persons of the entry of this

Decree and of their rights to a copy thereof.

13. Back Pay.—An award of back pay to class members in

Civil Actions 66-343 (PM Fin. Hookers only), 66-423 and

66-625 shall be paid to those class members who have been

damaged by the discriminatory lines of promotion therein in-

volved. Jurisdiction is retained by the court to determine such

back pay on further hearings and proceedings. The Company

and Local 1013 shall each be assessed one-half of the award

in CA 66-343; the Company and Local 1489 shall each be

—_—S

assessed one-half of the award in CA 66-423; and the Com-

pany and Local 1733 shall each be assessed one-half of the

award in CA 66-625. Back pay relief in all other cases is

denied.

14. Attorney’s Fees and Costs.—An award of attorney’s fees

and costs in favor of the plaintiffs is made in CA 66-343, CA

66-423, CA 66-625, CA 67-121, CA 68-204 and CA 69-165,

the Company and the affected Local to each bear one-half of

such awards, respectively. An award of costs in favor of the

plaintiff in 70-906 is made, such amount to be paid in its en-

tirety by the Company. Case CA 69-68 was moot when in-

stituted and accordingly is hereby dismissed, each party to bear

its own costs. Case CA 71-131 was in essence a case charging

unfair representation by the union, which was not sustained

by the evidence, but the relief sought therein was to a limited

extent granted by this Decree under the other actions; and

accordingly each party shall bear its own costs in such case.

The Court retains jurisdiction to determine the amount of the

awards of attorney’s fees in the cases indicated.

15. Effective Date.—Paragraphs 4, 6, 7 and 8 of this Decree

shall be implemented and become effective August 1, 1973;

such paragraphs may be utilized on direction of the Implementa-

tion Committee during this ninety day period, and, to the extent

not so utilized, all permanent vacancies in any production and

maintenance job at Fairfield Works during this ninety day

period shall be filled on a temporary basis utilizing the current

rules for filling permanent vacancies. This is a final order and

judgment; provided, however, that inasmuch as certain matters

have been reserved for further proceedings, this shall not con-

stitute an appealable judgment (except in CA 69-68 and CA

71-131, which have been fully disposed of) until all remaining

such issues have been determined or until the Court hereafter

enters an order under Rule 54(b). Challenges in CA 70-906

to testing procedures are hereby severed and shall be separately

om OE an

tried at a time to be set by the Court subsequent to the resolu-

tion of all other issues referred to above.

. 16. Retained Jurisdiction.—The Court will retain jurisdic-

tion not only until disposition of those matters on which further

proceedings are needed under this order, but also thereafter for

the purpose of issuing any additional orders or decrees needed

to effectuate Title VII of the Civil Rights Act of 1964 or to

enforce or clarify the implementation of this Decree. Where an

application or motion for an order of enforcement or clarifica-

tion indicates by signature of counsel that it is unopposed by

the Company, the Union and the United States, the application

Or motion may be presented to the Court without hearing and

the proposed order may be immediately implemented.

Done this the 2nd day of May, 1973.

SAM C. POINTER, JR.

United States District Judge

—_~e

OPINION OF THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT

OF ALABAMA

United States of America,

Plaintiff,

Luther McKinstry, et al., Plaintiffs;

William Hardy, et al., Plaintiffs;

John S. Ford, et al., Plaintiffs;

Elder Brown, et al., Plaintiffs;

Elex P. Love, et al., Plaintiffs;

Thomas Johnson, et al., Plaintiffs;

James Donald, et al., Plaintiffs;

James Fillingame, Plaintiff;

Vv.

United States Steel Corporation et al.,

Defendants. *

Civ. A. Nos. 70-906, 66-343, 66-423, 66-625, 67-121,

68-204, 69-68, 69-165 and 71-131.

United States District Court,

N. D. Alabama, S. D.

Dec. 11, 1973.

Memorandum of Opinion

Pointer, District Judge.

Consolidated trial of these Title VII cases! began in June,

* Consolidated with: McKinstry v. United States Steel Corp., 66-

343; Hardy, 66-423; Ford, 66-625; Brown, 67-121; Love, 68-204;

Johnson, 69-68; Donald, 69-165; Fillingame, 71-131.

1 The Fillingame suit, CA 71-131, brought by a white employee,

is essentially a charge of unfair representation against the union. The

other private suits, brought by black employees, make claims under

42 U.S.C.A. § 1981 as well as under Title VII.

ae

—_~

1972. In December, 1972—after hundreds of witnesses, more

than 10,000 pages of testimony, and over ten feet of stipulations

and exhibits (the bulk being in computer or summary form)—

the parties rested, subject to the submission of certain supple-

mental computer studies and analysis. Trial would have been

even more prolonged but for the severance of one major issue

(test validation) and for the very professional attitude of all coun-

sel in expediting trial.* A decree of over 150 pages was entered

May 2, 1973, covering most issues; and on August 10, 1973, a

final judgment was entered covering all remaining issues except

that of test validation. This preface is given to explain why the

court in this opinion has chosen not to deal with each aspect and

issue but rather to focus on matters related to the few questions

as to which appeal has been taken.*

Overview of Operations and Organization |

“Fairfield Works,” one of the largest units of United States

Steel Corporation, consists of nine plants in Jefferson County,

Alabama. Two (Ore Conditioning; Coke & Coal Chemicals)

process raw materials. Two (Ensley; Fairfield) are basic steel

producing facilities, with some finished products. Four (Tin;

Wire; Sheet; Bessemer Rolling) make finished products. The

ninth* (Rail Transportation) provides rail transportation services

for the other eight.

2 For example, on one day the court was able to hear over 60

witnesses relative to a narrov’ dispute of fact. Rarely was the court

called upon to rule on matters of authenticity of documents.

* The court has been advised that the appeals are limited to back

pay and earnings retention (“red circle”) issues. While this opinion

is filed subsequent to entry of judgment the essential findings and

conclusions were communicated to the parties prior to the judgment

in a series of informal conferences.

+ The term “plant” is a misnomer for Rail Transportation but is

nevertheless used in this opinion for convenience.

an Sth

The plants came into being at different times, and some were

initially under different ownerships. Ensley, the oldest part of

the works, was started in 1886, while Ore Conditioning, the most

recent, was constructed in 1939-40. The nine plants now form

a single interrelated steel producing operation, with operational

responsibility vested in a General Superintendent. His principal

managerial assistants, called Division Superintendents, have

functional responsibilities which may include operations at more

than one plant.

Similarly, union organization—and subsequent management

recognition—occurred at different plants at varying times during

the late 30’s and early 40’s. Two locals of the Steelworkers

represent production and maintenance (P & M) employees of

the Rail Transportation plant; a separate Steelworkers local

represents P & M employees at each of the other eight plants.

A separate Steelworkers local represents plant protection em-

ployees throughout the works, and another represents the union-

ized clerical and technical (C & T) employees works-wide.°

In recent years the basic principles for employment of P & M

employees have been established in triennial industry-wide nego-

tiations leading to, e. g., the 1965 Basic Steel P & M Agreement.

These principles have, however, since 1953 been modified on a

local basis through the adoption of “local seniority rules and

regulations,” in which the various locals have asserted their

independence in collective bargaining. The consequence is that,

though the basic principles are similar, there are ten separate

arrangements governing seniority for P & M employees at Fair-

field Works, as well as a separate arrangement for plant protec-

tion workers and one for the unionized C & T employees. It

should be noted that employees holding trade and craft (T & C)

5 The United Steelworkers of America, AFL-CIO-CLC, and the

twelve Steelworkers locals constitute, along with the company, the

defendants in this litigation. Three other unions, not named as de-

fendants, have represented a limited number of employees in special-

ized operations.

= A-4§ —

positions in a plant are part of the same local which represents

non-T & C employees at that plant and are subject to the same

collective bargaining agreement, though with some special pro-

visions for T & C jobs.

In the steel industry in general, and at Fairfield Works in par-

ticular, there are significant fluctuations in operational require-

ments and, hence, in manpower levels. Some jobs may be worked

on a three-shift-a-day, seven-day-a-week basis (“21-turns”), and

then at other times worked one-shift-a-day, five-days-a-week by

a single man or crew (“5-turns”), or even completely halted,

with a variety of intermediate manning levels. Within a given

plant one operation may be on a 21-turn basis and another, dur-

ing the same period, on a 5-turn basis. This fluctuation consti-

tutes a major factor in the study of the “system” at the works

and, in turn, is dealt with at length in the collective bargaining

rules.

On a relatively busy day one would expect to find some

12,000 persons on the job® at Fairfield Works, of which some

27% would be black employees.? P & M employees constitute

the bulk of the work force—typically some 3,100 blacks and

6,000 whites—and, accordingly, it is not surprising that this

litigation has tended to focus principally on employment prac-

tices and conditions concerning P & M employees.

There are over a thousand P & M positions, most of which are

filled by more than one employee on a given day. These positions

_® There would be several thousand additional employees either

sick, on vacation or leave, or on lay-off.

* The record of the company in hiring blacks over the years is

sufficiently good that in none of the nie ie there a general pw of

discrimination in hiring. There is a claim of discrimination as to hir-

ing for certain types of jobs (e. g., supervisory) and as to initial

assignment of blacks disproportionately to less desirable plants. On

this latter claim the court finds from the evidence no such discrim-

a July 1965; and dn first claim the court has included

e decree provisions to mandate judicially parts of th ,

“Affirmative Action Compliance Seam sae _

— A-46 —

have a technical name generaly descriptive of their principal

function, e. g., “Rail Straightener Helper,” and frequently have

a shop name, e. g., “Gagger”. Each position has a prescribed

job class level, e. g., “JC 4”, which determines the relative wage

scale for that job in comparison with other jobs.* Most, but not

all, positions have production-oriented incentive pay arrange-

ments, either direct or indirect, some by individual performance

and others by crew or group productivity. The differences be-

tween these negotiated incentive plans may be quite significant:

for example, a JC 2 position with a “good” incentive plan may

be more attractive financially than one rated JC 6 with a “poor

plan. Of course, the earnings of any individual P & M em-

ployee are also dependent upon how many hours are worked

and when (e. g., overtime, shift premiums, and Sunday and holi-

day premiums).

Seniority System

Within each plant the higher paying jobs—virtually all in JC

5 or above, and some in JC 4—are grouped for promotional and

retention purposes in ladder-like sequences called lines of pro-

* The job class levels, which range from a low of JC 1 to a high

of oC Seems established in the late 40’s and early 50’s as an out-

growth of a wage inequity study program initiated under the —

of the War Production Board and conducted on an industry-wi °

basis. The levels were established after a consideration of a number

factors inherent in the jobs as performed at the time of the study, ¢.g.,

physical effort, mental effort, skills, responsibility, working conditions,

et cetera. The industry—companies and unions—has agreed not to

reevaluate these ratings except where the factors have changed a

the time of the study. At triennial bargaining sessions the actu

hourly rate for each job class level is determined by negotiation: e. i

under the 1971 agreement the hourly rates start with $3.385 for x

1 and rise to $5.905 for JC 30. While agreeing not to reevaluate

determinations for particular jobs absent a change in the job con-

tent, the parties have occasionally negotiated “differentials for “out-

of-line” or special situations (e. g., trade and craft).

—~ po

gression or promotion (LOP).® The groupings generally, but not

always, are composed of occupations which work together on

some process (e. g., feeding and operating a rolling machine) or

which perform similar functions (e. g., maintaining production

or inventory records). For the most part the upward sequence

is from the lowest JC occupation in the line to the highest; but,

here again, there are numerous instances in which a higher job

in the LOP may, whether by reason of its JC level, incentive

plan, or otherwise, be a lower paying job in practice than one or

more of those below it.

When a vacancy arises in a job in an LOP, those persons on

the immediately preceding rung of the ladder are entitled to first

consideration. If one of these persons is selected, this may create

a vacancy on that step of the ladder, which in turn is filled by

promotion of a person on the next preceding rung, etc. If this

process ultimately produces a vacancy on the bottom step of the

ladder, it is filled by bringing a new employee into the LOP.

The selection of which of several employees on the same step

of the LOP is to be promoted is essentially’® a question of which

is the “oldest” employee. At this point a generalization as to

works-wide practice can no longer be made; for under some local

* Composition of the several hundred LOPs in Fairfield Works

varies widely. Many have but one job (which eliminates the promo-

tional aspect of the LOP concept). Some are long lines, with the

bottom job(s) being JC 4 and, after many intervening occupations,

a top job as high as JC 30. Some LOPs have a top job below JC 10;

others have their bottom job above JC 10. Some have multi-manned

jobs, a number of employees working the same job at the same time;

others have but one employee filling each level of the ladder. Most

LOPs are ladder-like; but some have one or more branches, which

May Or may not reunite. Some treat several jobs as being on the

same level or even as the same step of the ladder; others treat each

job as a new step even if there is no change in earnings.

'® Under the contracts age is the determining factor only where

ability to perform the work and relative fitness of the competing

employees are relatively equal. In practice most vacancies are filled

in accordance with the age factor.

— d=

plant rules the oldest employee is the one who has been on the

preceding job longest (occupational seniority), while in others

it is the employee with longest service in the LOP (LOP seiior-

ity), in the department (departmerftal seniority), or in the plant

(plant seniority ).

In most plants the method for determining age for promo-

tional purposes is also used to determine age for the purpose of

job entitlement on reductions and increases in manpower levels.

The younger or junior employee so determined, is, in a work

reduction, “rolled back” to the next lower job or jobs in the

LOP until his age is sufficient to allow him to “hold”, thereby

displacing at that point a junior employee who then in like man-

ner rolls back into lower jobs or into the pool. The process is,

in essence, reversed on an increase in manpower levels. There

are various special rules, not identical for all plants nor neces-

sarily uniform within the same place, to cover particular situa-

tions; such as where a younger employee is for some reason hold-

ing a higher job in the LOP, or where an employee prefers “going

to the street” and taking supplemental unemployment benefits

(SUB), or where an LOP contains lower jobs that, due to prior

mergers of lines or otherwise, the employee has not previously

worked. There are special rules covering temporary assignments

and delineating between those vacancies considered permanent

and those deemed temporary.

The lower rated jobs, except in the Ore Conditioning Plant,

are grouped into pools, which generally correspond to geographi-

cal divisions or departments in the plant.'! These offer no pro-

motional opportunities as such;'? rather they are essentially

11 The basic concept of the pools, which were established in

1962-63, is not challenged by the United States or the private plain-

tiffs. The pools provide better protection against layoff than existed

prior to their creation, utilizing plant age to determine entitlement

to a pool job. In a sense the pool jobs represent a bottom job for all

lines of promotion.

12 There is a limited form of promotional opportunity within a

pool. The Company and local union have classified the jobs in

—_Y

“waiting” jobs—more menial jobs to which employees are as-

signed while they wait to get into, or return to, an LOP job.

Assignment of pool employees to temporary vacancies in LOPs

is left to the discretion of management, the evidence indicating

that the principles employed in making such assignments vary

from one supervisor to the next.

Permanent vacancies in an LOP which are not filled by

employees already in that LOP'® are filled by a bidding system

specified in the collective bargaining agreements: the vacancy is

“posted”; interested employees, whether in the pool or from

other LOPs, can bid on the vacancy; the company is then re-

quired, assuming relatively equal abilities and fitness, to select

that bidding employee with the most plant service where the job

is located. A grievance and arbitration procedure is spelled out

in the contracts; and the evidence demonstrates that the unions

have, in promotional disputes as well as in other matters, fairly

pursued such remedies for the employees without regard to

their race or color.'*

each area pool according to their relative desirability (from the

standpoint of earnings, exertion and working conditions). The em-

ployees on pool jobs having the longest service in the area which

the pool covers are entitled to a job with Job Desirability Levei 1

(most desirable), those with the next longest such service to JDL 2

jobs, and those with the least such service to JDL 3 jobs. The

selection of which job in the applicable JDL an employee is assigned

has been left to management's discretion.

_ 1% Those with recall rights to the LOP are first offered the posi-

tion before it is bid. It may be noted that, while most frequently it

is the bottom job in the LOP that is posted, on occasions (for exam-

ple, when employees lower in the line decline the promotion or when

there is a large upturn in the level of operations) some intermediate

job or jobs in an LOP may also be filled by the bid procedure.

_'4 This is particularly significant in matters such as promotional

disputes because the union will generally find itself urging a position

that, at the same time, is adverse to the best immediate ) tomers

interest of another of its members. In making this finding and

conclusion, the court is not expressing agreement with the result of

each grievance about which some evidence was presented at trial,

nor is the court saying that in each such dispute was any racial

— A-50 —

A significant degree of choice is reserved to the individual

employee. He'® may decline to bid from the pool or another

LOP on a posted vacancy in an LOP to which, based on plant

age, he presumably would be entitled. He may decline to take

a permanent promotion from a job in an LOP to a higher job

in that line. He is usually allowed to decline to accept a tempo-

rary assignment, whether that be a step-up in his own LOP or

an opportunity given a pool employee to work on an LOP job.

He may, after having declined such opportunities or assignments

in one or more occasions, change his mind when the situation is

next again presented.

Each LOP is, in essence, separate from all other LOPs, with-

out transfer rights except through the bid procedure,’® which

generally means starting at the bottom of the ladder and, under

the occupational and LOP age systems, as a “new” man. In

practical effect this means that an employee’s promotional his-

tory, at least in retrospect, is to a significant degree preordained

by the LOP which, through the voluntary bid system, he success-

fully chooses to enter. At the time of making his choice of

LOPs he can do little more than guess as to his future.’’ An

discrimination corrected. Rather, the court is saying that in the han-

dling of grievances there has been no racial discrimination as a sys-

temic matter, allowing for the possibility of some isolated aberra-

tions.

15 The masculine gender is used throughout this opinion for con-

venience. It should be noted however that the company has a num-

ber of female employees, including many in P & M jobs. This litiga-

tion does not involve any charges of sex discrimination, nor does

the court my that there is any evidence of such discrimination.

However, in framing its decree, the court has attempted to avoid any

provisions that would result in such discrimination or tend to per-

petuate the effects of past discrimination, if any, based on sex.

16 As an exception, the company and union in the Sheet plant

have provided a link between units 123A and 125A.

17 For example, in 1968 Oscar Beaton was the successful bidder

in two separate LOPs. His choice (contrary to his foreman’s ad-

— A-51 —

LOP which at the time appears to be most promising may, due

to differences in the health or circumstances of other employees,

in technological advances, in the demand and competitive situa-

tion for particular products, et cetera, provide in fact fewer op-

portunities than LOPs which he chose to turn down. Even within

an LOP he may find himself confronted with a similar dilemma

when the line divides into separate branches. The point of the

foregoing is not to condemn as such the seniority system, but

rather to emphasize that choice and chance play a vital role in

the system—and are, indeed themselves major elements of the

system which this court is called upon to evaluate under the pro-

visions of Title VII and 42 U.S.C. § 1981.

Perspective

In this litigation the court is looking not at a still photograph,

but rather at a motion picture, one which pans across nine plants

in Jefferson County, Alabama, and occasionally picks up activi-

ties in Pittsburgh or on a college campus. It commences many

years before passage of the 1964 Civil Rights Act. Nor has it

ended with the institution of these suits; indeed, it continued to

run during the five months of trial such that a frame of July

1972 had undergone changes when compared with one in De-

cember of that year. In like manner, the court is asked to fashion

remedies by estimating what this motion picture can depict in

the months and years ahead.

od

With over 10,000 employees, the number of interactions be-

tween employees and of possibilities for employment disputes be-

comes, Over a period of years, rather astronomical. Given the

racial composition of the work force, it is not surprising that a

a

vice) has resulted in a $1,200 loss ( ing his earnings to those

of the employee who advanced to do cher job on his declination)

in a three year period, and quite likely will result in further losses

in the years ahead.

very large number of disputes would be considered by one or

more of the participants as having racial implications. Indeed,

it is understandable that black employees, having experienced

various forms of direct and indirect racial discrimination in other

areas of life, would frequently perceive any disappointments in

employment matters from a like perspective. To accept this as

so does not mean, of course, that their perceptions are either al-

ways correct or never correct.

The coui%’s attention in this litigation'* is directed however not

to individual complaints as such, but to charges of discriminatory

procedures, policies, and continuing practices. The focus is upon

a system, not upon the isolated aberrations therefrom as such.

The system, of course, involves not merely a study of rules and

procedures, whether express or implied, but also a consideration

of how these work in application. There is evidence, for ex-

ample, that George Davis, a black millwright, may have the

wrong seniority date. The applicable rule has been that his

“age” is to be computed from the time he became a millwright

helper, and he says that he became a helper earlier than the date

shown for him on the seniority lists. While not called upon to

determine the merits of each such complaint, the court can, how-

ever, conclude from the evidence concerning Davis and others

that (1) one of the attributes of the system is that it is not perfect

—the possibility of error is indeed a part of the system; (2) the

system provides mechanisms for the correction of errors (¢. g.,

the grievance procedure and collective bargaining); and (3) the

corrective mechanisms are themselves impertect.

The focus of this litigation is whether this imperfect sys-

tem, with its imperfect correcting mechanisms, meets the stand-

ards imposed by law and, to the extent it does not, how such

18 OF course, an action com be brought seqpectiag 0. dlagh, Se

lated act of discrimination under 42 U.S.C.A. § 2 -2. But each

of the private plaintiff cases here involved has a broader a. It is

doubtful that the court could have physically managed the litigation

if each possible claim of individual discrimination had been pressed

through the vehicle of these cases.

—_—~

should be corrected. So, we are concerned about the “age” of

George Davis not to correct an error in his seniority date, but

rather to evaluate the system and its elements. If the mumber of

like incidents is sufficiently high, we may take thus to be chawac-

teristic of the system and, if it tends to affect blacks te a greater

degree than whites, we are called upon to view the system im this

respect as racially discriminatory and provide rectification.

Seniority questions in a real sense are not matters of the com-

pany or the union “doing something” to somebody else, but

rather disputes between two employees or groups of employees in

which a major objective of company and union is to survive un-

scathed. Yet the perspective of the plaintiffs (as well as white

employees) frequently is that “they”—~meaning the company or

union or both—did something or failed to do something. But the

plaintiffs and the other employees are in many respects part of

the “they”, whether as employees of a corporation which can only

act through its agents, or as members of a union which likewise

is ultimately dependent upon the actions of its members.'®

It is easy enough to hold that policies established by the

work’s General Superintendent are those “of the company.” At

lower echelons the answer is more difficult. For example, the

racial prejudice of a turn foreman translated into action by the

unfair assignments of temporary work, or of some skilled white

workman in refusing to give training to a black employee, is

discrimination. But when such actions are contrary to estab-

lished policy of the company, a policy which upper managemeni

attempts to enforce within means reasonably available, these

should not, it seems, be taken as company action,*° that is, inso-

far as representing any policy or procedure of the company.

‘* In this connection it is not without significance that the unions

6 te See plat and Bomemer Relling PRES ar Comumned by Vast

rs.

20 A distinction can be drawn betweem an unintended or acciden-

tal act and an intended act which, though without bad motives, pro-

—_

When is a procedure racially discriminatory? Only when

the impact falls solely on black employees? Only when the bene-

ficiaries of the practice are solely white employees? If affirma-

tive answers were to be given, very few, if any, of the plaintiffs’

claims could be sustained. This court concludes, to the con-

trary, that a practice or procedure which has mixed racial effects

may nevertheless be presumptively violative of Title VII where

the benefits or detriments therefrom bear a significant correlation

to race. It should be noted that efforts to correct such situations

can likewise be expected to produce benefits and detriments

which do not completely follow racial lines.

Finally, this court must continue to remind itself that the

principles governing this industrial community were not divined

in the sanctuary of a theoretician’s office, but rather to a large

extent were evolved through trial and error over a long span

of time by people having to live with the consequences.*' So

then, the court should be wary of adopting a cavalier attitude

toward unnecessary alterations in the basic fiber and structure

of this community, while at the same time keeping in mind that

the “business necessity” doctrine means just what the words de-

note and that these long-standing rules “do not, per se, carry the

authoritative imprimatur and moral force of sacred scripture, or

even of mundane legislation.” United States v. Jacksonville Ter-

minal Co., 451 F.2d 418, 454 (CAS 1971).

duces a proscribed result. Cf. Griggs v. Duke Power Co., 401 US.

424, 432, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), and Rowe v. GM

Corp., 457 F.2d 348 (CAS 1972). This is not, of course, to rule

that an individual claim under Title VII cannot be predicated on an

action by a foreman in the scope of his employment.

21 Note also that the older practices, developed when there was

direct segregation of most P & M jobs, were not themselves racially

motivated—they rather were dealing with relative seniority between

employees of the same race.

— A-55 —

Discrimination

The foundation for this litigation rests upon the undisputed

fact that at Fairfield Works a policy of segregation was generally

followed until the past decade. Most LOPs were segregated, with

the black-only and few racially-mixed lines containing, not sur-

prisingly, most of the less desirable jobs and none of the highest

paying ones. There were few black employees in T&C positions,

and none in clerical and technical jobs, plant protection occupa-

tions, or managerial and supervisory positions.

In the early 60's, however, largely in response to Executive

Order 10925 and Whitfield v. United Steelworkers, 263 F.2d

546 (CAS 1959), non-discrimination became the announced

official policy at the works. By 1963, the company and unions

had established the system, previously described, for pooling the

lowest paying jobs and for open bidding into the LOPs. They

also had begun a program for merging LOPs, a program under

which, ultimately, a majority of the formerly all-black and

racially-mixed lines were mered into formerly all-white ones.?7

The formal opening of the door did not, of course, constitute

an immediate panacea for all blacks whose employment oppor-

tunities had been so long restricted. A number of contributing

factors can be identified as explanation of why the change in an-

nounced policy was somewhat less than what it was advertised,

and perhaps expected, to accomplish: the actual loss of seniority

on changing LOPs . . . the fact that entry-level LOP jobs some-

times involve a reduction in overall-earnings . . . the belief, due

in large part to confusion over the rules, that there were other

22 Mergers were generally accomplished by tacking formerly black

or ined Phe to Go heuae 6 othe bien Ee ee

was understandable because such jobs, as noted, were typically the

lower-paying less-skilled ones. It is in the ing of i

oo ly ap Fy ay oe nt .— (see infra) lines, and in the

ire Or y in merging li active (as distinguished from

Passive perpetuating) discrimination can be seen.

— A-56 —

disadvantages to bidding into a new line . . . the rejection of

some black bidders through application of the ability and fitness

standards . . . the skepticism and suspicion by many blacks as

to the reality of new opportunities . . . the disapproval and

resistance expressed by many white employees to such changes

_ the unwillingness, particularly among older black em-

ployees, to leave familiar conditions, to assume greater responsi-

bilities, or to be considered troublemakers . . . the inability,

again particularly among the older employees, to learn new

skills . . . etc. Furthermore, enjoyment of these new opportuni-

ties was directly dependent upon vacancies coming open; and the

overall manpower levels at Fairfield Works have generally been

on the decline during the past decade.

The point is that, while the 1962-63 changes represented a

truly radical alteration in the employment practices at Fairfield,**

some passage of time was needed for these processes to begin

transforming the statistical profile, at least as viewed by an out-

side observer.

It is clear that on July 2, 1965, the effective date of Title VII,

the basic principles of the seniority system in effect at Fairfield

were not “actively” discriminatory.** It is likewise clear that in

many respects this system, in violation of Title VII, has perpetu-

ated the effects of the pre-1963 discrimination. Local 189 v.

United States, 416 F.2d 980 (CAS 1969).

23 These changes pre-dated most of the dramatic changes in

education, housing, public accommodations, etc. Responsible lead-

ers for the company and unions were, according to the e

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