# Petition — UNITED STEELWORKERS OF AMERICA v. FORD (Nos. 75-1478, 75-1475) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2253%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1975 ## Text i? APR 13° 1976 IN THE aie Suyreme Court of the Cnited States October Term, 1975 N. €5-i1478 Unrtep STEELWORKERS OF America, AFL-CIO-CLC, and its Loca, Unions 1013, 1131, 1489, 1700, 1733, 2122, 2210, 2405, 2421, 2927, 3662 and 4203, Petitioners, v. Joun S. Forp, Witure Cain, Witire L. Coteman, Joe N. Taytor, Ropert Cain, Davin Bowe, Eart Beit, EQuAL EMPLOYMENT OpporTUNITY CoMMISSION, and UNITED StaTes STEEL CorPORATION. Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit BERNARD KLEIMAN Micuae. H. GorresMAN Car B. FRANKEL Ropert M. WeINBERG United Steelworkers of Bredhoff, Cushman, Gottesman America, AFL-CIO-CLC & Cohen Five Gateway Center 1000 Connecticut Avenue, N.W. Pittsburgh, Pa. 15222 Washington, D.C. 20036 TeroME A. Cooper Joun FALKENBERRY Cooper, Mitch & Crawford 409 North 21st Street Birmingham, Ala. 35203 a sO —- Ne ’ an : 33 eS i TABLE OF CONTENTS Page RE EEE 6 ccovcunscugdecscuucdeceseouseaceones 1 ET on 465 644000000 c06600cunetesetésdeseennen 2 GPS UIEe SUNUUEEED occ ccsccccccdeccccseneuaceceess 2 Se SOE och nnienn cncecssovecsenensnsenees 3 DCCC TE GF BE GED 6 oc ccncovesesccccoceesetoans REASONS FOR GRANTING THE WRIT ................. 19 GUE 6.004005 sccndsorcannehakaseueceasnnaceduans 25 Appendix: Opinion of the District Court .............cececeecees App. |! Opinion of the Court of Appeals .................045. App. 29 Order and Opinion on Petition for Rehearing ........... App. 53 CITATIONS Cases: Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) .. 2, 13, 17, 19-23 Bing v. Roadway Express, Inc., 485 F.2d 441 (5th Cir. 1973) .. 11 Ferrell-Hicks Chevrolet, Inc., 160 NLRB 1692 (1966) ......... 24 Fibreboard Paper Products Corp., 138 NLRB 550 (1962), en- forced 322 F.2d 411 (D.C. Cir. 1963), affirmed 379 U.S. 203 SEED cucnenecesccsedeesadesncetnasénschpanscucennees 24 Kohler Co., 148 NLRB 1434 (1964), enforced 345 F.2d 748 Se GE GED KKK ddd ces entodundenecccdeesonsuasaones 24 Lemon v. Kurtzman, 411 U.S. 192 (1973) ...........000.00.- 19 Page Local 138, Operating Engineers, 151 NLRB 972 (1965) ........ 24 Local 189 v. United States, 416 F.2d 980 (5th Cir. 1969), cert. SE Ee GU GOOD 60 vn.cice 6dcceuncssutenunues 8, 15 Lodge 743, International Association of Machinists v. United Air- craft Corp., —F.2d—, 90 LRRM 2272 (2nd Cir. 1975) ...... 24 Long v. Georgia Kraft Co., 455 F.2d 331 (5th Cir. 1971) ....... 11 Matter of Bethlehem Steel Corp., OFCC Dkt. 102-68 (1970) .. 9-11, 12, 15 NLRB vy. Baltimore Transit Co., 140 F.2d 51, 55 (4th Cir. 1944), GES GHEE Ge WE FO CHUN ove cscs eccccevcnccdececes 24 NLRB v. E & B Brewing Co., 276 F.2d 594 (6th Cir. 1960), cert. GES TD Gs Ge CUED eee cccccedcceccccccsccvesvees 24 NLRB v. Guy F. Atkinson Co., 195 F.2d 141, 149 (9th Cir. 1952) 24 NLRB vy. IBT, Local 41, 225 F.2d 343 (8th Cir. 1955) ......... 24 Quarles v. Phillip Morris Co., 279 F. Supp. 505 (E.D. Va. 1968) 7, 8 Retail, Wholesale and Department Store Union v. NLRB, 466 F.2d Se Ge SS CUED i. bwewGhdee Weeekauendudcecedecetae 23 Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir. 1972)... 11 United States v. Allegheny-Ludlum Industries, Inc., 8 FEP Cases 198 (N.D. Ala. 1974), affirmed 517 F.2d 826 (5th Cir. 1975), pets. for cert. pending, Nos. 75-1005, 75-1008 ............. 16-17 United States v. Bethlehem Steel Corp., 312 F. Supp. 977 (W.D.- N.Y. 1970), mod. 446 F.2d 652 (2nd Cir. 1971) ... 8-9, 11, 12, 15 United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973) 11 United States v. H. K. Porter Co., 296 F. Supp. 40 (N.D. Ala. _ PPP PTTOTT TTT TTT TT ee CIT TT TTT 8, 11, 12, 15 United States v. Hayes International Corp., 456 F.2d 112 (5th BE COED bn. dves ce cdeecncdessthpccddnisnecnenceReaedices 11 United States v. Jacksonville Terminal Co., 451 F.2d 418 (5th - | | PPeeererrrrrTTrrrrTrrcrririTiciy rite 11 Page United States v. Local 189, 301 F. Supp. 906 (E.D. La. 1969), affirmed 416 F.2d 980 (5th Cir. 1969), cert. denied 397 U.S. GE GD sdkcdadeeiscceesccadaccaiteiietiaeae 7, 8 Whitfield v. United Steelworkers of America, 263 F.2d 546 (5th Cir. 1959), cert. denied 360 U.S. 902 (1959).... 6-7, 8, 11, 14-15 Statutes and Executive Orders: Civil Rights Act of 1964, Title VII, 42 U.S.C. §2000e et seq. ... 2-25 Section 706(g), 42 U.S.C. §2000e-5(g) ...............45. 3, 19 Section 707, 42 U.S.C. §20000-6 2.0... ccc ccc cece cceccces 3 Executive Order 11246 National Labor Relations Act, 29 U.S.C. $151 et seq ...... 19, 22-25 IN THE Supreme Court of the Gnited States October Term, 1975 No. Unrrep STEELWoRKERS OF AmMeErRIcA, AFL-CIO-CLC, and its Loca Unions 1013, 1131, 1489, 1700, 1733, 2122, 2210, 2405, 2421, 2927, 3662 and 4203, Petitioners, v. Joun S. Forp, Witure Carn, Witur L. CoLeman, Joe N. Taytor, Ropert Carn, Davin Bowir, Eart Beit, EQuar EMPLOYMENT OpporTUNITY CoMMISSION, and UNITED STaTES STEEL CORPORATION. Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit . Petitioners pray that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Fifth Circuit. OPINIONS BELOW The memorandum of opinion of the United States District Court for the Northern District of Alabama, issued Decem- ber 11, 1973, is reported at 371 F.Supp. 1045, and is re- printed at App. 1-28 (pages 1-28 of the appendix to this 2 petition). The opinion of the United States Court of Ap- peals for the Fifth Circuit, issued October 8, 1975, is re- ported at 520 F.2d 1043, and is reprinted at App. 29-52. The order and opinion of that court on the petitions for re- hearing, issued January 14, 1976, is reported at 525 F.2d 1214, and is reprinted at App. 53-54. JURISDICTION The opinion of the United States Court of Appeals for the Fifth Circuit was issued on October 8, 1975. Timely petitions for rehearing were filed by several parties, and were denied (with clarification of the original opinion) on January 14, 1976. This Court has jurisdiction pursuant to 28 U.S.C. §1254(1). QUESTION PRESENTED Whether, applying the principles enunciated in Albe- marle Paper Co. v. Moody, 422 U.S. 405 (1975), a district court abused its discretion when it concluded, for the fol- lowing reasons, that it would be inequitable to award back- pay to most black employees at a steel plant for the conse- quences of a seniority system which perpetuated the effects of assignment discrimination occurring prior to the enact- ment of Title VII of the Civil Rights Act of 1964: (a) The Company and Union had been “in the forefront of expanding employment opportunities for blacks” and had “modified the employment practices . . . periodically to comply with all legal requirements as from time to time they with reason understood them to be;” (b) A consistent line of judicial and administrative decisions had declared that “the dangers and com- plexities of the steel manufacturing process” precluded modification of the seniority system, and the Company and Union had relied upon those decisions in main- taining the seniority system as it was; and | 3 (c) The court could not in any event “make whole,” monetarily, those discriminatorily affected by the sen- iority system, for it is impossible to determine who suf- fered monetarily from the system, let alone in what amounts. STATUTE INVOLVED Section 706(g) of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. §2000e-5(g), provides in pertinent part as follows: “If the court finds that the respondent has intention- ally engaged in or is intentionally engaging in an un- lawful employment practice charged in the complaint, the court 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 (payable by the employer, employment agency, or labor organiza- tion, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate.” STATEMENT OF THE CASE This petition results from consolidated actions brought under Title VII of the Civil Rights Act of 1964, attacking employment practices at the largest steel plant in the South, the Fairfield Works of United States Steel Corporation (hereinafter “the Company”). Plaintiffs were the United States (which brought a “pattern and practice” action un- der Section 707 of the Act, 42 U.S.C. §2000e-6) and several black employees suing on behalf of certain classes of black employees under Section 706(g) of the Act, 42 U.S.C. §2000e-5(g). Defendants were the Company, and the Uni- ted Steelworkers of America and several of its locals (herein- after collectively “the Union”). 4 The complaints alleged that the Company had, until 1962, discriminatorily assigned newly-hired black em- ployees only to certain jobs. As that discrimination pre- dated the enactment of Title VII, plaintiffs could not and did not claim that it violated Title VII, nor that they should receive a remedy therefor. But plaintiffs contended that the “line of progression” seniority system contained in the collective bargaining agreement perpetuated, after en- actment of Title VII, the effects of the pre-Act discrimina- tion. As relief for this perpetuation of effects of pre-Act dis- crimination, plaintiffs sought the remedies which courts have traditionally ordered in similar cases arising in industries other than steel: a decree permitting those who had been discriminatorily assigned to use plant seniority, and to re- ceive rate retention, upon transferring to other lines of pro- gression. Plaintiffs also sought back pay for the defendents’ failure to install these remedies immediately when the Act became effective. Defendants contended that business necessity precluded the installation of plant seniority and rate retention in steel plants, and thus that their seniority system did not unlaw- fully perpetuate the effects of the Company’s prior assign- ment discrimination. Defendants did not dispute the pro- priety of plant seniority and rate retention in other indus- tries; their defense was predicated upon unique characteris- tics of the steel manufacturing process, described herein. Following a six-month trial, the district court devised a means for providing plant seniority and rate retention which it believed consistent with business necessity.’ These reme- dies were installed by the court’s decree. However, the 1 The system devised by the district court contained special features, tailored to the unique characteristics of the steel industry, designed to assure that discriminatees would receive “training and experience before rising to more responsible positions” and thus to avoid creating “a significant hazard to personnel and equipment.” App. 15-16, nn. 25, 27, 29. ae 5 court denied backpay for the defendants’ failure to install such remedies earlier. The court explained that defendants had relied upon earlier decisions holding that business neces- sity precluded the furnishing of these remedies in steel plants, and it concluded that an award of backpay would in any event be speculative (because it could not be established that any particular employee would have fared better had the remedies been installed earlier). For these reasons, the court held that in the particular circumstances of the case an award of backpay would be inequitable. The employee-plaintiffs appealed the denial of backpay, and the court of appeals ruled that the district court had abused its discretion in denying backpay. Our petition seeks review of this back pay holding. 1. The History of Litigation Involving Seniority Systems in the Steel Industry Prior to the Trial of the Instant Case. Steel plants differ vastly from plants in other industries whose practices have been adjudicated under Title VII. Steel plants are much larger: for example, the plant involved in this case employs 12,0006 persons (App. 3). In a steel plant, there are an enormous number of different jobs, with widely varying skill requirements. Here, for example, there are more than a thousand different jobs in the production and mainienance unit alone (App. 4). The steel manu- facturing process involves manifold operations performed on molten metals, creating enormous hazards for all employees if someone fails to perform his job properly. Employment in steel plants is highly cyclical. The seniority systems which have developed in steel plants, responsive to these unique conditions, consequently are far more complex—and must be far more complex to ensure that at all times each job will be manned by an employee with the requisite skills— than those in other industries. A graphic description of these attributes of steel plants is provided in Judge Pointer’s opinion, at App. 2-10. Because steel plants are different, it is perhaps not sur- prising that the law relating to seniority systems in the steel industry developed differently than it did with respect to such systems in other industries. The early decisions con- firmed the defendants’ belief that it would be unsafe to al- low employees to utilize plant seniority and rate retention in a steel plant, i.e. that to permit employees to move on an accelerated basis to jobs for which they had received neither training nor experience would endanger the lives not only of those who took advantage of these opportunities, but also of those who worked in the vicinity and could suffer the con- sequences of improper handling of molten metal. As the court below recognized, the early decisions furnished “re- spectable support” for the defendants’ belief that “the reme- dies of plant-service seniority and rate retention would not be applied to the steel industry due to the dangers and com- plexities of the steel manufacturing process,” App. 48-49. In 1956, a decade before passage of Title VII, this Union began a program to merge separate black and white senior- ity lines in southern steel plants. The program began with the Houston plant of Armco Steel Corporation, the second largest steel plant in the south. Consistent with their con- cerns about safety, the company and union did not author- ize employees in the previously black lines to exercise sen- iority accumulated prior to merger for the purpose of mov- ing on an accelerated basis to the more sophisticated jobs in the previously white lines; rather, they provided that such employees would begin to accumulate seniority for such ad- vancement from the date of the mergers. Soon after the mergers had been accomplished, a few black employees filed suit alleging that the Union had breached its duty of fair representation by not allowing black employees to use their accumulated seniority in the merged lines. The Fifth Cir- cuit rejected the claim. Whitfield v. United Steelworkers of America, 263 F.2d 546 (5th Cir. 1959), cert. denied 360 U.S. 902 (1959). Declaring that “angels could do no more,” 7 Judge Wisdom approved the seniority system as fair “recog- nizing the necessity for reasonable standards of operating efficiency.” 263 F.2d at 551. The seniority system in Fairfield, challenged in the instant case, was modeled after that approved in Whitfield. The mergers of formerly black and white seniority lines, accom- plished prior to enactment of Title VII, were not lightly undertaken in the social climate then prevailing in Alabama, nor were they accomplished without pain for those who made them. As Judge Pointer found (App. i4, n. 23) : “These changes pre-dated most of the dramati: changes in education, housing, public accommodations, etc. Responsible leaders for the company and unions were, according to the evidence, subjected to threaten- ing and abusive communications, vilification generally in the community, and hanging in effigy. Ten years la- ter, when the battle cry has changed such that it typi- cally begins, ‘we’re not fighting integration but... ,’ there is a tendency to block out the memory of what was said and done in the early 60s.” Title VII, for whose en:ctment the Union had lobbied strongly (App. 25), took effect in 1965. It became apparent from the earliest decisions that, in the smaller, less compli- cated plants found in other industries, Title VII would re- quire that assignment discriminatees be awarded plant sen- iority and rate retention in order to eliminate the continuing effects of pre-Act discrimination. See, e.g. Quarles v. Paillip Morris Co., 279 F.Supp. 505 (E.D. Va. 1968) (tobacco plant) ; United States v. Local 189, 301 F.Supp. 906 (E.D. La. 1969) (paper mill). However, the courts uniformly de- clared that the greater hazards and complexities of steel production made it a “business necessity” that plant senior- ity and rate retention—with their potential for rapid move- ment of untrained and inexperienced employees to highly skilled, dangerous jobs—not be implemented in steel plants. 8 The first Title VII decision involving a steel plant was United States v. H. K. Porter Co., 296 F.Supp. 40 (N.D. Ala. 1968). Although finding that the seniority system per- petuated the effects of past assignment discrimination, the court declined to order the systemic seniority changes de- creed in Quarles and Local 189. The court emphasized that it had no dispute with the propriety of those remedies in the tobacco and paper industries (Jd. at 62-63), but found that they were inappropriate in light of the greater complexity of steel production (Id. at 63-72, see especially pp. 66-67). Shortly thereafter, the Fifth Circuit had occasion to con- firm the uniqueness of steel plants. Affirming the district court’s decision in Local 189 installing systemic seniority changes in a paper mill, Local 189 v. United States, 416 F.2d 980 (5th Cir. 1969), cert. denied 397 U.S. 919 (1970), the court distinguished both Whitfield and H. K. Porter on the ground that the remedies mandated by Title VII for other industries were inappropriate for steel. The court stated that its holding in Writ field had been predicated upon a finding that, in view of the widely divergent skill require- ments between different steel plant lines of progression, the system adopted by the company and union “was conceived out of business necessity, not out of racial discrimination.” 416 F.2d at 993. The district court’s decision in H. K. Porter was distinguished because: “The record in that case, as the district court viewed it, showed that safety and efficiency, the component factors of business necessity, would not allow relaxa- tion of the job seniority system. We see no necessary conflict between Porter’s holding on this point and our holding in the present case.” (Jbid.) The next Title VII decision in the steel industry was United States v. Bethlehem Steel Corp., 312 F.Supp. 977 (W.D.N.Y. 1970), involving the Lackawanna plant of Bethlehem. The court there found that the seniority system 9 perpetuated the effects of prior discrimination, and it recog- nized that decisions involving plants in other industries had awarded the plant seniority and rate retention remedies sought by the Government. (Jd. at 993). Nevertheless, after reviewing “the history of the steel industry” (Id. at 994), the court declined to award such remedies, believing that they “would be arbitrary in . . . application and effect” and “would have adverse effects wholly out of proportion to the injustice which [they] seek [] to cure” (Id at 995). The next steel industry decision was Matter of Bethlehem Steel Corp., OFCC Dkt. 102-68 (Dec. 18, 1970), involving the Sparrows Point plant of Bethlehem. This case arose not uider Title VII, but under the parallel antidiscrimina- tion provisions of Executive Order 11246. Under that Or- der, charges of discrimination deemed meritorious by the Office of Federal Contract Compliance are referred in the first instance to a three-member Hearing Panel appointed by the Secretary of Labor. In its extensive decision, the Panel,’ by a 2-1 vote, although finding that the seniority system perpetuated the effects of past discrimination, de- clined to award the plant seniority and rate retention reme- dies sought by the Government. The Panel applauded ju- dicial awards of those remedies in other industries, but con- cluded that the unique attributes of steel production ren- dered those remedies inappropriate in the steel industry (Id. at page 48) : “We must continue to bear in mind that Sparrows Point is not a small factory but is a vast complex of manufacturing operations. In fact, it constitutes a large complicated industrial community or society with an intricate and highly sensitive organization of relation- ships of production processes, maintenance relation- ? The Chairman of the Panel was Father Dexter Hanley of George- town Law School. The other panel members were Peter Seitz and Lloyd Bailer, both distinguished arbitrators. 10 ships, and above all, people. Changes in basic rules have far-reaching consequences. “Thus, in the light of case law and reason, we con- clude that we are asked to look to the viability of an economic enterprise; to the practical problems of the effects of the proposed guideline remedies [plant senior- ity and rate retention] upon production, safety, morale, and responsible labor relations, including collective bar- gaining obligations. We further conclude that in doing this we must be attentive to the special difficulties, his- tory and needs of the steel industry and of the Spar- rows Point plant.” The Panel then analyzed for eleven pages the testimony introduced by the company and the union as to “why these remedies would be unworkable at Sparrows Point and in the basic steel industry generally” (Jd., p. 48, see generally Id. pp. 48-59), and concluded upon that analysis “that a de- fense of business necessity has been made and that the impo- sition of the OFCC guidelines at the Sparrows Point plant would be arbitrary and unreasonable on the facts in this case.” (Id. p.59). The Panel emphasized that it was not disputing the pro- priety of these remedies in other industries, but only in steel (Id. pp. 59-60) : “In saying that the OFCC guideline plan is not one well adapted for operation at Sparrows Point as appro- priate relief for those continuing to suffer the effects of past discrimination, we do not mean to imply that such a plan may not have been an appropriate measure of judicial relief under the less complex and different cir- cumstances before the courts in the Crown-Zellerbach [Local 189] and Quarles cases. Neither do we suggest that such a plan may not be appropriate and desirable as a means of eliminating the present effects of past dis- crimination in other cases that may arise in the future. Our deep concern stems from the fact that the simple 11 yet abstract formula of the OFCC’s guideline plan sim- ply does not fit the circumstances of the highly sophisti- cated and complex industrial society represented in the collective bargaining agreement between the United Steelworkers of America (AFL-CIO) and Bethlehem Steel Corporation.” The Panel found “additional support for the foregoing conclusion in the fact that such a remedy as proposed by the Government has not been adopted in any case involving the steel industry” (Jd. p. 60), citing the Fifth Circuit’s decision in Whitfield, and the district court decisions in H. K. Porter and Bethlehem (Lackawanna). (Id. pp. 60-63). It was not until June, 1971, with the Second Circuit’s re- versal of the Bethlehem (Lackawanna) decision, that any court declared the remedies of plant seniority and rate re- tention feasible in a steel plant, 446 F.2d 652 (2nd Cir. 1971). At the time of the Second Circuit’s Bethlehem de- cision, H. K. Porter was pending on appeal to the Fifth Cir- cuit. The appeal had been argued in April, 1970, but al- though the Fifth Circuit had issued innumerable decisions requiring the institution of plant seniority and rate retention in cases involving other industries which came before it sub- sequent to the H. K. Porter orgument, * no opinion in H. K. Porter issued for four years.* 2@ See, e.g. United States v. Jacksonville Terminal Co., 451 F.2d 418 (Sth Cir. 1971) (railroad terminal) ; Long v. Georgia Kraft Co., 455 F.2d 331 (Sth Cir. 1971) (paper mill) ; United States v. Hayes Inter- national Corp., 456 F.2d 112 (5th Cir. 1972) (military aircraft manu- facturing and repair plant) ; Rowe v. General Motors Corp., 457 F.2d 348 (Sth Cir. 1972) (automobile assembly plant); United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973) (electrical power company); Bing v. Roadway Express, Inc., 485 F.2d 441 (5th Cir. 1973) (trucking firm). ® Ultimately, following Judge Pointer’s decision in the instant case, the parties to H. K. Porter agreed upon a remedy patterned after Judge Pointer’s, and the Fifth Circuit disposed of the case by approv- ing installation of the agreed-upon remedy. 12 Following the Second Circuit’s Bethlehem decision, at a time when the Government, the Company and the Union were seeking to settle the instant case without trial, counsel for the Government and the Union (who were also counsel in H. K. Porter) wrote to the Fifth Circuit urging a prompt decision in H. K. Porter, explaining that the parties’ ability to settle was hampered by the conflict between the Second Circuit’s Bethlehem decision and the district court’s H. K. Porter decision, and that “significant guidance . . . could be furnished by a decision in the H. K. Porter case.”* Never- theless, no decision was forthcoming in H. K. Porter, and the instant case proceeded to trial.* * This letter stated in pertinent part: “The Plaintiff in the above-captioned case, United States of America, and the Union defendant, United Steelworkers of America, AFL-CIO, are also parties to another Title VII Lawsuit, United States v. United States Steel Corp., Civil No. 70-706, pending in the Northern District of Alabama which poses issues very similar to those in the instant case. Trial of that case is scheduled to begin in May, 1972. The Plaintiff and the Union have begun preliminary discussions looking toward a means for resolving that suit without contested litiga- tion. While the Plaintiff is-of the view that the Bethlehem Steel de- cision, 446 F.2d 652, is to a significant extent, persuasive on the sen- iority issue, the parties’ ability to resolve that issue in the United States Steel case is limited by their uncertainty as to the ultimate outcome of the H. K. Porter appeal. Because of the importance of the United States Steel case, which involves more than 10,000 employees, we believe that the Court would wish to be made aware of the significant guidance which could be fur- nished by a decision in the H. K. Porter case.” 5 Similarly, despite the Second Circuit’s decision, there was a pro- tracted delay before the OFCC’s appeal from the Panel decision in Bethlehem (Sparrows Point) was resolved. Although all briefs on that appeal had been filed by February, 1971, and the Second Circuit’s de- cision issued in June, 1971, the Secretary of Labor did not issue lus decision upholding the appeal until January 1, 1973, by which time the trial in the instant case had been concluded. > 13 2. -The District Court’s Decision in the Instant Case The trial of the instant case consumed six months, from June through December, 1972. The court ultimately found that the existing seniority system “perpetuated the effects of the pre-1963 discrimination” (App. 14), and concluded that a curative remedy could be fashioned which would be consistent with “business necessity” (App. 14-16).°* That injunctive remedy was installed by a 150 page decree en- tered in May, 1973 (App. 2). However, with the exception of a relatively small number of employees whose claims the court regarded as special, the court declined to award backpay. Although writing two years before this Court’s decision in Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), the court correctly anticipated the central features of that decision: (1) that once discrimi- nation has been proved, “successful plaintiffs should ordi- narily be awarded backpay” unless there are special consid- erations which would render such an award “unjust,” App. 17; (2) that “a claim for back pay cannot be defended on the lack of evil intent or even on a showing of good will,” App. 24; and (3) that the question is one entrusted by the statute to the “equitable discretion” of the district court, App. 17. The court believed that here two factors combined to ren- der an award of back pay unjust.® First, it would be impos- sible to determine which employees, if any, had suffered from the absence of plant seniority and rate retention. As the violation here was a failure to install these remedies earlier, the purpose of back pay would be to “make whole” ®* As noted above, n. 1, the court’s remedy had special features to deal with the unique safety and operational considerations existing in steel plants. * Except in the case of three departments, where the court awarded backpay totalling over $200,000. The court also awarded attorneys fees in the amount of $205,000. App. 20-22, 27-28. 14 those who would have fared better but for the delay in their installation. But here we cannot know who those persons are. Only those who would have exercised the option of moving to other jobs could even arguably be entitled to a monetary remedy, and there was no evidence that such per- sons existed. Moreover, an employee who did exercise the option to move to another job might have fared worse —in terms of the amount of compensation he received— rather than better on his new job. “The ultimate conclusion, simply, is that in the particular context of this case the assessment of back pay for the pre-1963 discrimination sys- temically perpetuated by the effect of inhibiting seniority standards upon the bidding procedures would be fraught with speculation and guess-work” (App. 23). “If... an accurate determination—-or even a reasonably accurate esti- mate—of individual rights is to be a cornerstone for back pay awards, then, with the exception of the three specific situations [where the court awarded backpay], this cannot be done in the present case, and most certainly not within the physical and fiscal limitations of the court” (App. 24). The second factor rendering a backpay award unjust, the district court ruled, was that the defendants had reasonably relied upon the prior decisions holding that business neces- sity precluded installation of the plant seniority and rate re- tention remedies in steel plants. Here the parties had not simply acted in good faith; the courts had furnished them “good reason to believe that the seniority system at Fairfield, lauded in Whitfield . . ., also was consistent with Title VII, at least in this circuit,” App. 25. While emphasizing that this latter consideration was not a defense to a finding of liability—and thus to the issuance of injunctive relief—the court found it to “merit some consideration, in equity, par- ticularly where a purpose of back pay awards is to encourage nonjudicial solutions,” App. 25). As the court explained (App. 24) : “Here, the company—particularly at upper man- 15 agement levels—and the unions—particularly at the international level, and their representatives—have been in the forefront of expanding employment oppor- tunities for blacks. There is no need to recount the evidence which establishes the many initiative steps taken by them to eliminate racial discrimination, al- beit still falling short by today’s standards. They have modified the employment practices at Fairfield peri- odically to comply with all legal requirements as from time to time they with reason understood them to be. The Steelworkers union was, in fact, active in obtain- ing support for passage of Title VII. They had good reason to believe that the seniority system at Fairfield, lauded in Whitfield v. United Steelworkers, 263 F.2d 546 (CA5 1959), also was consistent with Title VII, at least in this circuit.“* ““* In Local 189 v. United States, 416 F.2d. 980 (CA5 1969), the first appellate decision requiring a revision of a seniority system such as at Fairfield Works, the court saw no necessary conflict with the decision of the district court in United States v. H. K. Porter, 296 F. Supp. 40 (N.D.Ala. 1968), which had upheld such a system in the steel industry. The District Court in United States v. Bethlehem Steel Corp. (Lackawanna plant), 312 F. Supp. 977 (W.D.N.Y. 1970), concluded that remedies such as required in Local 189 were in- appropriate in the steel industry. A similar conclusion was reached by a Hearing Panel in the Matter of Bethlehem Steel Corp. (Sparrows Point Plant), OFCC Dkt. 102-68, issued December 18, 1970. Not until June 1971, was the Bethlehem Steel (Lackawanna) decision reversed by the Second Circuit, 446 F.2d 652. Even so, the H. K. Porter decision was then on appeal to the Fifth Circuit and, particularly in view of its treatment in the Local 189 opinion, the strong possi- bility of a conflict in circuit decisions remained. An 16 effort was made on behalf of the parties in the case sub judice to obtain information, at least tentatively, as to the Fifth Circuit’s decision in H. K. Porter for guidance at Fairfield Works, but the decision has not been rendered.” 3. The Steel Industry’s Response to the District Court’s Injunctive Reforms Judge Pointer’s decree in the instant case, entered on May 2, 1973, provided the catalyst for an industry-wide solution to the seniority problems in the steel industry—a solution which was implemented before the appeal from the denial of back pay reached the court below. Shortly after Judge Pointer’s decree was entered, the Union approached the major steel companies which bargain jointly with it, and suggested that the parties negotiate a proposal to be sub- mitted to the interested Government agencies for an indus- try-wide solution of steel industry Title VII problems. After three months of negotiations, the Union and these compa- nies reached agreement upon a proposal which they ten- dered to the Department of Justice, the Department of La- bor and the Equal Employment Opportunity Commission. There followed six months of negotiations between these parties, eventuating in the filing of a lawsuit and two con- sent decrees, applicable to more than 240 steel plants, which were approved by Judge Pointer on April 12, 1974. United States v. Allegheny-Ludlum Industries, Inc., 8 FEP Cases 198-199 (N.D. Ala. 1974). The consent decrees were modeled after Judge Pointer’s decision in the instant case, although in some respects they furnished even broader relief to alleged discriminatees. United States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826, 851 n.28 (5th Cir. 1975). The Fifth Circuit has declared that the consent decrees’ injunctive provisions “im- plement the policies of Title VII and related laws to an 17 exceptionally thorough degree,” id at 881, and has recog- nized this to be “one of those rare instances in which the government has, to its satisfaction, successfully negotiated a comprehensive voluntary accord,” id at 848. Thus the Union and the Companies, upon learning that the early rulings that “business necessity” precluded the institution of seniority reform in the steel industry were wrong, promptly agreed to institute wholesale reforms throughout an entire industry, although at only a handful of plants had litigation even been initiated in the decade following Title VII’s pas- sage. As part of the consent decrees, the Union and Companies will offer $30.9 million dollars to affected employees in the steel industry, of which approximately four million dollars is to be offered to employees at Fairfield. Regardless of the outcome of the instant litigation, the affected employees at Fairfield will have had an opportunity to be “made whole” to the tune of four million dollars. 4. The Court of Appeals’ Decision in the Instant Case Against this backdrop, the private plaintiffs prosecuted an appeal from the district court’s denial of back pay. (The Government, although initially filing a notice of appeal, did not pursue it once the consent decrees were approved, ad- vising the court below that it was satisfied with the mone- tary relief furnished by the consent decrees, App. 30). The court below held that Judge Pointer “must be charged with an abuse of discretion” in limiting backpay as he did (App. 31). Construing this Court’s decision in Albemarle Paper as imposing “a nearly certain, if not ‘au- tomatic or mandatory,’ duty to award back pay to discrimi- natees who can prove their entitlement to monetary recov- ery” (App. 43), the court found both of the grounds relied upon by Judge Pointer, although factually correct, legally impermissible bases for denying backpay. 18 The court below acknowledged that, as Judge Pointer had found, it would be impossible to determine who had suffered, and in what amount, from the defective seniority system (App. 32-33, 39, 41-45). But the court thought it no ground for denying backpay that insufficiencies of proof rendered the district court unable to “award the back pay to the minority employees who . . . would have occupied” better jobs with a proper seniority system (App. 43). Rather, the “situation” requires a “quagmire of hypotheti- cal judgments” (App. 44). Unable to determine who suf- fered, or to what extent black employees’ lower earnings resulted from innocent causes rather than from the defects in the seniority system, the court should dispense back pay in “pro rata shares” to all the employees in affected groups. The court cautioned, however, that “alternative methods possessed of superior certainty should be exhausted before the court resorts to racially-drawn classwide comparisons or pro rata approaches” (App. 45). With respect to the other ground relied upon by Judge Pointer, the court below agreed that “the union gleans re- spectable support for its contention” that the prior decisions had indicated that “the remedies of plant-service seniority and rate retention would not be applied to the steel industry due to the dangers and complexities of the steel manufactur- ing process,” App. 48-49; nor did the court below dispute “Judge Pointer’s finding that [the Union] ‘had good reason ... at least in this circuit,’ 371 F. Supp. at 1062, to believe that the Fairfield seniority systems comported with the law,” App. 49. But the court below concluded that the dis- trict court abused its discretion nonetheless in relying upon this consideration to deny back pay, App. 49-51. The court viewed the hardship befalling the Company and Union as one of “the usual risks of litigation,” App. 50, and refused to “subvert” Title VII’s “integral [backpay] scheme with a crazy-guilt pattern of different back pay liability dates, industry-by-industry, plant-by-plant . . .,” App. 50-51. 19 REASONS FOR GRANTING THE WRIT This case provides an important opportunity for this Court to elucidate the meaning of its decision ia Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). In Albemarle, this Court declared that the language of Section 706(g)— “with or without backpay”—vests district courts with equi- table discretion in determining whether backpay should be awarded, a discretion which must be exercised in light of “the purposes which inform Title VII,” id at 417. The court below understood Albemarle to impose “a nearly cer- tain, if not ‘automatic or mandatory’ duty” to award back pay to those who suffer economic loss from a violation of Title VII. From that starting point, the court below pro- ceeded to ignore a “well established” principle of equity: that it is unfair to visit a monetary award upon those who have reasonably relied upon prior decisions authorizing their conduct. Lemon v. Kurtzman, 411 U.S. 192, 199, 203 (1973) : *, . . [S]tatutory or even judge-made rules of law are hard facts on which people must rely in making decisions and in shaping their conduct. This fact of legal life underpins our modern decisions recognizing a doctrine of non-retroactivity. + * * “It is well established that reliance interests weigh heavily in the shaping of an appropriate equitable remedy. City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970); Cipriano v. City of Houma, 395 U.S. 701 (1969) ; Allen v. State Board of Education, 393 U.S. 544 (1969) .” This reliance principle has been consistently recognized in cases arising under the National Labor Relations Act, upon which the backpay provision of Title VII was “expressly modeled,” Albemarle, 422 U.S. at 419. Whether the court below was correct in holding this principle inapplicable to 20 Title VII is a question which should be decided by this Court. In Albemarle, this Court deciared that “backpay is not an automatic or mandatory remedy; like all other remedies under the Act, it is one which the courts ‘may’ invoke.” 422 U.S. at 415. But the Court warned that “important na- tional goals would be frustrated by a regime of discretion that ‘produce[d] different results for breaches of duty in situations that cannot be differentiated in policy,’” Jd. at 417. Accordingly, discretion must be exercised in light of “the purposes which inform Title VII,” bid. The “primary ob- jective” is a “prophylactic one”: to provide a “spur or cata- lyst which causes employers and unions to self-examine and to self-evaluate their employment practices,” and thus elimi- nate discrimination, Jd. at 417-418. The other purpose is “to make persons whole for injuries suffered on account of unlawful employment discrimination,” Jd. at 418. From these basic principles the Court evolved the follow- ing standards for measuring the exercise of district court discretion, Jd. at 421-422: “Tt follows that, given a finding of unlawful discrimi- nation, backpay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimina- tion throughout the economy and mak ng persons whole for injuries suffered through past discrimination. The courts of appeals must maintain a consistent and principled application of the backpay provision, con- sonant with the twin statutory objectives, while at the same time recognizing that the trial court will often have the keener appreciation of those facts and circum- stances peculiar to particular cases.” Applying these standards to the district court’s decision 21 in Albemarle, this Court held that the court had abused its discretion by relying upon the defendants’ absence of bad faith—“under Title VII, the mere absence of bad faith simply opens the door to equity; it does not depress the scales in the employer’s favor,” id. at 422—but held that the court might have been acting within its discretion in denying backpay because of the plaintiffs’ belated claim therefor, if the evidence disclosed that the defendants were prejudiced by the delay and that the plaintiffs’ trial conduct was not excusable, id. at 423-424. If upon remand the dis- trict court again denied backpay ‘spon this ground, “The standard of review will be the familiar one of whether the District Court was ‘clearly erroneous’ in its factual findings and whether it ‘abused’ its tradi- tional discretion to locate ‘a just result’ in light of the circumstances peculiar to the case.” Jd. at 424. Of course, if the defendants in Albemarle were exoner- ated because of the belatedness of the claim, the exonera- tion would not be vindicating either the “make whole” or the “prophylatic” objective of Title VII. But this Court recognized that in particular situations there can be coun- tervailing equities which would not make a back pay award “a just result.” In the instant case, the district court concluded that a backpay award would be unjust. Such an award would not truly vindicate the “make whole” objective of Title VII, for—as the Fifth Circuit agreed—it is impossible to know who suffered, in what amount, and from what cause, so that any award would rest upon a “quagmire of hypotheti- cal judgments.” Nor would a backpay award vindicate the “prophylatic” objective of Title VII, for here the defend- ants had “self-examine[d] and . . . self-evaluate{d] their employment practices” (Albemarle, at 417-418): at great personal cost, in a violently hostile social climate, they had “been in the forefront of expanding employment opportuni- 22 ties for blacks,” had taken “many initiative steps . . . to eliminate racial discrimination,” and had “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” (App. 25). While a back pay award thus would little serve the ob- jectives of Title VII, the district court found that it would be greatly inequitable because of a special consideration ap- plicable only to steel plants: the uniform line of decisions advising the parties that business necessity precluded the instaiiation of plant seniority and rate retention in steel plants, decisions upon which the parties had reasonably re- lied. Tailored as it was to this unique consideration,’ the district court’s decision was consistent with the Court’s later admonition in Albemarle that back pay not be denied “for reasons which, if applied generally, would . . . frustrate the central statutory purposes.” Ironically, the court below, in reversing, stood Albemarle on its head: it rejected the dis- trict court’s approach precisely because it had narrow ap- plication. To the court below, the district court’s approach would “subvert” the scheme of Title VII by creating “a crazy-quilt pattern of different back pay dates, industry-by- industry, plant-by-plant.” Thus the court below shrank from the very uniqueness of the case which this Court de- clared in Albemarle to be the touchstone of the equitable discretion to deny back pay. The district court’s decision was consistent with, and the decision of the court below unfaithful to, well-established principles developed under the back pay provision of the NLRA, after which Title VII’s back pay provision was “expressly modeled.” Albemarle, supra, 422 U.S. at 419. As this Court explained in Albemarle, it is reasonable to ‘There is no other industry which the courts have seen, at any time, as warranting an exception from the customary plant seniority and rate retention remedies. 23 assume “that Congress intended that Title VII’s back pay provision would be implemented consistently with that of the NLRA,” Jd. at 419-420. There have been numerous decisions under the NLRA holding that parties who have justifiably relied upon legal pronouncements in earlier cases will not be held liabie for back pay for their conduct prior to the reversal of those pro- nouncements. Retail, Wholesale and Department Store Union v. NLRB, 466 F.2d 380, 387-393 (D.C. Cir. 1972) is representative. In that case an employer had relied upon a construction of the NLRA announced in several Board decisions; this Court subsequently issued a decision which required the Board to reverse its earlier construction; and the Board awarded back pay against the employer for its conduct prior to this Court’s ruling. The court of appeals reversed the award of back pay, holding that it would be inequitable to award back pay against an employer who had acied in reliance upon the state of the law as it then existed. Citing numerous deci- sions under the NLRA, the court noted that “courts have not infrequently declined to enforce administrative orders when, in their view, the inequity of retroactive application has not been counterbalanced by sufficiently significant stat- utory interests.” Id. at 390. The court emphasized that the situation before it was not one in which the law had merely been uncertain, but rather one “where the Board had con- fronted the problem before, had expressed an explicit stand- ard of conduct, and now attempts to punish conformity to that standard under a new standard subsequently adopted.” Id. at 391. Noting that following the change in the law the employer had “moved promptly to comply,” id. at 393, the court concluded that it would “work hardship upon [the employer] altogether out of proportion to the public ends to be accomplished” were the employer held liable for back pay for actions taken in reliance upon the previous state of the law. Ibid. 24 This principle—that those who justifiably rely upon legal pronouncements should not be required to pay back pay be- cause they are subsequently overruled—has been applied in a variety of contexts over the course of the NLRB’s history.® The most recent application of this principle is Lodge 743, International Association of Machinists v. United Air- craft Corp., F.2d , 90 LRRM 2272 (2nd Cir. 1975). There, the Court found that it would be “unjust” to assess backpay against an employer in circumstances far less compelling than the instant case. There had never been a prior decision squarely holding lawful the conduct in which the employer engaged, but there were decisions on analo- gous issues which the court believed furnished “a basis for concluding that the same rule should apply” to the employ- er’s conduct, 90 LRRM at 2295. The Court believed that from a “reasonable reading of decisions existing” at the time of the employer’s actions, “one could have concluded” that the employer was authorized to act as it did. Jd. at 2296. Noting that the employer’s actions were taken in good faith and on the advice of counsel, the court was “not .. . dis- posed to permit imposition of a substantial liability upon the Company.” Jbid. In one respect, the instant case presents a more com- pelling claim for exoneration than any of the NLRB cases. ® See, e.g., NLRB v. Baltimore Transit Co., 140 F.2d 51, 55 (4th Cir., 1944), cert. denied, 321 U.S. 795 (1955); NLRB v. Guy F. At- kinson Co., 195 F.2d, 141, 149 (9th Cir. 1952) ; NLRB v. IBT, Local 41, 225 F.2d 343, 348 (8th Cir. 1955); NLRB v. E@B Brewing Co., 276 F.2d 594 (6th Cir. 1960), cert. denied, 366 U.S. 908 (1961); Fibreboard Paper Products Corp., 138 NLRB 550, 555 n. 21 (1962), enforced, 322 F.2d 411, 415 (D.C. Cir. 1963), affirmed, 379 U.S. 203 (1964); Kohler Co., 148 NLRB 1434, 1454 (1964), enforced 345 F.2d 748 (D.C. Cir. 1965); Local 138, Operating Engineers, 151 NLRB 972, 974 (1965); Ferrell-Hicks Chevrolet, Inc., 160 NLRB 1692, 1695-98 (1966). 25 In none of the NLRB cases did the Board or courts tell the employer that he should act as he did, but only that it was lawful for him to do. Here, the courts told the Union and the Company that it was a “business necessity” for them to act as they did—that “the dangers and complexities of the steel manufacturing process” dictated foregoing plant se- niority and rate retention. The courts thus had said more than that the defendants’ course of conduct was lawful; they had corroborated the defendants’ own belief that that course was a necessity. CONCLUSION For the reasons set forth above, the petition for writ of certiorari should be granted. Respectfully submitted, BERNARD KLEIMAN MicwHae.t H. GotresMAN Car B. FRANKEL Ropert M. WEINBERG United Steelworkers of Bredhoff, Cushman, Gottesman America, AFL-CIO-CLC & Cohen Five Gateway Center 1000 Connecticut Avenue, N.W. Pittsburgh, Pa. 15222 Washington, D.C. 20036 Jerome A. Cooper JouHN FALKENBERRY Cooper, Mitch & Crawford 409 North 21st Street Birmingham, Ala. 35203 Attorneys for Petitioner Appendix I APPENDIX United States District Court, N. D. Alabama, S. D. Dec. 11, 1973. UNITED STAT LS of America, Plaintiff, LutHer McKinstry, et al., Plaintiffs; WituiaM Harpy, et al., Plaintiffs; Joun S. Forp, et al., Plaintiffs; E_per Brown, et al., Plaintiffs; Evex P. Love, et al., Plaintiffs ; Tuomas Jounson, et al., Plainiiffs; James Dona p, et al., Plaintiffs ; James Fitimcame, Plaintiff ; Vv. UNITED STATES STEEL CORPORATION et al., Defendants.* . MEMORANDUM OF OPINION POINTER, District Judge. Consolidated trial of these Title VII cases’ began in June, 1972. In Dec mber, 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 supplemental 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 * 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. Civ. A. Nos. 70-906, 66-343, 66-423, 66-625, 67-121, 68-204, 69-68, 69-165 and 71-131. 1 The Fillingame suit, CA 71-131, brought by a white emplovee, is essentially a charge of unfair representation against the union. The other private suits; brought by black’: ner —~ gree make claims under 42 U.S.C.A. § 1981 as well as under Title VII. 2 Appendix professional attitude of all counsel 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 re- lated 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 facili- ties, with some finished products. Four (Tin; Wire; Sheet; Besse- mer Rolling) make finished products. The ninth* (Rail Trans- portation) provides rail transportation services for the other eight. 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 re- cent, was constructed in 1939-40. The nine plants now form a single interrelated steel producing operation, with operation re- sponsibility vested in a General Superintendent. His principal man- agerial assistants, called Division Superintendents, have functional responsibilities which may include operations at more than one plant. Similarly, union organization—and subsequent management rec- ognition—occurred at different plants at varying times during the late 30’s and early 40’s. Two locals of the Steelworkers represent 2 For example, on one day the court was able to hear over 60 wit- nesses relative to a narrow dispute of fact. Rarely was the court called upon to rule on matters of authenticity of documents. 3 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 con- clusions 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, s nevertheless in this opinion of convenience. ein Appendix 3 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 employees through- out the works, and another represents the unionized 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 negotia- tions 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 regu- lations”, in which the various locals have asserted their independ- ence 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 Fairfield Works, as well as a separate arrangement for plant protection workers and one for the unionized C & T employees. It should be noted that employees holding trade and craft (T & ©) 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 provisions 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 (‘‘2l-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 ma »e on a 21-turn basis and another, during the same period, on a 5-turn basis. This fluctuation constitutes 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 ®* The United Steelworkers of America, AFL-CIO-CLC, and the twelve Steelworkers locals constitute, along with the company, the de- fendants in this litigation. Three other unions, not named as defend- ants, have represented a limited number of employees in specialized operations. 4 Appendix persons on the job® at Fairfield Works, of which some 27% would be black employees.’ P & M employees constitute the bulk of the work forct-—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 practices and conditions concern- ing 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 have a technical name generally descriptive of their principal func- tion, 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, posi- tions have production-oriented incentive pay arrangements, either * There would be severa! thousand additional employees either sick, on vacation or leave, or on lay-ofi. 7 The record of the company in isiring blacks over the yéars is suf- ficiently good that in none of the suits is there a general claim of dis- crimination in hiring. There is a claim of discrimination as to hiring for certain types of jobs (e. g., supervisory) and as to initial assign- ment of blacks disproportionately to less desirable plants. On this lat- ter claim the court finds from the evidence no such discrimination since July 1965; and on the first claim the court has included in the decree provisions to mandate judicially parts of the company’s “Af- firmative Action Compliance Program.” 8 The job class levels, which range from a low of JC 1 to a high of JC 30, were established in the late 40’s and early 50’s as an outgrowth of a wage inequity study program initiated under the auspices of the War Production Board and conducted on an industry-wide basis. The levels were established after a consideration of a number of factors inherent in the jobs as performed at the time of the study, e¢. g., physi- cal effort, mental effort, skills, responsibility, working conditions, et cetera. The industry—companies and unions-—has agreed not to re- evaluate these ratings except where the factors have changed since the time of the study. At triennial bargaining sessions the actual hourly rate for each job class level is determined by negotiation; e. g., under the 1971 agreement the hourly rates start with $3.385 for JC 1 and rise to $5.905 for JC 30. While agreeing not to reevaluate JC deter- minations for particular jobs absent a change in the job content, the parties have occasionally negotiated “differentials” far “out-of-line” ar special situations (e. g., trade and craft). “—-* ~ Appendix 5 direct or indirect, some by individual performance and others by crew or group productivity. The differences between these nego- tiated 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 employee are also dependent upon how many hours are worked and when (e. g., overtime, shift premiums, and Sunday and holiday 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 progres- sion or promotion (LOP).’ The groupings generally, but not al- ways, are composed of occupations which work together on some process (¢. g., feeding and operating a rolling machine) or which perform similar functions (e. g., maintaining production or inven- tory 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 con- sideration. If one of these persons is selected, this may create a vacancy on that step of the ladder, which in turn is filled by pro- *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 bot- tom 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. 6 Appendix motion 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 plant rules the oldest employee is the one who has been on the preceding job longest (occupational seniority), while in others it is the em- ployee with longest service in the LOP (LOP seniority), in the department (departmental seniority), or in the plant (plant senior- ity). In most plants the method for determining age for promotional purposes is also used to determine age for the purpose of job en- titlement 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 manner 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 necessarily uniform within the same place, to cover particular situations; such as where a younger em- ployee is for some reason holding a higher job in the LOP, or where an employee prefers “going to the street” and taking supple- mental unemployment benefits (SUB), or where an LOP contains lower jobs that, due to prior mergers of lines or otherwise, the em- ployee 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 geographical 10 1nder the contracts age is the determining factor only where ability to perform the work and relative fitness of the competing em- ployees are relatively equal. In practice most vacancies are filled in accordance with the age factor. Appendix 7 divisions or departments in the plant." These offer no promo- tional opportunities as such;’* rather they are essentially “waiting” jobs—more menial jobs to which employees are assigned 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 em- ployed in making such assignments vary from one supervisor to the next. Permanent vacancies in an LOP which are not filled by em- ployees already in that LOP” are filled by a bidding system speci- fied 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 required, as- suming 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 11 The basic concept of the pools, which were established in 1962-63, is not challenged by the United States or the private plaintiffs. 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 each area pool according to their relative desirability (from the standpoint of earnings, exertion and working conditions). The employees on pool jobs having the longest service in the area which the pool covers are entitled to a job with Job Desirability Level 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. 18 Those with recall rights to the LOP are first offered the position 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 example, 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. 8 Appendix disputes as well as in other matters, fairly pursued such remedies for the employees without regard to their race or color." A significant degree of choice is reserved to the individual em- ployee. 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 perma- nent promotion from a job in an LOP to a higher job in that line. He is usually allowed to decline to accept a temporary 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 occa- sions, change his mind when the situation is next again presented. Each LOP is, in essence, separate from all other LOPs, without transfer rights except through the bid procedure,’* which generally means starting at the bottom of the ladder and, under the occupa- tional and LOP age systems, as a “new” man. In practical effect this means that an employee’s promotional history, at least in retro- ~ spect, is to a