Petition — American Tobacco Co. v. Patterson

Supreme Court, U. 3

FILED

a Seer er Sao’ ee ae i eee JUI ie

IN THE IS

Supreme Court of the United States”

October Term, 1975

No. 76-564

TOBACCO WORKERS’ INTERNATIONAL UNION

AND LOCAL 182, TOBACCO WORKERS’

INTERNATIONAL UNION, Petitioners,

versus

JOHN PATTERSON, MARION MOSHOE,

EDMUND PAGE, JAMES RANDOLPH AND

PERCY TAYLOR, each individually and on behalf

of all other persons similarly situated;

THE AMERICAN TOBACCO COMPANY;

AMERICAN BRANDS, INC.;

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION, Respondenis.

JOINT PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HE™ BERT L. SEGAL

IRWIN H. CUTLER, JR.

WALTER LAPP SALES

SEGAL, ISENBERG, SALES, STEWART & NUTT

3rd Floor-M. E. Taylor Bldg.

Louisville, Kentucky 40202

JAY J. LEVIT

STALLARD & LEVIT

2120 Central National Bank Bldg.

Richmond, Virginia 23219

JAMES F. CARROLL

1111 E en, ox Suite 505

Caenington D. 20004

Counse for the yt.

Tobacco Workers’ International Union

and its Local Union No. 182

eRe

aE sietupptsieteiyesises

eee

TABLE OF CONTENTS

PAGE

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QUESTIONS PRESENTED 222 eeceecceeee 2

STATUTES INVOLVED ... vecuadbicbaseuniinebaeastadiogs 3

STATEMENT OF THE CASE.......... iaidanahienaienbiataasnninele 3- 7

REASONS FOR GRANTING THE WHIT... 7-18

CONCLUSION oo... Seclaidhibemdveidaamtiananantes 18

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TABLE OF AUTHORITIES

PAGE

CASES:

Auto Workers vs. NLRB, 394 F. 2d 757 (D.C. Cir. 1968),

cert. denied, 398 US 831 (1968)... ee. 15

Coronado Coal Co. vs. United Mine Workers, 268 US

I oa casntosnepaenssaseecsaiainieiiaeiata 6

EEOC vs. Detroit Edison Co., 515 F. 2d 001 (6th Cir.

aS SY SERRE: eRe eae 8

Emporium Capwell Co. vs. WACO, 420 US 50 (1975)........ 16

Griggs vs. Duke Power Co., 401 US 424 (1971)......2, 3, 8, 9, 11, 18

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

Oc i a a 17

Local 189, Papermakers vs. United States, 416 F. 2d 980

; (5th Cir. 1969), cert. denied 397 US 919 (1970)............ 8, 9, 17

Meadows vs. Ford Motor Co., 510 F 2d 939 (6th Cir.

1975), cert. denied US. RMSE 9, 17

NLRB vs. Allis-Chalmers Manufacturing Co., 388 US

SO a eadesainaeaalinn 16

Pettway vs. American Cast Iron Pipe Co., 494 F. 2d 211

I i ed cnteeniialaneions 17

Plasti-line, Inc. vs. NLRB, 278 F. 2d 482 (6th Cir. 1960). 15

Robinson vs. Lorillard Corporation, 444 F. 2d 791 (4th

Cir. 1971), cert. dismissed 404 US 1006 (1971)............ 15

Sabala vs. Western Gillette, Inc., 516 F. 2d 1251 (1975)... 17

U.S. Gypsum Co. vs. Steelworkers, 384 F. 2d 38 (5th Cir.

1967), cert. denied 389 US 1042 (1968)... 15

United Mine Workers vs. Coronado Coal Co., 259 US 344

aaa i eleeiaal 6, 14, 16

Virginia Railway Company vs. System Federation, 300

US 515 (1937)............ as Ries EE AES Tn 15

Waters vs. Wisconsin Steel Works, 502 F. 2d 1309 (7th

Cir. 1974), cert. denied _ US. (1976)... 8

Watkins vs. Steelworkers Local 2369, 516 F. 2d 41 (5th

SUES SIDED ' scusainccssbesuuidesiatideseiniennbinnisentaascieaniaenmaminiieiiniahinns 9, 10

iii

PAGE

STATUTES:

CIVIL RIGHTS ACT OF 1870:

42 USC $1980 oeeecccecsseseseseseccncnceeceeceeeee SEL LO 3

CIVIL RIGHTS ACT OF 1964:

§703(a)-(c), 42 USC §2000e-2(a)=(€) ...cccccoccecceeeseeeeeeeeen

§703(h), 42 USC §2000e-2 (Ih) .......-e--ceeeceeesevvsevvssvssssneeeeeen

$703 (j), 42 USC $2000€-2(j) -..e-ccce-ccevceeovnvsnccsoseeeeeeeeeeeeeee

42 USC §2000e-5(d), as amended 42 USC §2000e-5(e)

wo wow ww

LABOR-MANAGEMENT RELATIONS ACT:

SS ea eee 6, 15

a coesianipiasouie 2

">

IN THE

Supreme Court of the United States

October Term, 1975

No. — =

TOBACCO WORKERS’ INTERNATIONAL UNION

AND LOCAL 182, TOBACCO WORKERS’

INTERNATIONAL UNION, Petitioners,

versus

JOHN PATTERSON, MARION MOSHOE,

EDMUND PAGE, JAMES RANDOLPH AND

PERCY TAYLOR, each individually and on behalf

of all other persons similarly situated:

THE AMERICAN TOBACCO COMPANY;

AMERICAN BRANDS, INC.:;

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION, Respondents.

JOINT PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Tobacco Workers International Union and Local 182,

Tobacco Workers International Union’ petition for a

Writ of Certiorari to review the Judgment of the United

States Court of Appeals for the Fourth Circuit in this

case.

iHereinafter Tobacco Workers International Union will be re-

ferred to as the International; Local 182, Tobacco Workers Interna-

tional Union, will be referred to as the Local Union, and collectively

the Petitioners will be referred to as the Unions.

OPINIONS BELOW

The Opinion of the Court of Appeals (App. A, infra

p. 19) is not yet officially reported and is unofficially

reported at 12 FEP Cases 314. The Judgment of the Dis-

trict Court (App. B, infra p. 49) is officially unreported

and is unofficially reported at 8 FEP Cases 778.

JURISDICTION

The Judgment of the Court of Appeals was entered on

February 23, 1976 and rehearing was denied on April 16,

1976. The jurisdiction of this Court is invoked under 28

USC §1254(1).

QUESTIONS PRESENTED

(1) Whether Title VII is violated when the impediment

to advancement of blacks is not the result of an “artifi-

cial barrier” proscribed by Griggs’ but is because a stag-

nant economy in the tobacco industry and automation

have kept all employees, black and white, in jobs they

held a year before any charge of discrimination was filed.

(2) Whether an International Union can be held liable

for violations of Title VII occurring in a bargaining unit

represented solely by one of its affiliated local unions

where the collective bargaining agreements then in effect

are fair and neutral and the Title VII violations are the

result of practices totally outside the control of the Inter-

national Union.

(3) Whether an award of “front pay” (that is, pay for

periods of time subsequent to the date of judgment) is

permissible under Title VII when all employees are ac-

corded the same opportunity by the Court’s decree, with-

out any barriers, for future promotions.

1Griggs vs. Duke Power Co., 401 US 424 (1971).

OOO

3

STATUTES INVOLVED

The following statutes are involved in this case (App.

C, infra p. 105): Civil Rights Act of 1870, 42 USC §1981;

Civil Rights Act of 1964, Section 703(a)-(c), 42 USC

§2000e-2(a)-(c); Civil Rights Act of 1964, Section 703(h),

42 USC §2000e-2(h); Civil Rights Act of 1964, Section

703(j), 42 USC §2000e-2(j); Civil Rights Act of 1964, 42

USC §2000e-5(d), as amended, 42 USC §2000e-5(e).

STATEMENT OF THE CASE

This is an employment discrimination case brought

pursuant to 42 USC §1981 and Title VII of the Civil

Rights Act of 1964, 42 USC §2000e, et seq. The lower

courts held the promotional systems at the Virginia and

Richmond plants of the American Tobacco Company in

Richmond, Virginia’ discriminated against blacks and fe-

males. Although the seniority system was found to be

fair, the static employment situation in the tobacco indus-

try and particularly at American locked blacks and

females into lower paying jobs. In Griggs, this Court

interpreted Title VII as requiring “the removal of arti-

ficial, arbitrary and unnecessary barriers to employ-

ment.” 401 US at 431.

Thus, the precise question for review is whether the

lack of promotional opportunities for all employees re-

sulting from a stagnant economy and automation, not

from a discriminatory seniority system, is an artificial

barrier proscribed by Title VII. The second question pre-

sented for review concerns whether the International

Union may be held liable for discrimination where it is

not the representative of the bargaining unit of which

the discriminatees are members.

2Hereafter, American Tobacco Company, a division of American

Brands, Inc. will be referred to as American.

4

I.

The panel of the Court of Appeals found:

“American operates three facilities in Richmond,

Virginia. The ‘Virginia branch’ makes cigarettes;

the ‘Richmond branch’ makes pipe tobacco; and the

‘Richmond office’ keeps accounts and records for

both branches. Approximately 250 of the 1280 em-

ployees at both branches are black and in the Rich-

mond office 13 of the 62 employees are black. In

each branch, the prefabrication blends and prepares

tobacco before sending it to the fabrication depart-

ment, which manufactures the finished products.

Workers in prefabrication generally earn less than

those in fabrication, and most employees at the Rich-

mond branch make less than those at the Virginia

branch.” (App. A, infra pp. 22-23.)

The Court further found that before 1963, overt segre-

gation of employees by race occurred “with respect to

job assignments, cafeterias, restrooms, lockers and plant

entrances”. The lower paying jobs in the prefabrication

department were generally assigned to blacks while the

higher paying ones in fabrication were assigned to white

employees. Since each department had its own separate

seniority roster, and since interdepartmental transfer

could not be accomplished without forfeiture of seniority,

the Court found the blacks were effectively locked into

the lower paying jobs in prefabrication.

In September, 1963, departmental seniority was abol-

ished but separate rosters at the Richmond and Virginia

branches were maintained. Both lower courts found that

until 1968 “a system of unwritten qualifications” effec-

tively denied blacks “access to the higher paying jobs in

the Virginia branch.” The Richmond Branch, however,

had no qualification restrictions on promotions.

In January, 1968, the qualification system was abol-

ished and nearly all job vacancies were posted and the

9)

senior employee in the plant who bid for the job obtained

the promotion.

The Court of Appeals affirmed the District Court’s

finding relating to seniority:

“The present system of posting and bidding

adopted in 1968 is fair, although it needs, in the

Court’s view, further implementation. As indicated

in the Findings of Fact, however, black and female

employees in the Richmond branch and the Virginia

branch have been locked in their jobs as a result of

prior discriminatory practices. This is because of

the static condition of the tobacco industry generally,

and American in particular, and the advent of auto-

mation, both of which have limited opportunities for

the upward movement of present employees and for

new hiring.” (App. B, infra, p. 54.)

Both courts also found “that the denial of transfer be-

tween the branches without retention of Company seni-

ority perpetuates the effect of past discrimination” and

the Court of Appeals ordered that certain employees be

allowed to transfer from one branch to another on the

basis of Company seniority. This finding was made de-

spite the absence of any findings that blacks or females

were ever prohibited from employment in either of the

branches or that the lack of Company seniority frustrated

blacks more than whites from transferring between

branches.

Il.

In finding American and the Unions liable for race and

sex discrimination,’ the District Court, with the panel’s

approval, specifically held that the International Union

was liable because one of its officers acted as an advisor

5The panel dismissed the Complaint alleging sex discrimination

against the two Unions because the EEOC had failed to attempt con-

ciliation with the Unions prior to filing the action. This aspect of the

panel’s decision, therefore, has not been challenged here.

6

to the Local Union during negotiations and, pursuant

to the Internationa! Union Constitution, the International

Union General President had a right of approval of any

proposed collective bargaining agreement.

Both lower courts dismissed as irrelevant the uncon-

tradicted evidence that the International Union’s Gen-

eral President did not in fact approve any collective bar-

gaining agreement entered into by the Local Union and

that, by the very terms of the Agreement, the Interna-

tional Union was not a party thereto. Additionally, both

Courts ignored the fact that only the Local Union is cer-

tified by the National Labor Relations Board as the bar-

gaining agent for American’s production employees at

the Richmond and Virginia Branches. Both of the lower

courts also disregarded other relevant provisions of the

Constitution of the International Union, specifically Sec-

tion 28 of Article E thereof which provides that the Inter-

national Union “assumes no responsibility for any agree-

ment to which it is not an actual party”.

In short, both lower courts impliedly rejected this

Court’s holding regarding the liability of an international

union for acts of its local union affiliates in the Coronado

Coal Co. cases.*

Furthermore, holding the International Union liable

here violates the exclusivity principle of Section 9a) of

the Labor-Management Relations Act, 29 USC §159(a),

that the recognized or certified bargaining agent selected

by a majority of employees (here, the Local Union), and

only that agent, may bargain on behalf of those em-

ployees.

4United Mine Workers vs. Coronado Coal Company, 259 US 344

{ pest A | oe Coal Company vs. United Mine Workers, 268 US

7

III.

The District Court ordered “immediate company-wide

posting and bidding on each non-supervisory job in the

Richmond Branch and Virgin's Branch, with no qualifi-

cation except seniority and a willingness to learn the

job,” with exceptions for a small number of jobs, and

ordered an elaborate system for implementing this post-

ing and bidding.

The Court of Appeals, however, rejected this “bump-

ing’ remedy and instead ordered front pay:

“This compensation [back pay] should be supple-

mented by an award equal to the estirnated present

value of lost earnings that are reasonably likely to

occur between the date of judgment and the time

when the employee can assume his new position.

(Citing two District Court cases.! Alternatively, the

court may exercise continuing jurisdiction over the

case and make periodic back pay awards until the

workers are promoted to the jobs their seniority and

qualifications merit. Or perhaps counsel and the

court can devise some other convenient method of

taking all the effects of past discrimination into ac-

count.” (Footnote omitted.)

REASONS FOR GRANTING THE WRIT

I,

When the Civil Rights Act of 1964 was enacted, this

country was in the midst of an economic revival. Con-

cern over wage earners competing for jobs was minimal.

“Great Society” legislation, by its very terms, was de-

signed to achieve equality in an economy which was

ever-expanding and bursting at the seams with new op-

portunities, challenges and solvable problems.

The questions raised here deal with the application of

Title VII to an economy tempered by the realism. of a

recession, in an industry which was not expanding, where

wage earners compete not so much for promotions but

for any available job. In January, 1968, a complete

plant-wide seniority system was instituted, without any

qualifications, for the vast majority of jobs at American.

Such seniority systems have been held to be “bona fide”’

under Section 703(h) of the Act, and therefore, lawful.

Local 189, Papermakers vs. United States, 416 F. 2d 980

(5th Cir. 1969), cert. denied 397 US 919 (1970); Waters

vs. Wisconsin Steel Works, 502 F. 2d 1309 (7th Cir. 1974),

cert. denied ___US____ (1976); EEOC vs. Detroit Edison

Co., 515 F. 2d 301 (6th Cir. 1975). Specifically, the Sev-

enth Circuit in Waters held:

“Moreover, an employment seniority sysvem is

properly distinguished from job or department seni-

ority systems for purposes of Title VII. Under the

latter, continuing restrictions on transfer and pro-

motion create unearned or artificial expectations or

preference in favor of white workers when compared

with black incumbents having an equal or greater

length of service. Under the employment seniority

system, there is equal recognition of employment

seniority which preserves only the earned expecta-

tion of long-service employees.

“Title VII speaks only to the future. Its backward

gaze is found only on a present practice which may

perpetuate past discrimination. An employment

seniority system embodying the ‘last hired, first

fired’ principle, does not of itself perpetuate past dis-

crimination. To hold otherwise would be tantamount

to shackling white employees with a burden of past

discrimination created not by them but by their em-

ployer. Title VII was not designed to nurture such

reverse discriminatory preferences. Griggs v. Duke

Power Co., 401 US 424, 430-33 (1971).” 502 F. 2d

at 1320.

The promotional system described as lawful under

Title VII by the Fifth, Sixth and Seventh Circuits was

a

9

instituted at American in January, 1968, fully eleven

months before any charge of discrimination was filed

with the Equal Employment Opportunity Commission.

Both the District Court and the Fourth Circuit here

found the promotional system essentially fair but never-

theless held that continuing discrimination occurred be-

cause blacks and females had not advanced to the higher

paying positions. The cause of this lack of advancement

and promotional opportunity was not an employment

test or a departmental seniority system, as in Paper-

makers, or an unlawful weight restriction as in Meadows

vs. Ford Motor Co., 510 F. 2d 1220 (6th Cir. 1975), cert.

denied US (1976). Instead, the cause was “the

static condition of the tobacco industry generally and

American in particular, and the advent of automation,

both of which have limited opportunities for upward

movement of present employees and for new hiring.”

(App. B, infra p. 54.)

We urge for the Court’s consideration that automation

and a stagnant economy are not artificial barriers to ad-

vancement proscribed by Griggs. The causes for the con-

tinuing disparity in income by race and sex and dispro-

portionate concentration of blacks and females in some

jobs, identified by the lower courts, are not within the

control of either American or the Unions. Therefore,

neither American nor the Unions should have been held

liable for violations of Title VII.

In conflict with the decisions here is Watkins vs. Steel-

workers Local 2369, 516 F. 2d 41 (5th Cir. 1975). In Wat-

kins, only whites were hired at the plant until 1965. Be-

tween 1965 and 1969, a few blacks were hired each year.

From 1969 until 1971 a substantial number of blacks

were hired. Between 1971 and 1973, substantial layoffs

occurred. Pursuant to the collective bargaining agree-

10

ment, layoffs and recalls were to be made in accordance

with total plant-wide seniority. The “last hired, first

fired” principle was utilized and resulted in a layoff of

all employees hired after 1951 including a disproportion-

ately large number of blacks. In fact, all but two blacks

were laid off.

The Plaintiffs in Watkins were representatives of a

class of black employees who had been laid off. They

claimed that the “last hired, first fired” principle per-

petuated the effects of past discrimination by eliminat-

ing almost the entire complement of black employees who

had not been hired until after 1965 because of their race.

The Fifth Circuit held that:

“(Rlegardless of an earlier history of employment

discrimination, when present hiring practices are

nondiscriminatory and have been for over ten years,

an employer’s use of a long-established seniority sys-

tem for determining who will be laid-off, and who

will be rehired, adopted without intent to discrimi-

nate, is not a violation of Title VII or $1981,

even though the use of the seniority system results

in the discharge of more blacks than whites to the

point of eliminating blacks from the work force,

where the individual employees who suffer layoff

under the system have not themselves been the sub-

ject of prior employment discrimination.” 516 F. 2d

at 44-45.

Unlike the courts below, the Watkins Court held that

a Company and Union, though discriminating in the past,

could not be held liable for violations of Title VII simply

because a plant-wide seniority system had a greater ad-

verse impact upon blacks than whites. The Watkins

Court recognized that it was the economy and automa-

tion which resulted in the layoff, not any practice within

the control of the Employer or the Union. The refusal of

the Company to hire any blacks before 1965 and its con-

11

tinuing refusal to hire blacks in any significant numbers

before 1969 (four years after the effective date of Title

VII) is not itself sufficient to render the Company and

the Union liable under Title VII because of layoffs occur-

ring after 1969.

While recognizing the essential fairness of the plant-

wide seniority system, the Courts below held American

and the Unions liable under Title VII not because of em-

ployment practices within their control, but because of

economic conditions adversely affecting new policies de-

signed to give all employees an equal opportunity for

promotion and advancement.

In sum, therefore, we urge that a fluctuating economy

and automation are not the type of “artificial barriers”

to advancement by blacks and females which this Court

proscribed in Griggs. Rights under Title VII should not

be made to depend upon the vagaries of our economy,

or the efforts by any employer to achieve efficiency

through automation. The Watkins Court recognized this

policy and we commend its resolution of the problem to

this Court.

II.

In holding the International Union liable for the al-

leged discrimination committed by American and the

Local Union, neither of the lower courts identified any

provisions of the collective bargaining agreement as per

se discriminatory. The International Union’s liability

was predicated simply upon two facts:

(1) The Constitution of the International Union pro-

vides that the General President of the International has

a right to approve any collective bargaining agreement

entered into by a local union; .

12

(2) Although not a party to the contract, the Interna-

tional Union did have an advisor at contract negotiations

who witnessed the execution of the collective bargaining

agreement between American and Local 182.

Even if this were sufficient to establish an agency rela-

tionship (which under decisions of this Court it is not),

nevertheless, in order to establish liability, there must

have been a finding that some provision of the collective

bargaining agreement was per se discriminatory. There

were no findings in this regard. To the contrary, the

provisions of the collective bargaining agreement were

found to be “fair”.

The finding of liability against the International was

made even though the Local Union was the bargaining

agent for American’s employees, not the International.

The right of approval of the collective bargaining agree-

ment contained in the International Union’s Constitution

was never in fact carried out, as no approval was ever

sought or obtained. Focusing on one section of the Inter-

national’s Constitution, both of the lower courts disre-

garded Section 28 of Article E of the Constitution which

provides in relevant part:

“It shall be the principal duty of the local unions

to secure satisfactory collective bargaining in work-

ing agreements. .. The TWIU assumes no responsi-

bility for any agreement to which it is not an actual

party.”

Further, the Constitution clarifies this intent behind

the requirement that the General President may approve

all collective bargaining agreements:

“Such approval, however, is not to be construed

as making the TWIU a party to any such agreement

unless the TWIU actually signs and makes itself a

party to such agreement. The TWIU assumes no

responsibility for any agreement to which it is not

an actual party.”

13

The collective bargaining agreement clearly states that

“the Company recognizes local union No. 182 of its Vir-

ginia Branch, Richmond Branch of the Tobacco Workers

International Union as the sole and exclusive collective-

bargaining agency. . .” In finding liability against the

International, the District Court erroneously concluded:

“Local 182 and the Tobacco Workers’ International

Union entered into collective bargaining agreements

governing, inter alia, wage rates for employees un-

der jurisdiction which became effective in 1954,

1956, 1958, 1960, 1962, 1965, 1968, 1971 and 1974,

respectively. Unions have jurisdiction over employ-

ees at the Richmond Branch and the Virginia

Branch but not the Richmond office.”

Clearly, that finding was erroneous since the Interna-

tional was not a party to the contract and was not the

representative of the employees at the Richmond and

Virginia Branches.

The Court of Appeals held that:

“The court [the district court] properly concluded

that the International’s approval of the bargaining

agreement pursuant to this provision made it jointly

responsible with the local. Cases dealing with an

international union’s exoneration of liability to an

employer are inapposite where its duties to mem-

bers of its local unions are at issue.” (App. A, infra

p. 36.)

The analysis of the District Court clearly breaks down

inasmuch as the International is not the representative

of these employees and is not a party to the collective

bargaining agreement entered into on their behalf with

American. The panel’s affirmance of this holding is

equally erroneous because, while focusing on one portion

of the International’s Constitution providing for approval

of local collective bargaining agreements, the panel to-

tally ignored other provisions of the International Union

14

Constitution which provide that the International is not

a party to any agreement it does not sign as a party and

the approval of the General President of local agree-

ments is not intended tc make the International a party

or responsible for those agreements.

This Court, in United Mine Workers vs. Coronado Coal

Co., supra, analyzed the relationship of an international

union to a local union and the responsibility of an inter-

national unions for the acts of its local union, and con-

cluded:

“Here it is not a question of contract or of holding

out an appearance of authority on which some third

person acts. It is a mere question of actual agency,

which the constitutions of the two bodies settled con-

clusively. If the International body had interfered,

or if it had assumed liability by ratification, differ-

ent questions would have arisen.

“But it is said that the district was doing the work

of the International in carrying out its policies, and

this circumstance makes the former an agent. We

cannot agree to this in the face of a specific stipula-

tion between them that in such a case, unless the

International expressly assumed responsibility, the

District must meet it alone.” 259 US at 395.

This Court upheld and recognized the exculpatory pro-

vision in the Constitution of the Mine Workers. The

lower courts here disregarded exculpatory provisions in

the Constitution of the Tobacco Workers and thus de-

parted from this Court’s holding in Coronado.

It cannot be said that the exculpatory provision in the

International’s Constitution is intended to give the Inter-

national the best of all worlds, i.e., control over the Local

Unions without any responsibility or liability for their

15

acts. The Fourth Circuit in another Title VII case in-

volving the Tobacco Workers held the International Un-

ion liable for Title VII violations, but there the Interna-

tional was actually the recognized bargaining agent for

the employee and had actually entered into a collective

bargaining agreement with the employer. Robinson vs.

Lorillard Corporation, 444 F. 2d 791 (4th Cir. 1971), cert.

dismissed 404 US 1006 (1971). The distinguishing facts

in Robinson and the relationship between the parties

there are found in the District Court’s opinion at 318 F.

Supp. 835 (M.D.N.C. 1970).

Plainly, the intent of these exculpatory provisions was

to make the International responsible only when it in

fact does represent the employees and enters into a con-

tract with an employer on their behalf.

Most important, however, is the injury suffered by

the exclusivity principle by the decision of the lower

court.

The duty of fair representation owed by a labor organi-

zation to employees it represents in collective bargaining

is an implied obligation arising out of the status granted

labor organizations as “exclusive representative’ pursu-

ant to §9(a) of the Labor-Management Relations Act, 29

USC §159(a). The exclusivity principle has been recog-

nized by this Court in Virginia Railway Company vs.

System Federation, 300 US 515, 548 (1937), holding that

the law “imposes the affirmative duty to treat only with

the true representative and hence the negative duty to —

treat with no other.” In Plasti-Line, Inc. vs. NLRB, 278

F. 2d 482, 486 (6th Cir. 1960), the Court stated that the

law “imposes on the employer the positive duty to bar-

gain with the representatives of the majority of its em-

ployees and not to bargain with any other.” See also

U.S. Gypsum Co. vs. Steelworkers, 384 F. 2d 38 (5th Cir.

1967), cert. denied 389 US 1042 (1968); Auto Workers

16

vs. NLRB, 394 F. 2d 757 (D.C. Cir. 1968), cert. denied

398 US 831 (1968). Very recently, in Emporium Capwell

Co. vs. WACO, 420 US 50 (1975), this Court again empha-

sized that the collective agent chosen by the majority of

the employees is the exclusive agent for dealing with the

employer, even on issues relative to racial discrimination.

Reaffirming the principles of NLRB vs. Allis-Chalmers

Manufacturing Co., 388 US 175 (1967), this Court quoted

with approval the following from that case:

“Thus, only the union may contract the employees’

terms and conditions of employment, and provisions

for processing a grievance. ...” 420 US at 64.

As the exclusive bargaining agent fer American’s pro-

duction employees, Local 182 is solely responsible for

negotiating the agreement with American and enforcing

agreements. Plainly, holding the International Union

liable here, where it is neither the bargaining agent nor

a party to the bargaining agreement, seriously under-

mines the exclusivity principle, and with it, the responsi-

bility for fair representation.

Moreover, the lower courts’ reliance on portions of

the International Union’s Constitution and disregard for

other provisions is contrary to the teaching of Coronado.

For these reasons, the finding of liability against the

International Union should be reviewed by this Court.

ITI.

The Fourth Circuit’s award of front pay by the Court

of Appeals contravenes the policy of Title VII and con-

flicts with the decisions of other circuits.

As pointed out above, the Court of Appeals below

ordered the payment of back pay not only for the past

but also for the future.

17

The Courts of Appeals have consistently, until the

instant case, followed the “rightful place” theory in Title

VII cases. This theory was discussed at length in Local

189, Papermakers vs. United States, supra, in which the

Court explicitly held that Title VII “should be construed

to prohibit the future awarding of vacant jobs on the

basis of a seniority system that “locks in” prior racial

classifications.” 416 F. 2d at 988.

See Pettway vs. American Cast Iron Pipe Co., 494

F. 2d 211, 258 (5th Cir. 1974).

Very recently, in Sabala vs. Western Gillette, Inc., 516

F. 2d 1251, 1266 (1975), the Fifth Circuit noted that in

Pettway, the court ordered the lower court to require

affirmative steps to insure that discriminatees be given

their “rightful place” but did not require back pay to the

date they actual took their rightful place. Specifically,

the termination date for back pay was to be the date of

the Court’s decree, or earlier.

The Decision of the Fourth Circuit below, therefore,

directly conflicts with this series of holdings by the Fifth

Circuit.

Likewise, it conflicts with holdings of the Sixth Circuit.

In Meadows vs. Ford Motor Co., 510 F. 2d 939, 948 (6th

Cir. 1975), quoting with approval from the Fifth Circuit,

the Court noted that the back pay “‘should compensate for

economic losses suffered during the period of testing and

before the implementation of this decision.” See also

Head vs. Timken Roller Bearing Co., 486 F’. 2d 870, 876-78

(6th Cir. 1973).

The courts, which unlike the courts below, have fol-

lowed the “rightful place” theory of interpreting Title

VII have followed the almost universally approved

theory. It is the doctrine which is consistent with this

18

Court’s holding in Griggs that Title VII requires the re-

moval of artificial, arbitrary and unnecessary barriers

to employment.

By awarding front pay, the Court of Appeals below has

divurged from the holdings of other Circuits. In view

of the large number of employment discrimination cases

filed in recent years and the magnitude of many of those

cases, we respectfully submit that the question of the

propriety of front pay as a remedy should be resolved

by this Court.

CONCLUSION

For the reasons stated above, it is respectfully submit-

ted that the writ should be granted.

Respectfully submitted,

HERBERT L. SEGAL

IRWIN H. CUTLER, JR.

WALTER LAPP SALES

SEGAL, ISENBERG, SALES, STEWART & NUTT

3rd Floor-M. E. Taylor Bldg.

Louisville, Kentucky 40202

JAY J. LEVIT

STALLARD & LEVIT

2120 Central National Bank Bldg.

Richmond, Virginia 23219

JAMES F. CARROLL

1111 E Street, N.W., Suite 505

Washington, D. C. 20004

Counsel for the Petitioners,

Tobacco Workers’ International Union

and its Local Union No. 182

APPENDIX A

19

United States Court of Appeals

FOR THE FOURTH CIRCUIT

No. 75-1259

JOHN PATTERSON, MARION MOSHOE,

EDMUND PAGE, JAMES RANDOLPH, and

PERCY TAYLOR, each individually and

on behalf of all other persons

similarly situated, - - - - - - - = = = = = Appellees,

-V-

THE AMERICAN TOBACCO COMPANY, a

Division of American Brands, Incorporated, - - - Appellant.

No. 75-1260

JOHN PATTERSON, MARION MOSHOE,

EDMUND PAGE, JAMES RANDOLPH, and

PERCY TAYLOR, each individually and

on behalf of all other persons

similarly situated, - - - - - - - - = = = = Appellees,

-V-

Tobacco Workers’ Internaticnal Union,

an unincorporated association;

Local 182, Tobacco Workers’ Inter-

national Union, an unincorporated

association, - - - - ---*+-+*-*-+-+-+ +s - Appellants.

No. 75-1261

JOHN PATTERSON, MARION MOSHOE,

EDMUND PAGE, JAMES RANDOLPH, and

PERCY TAYLOR, each individually and

on behalf of all other persons

similarly situated, - - - - ---+-+-+-+.- Appellants,

-V-

THE AMERICAN TOBACCO COMPANY, a

Division of American Brands, Incorporated;

Tobacco Workers’ International Union,

20

an unincorporated association;

Local 182, Tobacco Workers’ International

Union, an unincorporated association, - - - - - Appellees.

No. 75-1262

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION, - - - --+-+-+-+-+e+-+e+e+e-s. Appellee,

-V-

Local 182, Tobacco Workers’

International Union (AFL-CIO), - - - - - = - Appellant.

No. 75-1263

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION, - - ---+--+-+--+-+-+-+s+-- Appellee,

-V-

AMERICAN BRANDS, INC., d/b/a

American Tobacco Company, Inc., - - - - - - - Appellant.

Appeals from the United States District Court for the

Eastern District of Virginia, at Richmond. Albert V.

Bryan, Jr., District Judge.

(Argued May 7, 1975. Decided Feb. 23, 1976)

Before WINTER, BUTZNER, and WIDENER, Circuit Judges.

Henry L. Marsh, III; (S. W. Tucker; John W. Scott, Jr.; Randall

G. Johnson; Hill, Tucker and Marsh; Jack Greenberg; Elaine

R. Jones; Barry L. Goldstein; and Morris J. Baller on brief)

for John Patterson, et al.; Henry T. Wickham (John F. Kay,

Jr.; Kenneth V. Farino; Mays, Valentine, Davenport and

Moore; Chadbourne, Parke, Whiteside and Wolff; Paul G.

Pennoyer, Jr.; Arnold Henson; Bernard W. McCarthy; and

Bernard J. Dushman on brief) for The American Tobacco

Company and American Brands, Incorporated;

21

Herbert L. Segal (Irwin H. Cutler, Jr.; Walter Lapp Sales;

Segal, Isenberg, Sales and Stewart; Jay J. Levit; Stallard and

Levit; and James F. Carroll on brief for Tobacco Workers’

International Union and Local 182);

Margaret C. Poles, Attorney, Equal Employment Opportunity

Commission, (Julia P. Cooper, General Counsel; Joseph T.

Eddins, Associate General Counsel; and Beatrice Rosenberg

and Charles L. Reischel, Attorneys, on brief) for the Equal

Employment Opportunity Commission.

BUTZNER, Circuit Judge:

These appeals and cross appeals question certain provisions

of a judgment entered in consolidated actions brought by the

Equal Employment Opportunity Commission and several black

employees of the American Tobacco Co. against the company,

the Tobacco Workers International Union, and its Local 182.

The case concerns the application of Title VII of the Civil

Rights Act of 1964 [42 U.S.C. $2000e et seq.] and 42 U.S.C.

§1981 to redress race and sex discrimination in working con-

ditions.' Following is a summary of the district court’s de-

cision and our disposition of the assignments of error:

I. The district court defined the class of black employees

as those, whether currently employed or not, who worked

on or after July 2, 1965, the date Title VII became effective.

It found no discrimination in hiring but ruled that the com-

pany and the labor organizations had engaged in unlawful

employment practices by racial discrimination in the promo-

tion of employees. It ordered American to institute company-

wide seniority, eliminate certain lines of progression from

lower to higher paying jobs, post definite job descriptions,

grant back pay, and adjust pensions and profit sharing plans

in amounts to be determined at a subsequent hearing. The

court also ordered that white incumbents be bumped from

jobs for which senior black employees were qualified.

142 U.S.C. §2000e€2 prohibits both employers and labor organiza-

tions from engaging in employment practices that discriminate on the

bass of race or sex.

42 U.S.C. §1981 assures all persons the same right to make and

enforce contracts as is enjoyed by white citizens.

22

Neither party has assigned error to the court’s finding of

no discrimination in hiring. We find no error in the desig-

nation of the class. We affirm the finding of discrimination

in promotions and approve the relief ordered by the court,

except for provisions of the judgment dealing with company-

wide seniority and bumping.

II. The district court ruled that the EEOC was empowered

to bring suit to eliminate discrimination against women, al-

though the initial charge dealt only with discrimination against

men. It defined the class of aggrieved women in terms similar

to those used to describe the class of black employees. The

court found discrimination in promotions but not in hiring,

and it ordered relief similar to that afforded black employees.

On these issues we affirm the district court, modifying only

its grant of relief.

III. The district court found discrimination in the selection

of supervisors and ordered the company to prepare written

job descriptions and objective criteria for appointments. It

also ordered preferential hiring of blacks and women to fill

supervisory vacancies.

We affirm these aspects of the court’s judgment except for

those dealing with preferential hiring.

IV. The district court held that the actions were timely

filed, that the statute of limitations for an action brought under

§1981 is five years, and that the statute is not tolled by filing a

charge with the EEOC. It also held that back pay for discrim-

ination against women should accrue from two years before

the charge was filed.

Except for the application of the five-year statute of limita-

tions and the accrual of liability for the women’s back pay,

we affirm these rulings. The proper limitation, we hold, is

two years, and the accrual date for back pay must be re-

examined in light of EEOC v. General Electric Co., F.

2d , No. 74-1974 (4th Cir. 1975), which was decided

after the district court wrote its opinion.

I

American operates three facilities in Richmond, Virginia.

The “Virginia Branch” makes cigarettes; the “Richmond

23

Branch” makes pipe tobacco; and the “Richmond Office” keeps

accounts and records for both branches. Approximately 250

of the 1,280 employees at both branches are black, and in the

Richmond office 13 of the 62 employees are black. In each

branch the prefabrication department blends and prepares

tobacco before sending it to the fabrication department, which

manufactures the finished products. Workers in prefabrication

generally earn less than those in fabrication, and most em-

ployees at the Richmond branch make less than those at the

Virginia branch.

Before 1963 the union and the company overtly segregated

employees by race with respect to job assignments, cafeterias,

restrooms, lockers, and plant entrances. White employees were

represented by Local 182 of the Tobacco Workers International

Union, while black employees were represented by Local 216.

Blacks were generally assigned to positions in the prefabri-

cation departments. The higher paying jobs in fabrication

were largely reserved for white employees. Each department

had its own seniority roster, on which promotions depended.

Employees could not transfer from one department to another

without forfeiting their seniority.

In September 1963 the black union was assimilated by the

white Local 182 to comply with an executive order relating

to the government’s purchase of supplies. Simultaneously, the

company abolished departmental seniority, but it continued

to maintain separate rosters at the two branches. The 1963

changes did not eliminate racial discrimination from the com-

pany’s promotion practices. The district court found that until

1968 the company utilized a system of unwritten qualifications

which denied black employees access to the higher paying jobs

at the Virginia branch. For certain positions an employee had

to be familiar with the duties of the new job in the opinion

of his supervisor. Also, he had to work a minimum number of

hours on a temporary basis to qualify as an operator of a mak-

ing or packing machine. Consequently, black employees not

working in proximity to the higher paying jobs had limited

opportunity to qualify, regardless of their seniority. Com-

bined with static employment in the tobacco industry, this

system allowed little advancement of black employees from

jobs in prefabrication to those in fabrication. Indeed; from

24

1963 to 1968 there was an increase of only four blacks in the

fabrication department at the Virginia branch.

The Richmond branch had no qualification restrictions on

promotions. Instead, supervisors canvassed employees, seeking

the senior worker willing to fill a vacancy. There were, how-

ever, no written job descriptions. This system provided slight

opportunity for black employees to move from prefabrication

to fabrication, and from 1963 to 1968, there was an increase of

only six black employees in the latter department. As of 1968,

only three of the 26 machine operators were black.

In January 1968 the company discontinued its qualifications

system. Instead, it posted vacancies and promoted the senior

employee who bid for the job. The district court found that

this innovation was “facially fair and neutral” but ordered

that it be implemented by posting written job descriptions.

Furthermore, the district court found that access to certain

jobs was barred to black employees by lines of progression and

the maintenance of separate seniority rosters for each branch.

Although the company and the union have taken steps in

recent years to correct some of the inequalities of the past, the

lines of progression, the lack of definite written job descrip-

tions, and barriers to transfer between the branches remain

impediments to fair and neutral employment practices. Much

must still be done to eradicate any taint of racial discrimina-

tion at the plant. The most recent figures available indicate

that as of the end of 1973, more than 80 percent of all the em-

ployees in the Virginia branch’s prefabrication department

were black, while in the fabrication department only about 14

percent were black. At the Richmond branch, black employees’

penetration into the fabrication department was greater, with

blacks comprising more than 38 percent of the work force.

But the lower paying prefabrication department remained al-

most completely segregated; 92 percent of its employees were

black. These figures provide ample support for the district

court’s findings that “{t]raditionally, at both branches there

have been more blacks in the Prefabrication department than

whites, and more whites in the fabrication department than

blacks.”

The company emphasizes that from July 2, 1964, to March

1, 1974, 25 percent of all employees promoted and 20 percent

25

of those advanced to operate automatic machinery at the Vir-

ginia branch were black. Also, since the initiation in January

1968 of the posting and bidding procedure, 51.5 percent of the

successful bidders have been black. These gross figures, how-

ever, include promotions in both prefabrication and fabrication

departments, and, while laudable, they do not address the cru-

cial issue of the case —- the entry of black employees into the

historically white fabrication department. Apart from the

fact that many of these promotions were made after charges

were filed with the EEOC, the company’s reliance on the over-

all promotion rate in both departments misses the mark be-

cause blacks have always been promoted in the historically

black prefabrication department. Moreover, as late as 1973,

of the approximately 200 hourly-paid, non-craft job classifi-

cations at Virginia, 18 had never been held by whites and 10

had never been held by blacks. Even more rigid segregation

characterized the Richmond branch; of the approximately 43

hourly-paid, non-craft job classifications, 21 had never been

held by whites and nine had never been held by blacks.

We conclude, therefore, that the record amply supports the

district court’s finding that after the effective date of Title

VII the company and the union discriminated in the promo-

tional policies of their bargaining agreements and practices.

Tested by familiar standards, the court’s findings must be

sustained.”

We next consider the assignments of error that challenge

the relief ordered by the district court. The directive that

definite job descriptions must be provided in order to imple-

ment a fair method of promotion was clearly warranted. Cf.

Brown v. Gaston County Dyeing Machine Co., 457 F. 2d 1377

(4th Cir. 1972).

In those jobs that were filled according to lines of progres-

sion, an employee had to work in the first job before proceed-

ing to the next, and so on up to the highest job in the line.

Most of these jobs were in the fabrication departments. Since

black employees had been largely excluded from the fabri-

cation departments, they held few jobs in most of these lines

“Federal Rule of Civil! Procedure 52(a) provides in part that

“(flindings of fact [by the court] shall not be set aside unless clearly

erroneous...” ;

26

and could not advance despite their seniority. In this respect,

the lines of progression perpetuated the effects of past dis-

crimination in a manner similar to the formerly segregated

departmental seniority rosters. On the basis of its evaluation

of conflictine expert testimony, the district court held that

only three of the nine lines are justified by business necessity.’

For the others, alternative means such as on-the-job training

are available to provide competent workers.

Addressing the discrimination caused by lines of progres-

sion, we pointed out in Robinson v. Lorillard Corp., 444 F. 2d

791, 799 (4th Cir. 1971), that the vagaries of chance inherent in

this promotion system might bar a qualified worker from

advancement for years, although he could learn to perform

the job competently in a relatively short time. To deal with

such situations, we formulated the following standard for

ascertaining whether a condition of employment was justified

by business necessity:

“(T]he applicabie test is not merely whether there exists

a business purpose for adhering to a challenged practice.

The test is whether there exists an overriding legitimate

business purpose such that the practice is necessary to

the safe and efficient operation of the business. Thus, the

business purpose must be sufficiently compelling to over-

ride any racial impact; the challenged practice must effec-

tively carry out the business purpose it is alleged to serve;

and there must be available no acceptable alternative poli-

cies or practices which would better accomplish the busi-

ness purpose advanced, or accomplish it equally well

with a lesser differential racial impact.” 444 F. 2d at 798.

Measured by this test, the district court’s elimination of the

six lines of progression was correct.

The district court also ordered a single seniority roster for

the Virginia and Richmond branches to enable employees in

each branch to bid for posted jobs in the other. The order is

designed to correct the present effect of past discrimination,

which denied black employees entry into the higher paying

jobs of the fabrication departments, particularly at the Vir-

ginia branch. For example, under the present method of job

assignments, a black employee hired in 1955 at the Richmond

_ 3The three positions for which lines of progression can be main-

tained are adjuster, overhaul adjuster, and adjuster prefabrication.

27

branch prefabrication department has no realistic opportunity

to secure a higher paying job in the formerly white Virginia

fabrication department because he cannot transfer his com-

pany seniority to the Virginia branch. If he seeks a new job

there, he must forfeit his seniority and start as a new hire.

The district court correctly found that the denia) «f transfer

between the branches without retention of compary seniority

perpetuates the effect of past discrimination. We believe, how-

ever, that the relief ordered by the district judge is broader

than necessary. Title VII does not require the company or

the union to forego the benefits of separate, non-discriminatory

seniority rosters. “Application of the Act normally involves

two steps. First, identification of the employees who are vic-

tims of discrimination, and second, prescription of a remedy to

correct the violation disclosed by the first step. The Act does

not require the application of the remedy to employees who

are not subject to discrimination.” United States v. Chesa-

peake and Ohio Ry., 471 F. 2d 582, 593 (4th Cir. 1972). The only

employees who suffered discrimination were blacks who could

not obtain jobs in the fabrication departments because of their

race. Consequently, they are the only employees who should

be allowed to transfer under the posting and bidding system

from one branch to the fabrication department in the other

branch on the basis of their company seniority. Black em-

ployees need not be allowed to transfer with company senior-

ity to jobs in prefabrication, because they were never barred

from these jobs in the first place. Similarly, white employees

seeking transfers are not entitled to utilize company seniority,

because they were never barred from fabrication departments.

Finally, no employee hired after the cessation of discrimination

in job assignments need be allowed to transfer with seniority

intact. See e.g., Russell v. American Tobacco Company, ———-

F. 2d , No. 74-1610 (4th Cir. 1975); Robinson v. Lorillard

Corp., 444 F. 2d 791 (4th Cir. 1971); Quarles v. Philip Morris,

Inc., 279 F. Supp. 505 (E.D. Va. 1968).

The company and the union assert that this case is distin-

guishable from departmental seniority cases like Robinson

because the Richmonc and Virginia branches are in different

locations. They emphasize that the branches make different

products, have different managements, hire separately, and

28

are some distance apart. For these reasons, they argue, the

case falls within 42 U.S.C. §2000e-2(h), which provides that:

“Notwithstanding any other provision of this subchapter,

it shall not be an unlawful employment practice for an

employer to apply different standards of compensation,

or different terms, conditions, or privileges of employment

pursuant to a bona fide seniority or merit system ... or

to employees who work in different locations, provided

that such differences are not the result of an intention to

discriminate because of race, color, religion, sex, or na-

tional origin... .”

Noting that neither the Act nor the regulations define the

statutory term “employees who work in different locations,”

we recently construed §2000e-2(h) in Russell v. American To-

bacco Co., _. F. 2d , No. 74-1650 (4th Cir. 1975).

We pointed out that the labor market is the most important

factor in determining whether a company’s employees work

in different locations. A company operating two or more of its

plants with employees who are from the same geographic area

and who are unskilled or possess the same skills can assign

an applicant to an entry level position in either plant. There-

fore, employees the company hired from the same labor mar-

ket would not generally fall within the statutory class of “em-

ployees who work in different locations.”

On the other hand, even though a company’s plants are in

the same city, as they are here, their proximity does not con-

clusively show that they are in the same location. If one plant

requires labor possessing skills different from those of workers

at another plant, the company cannot draw from the same

labor market to man its plants. Under these circumstances,

employees would work at different locations, even though they

reside and work in the same geographic area.

American hires employees for both branches from the same

labor market. The branches are only a few city blocks apart.

There are entry level jobs at both places that require neither

particular skills nor experience, and jobs in fabrication can be

filled just as well by transferees as by persons hired off the

street.

Other facts support the district court’s finding that these

plants are not in different locations. The same bargaining

agreement covers employees at both plants, and the company

29

has contractually reserved the right to shift employees from

one plant to the other without depriving them of seniority.

The Richmond office, located in a building at the Virginia

branch, serves both branches, and the Virginia branch ships

the Richmond branch’s products.

There is another reason why the exemption granted in

§2000e-2(h) is not available to American. As we noted in

Russell, supra, slip op. at 10, that section contains a proviso

that restricts its application to situations where differences in

the conditions of employment “are not the result of an inten-

tion to discriminate.” Past intentional segregation that is per-

petuated by a company’s seniority system precludes it from

claiming that its system is bona fide within the meaning of

§2000e-2(h), Robinson v. Lorillard Corp., 444 F. 2d 791 (4th Cire

1971). Similarly, “where present differences in working con-

ditions are remnants of past intentional discrimination, the

proviso of §2000e-2(h) bars a company from defending its

employment practices on the ground that its employees work

in different locations.” Russell v. American Tobacco Co.,

F. 2d ; , No. 74-1650 (4th Cir. 1975), slip

op. at 11.

We therefore affirm the district court on this issue but note

that on remand it should vacate the provision of its judgment

requiring a single seniority roster for both branches. * should

substitute an order allowing those black employees who for-

merly could not obtain jobs in the fabrication departments

because of discrimination to utilize their company seniority

to bid for such jobs in the fabrication department of either

branch. Of course, an employee who transfers must have the

capacity to perform the job after receiving a reasonable

amount of training.

The company and the union also assign error to the part

of the district court’s order that allowed senior black and

female employees to bump junior employees from preferred

jobs. The court ordered immediate company-wide posting and

bidding on each non-supervisory job in the Richmond and

Virginia branches. The only qualifications for advancement

were to be seniority and a willingness to learn the job. To

facilitate the bidding, the court ordered that job descriptions

be posted. It further provided that employees who were dis-

30

placed by senior black or female workers, and therefore had

to move to lower paying jobs, must be paid as much as they

were in their former jobs. The court explained the reason for

this provision of its decree as follows:

“The present system of posting and bidding adopted in

1968 is fair, although it needs, in the Court’s view, further

implementation. As indicated in the findings of fact, how-

ever, black and female employees in the Richmond Branch

and the Virginia Branch have been locked in their jobs

as a result of prior discriminatory practices. This is be-

cause of the static condition of the tobacco industry gen-

erally, and American in particular, and the advent of auto-

mation, both of which have limited opportunities for up-

ward movement of present employees and for new hiring.”

(Appendix at 37-38.)

The court’s description of the lack of employment opportuni-

ties is well supported by the evidence. No new employees

were hired to fill jobs under jurisdiction of the union from

September 12, 1955, through June 12, 1964, in the Richmond

branch and May 12, 1966, in the Virginia branch. Employment

in both branches decreased from 1953 to 1973 by approximately

1300 workers.

One of the early questions about the construction of Title

VII was whether “present consequences of past discrimination

[are] covered by the act.” Quarles v. Philip Morris, Inc., 279

F. Supp. 505, 510 (E.D. Va. 1968). The generally accepted

answer is a qualified “yes”: employers and unions using pre-

Act discriminatory practices to bar employees from filling

post-Act vacancies violate the Act. Robinson v. Lorillard

Corp., 444 F. 2d 791 (4th Cir. 1971); Quarles, supra. On the

other hand, Title VII has not been construed to impose a duty

to demote incumbents. In Local 189, United Papermakers and

Paperworkers v. United States, 416 F. 2d 980 (5th Cir. 1969),

the court rejected the contention that “allowing junior whites

to continue in their jobs constitutes an act of discrimination.”

Judge Wisdom, writing for the court, said:

“The Act should be construed to prohibit the future

awarding of vacant jobs on the basis of a seniority system

that ‘locks in’ prior racial classification. White incumbent

workers should not be bumped out of their present posi-

tions by Negroes with greater plant seniority; plant senior-

ity should be asserted only with respect to new job open-

ings. This solution accords with the purpose and history

of the legislation.” 416 F. 2d at 988.

31

Every appellate court to whom the issue has been presented

has accepted this interpretation.‘ Equally important, when

Congress was considering the 1972 amendments to Title VII,

it approvingly noted Papermakers’ construction of the Act.°

These precedents cannot be satisfactorily distinguished on

the ground that bumping would be required only when the

proof discloses a static industry that has few vacancies. The

difference between static and dynamic industries is not always

readily ascertainable because employment opportunities

fluctuate for many reasons over long and short periods. Re-

quiring bumping for static industries while denying it in

dynamic industries would introduce into the administration

of the Act countless variables for ‘hich Congress has made

no provision.

Since the Act should not be applied retroactively," it is, of

course, much easier to justify the retention of incumbents who

obtained their positions before the effective date of the Act

than the retention of those who were unlawfully preferred

after this date. Nevertheless, neither Congress nor the EEOC

nor the courts have drawn a distinction between pre-Act and

post-Act incumbents. The reasons for applying the Act uni-

formly are largely pragmatic. The enactment of Title VII was

the result of many concessions, including the unequivocal as-

sertion by proponents of the legislation that it was not intended

to be used to displace incumbent workers.’ A primary goal

4E.g., EEOC v. Detroit Edison Co., 515 F. 2d 301 (6th Cir. 1975);

United States v. N. L. Industries, Inc., 479 F. 2d 354 (8th Cir. 1973);

United States v. Chesapeake & Ohio Ry., 471 F. 2d 582 (4th Cir. 1972);

United States v. Bethlehem Steel Corp., 446 F. 2d 652 (2d Cir. !971).

5The section-by-section analysis of the House bill states that “‘it

was assumed that the present case law as developed by the courts

would continue to govern the applicability and construction of Title

VII.” Legislative History of Equal Employment Opportunity Act of

1972, Government Printing Office (1972) at 1844. Papermakers, of

course, was a prominent part of that case law.

°This principle is established by the legislative history. Senators

Clark and Case, two of the bill’s sponsors, circulated an interpretative

memorandum stating that Title ’s operation was “prospective and

not retrospective ... (T)he employer’s obligation would be simply

to fill future vacancies on a non-discriminatory basis.” 110 Cong. Rec.

6992 (daily ed. April 8, 1964), quoted in Quarles v. Philip Morris, Inc.,

279 F. Supp. 505, 516 (E.D. Va. 1968).

7The Clark-Case memorandum, note 6 supra, states that an em-

ployer “would not be obliged—or, indeed, permitted—to fire whites in

order to hire Negroes, or to prefer Negroes for future vacancies, or,

once Negroes are hired, to give them special seniority rights at the

expense of white workers hired earlier.” 110 Cong. Rec. 6992 (daily

ed. April 8, 1964).

32

of Title VII is to induce voluntary compliance by employers

and unions. Section 2000e-5; see EEOC v. Hickey-Mitchell Co.,

507 F. 2d 944, 948 (8th Cir. 1974). Demoting employees, espec-

ially those who are not responsible for wrongdoing, un-

doubtedly would encounter more resistance than deferring

their future expectancies. As this case illustrates, bumping

is an unsettling process. Its domino effect adversely affects

employees who have done no wrong and who, indeed, may

have been the victims of discrimination.*

The effects of bumping are exacerbated by another aspect

of Title VII. The Act does not provide a definitive catalogue

of unlawful employment practices. Congress placed this re-

sponsibility on the EEOC and, ultimately, the courts. It soon

became obvious that overt discrimination is not the only

obstacle to equal employment opportunity.® As a result of

litigation, many “practices, procedures, or tests neutral on

their face, and even neutral in terms of intent” have been

exposed as discriminatory and condemned. See Griggs v. Duke

Power Co., 401 U.S. 424, 430 (1971); United States v. Dillon

Supply Co., 429 F. 2d 800, 804 (4th Cir. 1970). There is no

reason to suppose that this process will soon abate. Bumping

could mean that employers and workers would likely have

their businesses and their working lives rearranged by court

decrees from time to time, as various unlawful employment

practices are identified. See generally Note, Title VII, Senior-

ity Discrimination, and the Incumbent Negro, 80 Harv. L. Rev.

1260, 127-75 (1967).

Finally, although Congress did not intend the Act to be used

as a vehicle for displacing incumbents, it did not leave the vic-

tims of discrimination without a remedy. Section 2000e-5(g)

expressly authorizes a district court to award them back pay.

While an employee who has been unlawfully denied a promo-

8As part of its compliance with the district court’s decree, Ameri-

can conducted a canvass of its employees to determine the effect of

bumping. The results of that survey are contained in a report filed

with this court tc supplement the record. The report showed that 40

employees requested jobs to which their plant-wide seniority would

entitle them. One of these has already obtained the job he requested.

The others would bump eight white male -— ~~ and 31 minority

employees out of the jobs they now occupy. We stayed the provision

of the decree that required bumping pending this appeal.

*See generally Introduction, The Second Decade of Title VII:

me of the Remedies, 16 Wm. & Mary L. Rev. 433, 436-37

33

tion must await a vacancy before advancing, he need not prove

that a vacancy exists in order to qualify for back pay. Hairston

v. McLean Trucking Co., 520 F. 2d 226 (4th Cir. 1975); Robin-

son v. Lorillard Corp., 444 F. 2d 791 (4th Cir. 1971).

In Albemarle Paper Co. v. Moody, 422 U.S. 405, 408 (1975),

the Court explained the standards a district court should follow

in awarding back pay to employees who “have lost the oppor-

tunity to earn wages because an employer has engaged in an

unlawful discriminatory employment practice.” The Court

said that the back pay provision must be applied in a manner

that is “consonant with the twin statutory objectives” of “erad-

icating discrimination throughout the economy and making

persons whole for injuries suffered through past discrimina-

tion.” 422 U.S. at 421.

To satisfy these objectives, back pay must be allowed an

employee from the time he is unlawfully denied a promotion,

subject to the applicable statute of limitations, until he actually

receives it. Some employees who have been victims of dis-

crimination will be unable to move immediately into jobs to

which their seniority and ability entitle them. The back pay

award should be fashioned to compensate them until they can

c>tain a job commensurate with their status. This may be

accomplished by allowing back pay for a period commencing at

the time the employee was unlawfully denied a position until

the date of judgment, subject to the applicable statute of

limitations. This compensation should be supplemented by an

award equal to the estimated present value of lost earnings

that are reasonably likely to occur between the date of judg-

ment and the time when the employee can assume his new

position. See Bush v. Lone Star Steel Co., 373 F. Supp. 526,

538 (E.D. Tex. 1974); United States v. United States Steel

Corp., 371 F. Supp. 1045, 1060 n. 38 (N.D. Ala. 1973)." Alterna-

tively, the court may exercise continuing jurisdiction over the

case and make periodic back pay awards until the workers are

promoted to the jobs their seniority and qualifications merit.

Or perhaps counsel and the court can devise some other con-

10This measure of compensation is analogous to that awarded in

an ordinary tort case, where compensation is assessed for one’s loss

of earnings whether the loss occurs before or after the jucgment is

entered. The analogy is apt because a statutory action attacking

racial discrimination is fundamentally for the redress of a tort. See

Curtis v. Loether, 415 U.S. 189, 195 (1974). :

34

venient method of taking all the effects of past discrimination

into account. In any event, the compensation must include,

as the district court properly noted, increments for pensions

and profit sharing.

Compensatory pay and adjustment of benefits provide mone-

tary relief for discrimination against minority employees but

do not afford the satisfaction that comes from being promoted

to a more responsible job. Nevertheless, such an intangible

benefit does not justify injunctive relief mandating bumping.

Weighed against a minority employee’s sense of achievement

are the harm that demotion will cause to incumbents who have

done no wrong and the disruption of the company’s business

that bumping entails. The survey of employees referred to in

footnote 8, supra, indicates that 39 minority employees are

seeking jobs held by 8 white men and 31 other minority em-

ployees. This survey, however, does not prove that the em-

ployees seeking different jobs were motivated even in part

by non-monetary factors, for it was conducted on the assump-

tion that bumping was the only way they could receive better

pay and fringe benefits. Since full monetary compensation

and the removal of barriers to promotion provide adequate

relief to minority employees without disruption to other em-

ployees and management, we conclude that neither Title VII

nor its legislative history requires bumping in this case.

Relief under §1981 is limited to correcting racial discrimina-

tion. See Delavigne v. Delavigne, No. 75-2203, F. 2d

(4th Cir. 1976); Willingham v. Macon Telegraph Pub-

lishing Co., 482 F. 2d 535, 537 n. 1 (5th Cir. 1973). But apart

from this, Title VII and §1981 provide complementary remedies

for employment discrimination, Johnson v. Railway Express

Agency, Inc., 421 U.S. 454, 459-60 (1975). Although the legis-

lative history of Title VII cannot support a decision that bump-

ing relief is unavailable under §1981, the pragmatic considera-

tions we advance apply with equal force to the §1981 claim.

Moreover, “in fashioning a substantive body of law under §1981

the courts should, in an effort to avoid undesirable substantive

law conflicts, look to the principles of law created under Title

VII for direction.” Waters v. Wisconsin Steel Works of Inter-

national Harvester Co., 502 F. 2d 1309, 1316 (7th Cir. 1974). For

these reasons, we hold that bumping relief is not available to

American’s black employees under §1981.

35

On remand, therefore, the district court should modify its

decree to eliminate bur ping, but it should take steps to assure

that back pay will be computed to include compensation for

the entire time that a minority employee is denied a promotion

for which he or she is qualified by seniority and ability.

We affirm the district court’s award of relief against both

the local and the International, except as noted in Part II. The

local acquiesced without protest in the lines of progression.

Not until 1968 did it negotiate for the removal of the qualifi-

cation requirements for promotion. In 1968, 1971, and 1974, it

proposed a company-wide seniority system that would have

allowed transfers between branches. When the company de-

clined, the union settled for assurances of indemnity that

would protect its treasury against the claims of its members.

A union may not bargain away minority employees’ rights

to equal treatment, see Robinson v. Loriilard Corp., 444 F. 2d

791, 799 (4th Cir. 1971), and, indeed, it must “negotiate actively

for nondiscriminatory treatment” of its minority workers.

Macklin v. Spector Freight Systems, Inc., 478 F. 2d 979, 989

(D.C. Cir. 1973); see also United States v. N. L. Industries, Inc.,

479 F. 2d 354, 379 (8th Cir. 1973). The Supreme Court has re-

cently emphasized the duty a union owes to its minority mem-

bers by pointing out that one of the purposes of a bac’ pay

award is to spur unions, as well as employers, to evaluaw em-

ployment nractices and eliminate unlawfui discrimination.

Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-18 (1975).

Tested by these principles, the district court’s imposition of

liability on both the local and the International was warranted

by the law and the facts.

Nor can we accept the International’s argument that it should

not be held liable because it was not responsible for the con-

tracts negotiated by the local. The evidence disclosed that a

vice president of the International acted as an “advisor” to the

local, playing an active role as the president’s deputy in the

1971 and 1974 negotiations for bargaining agreements. More-

over the constitution of the International provides:

“It shall be the principal duty of the Local Union to

secure satisfactory collective bargaining and working

agreements showing an adequate minimum wage and fair

working conditions for workers who hae become affil-

iated with the TWIU, provided, however, that no collective

36

bargaining and working agreement shall be consummated

until first submitted to the general president who may

approve or reject any proposed agreement, and no such

agreement can be executed without the approval of the

general president or his deputy.”

The district court was not obliged to accept representations

of the vice president that contradicted the plain meaning of

this provision. The court properly concluded that the Inter-

national’s approval of the bargaining agreement pursuant to

this provision made it jointly responsible with the local. Cases

dealing with an international union’s exoneration of liability

to an employer are inapposite where its duties to members of

its local unions are at issue.

II

The EEOC’s complaint contains allegations of discrimination

against women employees. The company contends that the

commission lacked authority to press this claim because no

female employee filed a charge. On the contrary, the company

points out, the only charge of sex discrimination was filed by

a male employee. The district court overruled the company’s

motion to dismiss this aspect of the case, holding that the com-

mission could institute the suit if its investigation of the male

employee’s complaint disclosed discrimination against women.

We affirm the district court. We recently decided this issue

adversely to the company’s position in EEOC v. General Elec-

tric Co., _____ F. 2d _____., No. 74-1974 (4th Cir. 1975). The

company’s argument does not persuade us to depart from the

conclusions reached in that case."

On the merits of the claim of sex discrimination, we uphold

the district court’s finding of liability. Because the company’s

discrimination against women bears many similarities to its

discrimination against black employees, we need not recite the

evidence in detail. It is sufficient to note that for many years

the company overtly segregated jobs by sex, discriminating

against women, as the district court found, “with respect to

wage structure, departments, seniority and hiring.” Even after

these practices were nominally eliminated in 1963, their dis-

__ USee Part IV infra for a discussion of the statute of limitations

with respect to this issue.

37

criminatory effect was perpetuated by lack of definite job de-

scriptions, lines of progression, and obstacles to transfers. The

court found that as recently as 1973, 23 of the approximately

200 non-craft, hourly-paid jobs at the Virginia branch had not

been held by women, and six had not been held by men. At

the Richmond branch, 32 of the 43 non-craft, hourly-paid jobs

had not been held by women, and six had not been held by men.

The company has not demonstrated that these segregated

positions cannot be filled by persons of the opposite sex. The

court also found that from 1967 through 1972 women had a

lower mean income than men with comparable seniority.

Again, the district court’s findings are supported by the

evidence and cannot be set aside as clearly erroneous. The re-

lief of the court afforded women is essentially the same as the

relief it granted black employees. Accordingly, we approve

the relief for women employees, subject, however, to the same

modifications of the court’s decree that we mentioned in Part I.

This relief, however, can be granted only against the company.

The complaint against the union for sex discrimination must

be dismissed for reasons we will next discuss.

The commission’s complaint names the company and Local

182 as defendants. The commission acknowledged that it had

not attempted to conciliate the charges with the union before

filing suit. While the suit was pending, it made an offer to

conciliate, which the union accepted. In the course of discus-

sion with the union, however, the commission’s representative

conceded that he had no authority to settle the suit. Under-

standably, the conciliation efforts were unsuccessful. The dis-

trict court, viewing the lapse as technical, held that the belated

offer to conciliate and its acceptance substantially complied

with the Act.

The Act requires, however, that after receiving a charge

and before bringing a suit the commission must take four steps:

serve the charge on the employer and labor organization, in-

vestigate the charge, determine that reasonable cause exists

to believe the charge is true, and endeavor to eliminate alleged

unlawful employment practices “by informal methods of con-

ference, conciliation, and persuasion.”’* The 1972 amendments

1242 U.S.C. §2000e-5(b).

38

to Title VII empowered the commission to sue if it is unable to

secure an acceptable conciliation agreement.’* This provision

of the Act has been construed to create an express condition

on the commission’s power to sue. Consequently, a suit brought

by the commission before attempting conciliation is premature.

EEOC v. Hickey-Mitchell Co., 507 F. 2d 944, 947-48 (8th Cir.

1974); EEOC v. E. I. DuPont de Nemours & Co., 373 F. Supp.

1321, 1333-34 (D. Del. 1974); EEOC v. Westvaco Corp., 372 F.

Supp. 985, 991-93 (D. Md. 1974).'*

We recently emphasized that the commission’s statutory duty

to attempt conciliation is among its most essential functions.’®

It is particularly important for the commission to attempt con-

ciliation with a union when investigation discloses that provi-

sions of a bargaining agreement concerning seniority and job

assignments are causing the alleged unfair employment prac-

tices. Then the employees who enjoy majority status are fre-

quently more directly affected than their employer by changes

that will advance minority employees. In such cases, the suc-

cess of conciliation often hinges on the union’s response.

We do not rule out the possibility that exceptional circum-

stances may excuse a failure to attempt conciliation, but that

is not the case here. ‘he union’s willingness to negotiate even

after suit was brought tends to negate any suggestion that

timely conciliation of the sex discrimination charges would

have been unsuccessful. When it became apparent that the

commission’s representative lacked authority to settle the case,

the possibility of conciliation was dealt a severe blow by the

very circumstances Congress sought to avoid—commencement

of a civil action before attempting conciliation. Accordingly,

we conclude that the district court should have dismissed the

part of the commission’s complaint which alleges that Local

182 caused the company to discriminate unlawfully on the

basis of sex.

1342 U.S.C. §2000e-5(f) (1).

14We have held that the commission’s failure to attempt concilia-

tion is not a jurisdictional bar to an employee’s action, because the

employee cannot be charged with the commission’s failure to execute

its statutory duties. Russell v. American Tobacco Co., ______. F. 2d

No. 74-1650 (4th Cir. 1975); Johnson v. Seaboard

Air Line R.R., 405 F. 2d 645 (4th Cir. 1968). These cases, however, are

inapposite where the commission’s power to sue is in question.

15SEEOC v. Raymond Metal Products Co., _.____ F.. 2d

No. 75-1007 (4th Cir. 1976).

39

III

The district court also found that the company had engaged

in race and sex discrimination in appointing supervisors. The

evidence supports this finding. At both the Richmond and Vir-

ginia branches, the entry level position for supervisory per-

sonnel is assistant foreman. The company fills about 34 percent

of the vacancies in this position by promoting hourly employ-

ees; it fills the balance by hiring new applicants. With no for-

mal, objective, written standards for appointment, the company

relies in part on recommendations from the union, which also

lacks objective standards. Until 1963 the company appointed

only white males to supervisory posts, and the enactment of

Title VII failed to effect any immediate change in this policy.

At the Richmond branch, the first black supervisor was ap-

pointed in 1966 and the second in 1971. As of June 1, 1973, there

were only three, constituting 9.6 percent of the supervisory

force of 31. In 1967 the company named its first female super-

visor at the Richmond branch. By 1973 two (6 percent) of the

31 supervisors were women. At the Virginia branch, a black

employee was promoted to assistant foreman in 1963. In the

next decade four more were appointed, so that by 1973 7.24 per-

cent of the 69 supervisors were black. The first female was

not appointed as a supervisor at this branch until 1972. Two

more were appointed by June 1, 1973.

Before the trial of the case, neither a black employee nor a

woman had ever been appointed to a supervisory position at

the Richmond office. The court noted, however, that a vacancy

existed, and the company proffered additional evidence that

as of November 1, 1974, the Richmond office nad one black

supervisor and one white female supervisor on a staff of eight.

The district court enjoined the company from “implementing,

maintaining, or giving effect to any criteria utilized for the

selection of supervisory personnel which is designed to or has

the effect of discriminating against black or female candidates

for supervisory positions.” It ordered the company to post job

descriptions for these positions and to devise objective criteria

for selecting new appointees. The propriety of these provisions

of the court’s decree is well settled. See Brown v. Gaston

County Dyeing Machine Co., 457 F. 2d 1377, 1383 (4th Cir.

1972); Rowe v. General Motors Corp., 457 F. 2d 348, 358-59 (5th

40

Cir. 1972). We think, however, that on remand the court’s de-

cree should be enlarged to require the union to publish objec-

tive criteria for making its recommendations for supervisory

appointments.

Finally, the district court ordered that vacancies in the assist-

ant foreman, foreman, and office supervisory positions must be

filled with qualified blacks and women, except when none can

be found, until the percentage of blacks and women equals the

percentage of these classes of workers in the Richmond Stand-

ard Metropolitan Statistical Area (SMSA). The company’s at-

tack on this provision of the decree is two-pronged. First, it

contends that Title VII condemns preferential hiring, especially

when, as here, the preferences are absolute. It relies primarily

on §703(j) of the Act, 42 U.S.C. §2000e-2(j), which provides in

part:

“Nothing contained in this subchapter shall be inter-

preted to require any employer .. . to grant preferential

treatment to any individual or to any group because of the

race ...{or]sex ...of such individual or group on account

of an imbalance which may exist with respect to the total

number or percentage of persons of any race .. . [or] sex

... employed ...in comparison with the total number or

percentage of persons of such race... [or] sex .. . in any

community ... or in the available work force in any com-

munity... .”

This section plainly bans the use of preferential hiring to

change a company’s racial imbalance that cannot be attributed

to unlawful discrimination. In Griggs v. Duke Power Co., 401

U.S. 424, 430-31 (1971), the Court said:

“Congress did not intend by Title VII, however, to guar-

antee a job to every person regardless of qualifications.

In short, the Act does not command that any person be

hired simply because he was fo-merly the subject of dis-

crimination, or because he is a member of a minority group.

Discriminatory preference for any group, minority or ma-

jority, is precisely and only what Congress has proscribed.

What is required by Congress is the removal of artificial,

arbitrary, and unnecessary barriers to employment when

the barriers operate invidiously to discriminate on the

basis of racial or other impermissible classification.”

Uniformly, however, Title VII has been construed to author-

ize district courts to grant preferential relief as a remedy for

41

unlawful discrimination. Rios v. Enterprise Association Steam-

fitters Local 638 of U.A., 501 F. 2d 622, 628-31 (2d Cir. 1974);

United States v. N. L. Industries, Inc., 479 F. 2d 354, 377 (8th

Cir. 1973); Southern Illinois Builders Association v. Ogilvie,

471 F. 2d 680, 683-86 (7th Cir. 1972); United States v. Ironwork-

ers Local 86, 443 F. 2d 544. 552-53 (9th Cir. 1971); United States

v. International Brotherh. od of Electrical Workers, Local No.

38, 428 F. 2d 144, 149-51 (6th Cir. 1970); Local 53 of Interna-

tional Ass’n of Heat & Frost I. & A. Workers v. Vogler, 407

F. 2d 1047, 1053-54 (5th Cir. 1969). This construction of the

Act is in harmony with other cases which authorize prefer-

ential relief from unlawful employment discrimination in situ-

ations where Title VII is not applicable. Associated General

Contractors of Massachusetts, Inc. v. Altshuler, 490 F. 2d 9,

16-18 (ist Cir. 1973); Carter v. Gallagher, 452 F. 2d 315, 330

(8th Cir. 1971); Contractors Association of Eastern Pennsyl-

vania v. Secretary of Labor, 442 F. 2d 159, 172, 176-77 (3d Cir.

1971). In all, eight circuits have approved some form of tem-

porary preferential relief for discriminatry employment prac-

tices. See Sape, The Use of Numerical Quotas to Achieve In-

tegration in Employment, 16 Wm. & Mary L. Rev. 481, 499

(1975). No court of appeals has ruled to the contrary, although

there have been dissents.

We have not previously ruled on the issue, but in a case in-

volving the Civil Rights Act of 1866 and the thirteenth and

fourteenth amendments, we declined to impose quotas where

the district court concluded that adequate relief could be ob-

tained without their use. See Harper v. Kloster, 486 F. 2d 1134,

1136 (4th Cir. 1973). In view of the substantial precedent

sanctioning preferential relief for unlawful discrimination, we

reject the company’s argument that Title VII forbids the rem-

edy ordered by the district court. We recognize, however, that

cases which approve such remedies caution that the necessity

for preferential treatment should be carefully scrutinized and

that such relief should be required only when there is a com-

pelling need for it. See Associated General Contractors of

Massachusetts, Inc. v. Altshuler, 490 F. 2d 9, 17 (1st Cir. 1973).

This brings us to the company’s second reason for vacating the

decree’s provision for preferenti2z! appointment of supervisors.

The company argues that its appointment of black and

female employees to supervisory positions already exceeds the

42

ration that preferential relief would require. Its argument

rests on two premises. One, its conduct before the effective

date of Title VII does not provide a proper base to measure its

compliance with the Act; instead, it must be judged by the

manner in which it filled vacancies after this date. Two, the

district court erroneously considered the number of blacks and

women in the Richmond SMSA workforce as a whole to ascer-

tain a ratio of acceptable performance, instead of using only

the blacks and women in the Richmond SMSA supervisory

workforce.

We believe these premises are well founded. Title VII is

not retroactive.'* It does not provide a remedy for discrimina-

tion which occurred before it became effective in 1965. Robin-

son v. Lorillard Corp., 444 F. 2d 791, 795 (4th Cir. 1971). At the

Virginia branch 51 of the supervisors were appointed before

Title VII prohibited discrimination in their selection. They

should not be counted in determining whether preferential

hiring is required now. Between 1965 and 1973 the company

appointed 18 assistant foremen, the entry level position for

supervisors. Of that number, five (27.5 percent) were black

and three (16.6 percent) were women. At the Richmond

branch, 22 of the supervisors were appointed before Title VII

became effective and nine afterwards. Of the nine, three

(33.3 percent) were black and two (22 percent) were women.

At the Richmond office, the evidence is not as clear. It has

six entry level supervisory positions, which at the date of trial

were filled by five white males with one vacancy. The district

court found that four of the six positions had been filled after

1965. Subsequently, the company proffered evidence that it

has promoted one black employee and one female to supervis-

ory positions, constituting for each classification 16.6 percent

of the appointments since 1965.'7

The record discloses that 6.8 percent of the blacks and 1.5

percent of the women in the Richmond SMSA are placed in a

16The legislative history of Title VII indicates that it is not in-

tended to be retroactive. See note 6 supra.

17The district court declined to reopen the record to consider this

proffer. Under the ratio that the court used for comparative purposes,

the evidence had but slight probative effect. Its import, however, is

magnified by accepiance of the company’s premise that its perform-

ance since 1965 is what must be examined in determining whether it

has violated the Act. On remand the court should reexamine the

situation at the Richmond office.

43

category that includes supervisory personnel. Those percent-

ages furnish a more realistic measure of the company’s conduct

than the gross percentage of blacks and women in the whole

workforce, including unskilled labor. See Harper v. Mayor,

359 F. Supp. 1187, 1193 n. 5 (D. Md.), aff'd sub nom. Harper

v. Kloster, 486 F. 2d 1134 (4th Cir. 1973).

The fact that the company’s appointments since 1965 exceed

the ratio of qualified blacks and women in the workforce

does not exonerate the company for the violations of the Act

which the district court found. The tardy appointments of

blacks and women to supervisory positions long after the

passage of Title VII and the present lack of published job de-

scriptions and objective selection procedures fully justify the

injunctive relief the district court ordered. We believe, how-

ever, that the rate at which the company currently appoints

blacks and women to supervisory positions is sufficient to

show that there is no compelling need for the imposition of a

quota.'* But see Karst & Horowitz, Affirmative Action and

Equal Protection, 60 Va. L. Rev. 955 (1974).

IV

The company contends that the charge filed with the EEOC

on January 3, 1969, was not timely because there were no dis-

criminatory practices at either branch after January 15, 1968.

It argues that for this reason the action should be dismissed for

failure to meet the jurisdictional requirement of a timely

charge.’* The district court, however, found that the discrimi-

nation was of a continuing nature and properly held that the

charge was timely Williams v. Norfolk & Western Ry., ___.__

F. 2d , No. 74-1549 (4th Cir. 1975); Macklin v. Spector

Freight Systems, Inc., 478 F. 2d 979, 994 (D.C. Cir. 1973); see

Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 567

n. 13 (1975) (dictum).

18We do not mean to suggest that the company may use its per-

centage of black and female supervisors as a defense to future charges

of discrimination against blacks and women. It must consider each

application on its merits. If the company discriminates against a black

or a woman, it can be called to account for violating Title VII, regard-

less of the percentage of blacks and women among its supervisors.

19Before the 1972 amendments to Title VII, a charge had to be

filed with the EEOC within 90 days of the alleged unlawful employ-

ment practice. 42 U.S.C. §2000e-5(d) (1964). In 1972, this period was

changed to 180 days. 42 U.S.C. §2000e-5(e).

44

The district court ruled that the filing of the charge in 1969

did not toll the statute of limitations for the §1981 action which

was filed in 1973. The Supreme Court recently confirmed the

district court’s correct understanding of the law. Johnson v.

Railway Express Agency, Inc., 421 U.S. 454 (1975).

The district court applied the Virginia five-year statute of

limitations to the §1981 action. We have ruled, however, that

the state’s two-year statute applies to §1982 actions. Allen v.

Gifford, 462 F. 2d 615 (4th Cir. 1972). Both §1981 and §1982

were enacted to redress infringemnts of closely related civil

rights. We conclude, therefore, that the same two-year statute

should apply to §1981 actions. Accord, Revere v. Tidewater

Telephone Co., No. 73-1390 (4th Cir., October 2, 1973) (unpub-

lished opinion applying the two-year statute to a $1981 action);

cf. Almond v. Kent, 459 F. 2d 200 (4th Cir. 1972). Accordingly,

on remand, the two-year statute of limitations should be ap-

plied to the §1981 claim. Of course, the point has little practical

significance in this case in view of the fact that the §1981 action

was not tolled by the filing of the charge with the EEOC.

The district court ruled that back pay for sex discrimination

should accrue from April 8, 1967, two years before the charge

was filed with the EEOC. The two-year period mentioned by

the district judge confirms with the statute.” However, this

charge did not allege discrimination against women. Instead,

this type of discrimination was initially disclosed by the

EEOC’s investigation.“ Dealing with similar circumstances,

we held in EEOC v. General Electric Co., F. 2d_

No. 74-1974, slip op. at 34-36 (4th Cir. 1975), that in the absence

of countervailing equities a trial court should limit back pay

to two years before the employer received notice of the results

of the investigation. On remand the district court should re-

consider its decree in light of this case.

The judgment is affirmed in part and modified in part, and

the case is remar.ded for further proceedings consistent with

this opinion.

2042 U.S.C. §2000e-5(g).

21See Part II supra.

45

WIDENER, Circuit Judge, concurring and dissenting:

I concur in large part with the opinion of the court for the

reasons stated in the opinion. I differ, however, in some re-

spects, and as to those I respectfully dissent.

So far as the opinion is based on EEOC v. General Electric

Company, No. 74-1974 (4th Cir. 1975), I dissent for the reasons

set forth in my dissent in that case, our judgment in which is

not yet final. I should say, however, that this case may be a

somewhat closer one than General Electric because here, at

least, sex discrimination was the subject of the EEOC com-

plaint, while in General Electric it was not. This case points

up the importance of requiring the EEOC to comply with its

own regulations as well as the statute. The union here is ex-

cused from liability for discrimination on account of sex be-

cause the statute was not complied with. The reason espe-

cially emphasized and held is that “.. . a suit brought by the

commission before attempting conciliation is premature,” p. 31,

because “. . . the commission’s statutory duty to attempt con-

ciliation is among its most essential functions.” p. 32. Despite

the fact that both the company and the union were deprived

of the first conciliation step as set forth in 29 CFR §1601.19a,

as well as the statutory benefits of conciliation attempts, the

company is held to liability, while the union is not, although

the liability was caused by the collective bargaining agree-

ment signed by both the company and the union. Thus, I dis-

sent not only from the finding against the company, but also

from the disparate treatment awarded the company and the

union on facts which are indistinguishable.

While the subject of collective bargainiing agreements is at

hand, I should say I have grave reservations about considering

evidence in this type case of the respective positions taken by

the company and the union in negotiations leading up to col-

lective bargaining agreements when the agreement results in

unlawful discrimination. This is tantamount to allowing a

good faith defense disapproved by us in Moody v. Albemarle

Paper Company. 474 F2 134 (4th Cir. 1973). (Modified on

other grounds, 422 US 405 (1975).

The district court had only this to say about damages:

“The formulation of the method of calculation and dis-

tribution of the back pay award and adjustment: to the

46

pension and profit-sharing plans will be complex—suffi-

ciently so as to tax the ingenuity and good faith of counsel.

In this regard counsel are directed to confer with a view

to agreeing on a plan of calculation and distribution of

the back pay award for submission to the Court—and, in-

deed, to explore the possibility of settling the monetary

aspects of the case.” App. p. 42.

With the opinion of the district court in mind, it is seen that

the method of computing damages was not considered by that

court and is not properly before this court, McGowan v. Gillen-

water, 429 F2 586 (4th Cir. 1970), so the detailed discussion

of that subject is a dictum. If the district court, in ascertain-

ing damages, adopts standards with which either side is in

disagreement, either is at perfect liberty to appeal the award.

Taking up the matter now, and especially its treatment in de-

tail, when the matter is so “complex” as to “tax the ingenuity

and good faith of counsel,” and upon no record, is too great a

departure from what I conceive to be the proper rule of cour*s

expressing opinions only with reference to existing controver-

sies. There is no controversy at this time between the parties

about this matter, and an expression of opinion I think beyond

the legitimate function of an appellate court. I express no

opinion as to the correctness of the dictum.

We hold that the imposition of quotas for supervisory posi-

tions is error because the “rate at which the company cur-

rently appoints blacks and women to supervisory positions is

sufficient to show that there is no compelling need for the im-

position of a quota,” and, then, in note 18, explain that the main-

tenance of a quota is not a defense to a charge of racial or sex-

ual discrimination. In view of our holding and note 18 just

referred to, I think we go out of our way just earlier in the

opinion to justify the imposition of quotas in hypothetical cases.

Since quotas themselves are the rankest kind of discrimina-

tion and their application, if valid in any context, requires ex-

aggerated facts not present here, that general subject would

be better left for another day.

Senator Clark, one of the sponsors of the statute and one of

the Senate floor managers, filed, in Legislative History, 3014,

in response to objections made by opponents of the legisla-

tion, a series of answers to the objections, among them the

following (p. 3015):

47

“Objection: The bill would require employers to estab-

lish quotas for nonwhites in proportion to the percentage

of nonwhites in the labor market area.

“Answer: Quotas are themselves discriminatory.”

In view of the fact that the very existence of a quota is con-

stitutionally suspect, the just quoted legislative interpretation

of the statute, and our holding, such justification in hypotheti-

cal cases I think is out of place.

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APPENDIX B

49

PATTERSON v. AMERICAN

TOLACCO CO.

U.S. District Court,

Eastern District of Virginia

PATTERSON, et al. v. THE AMERICAN TOBACCO COM-

PANY, TOBACCO WORKERS’ INTERNATIONAL UNION,

and LOCAL 182, TOBACCO WORKERS’ INTERNATIONAL

UNION; EQUAL EMPLOYMENT OPPORTUNITY COMMIS-

SION v. THE AMERICAN BRANDS, INC., doing business as

THE AMERICAN TOBACCO COMPANY, and LOCAL 182,

TOBACCO WORKERS’ INTERNATIONAL UNION (AFL-

CIO), Nos. 101-73-R and 104-73-R, September 25, 1974.

Henry L. Marsh, III, Richmond, Va., for plaintiffs in No.

101-R-73.

William A. Carey, General Counsel, William L. Robinson,

Associate General Counsel, Isabelle R. Cappello, Assistant

General Counsel, Ethel Oliveri, and C. Daniel Karnes, for

plaintiff in No. 104-73-R.

Henry T. Wickham, Kenneth V. Farino, and John F. Kay,

Richmond, Va., for defendant employer.

Jay J. Levit and James F. Carroll, Richmond, Va., for de-

fendant unions.

Full Text of Opinion

ALBERT V. BRYAN, Jr., District Judge:—These actions,

consolidated for trial, involve alleged sex and race discrimina-

tion in two plants and an administrative office of The Ameri-

can Tobacco Company (American) in Richmond, Virginia.

Civil Action No. 101-73-R (Patterson) is brought pursuant to

42 U.S.C. §1981 and Title VII of the Civil Rights Act of 1964

50

(42 U.S.C. §2000e, et seq.)' as a private class action? seeking

affirmative injunctive relief and back pay on the basis of past

and continuing racial discrimination in employment practices,

particularly with regard to seniority and job assignments re-

sulting from the seniority.* Civil Action No. 104-73-R (EEOC)

is also a Title VII action, but was brought by the Equal Em-

ployment Opportunity Commission (EEOC) pursuant to 42

U.S.C. §2000e-5(f) (1). It contains allegations similar to those

in Patterson with regard to employment practices and in addi-

tion alleges discrimination in hiring on the basis of race and

sex discrimination. The Tobacco Workers’ International Union

(the International), a defendant in the Patterson action, is not

named in the EEOC action. Local No. 182 of the International

(the Local) is named a defendant in both actions.

[ISSUES LIMITED]

The case was tried to the Court beginning July 15, 1974,

limited to the issues of liability for back pay and injunctive

relief. The issues as to the amount, method of calculation, and

distribution of any back pay award are to be considered after

resolution of the issues of liability and injunctive relief. The

last of the post trial briefs was received on or about August 15,

1974.

For a more complete description of the parties and certain

other facts, reference is made to Stipulation Number I, at-

1The Patterson action was originally brought only pursuant to 42

U.S.C. §1981. Following receipt of a Notice of Right to Sue from the

EEOC to certain nam laintiffs, the action, on March 12, 1973, was

amended to include an allegation of violation of Title VII.

2The class has been defined as follows:

(1) All black persons, whether currently employed or retired,

— — employees of the defendant company on or after July 2,

; an

(2) All black persons, whether currently employed or retired,

who were employees of the defendant company on or after July 2,

1965, who were performing duties in jobs, the compensation for which

was less than that for similarly situated white employees.

_3On May 10, 1974, on plaintiffs’ motion, an order was entered

striking from the Amended Complaint in Patterson all allegations per-

taining to discrimination in hiring on the basis of race. Since the trial

of the case the plaintiffs in Patterson have filed, pursuant to Fed. R.

Civ. P. 15th), a motion to amend the complaint to conform to evidence

introduced at the trial on the subject of hiring on the basis of race.

That subject was included in the complaint by the EEOC at the time

of trial. Consequently, the subject, even without the amendment

sought by the Patterson plaintiffs, will be considered in this opinion.

o1

tached as Appendix I, which the Court adopts as part of its

findings of fact.‘

During and after trial, defendants renewed motions previ-

ously made for dismissal and summary judgment. These will

be considered before reaching the merits of plaintiffs’ alle-

gations:

A. The EEOC Action Was Not Timely Filed.

This issue has now been decided, adversely to defendants,

by EEOC v. Cleveland Mills Co., 8 FEP Cases 561, Civil No.

73-2298 (4th Cir., August 19, 1974).

B. The Right of EEOC to Sue Terminates upon the Filing of

Patterson and Vice Versa.

The “problem of duplicitous actions” referred to in Cleve-

land Mills is really no problem here. In the first place, when

the Patterson suit was originally filed, on March 2, 1973, it

was not a Title VII action; it did not become one until March

12, 1973. The EEOC action was filed on March 5, 1973. Second,

there are significant differences, as heretofore set forth, be-

tween 'the actions, the only duplication being on the issue of

discrimination in promotional opportunities on the basis of

race. Third, even if it were concluded that the plaintiffs in

Patterson, instead of amending their complaint, should have

intervened on this issue in the EEOC action, dismissal of either

action would not be warranted. Here the consolidation of the

actions has accomplished what intervention would have.

C. The EEOC Has No Standing to Represent Females.

American’s position on standing, in essence, is that EEOC

can only have that standing which the charging party, in this

case Jenkins, would have had if he had brought a private

action. Jenkins, a male, filed a charge with the EEOC alleging

discrimination against males because of sex. EEOC in its com-

plaint here charges discrimination against females because of

sex. American says that because Jenkins could not bring a

private action based on discrimination against females, neither

can the EEOC. The Court does not agree. Such restriction on

4Counsel for the defendant unions did not agree to Paragraphs 9,

10, 50 and 56 of the Stipulation; however, the Court finds that the

statements of fact contained in those paragraphs are correct. ~

52

the adjudication of all the aspects of an issue such as sex dis-

crimination runs counter to the liberal construction to which

Title VII is entitled. This case is distinguishable from the

cases which hold that where the charging party alleged only

race discrimination before the EEOC, the EEOC cannot file

a complaint alleging sex discrimination, although there is

language in some of those cases which supports defendants’

position.® It would be inconsistent with the remedial aims of

Title VII to hold that once the issue of sex discrimination had

been presented to the Commission, the Commission could only

investigate discrimination against persons of the same gender

as the person who made the charge. A proper investigation of

that issue would almost necessarily involve inquiry into

whether either sex was being discriminated against. Discovery

of such discrimination without the ability to seek to alleviate

it in accordance with 42 U.S.C. §2000e-5(f)(1) would subvert

the purpose of that provision. Certainly discrimination against

both sexes was within “the scope of the EEOC investigation

which can be reasonably expected to grow out of the charge

of discrimination.” Sanchez v. Standard Brands, Inc., 431 F.

2d 455, 466, 2 FEP Cases 788, 796 (5th Cir. 1970).

D. All Claims Are Barred by the Virginia Statute of Limita-

tions, Va. Code Ann. §8-24.

The cited Virginia statute does not mention 42 U.S.C. §1981.

It does mention 42 U.S.C. $1983. Actions under the latter, ac-

cording to the Virginia statute, must be brought within one

year. Actions for back pay, such as the instant one, would

clearly survive, and were this action solely for redress under

§1981, damages for back pay accruing prior to five years before

the action was filed might not be recoverable. Under 42 U.S.C.

§2000e-5(g), however, back pay is allowable as an affirmative

action if found appropriate to correct an unlawful employment

practice. The liability for back pay under Title VII is limited

to a period beginning two years prior to the filing of a charge

with the Commission, 42 U.S.C. §2000e-5(g). The charges were

filed by the named plaintiffs in Patterson in January and

5EEOC v. New York Times Broadcasting Services, Inc., 364 F.

Supp. 651, 6 FEP Cases 563 (W. D. Tenn. 1973); King v. Georgia Power

Co., 295 F. Supp. 943, 1 FEP Cases 357, 69 LRRM 2094 (N. D. Ga.

1968), EEOC v. W. Elec. So. 8 FEP Cases 595, Civil No. 73-448-N

(D. Md., August 15, 1974), Contra: Latino v. Rainbo Bakers, Inc., 358

F. Supp. 870, 5 FEP Cases 917 (D. Cal.) 1973.

53

February of 1969. The charge with respect to sex discrimina-

tion was filed with the EEOC on April 8, 1969. Although back

pay would not be allowable earlier than two years prior to

those dates, it would be allowed, if appropriate, from that date

forward.

If, as alleged, the violations are continuing in nature, there

would be no statutory limitation bar to injunctive relief.

E. The EEOC Action Should Be Dismissed as to the Local

Union for Failure to Give the Union the Opportunity to

Conciliate.

Under the circumstances of this case, failure to offer for-

mally the union an opportunity to conciliate prior to the filing

of the law action, while perhaps technically a defect, is not a

basis for dismissal of the action as to the union. On July 9,

1973, an offer to conciliate was formally made, and accepted

on July 12, 1973 by the union. While unsuccessful, the efforts

at conciliation were sufficient to meet the requirements of the

act and to constitute substantial compliance therewith.

F. None of the Violations Is of a Continuing Nature.

As hereafter pointed out, while the present system of post-

ing and bidding, employed by American since 1968, is facially

fair and neutral, past acts of discrimination have resulted in

present disparity of pay, present segregated job classifications

and present promotional systems based on race and sex. These

constitute, in the Court’s view, continuing violations of Title

VIL.

The Court makes the findings of fact attached hereto as

Appendix II, many of which, as counsel will recognize, are

adopted from portions of the proposed findings of fact sub-

mitted by the parties.

The facts listed are found with the full realization that sta-

tistics are often misleading; that certain of the plaintiffs ex-

hibits, containing statistics do not support the conclusions

attempted to be drawn from them by the plaintiffs; that the

same is true for the defendants and some of their exhibits; and

that on an individual basis some of the exhibits are in fact

o4

incorrect. The inference which the Court draws from the

statistics overall, however, is that, except for the non-super-

visory employees in the Richmond Office, there was and is

disparate income by race and sex, segregated job classifications

by race and sex, and promotional systems based on race and

sex. Neither the statistics nor the other evidence of the plain-

tiffs warrant such an inference with regard to non-supervisory

employees at the Richmond Office; however, supervisory po-

sitions at all three facilities have been practically closed to

blacks and females until very recently.

The omission of any finding with regard to whether a par-

ticular job classification is under-evaluated is deliberate. Aside

from the fact that the experts on both sides and their respec-

tive graphs (Pl’s Ex. 48 and Deft’s Ex. VB-22) were not par-

ticularly persuasive, the Court seriously questions the pro-

priety of its determining whether a particular job is under-

evaluated or underpaid in actions such as these.

[TEMPORARY VACANCIES]

Likewise the failure to make any findings with regard to the

filling of temporary vacancies is purposeful. The manner of

filling such vacancies is complicated, and the present effect

of past or present practices in that regard is too speculative to

warrant the Court’s making any finding that those practices

have resulted in discrimination on account of race or sex.

The present system of posting and bidding adopted in 1968

is fair, although it needs, in the Court’s view, further imple-

mentation. As indicated in the findings of fact, however, black

and female employees in the Richmond Branch and the Vir-

ginia Branch have been locked in their jobs as a result of prior

discriminatory practices. This is because of the static condition

of the tobacco industry generally, and American in particular,

and the advent of automation, both of which have limited

opportunities for upward movement of present employees and

for new hiring.

Even without specific proof of overt or particular acts of

discrimination,* the statistical evidence is more than sufficient

6Even if the named plaintiffs cannot show individual injury from

discrimination, this, of course, does not deprive of a remedy the class

of employees which the named plaintiffs represent. Parham v. S. W.

Bell Tel. Co., 433 F. 2d 421, 428, 2 FEP Cases 1017 (8th Cir. 1970).

55

to establish a prima facie case of discrimination for the two

branches. Under now familiar principles, the burden of re-

butting such a case or of showing that the discrimination is

caused by business necessity accordingly shifts to the defend-

ants. Brown v. Gaston County Dyeing Machine Co., 457 F. 2d

1377, 4 FEP Cases 514 (4th Cir. 1972). The defendants have

failed to carry this burden. American takes the position ‘hat

there is no discrimination and hence, with few exceptions,

does not undertake to show any business necessity. Their

statistics, their testimony that better jobs were available to the

blacks and females who wanted them, and their evidence of

efforts to eliminate any discrimination at the two branches

are unpersuasive. The situation with regard to supervisory

positions at all three facilities is particularly deplorable.

Hiring

The same cannot be said of hiring, however, except to the

extent that discrimination in the selection of supervisory per-

sonnel can be considered discrimination in hiring (and the

Court does not so consider it, since such a substantial portion

of the supervisory personnel is selected from the hourly-paid

workers). In the Court’s view, not only do the plaintiffs’ sta-

tistics and other evidence not warrant an inference of discrimi-

nation insofar as hiring is concerned, but the statistics offered

by the defendants and their evidence of affirmative efforts

with regard to hiring rebut any prima facie showing made by

the plaintiffs in this regard.’

Crafts

Nor are the plaintiffs entitled to relief with respect to the

craft positions. The statistics reveal an unfortunate situation,

to say the least, in craft positions for both blacks and females.

The defendants’ evidence, however, convinces the Court that

quite aside from any mechanical difficulty arising from the

absence of the craft unions as parties, the absence of blacks

and females is not the result of discrimination by American,

Among the factors leading the Court to this finding are the

relatively small number of craft positions existing in the

7This resolution of the hiring issue makes it unnecessary to decide

the Patterson plaintiffs’ motion to amend, discussed in Paragraph 2,

supra. The Court’s finding would be the same, however, even: were

the motion granted.

56

plants, the small turnover in those positions, the scarcity of

qualified craftsmen in the Richmond SMSA, the fact that

recruiting for qualified persons has been conducted in a non-

discriminatory way, and the efforts that have in fact been

made to recruit blacks for those positions.

Union Involvement

Both the Local and the International disclaim any involve-

ment in creating or fostering impermissible conditions at

American. Although wages are paid only by American, the

local has been active in the fixing of wages, working condi-

tions, and factors to be considered for promotions. Conse-

quently it is “responsible,” even if not solely, within the

meaning of 42 U.S.C. §2000e5(g) for the unlawful employment

practices. Moreover, the mandatory injunctive relief the Court

intends to grant, involving possible changes in employee job

positions and seniority contrary to terms of the existing con-

tract between American and the union, requires that the Local

be bound by any decree entered in the actions.

The International’s disclaimer of involvement is refuted by

the terms of the constitution of the Local which recites, in

pertinent part:

“

. no collective bargaining and working agreements

shall be consummated until first submitted to the General

President fof the International] who may .. . approve or

reject any proposed agreement and no such agreement can

be executed without the approval of the General Presi-

ee

Plaintiffs’ Ex. 53.

By its terms that Constitution constitute a contract between

the Local and the International unions. It, too, is responsible

for the unlawful employment practices.

The Court concludes from the attached Stipulation and find-

ings of fact and the foregoing that plaintiffs are entitled to the

following relief:

A. An award of back pay, in favor of the hourly-paid blacks

at the Richmond Branch and the Virginia Branch who are

57

members of the class, as defined, and who have not “opted out,”

against American and the unions.

B. An award of back pay, in favor of the hourly-paid fe-

males in the Virginia Branch and the Richmond Branch,

whether currently employed or retired, who were employees

of American on or after July 2, 1965, and who were performing

duties in jobs, the compensation for which was less than that

for similarly situated male employees, against American and

the unions.

C. An adjustment to the pension and profit-sharing plans

to compensate for the effects of past discrimination.

D. An award of costs, including attorneys’ fees to counsel

for the plaintiff in Patterson.

[INJUNCTION]

E. An injunction providing:

1. A company-wide (i.e, Richmond Branch and Virginia

Branch) seniority system for employees other than super-

visory personnel.

2. An immediate company-wide posting and bidding on each

non-supervisory job in the Richmond Branch and Virginia

Branch, with no qualification except seni rity and a willing-

ness to learn the job; provided, that as to the jobs of adjuster,

overhaul adjuster, and adjuster-prefabrication, the qualifica-

tions listed in finding 31 shall also be required. The existing

posting and bidding procedure shall be followed; but in addi-

tion there shall be promulgated and posted a job description

of each job classification posted. A reasonable time will be

allowed to accomplish the fore-going. In the event, after that

reasonable time, class members or females are found to have

displaced an incumbent employee who has had to move to a

job having a lower classification, such employee will have his

or her wages “red-circled” until the wage level for the job he

or she holds reaches the level at which he or she is being paid.

3. Insofar as supervisory personnel are concerned in the

Richmond Office, Richmond Branch and Virginia Branch, no

vacancies therein shall be filled with other than females and

blacks until the percentages of females and blacks in super-

58

visory positions approximates the percentages of females and

blacks in the total work force in the Richmond SMSA.

4. A written job description for supervisory jobs which will

include, but should not be limited to, objective criteria for

selection for or promotion to a supervisory position.

* * *

In the formulating the above relief, the Court does not intend

to mandate the awarding of a job to a person who is not quali-

fied for it Following a reasonable time, if an employee,

whether supervisory, clerical, or factory worker, is unable to

competently perform the job, he or she need not be retained

in that job. This decision is to remain the employer’s, and will

not be disturbed absent a showing of discrimination.

The “bumping,” which can occur under the relief awarded,

will undoubtedly create morale problems, if not immediate

economic problems, for those displaced. The relief is war-

ranted, however, where past discrimination has allowed those

persons greater job opportunity than more senior blacks and

females.

The formulation of the method of calculation and distribu-

tion of the back pay award and adjustment to the pension and

profit-sharing plans will be complex—sufficiently so as to tax

the ingenuity and good faith of counsel. In this regard counsel

are directed to confer with a view of agreeing on a plan of

calculation and distribution of the back pay award for sub-

mission to the Court—and, indeed, to explore the possibility of

settling the monetary aspects of the case.

A decree should be prepared embodying, in more detail, the

injunctive relief awarded, and providing for a method of

calculation and distribution of the back pay award as well as

adjustments to the pension and profit-sharing plans. If the

latter cannot be agreed upon after thirty (30) days, counsel

should notify the Court and a hearing will be scheduled. If the

form of the decree, insofar as injunctive relief is concerned,

cannot be agreed upon within a reasonable time, counsel

should also notify the Court, and a hearing on that, perhaps

combined with the other hearing, may be scheduled.

59

APPENDIX I

STIPULATION NUMBER 1

The plaintiffs, John Patterson, et al, and the Equal Employ-

ment Opportunity Commission, and, the defendants, The

American Tobacco Company, Local 182, Tobacco Workers’ In-

ternational Union, and the Tobacco Workers’ International

Union, do hereby stipulate and agree, subject to objection by

any party as to the relevancy, competency, and materiality,

of any statement contained herein and without in any way

abridging the right of any party hereto to introduce additional

evidence relating to any of the matters herein, as follows:

1. The defendant The American Tobacco Company, a di-

vision of American Brands, Inc., (hereinafter Company) is a

corporation organized and existing under the laws of the State

of New Jersey.

2. The defendant Company is an employer in an industry

affecting commerce within the meaning of §701(b) of the Civil

Rights Act of 1964, 42 U.S.C. §2000e(b).

3. The defendant Company owns and operates the Virginia

Branch for the purpose of manufacturing cigarettes in Rich-

mond, Virginia.

4. The defendant Company owns and operates the Richmond

Branch for the purpose of manufacturing smoking (pipe) to-

bacco in Richmond, Virginia.

5. Although the Virginia Branch and the Richmond Branch

are under separate plant management, the defendant Com-

pany has on two occasions, the last occasion being between

the years 1957-1959, permanently transferred employees from

one Branch to the other.

6. An office staff which performs various accounting and

record keeping duties for both the Richmond and Virginia

Branches, is physically located at the Virginia Branch, and is

designated as the Richmond Office.

7. The Shipping Department at the Virginia Branch ships

the products of the Virginia and Richmond Branches.

60

8. The defendant Company does not maintain any written

job descriptions for any cf its job classifications at the Rich-

mond and Virginia Branches.

9. Local No. 666 of The International Brotherhood of Electri-

cal Workers (I.B.E.W.) has jurisdiction over the job classi-

fications of electrician and electrician’s helper at the Richmond

and Virginia Branches of the defendant Company.

10. Richmond Lodge No. 10 of The International Association

of Machinists and Aerospace Workers’ (1.A. M.A.W.) has

jurisdiction over the job classifications of machinists, ma-

chinist apprentice, welder, carpenter-millwright, brick or

cement work, pipefitters, adjuster-prefabrication (Virginia

Branch), adjuster helper-prefabrication (Virginia Branch),

conveyor adjuster (Virginia Branch), and helper at the Rich-

mond and Virginia Branches of the defendant Company.

11. All of the other job classifications for hourly employees,

which are not under the jurisdiction of the I.B.E.W. or the

I.A.M.A.W. Unions, are under the jurisdiction of Local 182 of

the Tobacco Workers’ International Union (T.W.I.U.).

12. From 1953 to the present, the defendart Company has

had federal government contracts for the sale of some of its

products.

13. The Company’s first Equal Employment Opportunity

program was drawn up in 1956, and the second program was

drawn up in 1962. (A copy of these programs is attached

hereto as Exhibits A and B respectively.)

14. Beginning in 1956 the defendant Company conducted a

program of plant modernization in the Prefabrication Depart-

ment of the Virginia Branch which included the phase out

of old machines and techniques and the initiation of new auto-

mated processes. As the result of this program, sixteen black

employees were transferred to the Fabrication Department

and six were sent to the Richmond Branch between 1956 and

1958.

15. The Virginia Branch of the defendant Company is

divided into two major departments — Prefabrication and

Fabrication.

61

16. The Prefabrication Department at the Virginia Branch

of the defendant Company is subdivided into the Turkish,

Casing, and Cutting Departments.

17. The Fabrication Department at the Virginia Branch of

the defendant Company is subdivided into the Making, Pack-

ing, Shipping, and Receiving Departments.

18. The Richmond Branch of the defendant Company is

divided into two major departments — Prefabrication and

Fabrication.

19. The Prefabrication Department at the Richmond Branch

is subdivided into the Cooking, Dipping and Drying, Long

Cut, Blended Stock, High Grade, Guardite, Stem Rolling, and

Shipping and Receiving Departments.

20. The Fabrication Department at the Richmond Branch

contains only the Packing Department.

21. Both the Richmond and Virginia Branches of the de-

fendant Company have a Mechanical, Medical, and Clerical

Staff.

22. Prior to September 16, 1963, the Company recognized two

locals of the T.W.I.U at the Richmond and Virginia Branches

of the defendant Company. One of these Locals, No. 216, had

an all black membership and had jurisdiction over job classi-

fications located primarily in the Prefabrication Department

of the Richmond and Virginia Branches of the defendant Com-

pany. The other T.W.I.U. Local, No. 182, had an all white

membership and had jurisdiction over only those job classi-

fications located in the Fabrication Department of the Rich-

mond and Virginia Branches of the defendant Company.

23. Executive Order No. 10925, which was issued by Presi-

dent Kennedy and became effective on March 6, 1961, detailed

specific penalties for a government contractor in noncompli-

ance with federal requirements for equal employment op-

portunity.

24. Approximately 81% of the hourly paid workers in the

Prefabrication Department of the Virginia Branch are black.

None of the adjusters-prefabrication have ever been black.:

en

62

25. At the present time, 2 of the 3 adjuster helpers-prefabri-

cation at the Virginia Branch are black.

26. In order to become an adjuster-prefabrication, an em-

ployee must first serve as an adjuster helper-prefabrication.

27. In order to become an adjuster learner in the Fabrication

Department of the Virginia Branch, it is necessary that an

employee be a packing, Schmermund or making machine op-

erator. Only packing and Schmermund machine operators are

eligible to become adjuster learner-packers, and only making

machine operators are eligible to become adjuster learner-

makers.

28. The labor rates for hourly employees and for all job

classifications at both the Richmond and Virginia Branches

under the jurisdiction of Local 182 and former Local 216 of the

Tobacco Workers’ International Union have been negotiated

for every contract period since 1937.

29. John Patterson was initially employed by the defendant

Company as a tobacco tub handler at the Virginia Branch on

April 4, 1946.

30. Percy Taylor was initially employed by the defendant

Company as a laborer in the Prefabrication Department at the

Virginia Branch on May 12, 1941 and was re-employed on Sep-

tember 19, 1944 after quitting on May 5, 1944.

31. James Randolph was initially employed by the defendant

Company as a laborer in the Prefabrication Department of

the Virginia Branch on September 23, 1952.

32. Marion Moshoe was initially employed by the defendant

Company at the Richmond Branch as a laborer in the Prefabri-

cation Department on February 3, 1958.

33. Edmund Page was initially employed by the defendant

Company as a laborer in the Prefabrication Department of the

Richmond Branch on August 20, 1948.

34. All of the named plaintiffs joined Local 216, T.W.I.U

after being hired by the defendant Company.

35. None of the named plaintiffs became members of the

defendant Local 182 until September 16, 1963.

63

36. All of the named plaintiffs have been members of the

defendant Local 182 since September 16, 1963, and are cur-

rently members of that Local.

37. The named p! tiffs are blacks who are currently

employed as hourly production workers by the defendant Com-

pany at either the Richmond Branch or the Virginia Branch

and are members of the defendant Local 182 of the Tobacco

Workers’ International Union.

38. On January 15, 1968 the defendant Company instituted a

system (which is still in effect) whereby permanent vacancies

in classifications under the jurisdiction of Local 182 of the

T.W.I.U. at both the Richmond and Virginia Branches were

filled through job posting and employee bidding. Under this

system, all such vacancies are posted on plant bulletin boards

for seven working days. Anyone in the bargaining unit may

sign any posting (bid on any job) with the exception of post-

ings for vacancies in the adjuster, learner adjuster, examiner-

making, examiner-packing, and dryer operator, textile dryer

operator, overhaul adjuster-making or packing, and turbine

operators classifications at the Virginia Branch and adjuster

and learner adjuster at the Richmond Branch.

39. Only employees who have become learner adjusters are

eligible to move into vacancies in the adjuster classification.

40. Only employees who are experienced as a packing or

making machine operator or Schmermund boxer operator are

eligible to bid on vacancies in the learner adjuster classifi-

cation.

41. Only employees who are experienced as a catcher are

eligible to bid on vacancies in the examiner-making classifi-

cation.

42. Only employees who are experienced as line searchers

—Schmermund boxer are eligibie to bid on vacancies in the

examiner-packing classification.

43. Only those employees who have become an assistant adt

dryer operator are eligible to move into vacancies in the adt

dryer operator classification.

64

44. Only those employees who have become an assistant

textile dryer operator are eligible to move into vacancies in

the textile dryer operator classification.

45. Only those employees who have become a making or

packing adjuster are eligible to move to vacancies in the over-

haul adjuster classification.

46. Only those employees who have become an adjuster

helper-prefabrication are eligible to move to the adjuster-

prefabrication classification.

47. Only those employees who have become boiler operators

are eligible to move into vacancies in the turbine operator

classification.

48. The only formal or procedural requirement for an em-

ployee’s bidding on a job, except those noted in #38, is for the

employee to sign the posting in any location where it is dis-

played. When the posting is removed from the bulletin boards

at the end of the seven working days, the plant seniority dates

of all persons signing are compared and the most senior signer

is given the first opportunity to learn the job.

49. As a general rule, since September 16, 1963, employees

within the Local 182 of the T.W.I.U. bargaining unit are given

preference for any vacancies in job classifications within the

bargaining unit, and hiring is performed only for entry level

jobs unless all of the employees refuse to accept a vacancy.

50. None of the job classifications under the jurisdiction of

the I.B.E.W. or the I.A.M.A.W. Unions are subject to the post-

ing and bidding system of filling permanent vacancies.

51. Under the posting and bidding procedure, once an em-

ployee has bid on and been awarded a permanent position,

he/she enters into on-the-job-training wherein experienced

employees who are already classified in a particular position

instruct the employee new to the position as to the duties and

responsibilities of the position.

52. If any employee decides within fourteen days after be-

ginning his training period that he/she does not wish to accept

the position, that employee can “sign off” the job and return

to his/her former position.

65

53. If an employee decides after being assigned to a position

for over fourteen days that he does not wish to accept that

position, he may not “sign off” the job. However, he may sign

another posting and, if he is successful, thereby remove him-

self from the first position.

54. There are no established limits on the length of time

during which an employee may receive on-the-job training

for any job classification at either the Richmond or Virginia

Branch of the defendant Company.

55. The superintendent has the discretion to remove a

trainee when in his opinion, after a reasonable period of time,

that employee has not demonstrated that he can perform that

particular job.

56. Prior to selecting an employee for promotion to a super-

visory position, the defendant Company gives the local union

an opportunity to make recommendations.

57. The defendant Company has never had an educational

requirement for employees promoted from hourly production

jobs to supervisory positions.

58. Hourly employees of the defendant Company do not

have to apply or express their interest in holding a super-

visory position in order to be considered for promotion to such

a position.

59. The defendant Company does not have any written

guidelines which are used in selecting supervisory personnel.

60. The selection of supervisors at the Richmond and Vir-

ginia Branches of the defendant Company is left to the dis-

cretion of those employees at the superintendent and manager

levels of plant management.

EXHIBIT A

Equal Job Opportunity

The following points were agreed to at the meeting held April

24, 1956, and constitute a plan of equal job opportunity in the

manufacturing departments of the Company, in accordance

with the clause in government contracts: :

66

How many employees will be affected?

This was answered by saying that management would select

the employees, as always there are employees who do not

qualify for the new job and the individual employee has

the right to refuse and stay on the job where he is satisfied.

Seniority status of employees moved to new jobs?

Employees given the opportunity to move in a new classi-

fication will advance in order of placement, and move back-

wards in reverse order, and, if necessary, return to the job

from whence they came.

The jurisdiction?

The local that has jurisdiction and is bargaining for a par-

ticular classification will continue to hold jurisdiction and

bargain for all employees in the classification, regardless of

color or affiliation.

Racial problems?

If a problem of a racial nature becomes a grievance, the

shop committee of both local unions will meet and agree on

the unions’ position, which will be presented to management

for settlement in accordance with the grievance clause (Arti-

cle 13) in the contract.

Employment?

New employees will be hired as to races on the basis of the

approximate census in the plant area. This will be followed

if applicants qualify for the job and are available when

called.

EXHIBIT B

EQUAL JOB OPPORTUNITY

There is equal job opportunity in accordance with the clause

in government contracts. The following points represent the

understanding of the Company and the Unions with respect

to employees to whom the government contract clause is ap-

plicable and who are represented by the Unions:

67

Selection for New Jobs

Management wil! continue to select employees for new jobs

on the basis of their qualifications and to recognize the right

of an employee to refuse a new job and stay on the job where

he is satisfied.

Seniority Status of Employees Moved to New Jobs

Employees given the opportunity to move in a new classifi-

cation will advance in order of placement, and move back-

wards in reverse order, and, if necessary, return to the job

from whence they came.

The Jurisdiction

The local that has jurisdiction and is bargaining for a par-

ticular classification will continue to hold jurisdiction and

bargain for all employees in the classification, regardless of

affiliation.

Grievances Where Locals Disagree

If a problem on which two locals disagree becomes a griev-

ance, the shop committee of both local unions will meet and

agree on the unions’ position, which will be presented to man-

agement for settlement in accordance with the Grievance

Clause in the Union Contract.

Employment

The Company is an equal opportunity employer and, as such,

will provide equal employment opportunities without regard

to race, color, creed or national origin.

APPENDIX II

A. Facts Relevant to the Issues of Both Sex and Race Dis-

crimination:

1. American’s facilities are located in =he Richmond Stand-

ard Metropolitan Statistical Area (SMSA) which includes the

City of Richmond and the counties of Henrico, Hanover and

Chesterfield. |

68

2. The 1960 census, which did not include Hanover County,

shows:

Richmond SMSA Population 408,494

Black Population 107,366 26%

Female Population 227,650 55%

3. The 1970 census, which included all the political subdi-

visions in the Richmond SMSA, shows:

Richmond SMSA Population 518,319

Black Population 130,241 25%

Female Population 272,803 52%

4. The 1970-1973 Virginia Employment Commission estimate

of the percent of the total work force which is comprised of

blacks and females in the Richmond SMSA is as follows:

Minority

(Black) 23.6% of the Total Work Force

Female 41.0% of the Total Work Force

5. The Richmond Office is located within the Virginia

Branch. The Virginia Branch and the Richmond Branch,

despite difference in street addresses,’ are physically located

very near one another. The presently practiced plant-wide

seniority system, i.e., seniority determined within each of the

three facilities, has, except with respect to the Richmond Of-

fice, contributed to the perpetuation of the discrimination

found in finding 33 and 81. It has not been shown to be justi-

fied by any business necessity.

6. No new employees were hired to fill job classifications

under the jurisdiction of the Tobacco Workers’ International

Union at the Virginia Branch from September 12, 1955 through

May 12, 1966, nor at the Richmond Branch from September 12,

1955 through June 12, 1964.

[EMPLOYEES CANVASSED]

7. Between September 16, 1963, and January 15, 1968, em-

ployees at the Virginia Branch were canvassed to determine

1The addresses of the Virginia Branch and the Richmond Branch,

respectively, are 26th and Cary Streets and 21st and Grace Streets,

Richmond, Virginia. A map, not to scale, mein Pe relative positions

of the two plants, is attached as Appendix III, [Ed. note:—Omitted.]

69

if they were interested in procuring a position in a given job

classification should a vacancy later occur.

8. Job “qualifications,” as used between September 16, 1963,

and January 15, 1968, were never reduced to writing. Em-

ployees learned of the specific “qualifications” either by talk-

ing to supervisory personnel or representatives of the union,

or, by observing the system of promotion in operation. “Quali-

fied,” as used for this period, referred to whether or not an

employee had fille! a particular job before and was, in the

opinion of superv.sory personnel, familiar with it.

9. Employees who are permanently classified in jobs which

are located in the Prefabrication Department of either branch

of American generally fill temporary vacancies within the

Prefabrication Department. Employees who are permanently

classified in jobs which are located in the Fabrication Depart-

ment of either branch of the defendant company generally fill

temporary vacancies within the Fabrication Department.

10. Local 182 and the Tobacco Workers’ International Union

entered into collective bargaining agreements, governing,

inter alia, wage rates for employees under its jurisdiction,

which became effective in 1954, 1956, 1958, 1960, 1962, 1965,

1968, 1971 and 1974, respectively. The unions have jurisdiction

over employees at the Richmond Branch and the Virginia

Branch, but not the Richmond offive.

11. Supervisory personnel at the Virginia and Richmond

Branches of American include the job classifications of assist-

ant foreman, foreman, assistant superintendent, superinten-

dent, assistant manager and manager.

12. Supervisory personnel at the Richmond and Virginia

Branches of American have traditionally been either promoted

from the ranks of the hourly employees, hired as new employ-

ees or transferred from other branches. Since 1960, 34% of

the vacancies at the assistant foreman level have been filled

by promoting former hourly employees of American.

13. Prior to selecting an employee for promotion to a super-

visory position, American gives the local union an —

to make recommendations.

70

[FINAL DECISION]

14. When the union and American’s recommendation are

not the same as to who should be promoted to a supervisory

position, American’s branch manager makes the final decision.

15. The defendant company has never had an educational

requirement for employees promoted to supervisory positions

from hourly production classifications.

16. Since July 1, 1965, at least eighteen employees have been

hired for or promoted to the position of assistant foreman at

the Virginia Branch.

17. Since July 1, 1965, at least nine employees have been

hired for or promoted to the position of assistant foreman at

the Richmond Branch.

18. Hourly employees of American do not have to apply for

or express an interest in a supervisory position in order to be

considered for promotion to such a position.

19. American does not have any written guidelines or objec-

tive standards which are used in selecting supervisory per-

sonnel.

20. Craft positions at the Virginia Branch include the job

classifications of “machinist, machinist apprentice, electrician,

electrician’s helper, welder, carpenter-millwright, brick or ce-

ment worker, helper and pipefitter.”

21. Craft positions at the Richmond Branch include the job

classifications of machinist, machinist’s helper, electrician,

pipefitter, and carpenter.

22. Until 1971, American required that all applicants who are

being considered for positions as clerks in the Richmond Of-

fice take the Minnesota Clerical Test. This test has never been

certified as being either job related or predictive of job per-

formance.

[RETIREMENT PLAN]

93. American has had a retirement plan for all of its employ-

ees at the Richmond and Virginia Branches since before 1942,

and a profit-sharing plan since 1960.

71

24. An employee’s share in profit-sharing and his benefits

under the present retirement plan depend on yearly gross

earnings.

25. Total employment? at the Virginia Branch declined from

2,157 in 1953 to 1,027 in 1974. Factory workers declined from

1,476 in 1962 to 829 in 1974. Factory workers hired subsequent

to May 16, 1966, were all hired into entry-level jobs and were

not hired for any particular vacancy. There are no records to

indicate the race of applicants from 1955 to February, 1972.

26. Total employment at the Richmond Branch declined

from 399 in 1953 to 218 in 1973. Factory workers declined from

227 in 1962 to 156 in 1973. There are no records to indicate the

race of applicants prior to March, 1972.

27. In 1961, the Richmond Office had 59 employees, exclud-

ing supervisors; in 1969 there were 69 such employees; and,

on February 28, 1974, there were 55 such employees.

28. From January 1, 1963, to June 1, 1973, there have been

over 55 vacancies in the assistant foreman position at the

Virginia Branch.

29. From January 1, 1963 to June 1, 1973, there have been

over 30 vacancies in the assistant foreman position at the Rich-

mond Branch.

30. Since 1966, there have been 4 vacancies in the position

of supervisor in the Richmond Office.

31. The so-called “lines of progression” described in Para-

graphs 38 through 47 of Stipulation I (Appendix I), with the

exception of the requirements described in Paragraph 39

(learner adjuster in order to become an adjuster), Paragraph

45 (making or packing adjuster in order to become an overhaul

adjuster) and Paragraph 46 (adjuster helper-prefabrication in

order to become an adjuster-prefabrication) are not justified

by any business necessity. The lines of progression other than

*The findings with regard to onpiemens by American are broken

down into figures and percentages for the Virginia Branch, the Rich-

mond Branch and the Richmond Office. Because the Court finds that

these three offices should be combined and considered as being at one

location, the total figures have been considered for the purpose of the

Court’s ultimate findings.

72

these three have perpetuated past discrimination on the basis

of sex and race.

B. Facts Relevant to the Issue of Race Discrimination:

32. Prior to September 16, 1963, American discriminated on

the basis of race with respect to facilities, union representa-

tion, wage structure, departments, seniority lines and hiring.

33. As a result of the low number of posted permanent va-

cancies at the Virginia and Richmond Branches, most black

employees have been unable to move into the higher paying

job classifications which had previously been restricted to

whites. Consequently, a pattern of racially segregated job

classifications and departments still exists in spite of Ameri-

can’s adoption of a posting and bidding system.

34. Many of the positions in the job classifications which

were previously restricted to whites are now held by white

employees, with less seniority than black employees, who were

able to obtain these positions prior to 1968 by virtue of Ameri-

can’s use of a racially discriminatory promotion system of plant

seniority “plus qualifications,” or by virtue of American’s ini-

tial assignment of whites directly into these positions.

35. Black employees have received lesser amounts than

white employees with comparable seniority under American’s

profit-sharing and retirement plans because of American’s dis-

parate wage structure and the inability of blacks to gain access

to higher paying jobs.

36. Local 182 and The Tobacco Workers’ International Union

have negotiated and entered into labor agreements which have

determined working conditions, wage rates, employee benefits

and conditions for promotion. These have had the effect of

continuing blacks in the lower paying, less desirable jobs at

the Richmond and Virginia Branches.

37. Prior to 1963, black employees of American did not fill

any temporary vacancies in job classifications which were re-

stricted to whites. During that same period, white employees

did not fill any temporary vacancies in job classifications which

were restricted to blacks.

EEE EEE EEE EEOEEEEEEEEEEo&=——

73

[MISCELLANEOUS DEPT.]

38. Prior to September 16, 1963, the Miscellaneous Depart-

ment at the Virginia Branch contained two job classifications,

“cleaner” and “elevator operator.” All of the employees hold-

ing these classifications in this department were black. During

this period, these employees were responsible for manual ma-

terials handling, by-products removal from the production

floors and cleaning the fabrication cafeteria eating area and

two fabrication rest rooms.

39. For the years 1965 through 1973, black hourly-paid pro-

duction workers at the Virginia Branch generally had a lower

mean income than whites with equivalent plant seniority.

40. For the years 1965 through 1973, black hourly-paid pro-

duction workers at the Richmond Branch generally had a

lower mean income than whites with equivalent plant seni-

ority.

41. Jobs in the Prefabrication Department of the Richmond

Branch historically have had lower wage rates than jobs in

the Fabrication Department of that Branch.

42. Jobs in the Prefabrication Department of the Virginia

Branch have generally had lower wage rates than jobs in the

Fabrication Department of that Branch.

43. Traditionally at both branches there have been more

blacks in the Prefabrication Department than whites, and more

whites in the Fabrication Department than blacks.

44. Jobs at the Richmond Branch have traditionally had

lower wage rates than jobs at the Virginia Branch.

COPERATOR-GUARDITE’]

45. The job classification of “operator-guardite” has tradi-

tionally had the highest wage rate of any job in the Prefabri-

cation Department of the Richmond Branch. When this classi-

fication was first introduced, the defendant company trans-

ferred two white males from the Fabrication Department, one

to operate a guardite machine and the other to serve as super-

visor in the guardite operation in the Prefabrication Depart-

ment. All of the other employees in the guardite operation

74

were black. There has, however, only been one guardite ma-

chine operator, a white male, who has held the job since its

inception.

46.2 As of February 26, 1963, 196 or 11.8% of the 1,653 employ-

ees at the Virginia Branch of the defendant company were

black. As of January 15, 1963, of the approximate 100 super-

visors none was black.

47. The first black supervisor at the Virginia Branch was

promoted from the ranks of the hourly employees by American

on January 16, 1963.

48. As of May 16, 1969, of the 71 employees in supervisory

positions at the Virginia Branch of American, 3 were black.

49. As of April 16, 1973, 165, or 15.49% of the 1,071 employees

at the Virginia Branch of the defendant company were black.

As of April 16, 1973, 5 or 7.24% of the 69 employees in super-

visory positions at the Virginia Branch were black.

50. As of January 1, 1974, there were 6 black supervisors

at the Virginia Branch.

[BLACK SUPERVISOR]

51. The first black supervisor at the Richmond Branch was

promoted from the ranks of the hourly employees on June 1,

1966, and was assigned to the Prefabrication Department.

52. As of April 17, 1967, 79 or 32.1% of the 246 employees at

the Richmond Branch were black.

53. The second black supervisor at the Richmond Branch

was promoted from the ranks of the hourly employees on Feb-

ruary 1, 1971.

54. As of March 10. 1971, 82 or 36.7% of the 223 employees at

the Richmond Branch were black. On that same date 2 or

6.6% of the 30 employees in supervisory positions at the Rich-

mond Branch were black.

3The percentages in this and subsequent findings, namely, 46, 49,

52, 54 and 55, while apparently in some instance inconsistent with the

finding in nm ny 70, 71, 72 and 73, cover years not covered by

the latter and include all employees as opposed to just factory workers.

75

55. As of April 16, 1973, 85 or 40.67% of the 209 employees at

the Richmond Branch were black.

56. As of June 1, 1973, 3 or 9.6% of the 31 employees in super-

visory positions at the Richmond Branch were black.

57. As of April 15, 1973, 250 or 19.53% of the 1,280 employees

at both Branches of American were black.

58. Only one black has ever held any of the positions of

machinist, machinists helper, electrician, pipefitter or carpen-

ter at the Richmond Branch.

59. None of the employees who completed their apprentice-

ships at the Virginia Branch was black.

60. One of the employees who completed his apprenticeship

at the Richmond Branch was black. This employee, Mr. Frank

Schools, is the only black ever employed in a craft position at

the Richmond Branch.

61. Only three blacks have ever been employed as craftsmen

at the Virginia Branch.

[OFFICE FORCE]

62. As of April 12, 1974, 62 persons were employed in the

Richmond Office, 13 of whom were black. The total work

force is made up of 55 clerical employees, 6 supervisory em-

ployees, and 1 office manager. All of the black employees were

classified as clerks.

The positions of office manager, assistant office manager,

and supervisor in the Richmond Office have never been held

by a black.

63. Although John Patterson was initially assigned to the

Fabrication Department of the Virginia Branch on April 4,

1946, he could not be classified in most of the job classifications

in that department until September 16, 1963, because he was

black.

64. Percy Taylor and James Randolph were not eligible to

hold most of the job classifications in the Fabrication Depart-

ment of the Virginia Pranch, including those of “Packing or

76

Making Machine Operators,” until September 16, 1963, because

they were black.

65. During the period from 1954 to 1971, American some-

times assigned Marion Moshoe, a black and a named plaintiff,

to various machines in the Prefabrication Department as an

operator. While performing these assignments, he would be

paid at the lower laborer wage rate.

66. From 1960 to the present time, Edmund Page, a black and

a named plaintiff, has been classified as an “operator-prefabri-

cation and other equipment.” Employees in this classification

may operate as many as eight different machines. All of the

employees in this classification are paid at the same wage rate.

67. All of the named plaintiffs in Patterson joined Local 216,

T.W.LU., after being hired by the defendant company.

68. None of the named plaintiffs in Patterson or members

of the class they represent was eligible for membership in Lo-

cal 182 until September 16, 1963, because they were black.

69. All of the named plaintiffs in Patterson have been mem-,

bers of Local 182 since September 16, 1963, and are currently

members of that Local.

{HIRING STATISTICS]

70.4 Although there are no statistics with respect to any ap-

plicants before 1972, the evidence reveals that of those persons

hired into factory positions at the Virginia Branch, from 1966,

when hiring began, through 1973, 152 were black and 69 were

white. A breakdown of these is as follows:

White Black

1966 14 (32%) 30 (68%)

1967 5 (24%) 16 (76%)

1968 14 (36%) 25 (64%)

1969 5 (45%) 6 (55%)

1970 7 (35%) 13 (65%)

None None

1972 1 (06%) 17 (94%)

1973 23 (34%) 45 (66%)

Totals 69 (31%) 152 (69%)

4The statistics in findings numbered 70, 71, 72 and 73 refer to

“factory workers.” These findin

American and apparently exclu

are taken from evidence offered by

e supervisory personnel and others.

77

71. The percentage of black factory workers at the Virginia

Branch from 1962 to February 28, 1974, is as follows:

Percent

Date Blacks Total Black

1962 201 1,476 14%

1963 193 1,441 13%

1964 188 1,397 13%

1965 169 1,321 13%

1966 160 1,263 13%

1967 191. 1,218 16%

1968 175 1,151 15%

1969 173 1,099 16%

1970 161 1,046 15%

1971 157 995 16%

1972 145 923 16%

1973 149 864 17%

1974 (2/28) 169 829 20%

72. Of the persons hired into the Richmond Branch from

1964 to 1973, 133 were black and 33 were white. A breakdown

by year of these is as follows:

White Black

1964 5 (38%) 8 ( 62%)

1965 and 1966 no hiring

1967 1 (14%) 6 ( 86%)

1968 11 (31%) 24 ( 69%)

1969 0 ( 0%) 6 (100%)

1970 7 (37%) 12 ( 63%)

1971 2 (13%) 13 ( 87%)

1972 6 (16%) 32 ( 84%)

1973 1 (03%) 32 ( 97%)

Totals 33 (20%) 133 ( 80%)

78

73. The percentage of black factory workers at the Richmond

Branch in 1962, 1964, 1966, 1968, 1970, 1972 and 1973 was:

Percent

Date Blacks Total Black

1962 93 227 41%

[sic 1964] 93 228 41%

1966 78 190 41%

1968 89 189 47%

1970 80 164 49%

1972 79 151 52%

1973 90 156 58%

74. In 1973, approximately 47% (27 persons) of the total ap-

plications for jobs were filed by blacks and 40% (6 persons)

of the total number of hires were black in the Richmond Of-

fice. The race of four applicants is unknown.

[RICHMOND OFFICE]

75. In the Richmond Office, from 1961 to 1974, 17% (22 Per-

sons) of all persons hired were black; from 1965 to 1974, 18%

(17 persons) of all persons hired were black; and, from 1970

to 1974, 42% (10 persons) of all persons hired were black.

In 1961 there were no black employees in the Richmond Of-

fice. In 1974, 24% (13 persons) of the nonsupervisory employ-

ees were black. '

76. There are approximately two hundred noncraft hourly

paid job classifications at the Virginia Branch. As of 1973

there were eighteen which had never been held by a white

employee, and ten which had never been held by a black em-

ployee.

77. There are approximately 43 noncraft hourly paid job

classifications at the Richmond Branch. As of 1973 there were

twenty-one which had never been held by a white employee;

and nine which had never been held by a black employee.

78. The positions of office manager, assistant office manager,

and supervisor in the Richmond Office have never been held

by a black employee.

79

79. Since 1966, there have been four vacancies in the posi-

tion of supervisor in the Richmond Office. One supervisory

vacancy in 1966 was filled by a white male employee who had

less seniority than several white females in the Richmond

Office. Two supervisory positions were filled on August 1,

1973, by white male employees transferred from the Charles-

ton Branch which was being phased out. One of these two

employees had been the office manager at the Charleston

Branch, while the other had been an office supervisor in tnat

office. As of April 12, 1974, there was one unfilled supervisory

pesition in the Richmond Office.

C. Facts Relevant to the Issues of Sex Discrimination:

80. Prior to September 16, 1963, American discriminated on

the basis of sex with respect to wage structure, departments,

seniority lines and hiring.

81. The same finding, except with regard to sex instead of

race, is made as in finding 33.

82. As of January 15, 1963, of the approximately 1,653 em-

ployees at the Virginia Branch of the defendant company there

were approximately 100 supervisors of which none was female.

83. As of May 16, 1969, of the 71 employees in supervisory

positions at the Virginia Branch of American none was female.

84. As of April 16, 1973, 453 or 42.3% of the employees at

the Virginia Branch were female. As of April 16, 1973, of the

69 employees in supervisory positions, 3 or 4.34%

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