# Petition — American Tobacco Co. v. Patterson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0284%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 429 U.S. 920 ## Text 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 TABLE OF AUTHORITIES 22000002 cccceccecctee seen ii-iii III UII cs ccnsacacensisinhsiesetsnenntintnsanisnnensenoenndetescennn 2 IIIT siltciinninthtncasssdldiasdidiacnsslbaiindaunealbasiabioncnenttunaedes 2 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 IIT I sssconcitscccatemnpdieanieeiideerameueesiipniaaiaiceidianiiebenisondaedaianian 19-47 TTI {dlenensclitananaticenienectictelimiinamntatangaetiedeoiseame 49-103 RSET Sen eb ret see Rar er oer ld ous Race ence ene D Ce 105-108 il 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. bg etme Pet fie Pi aan eee aia oe cee el ——_ eae ih acetates et 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 th [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0284%3A1. Public record. Not legal advice.