Petition — Alexander v. Aero Lodge No. 735, International Ass'n of Machinists & Aerospace Workers

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APR 24 1978

In THE MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

Ocroser Term, 1977

No. 7- Q@™ 1522

RaMsEy ALEXANDER, et al.,

Petitioners,

Agro Lopcse No. 735, InrernationaL Association or Ma-

CHINISTS AND Agro Space Workers, AFL-CIO, and Avco

Corporation, Agrospace Structures Drvision,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Jack GREENBERG

O. Perer SHERwoop

Eric SCHNAPPER

_10 Columbus Circle, Suite 2030

New York, New York 10019

Avon N. Wuuiams, JR.

1414 Parkway Towers

404 James Ropvertson Highway

Nashville, Tennessee 37219

Russet, C.B. Ennr, Jr.

Morris Memorial Building

330 Charlotte Avenue

Nashville, Tennessee 37201

Attorneys for Petitioners

Aupert J. RosentHa.

Of Counsel

ne a cerrnrctr NS RSE eeIOREESE?

—_—_— —_ a -

TABLE OF CONTENTS

GREGEUOD BOEGD sacccccccecesccccscecotecs

pT ET RP ST TT eT Tee Tee eee Tee

GeSOCEGES POGRGMBORs cc ccccesceeoevececses

Statutory Provisions Involved............

DESSGEES GE Ge Gis oc kccccceccevseseecs

Reasons for Granting the Writ ...........

Conclusion

PAGE

Table of Authorities

Cases

Franks v. Bowman Transportation Co.

684 U.8. FAT CIOTE). coccccccces

Furnco Construction Corp. v. Waters,

mR 5 No. 77-369 see

International Brotherhood of Teamsters

v. United States, 431 U.S. 424

6 BROT TT TTT TT Perret

Hazelwood School District v. United

States, 433 U.S. 299 (1977) ....

United Airlines, Inc. v. Evans,

OEE Dibs Fee GOTTD ccvecccsccas

Village of Arlington Heights v.

Metropolitan Housing Development

Corp., 429 U.S. 252 (1977) .....

Waters v. Wisconsin Steel Works, 502

F.2d 1309 (7th Cir. 1974),

cert. denied 425 U.S. 997 (1976)

Statutes

Civil Rights Act of 1866

SZ U.8.C. GIGS wccccccsccsccccccecces

Title VII, Civil Rights Act of 1964

42 U.S.C. §§$2000e OC BOQ. wccceseveees

Federal Rules of Civil Procedure

Re OE 6.6 665046 6546566.006566608

PAGE

Other Authorities

: Bureau of National Affairs, Basic

13, 14,15 Patterns in Union Contracts

(8th ed. 1975) .......

14,16

3,5

Passim

- iii

PAGE

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

NO. 77 -

RAMSEY ALEXANDER, et al.,

Petitioners,

AERO LODGE NO. 735, INTERNATIONAL ASSOCIA~

TION OF MACHINISTS AND AERO SPACE WORKERS,

AFL-CIO, and AVCO CORPORATION, AEROSPACE

STRUCTURES DIVISION

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The petitioners respectfully pray that «

writ of certiorari issue to review the judgment

and opinion of the United States Vourt of Appeal:

for the Sixth Circuit entered in this proceeding

on November 1, 1977.

Opinions Below

The decision of the United States Court o:

Appeals for the Sixth Circuit, reported at 56)

F.2d 1364, is reprinted infra at p. 78a. The

order of the court denying the petition for

-2-

rehearing en banc of the petitioner herein has

not been reported, but.is reprinted at p. 120a.

The memorandum opinion of December 18, 1973, of

the United States District Court for the Middle

District of Tennessee is reported at 7 E.P.D.

79117 and reprinted at p. la. The implement-

ing order of August 20, 1974, of the district

court is reported at 380 F.Supp. 1282 and re-

printed at p. 67a. The further order of Febru-

ary 1l, 1975, of the district court, amending

its previous order, is reported as Addendum to

the opinion of the United States Court of Appeals

for the Sixth Circuit, at 565 F.2d 1385-88, and

is reprinted at p. 113a.2/

Jurisdiction

The judgment and opinion of the Court of

Appeals was entered on November 1, 1977. The

petitioners’ petition for rehearing and rehear-

ing en banc was denied on January 24, 1978.

Jurisdiction of this Court is invoked pursuant

to 28 U.S.C. §1254(1).

1/ Orders of June 3 and June 20, 1975 of the

district court, relating to back pay and attor-

neys' fees, are not involved in the petition for

certiorari and are therefore not reprinted.

= 2

Question Presented

Did the court of appeals err in holding that

Title VIL of the 1964 Civil Rights Act and 42

U.S.C. §1981 permits an employer to provide a

special training program for an all-white group of

employees, which enables them to bump black

employees from their jobs, even though that

program was adopted for the purpose, and had the

effect, of discriminating on the basis of race?

Statutory Provisions Involved

Section 703 of the Civil Rights Act of 1964,

78 Stat. 241, 255-57, 42 U.S.C. §2000e-2 (1970),

read in pertinent part as follows:

SEC. 703. (a) It shall be an unlawful

employment practice for an employer --

(1) to fail or refuse to hire or

to discharge any individual with res-

pect to his compensation, terms, con-

ditions, or privileges of employment,

because of such individual's race,

color, religion, sex, or national

origin; or

(2) to limit, segregate, or clas-

sify his employees in any way which

would deprive or tend to deprive any

2/ Minor amendments to §§703(a)(2) and (c)(2)

made by §8 of the Equal Employment Opportunity

Act of 1972, P.L.92-261, would have had no bear-

ing on any of the issues in this case.

7 &«

individual of employment opportunities

or otherwise adversely affect his

status as an employee, because of such

individual's race, color, religion,

sex, or national origin.

* * *

ful employment practice for a labor organi-

zation --

(1) to exclude or to expel from

its membership, or otherwise to dis-

Ccriminate against, any individual

because of his race, color, religion

sex, or national origin:

(2) to limit, segregate, or clas-

sify its membership, or to classify or

fail or refuse to refer for employment

any individual, in any way which would

deprive or tend to deprive any indivi-

dual of employment opportunities, or

would limit such employment opportuni-

ties or otherwise adversely affect his

status as an employee or as an appli-

cant for employment, because of such

individual's race, color, religion,

sex, Or national origin; or

(3) to cause or attempt to cause

an employer to discriminate against

an individual in violation of this

section.

(d) It shall be an unlaw-

ful employment practice for an employer,

labor organization, or joint labor-management

committee controlling apprenticeship or

other training or retraining, including on-

the-job training programs to discriminate

- 5-

against any individual because of his race,

color, religion, sex, or national origin in

admission to, or employment in, any program

established to provide apprenticeship or

other training.

x * *

(h) Notwithstanding any

other provision of this title, 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 ... system, ... provid-

ed that such differences are not the result

of an intention to discriminate because of

race, color, religion, sex, or national

origin ...

Statement of the Case

In 1966 and 1968, respectively, petitioners

Ramsey Alexander and Robert F. Newman brought

actions under Title VII of the Civil Rights Act

of 1964, 42 U.S.C.§§2000e et seq., and section

l of the Civil Rights Act of 1866, 42 U.S.C.

$1981, against both respondents on behalf of

a class of black employees and applicants for

employment, alleging a wide range of racially

discriminatory practices. Following a consoli-

dated trial between June and August of 1972,

the district court found that both respondents

-6-

had discriminated against black employees in a

number cf respects, both before and after July 2,

1965, the effective date of Title VII.

This petition for certiorari seeks review

only of the reversal by the court of appeals of

the district court's finding of unlawful dis-

crimination with respect to the Globe-Wernicke

incident, described below, in 1971-72. The long

and dismal tale of the other discriminatory

practices of the respondents will be mentioned

only to the extent that portions may be relevant

to that incident.

Collective bargaining contracts between the

respondent company and union dictate the prior-

ities among employees with respect to promotions,

layoffs and recalls. These contracts "gave an

absolute preference to employees with prior,

satisfactory service in the particular occupa-

tion" (565 F.2d at 1376, 95a), a preference

referred to by the parties and the courts below

as “job equity." 3/ Because of past favoritism

for whites in awarding the better jobs, this

system disproportionately excluded blacks from

opportunities to be transferred into such jobs,

3/ Among those with job equity, length of

service with the company was decisive.

eJ-«

even though they were in fact capable of doing

work. The disadvantage to blacks was compounded

by preferential treatment accorded whites in

being given training and experience on the more

attractive jobs. Thus the rules governing prior-

ity among employees with respect to promotions,

lay-offs and recalls almost always worked strongly

to the disadvantage of black employees.

In 1971, however, a situation developed

in which the opposite was about to occur. The

Globe-Wernicke Division of the company, which

manufactured furniture, was to be phased out

in late 1971, and its employees terminated. 73 of

these employees had seniority dating from 1950 to

1960. All 73 were white. Meanwhile, in the

aircraft operations of the same employer there

was an occupation known as "“assembler-bench

and jig." The number of employees assigned to

this occupation fluctuated widely with the com-

mencement and completion of successive contracts.

Most of the blacks employed by Avco were in this

occupation, and most had fairly short seniority.

But none of the Globe-Wernicke employees had ever

worked as assemblers~-bench and jig, and they

therefore had no right to bump more junior em-

ployees in that occupation. Thus the job equity

a ae ee

rules which in the past had so successfully worked

to the detriment of frustrated black employees

were about to afford them a small measure of

protection.

To prevent this from occurring the respon-

dent employer, under pressure from the respon-

dent union, initiated a special program to train

these 73 senior Globe-Wernicke Division employees

in the assembler-bench and jig skills and then

hired them into that occupation. Nothing similar

had ever been done by the respondents when it

would have benefited black employees. The res-

pondents knew that because of periodic wide

fluctuations in employment in airplane manufac-

turing, there would soon be layoffs among assem-

bler-bench and jig workers. They also knew that

many blacks in that occupation had short seniority,

and that they would bear the brunt of the expected

layoffs if they were deprived of the absolute

priority they had had over the Glove-Wernicke

employees by virtue of the latter not having

worked in the occupation. Within a few months

precisely that occurred; because of the new rights

conferred on the 73 whites from Globe-Wernicke, at

-9- - 1iQ°-

history of discrimination held, that the deci-

least 52 blacks, almost a third of the black bench sion to provide special training to the 73 whites

and jig employees were laid oft 4! Of the 73 Globe- was intentional discrimination. 7 E.P.D. at

Wernicke workers who benefited from the special | p.6688, 35a. The majority of the court of appeals,

training program, 100% were white; of the 73 while not questioning the district court's finding

bench and jig employees who were displaced and of intent, held that the special training program

lost their jobs as result of that program, 80% | was immune from attack uader Title VII because the

were black. Thus adopting the special program | white beneficiaries were senior employees of the

was tantamount to a decision to fire a group~ | company. Judge Edwards dissented on this issue and

of black employees and replace them with a group | voted to affirm on the ground that that finding of

of whites. | discriminatory intent was not clearly erroneous.

The dis*rict court, relying on this evid-

ence, its finding that respondents knew the | 6/ No matter how desirable a general

program would result in the displacement of a policy of training laid-off employees

| for future job opportunities in their

former employer's plant might be, if,

as the District Judge appears to have

held here, it is done for the first

blacks by whites,>’ and the company's long history

4/ These figures are derived from the district | time in the history of the company in

court's findings, 7 E.P.D. at p.6688, 34a. | a situation where the company's past

Slightly different numbers were set forth in the | employment policy was clearly discri-

court of appeals opinion, 565 F.2d at 1381, minatory to black employees and the

n.10, 103a, n.10, but the grossly disparate racial company knows that the new program

impact of the incident was not questioned. will have the result of eliminating 52

out of the total 286 black employees in

5/ 7 E.P.D. at pp.6687-88. 34a. This finding the plant, in my view the Judge was not

was upheld by the court of appeals, 565 F.2d at clearly erroneous in finding the prac-

1380, 1034. One finding of fact not directly tice to be discriminatory. 565 F.2d at

relevant was not upheld; the district court had 1388, 119a.

found that the rehiring of the Globe-Wernicke

employees into assembler-bench and jig occupation

violated the collective bargaining contract, while

the court of appeals held that the procedure was

neither compelled nor forbidden by the contract.

(565 F.2d at 1380; 103a.)

- ll -

REASONS FOR GRANTING THE WRIT

The decision of the court of appeals pre-

sents a serious threat to the full implementa-

tion of Title VII of the 1964 Civil Rights Act.

Although the district court found that the res-

pondents had engaged in intentional discrimina-

tion, and the record showed that the disputed

training program had a striking disparate racial

impact, the Sixth Circuit thought neither fact

relevant. It explained:

Rather, we conceive the real issue to be

whether Avco had a duty to refrain from

retraining and hiring recently laid off and

more senior employees in order to protect

the interests of newer employees, who en-

joyed less seniority but were more racially

balanced in their composition. We are loath

to hold that the practice of a company and

a union of retraining its older employees

so that they could enjoy the benefit of

continued employment is discriminatory in

mature merely because its implementation

tends to adversely affect the racial com-

position. 565 F.2d at 1381, p. 103a.

Although the court of appeals was aware that

racial motive was the basis of the district court

decision,— it declined to discuss that issue,

7/ The court noted "Defendants strenously urge

that the district court misconstrued their intent

in retraining and rehiring the laid off Globe-

Wernicke employees...." 565 F.2d at 1380, p. 102a.

ee ee

- 12 -

apparently concluding that racial discrimination

was not actionable under Title VII if the white

beneficiaries had, in any conse, 2! more seniority

than the black victims.

This decision is not merely wrong, but

dangerous. Approximately two-thirds of all

collective bargaining agreements allow more senior

employees to bump less senior workers if the more

senior employees are in fact qualified to do the

job held by the less senior worker.’ Because

of a pervasive history of racial discrimination,

in many industries the most senior employees are

overwhelmingly white. Although these collective

bargaining agreements generally work to the ad-

vantage of whites, the qualification requirement

provides some degree of job security for blacks

in a period of layoffs. Under the Sixth cir-

cuit's decision, however, an employer facing

8/ Of course prior to 1971 the whites at Globe-

Wernicke had less seniority rights to bench-jig

jobs than the blacks then holding those jobs.

The whites were “older” in the sense they had

worked longer for the company, but that fact by

itself conferred no seniority right to a parti-~

cular job.

9/ Bureau of National Affairs, Basic Patterns

In Union Contracts, pp. 66,68 (8th ed. 1975).

- 13 -

a need to make layoffs in one department could

choose to give the whites involved special train-

ing to qualify for jobs then held by blacks, and

thus enable them to bump the blacks out of their

jobs. That decision invites and sanctions a new

form of discrimination which, in a time of continu-

ed economic uncertainty, threatens the job secur-

ity of blacks.

The opinion of the court of appeals is

clearly inconsistent with the decision of this

Court in Franks v. Bowman Transportation Co.,

424 U.S. 747 (1976). In Franks whites had been

the beneficiaries of discrimination in hiring,

and were able under the collective bargaining

agreement to use their unlawfully acquired

status to enjoy a variety of benefits, includ-

ing protection against layoffs, at the expense

of the black victims of that discrimination.

The company and union there urged that the black

victim had no right to relief under Title VII,

since, regardless of the presence of racial

malice in the hiring decision, the application

of a seniority system to the circumstances pro-

duced by that discrimination was immune from

scrutiny under Title VII. This Court rejected

that contention, holding that regardless of

- 14 <-

whether the seniority system involved is bona

fide, a black victim must be afforded relief

from the effects of the hiring discrimination or

"He will perpetually remain subordinate to per-

sons who, but for illegal discrimination, would

have been in respect to entitlement to these

benefits his inferiors." 424 U.S. at 768. That

is precisely the situation in this case except

that the critical act of intentional discrimina-

tion related, not to hiring, but to special

training for whites. Prior to 1971, the whites

at Globe-Wernicke were inferior in seniority,

insofar as a right to hold a bench and jig job

was concerned, to the black bench and jig opera-

tors. The disputed training program had the

effect of bumping blacks out of their rightful

places. Franks makes clear that those blacks are

entitled under Title VII to return to those

rightful places.

The conferring of special seniority rights

on Avco's white employees to the detriment of its

black assembler bench and jig workers is not pro-

tected by §703(h) of Title VII. International

Brotherhood of Teamsters v. United States, 431

U.S. 324 (1977) and United Airlines, Inc. v.

- 15 -

Evans, 431 U.S. 553 (1977) do not sanction the

perpetuation of past discrimination by means of

a seniority system. Those cases merely provide

that, if such a system is bona fide, the action-

able violation is the original act of discrimina-

tion and that a timely charge must be filed

as to that act. Such a charge and action were

filed with respect to the special Globe-Wernicke

training program, and plaintiffs were entitled

under Franks, as a remedy for that intentiona.

violation, to relief from its perpetuation through

dismissal based on the newly acquired job equity

accorded the whites.

The sixth circuit's decision is also in

conflict with that of the seventh circuit in a

similar situation in Waters v. Wisconsin Stee.

Works, 502 F.2d 1309, 1320-21 (7th Cir. 1974),

cert. denied, 425 U.S. 997 (1976). Im that case,

after being laid off by the employer, a group of

whites elected to waive their recall rights in

return for severance pay, thus placing then

behind a black steelworker, Mr. Waters, who did

not exchange his recall rights for severance pay.

When the employer began rehiring, it agreed to

- 16 <-

disregard the whites' waiver, and thus hired them

ahead of the laid off black. The seventh circuit

held that Title VII forbade the employer from

gratuitously conferring special seniority benefits

on white employees to the detriment of blacks.

502 F.2d at 1321. That is what occurred in the

instant case.

Were the court of appeals’ decision read as

overturning the district court's finding of in-

tentional discrimination, that decision would

represent a serious and unwarranted departure

from the normal allocation of fact-finding res-

ponsibility between the trial and appellate

courts. Hazelwood School Dist. v. United States,

433 U.S. 299 (1977). The record before the

district court was clearly sufficient to support,

if not to require, a finding of intentional dis-

crimination, especially since none of the bene-

ficiaries, and almost all the victims, of the

disputed program were black, Teamsters v. United

States, 431 U.S. 424 (1977), and the program re-

presented an unprecedented departure from past

21? <-

practice. Arlington Heights v. Metropolitan Hous-

ing Development Corp., 429 U.S. 252, 266-67

(1977). The district court's analysis of that

record involved neither disputed evidentiary

rulings nor questions of law. Under these cir-

cumstances the court of appeals was required to

accept the district court's findings unless they

were clearly erroneous. Rule 52, Federal Rules

of Civil Procedure. The sixth circuit did not

hold those findings to be clearly erroneous and,

as Judge Edwards observed, could not have done

so on the record in this case. We note that

another case regarding the fact finding roles

of trial and appellate courts in Title VII cases

is already pending before this court. Furnco

Construction Corp. v. Waters, No. 77-369.

CONCLUSION

For the foregoing reasons, a writ of cer-

tiorari should be issued to review the judgment

and opinion of the court of appeals for the

sixth circuit.

- 18 -

Respectfully submitted,

JACK GREENBERG

0. PETER SHERWOOD

ERIC SCHNAPPER

10 Columbus Circle, Suite 2030

New York, N.Y. 10019

AVON N. WILLIAMS, JR.

1414 Parkway Towers

404 James Robertson Highway

Nashville, Tennessee 37219

RUSSELL C.B. ENNIX, JR.

Morris Memorial Building

330 Charlotte Avenue

Nashville, Tennessee 37201

Attorneys for Petitioners

ALBERT J. ROSENTHAL

Of Counsel

Appendices

— -

DISTRICT COURT MEMORANDUM OPINION OF

DECEMBER 18, 1973

United States District Court,

Middle District of Tennessee

Nashville Division ~

Nos. 5258 and 4335

CAPTION OMITTED

MEMORANDUM

Morton, D. J.: These suits are brought as

class actions alleging discriminatory racial

practices and policies of the defendants with

respect to classification of employees, training,

promotions, transfers, working conditions, compen-

sation and terminations pursuant to Title VII of

the Civil Rights Act of 1964, 42 U.S.C. §§2000e-

2000e-15; 42 U.S.C. §§1981 and 1985; 28 U.S.C.

§1343(1) and (4); and 29 U.S.C. §§151, et seq.

These suits were consolidated by the court pur-

suant to Rule 42(a), Fed. R. Civ. P. with plain-

tiffs as representatives of one class under Rule

23, Fed. R.Civ. P. These consolidated suits were

heard on their merits beginning June 26, 1972,

and ending August 5, 1972.

Civil Action No.4335 was originally filed by

Ramsey Alexander setting forth the above allega-

tions, and by order of the court Raymond L.Dennis

and Warner McCreary were permitted to intervene

as plaintiffs. Civil Action No 5258 was origin-

ally filed by Robert F. Newman with similar alle-

gations, and the two cases were consolidated for

trial by order of this Court. Alexander is still

employed by defendant Avco and is a member of

Aero Lodge No. 735. Dennis, McCreary and Newman

are former employees of the defendant Avco and are

former members of the defendant union, Aero Lodge

No. 735.

Robert F. Newman filed this suit on December

30, 1968, as a class action alleging racially

discriminatory policies and practices on the part

of defendant Avco Corporation and defendant

Aero Lodge No. 735 in violation of Title VII of

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

seq. This District Court granted defendants’

mot ions for eumnery judgment on March 26, 1970.

Newman v. Avco Corp-Aerospace Str. Div., Nash-

ville, Tenn, 313 F.Supp. 1069 (M.D. Tenn. 1970).

The District Court ruled that plaintiff Newman had

made a binding election of remedies by pursuing

the collective bargaining agreement to a final

conclusion by the ‘arbitrator, and dismissed the

class action suit.

This ruling was reversed by the Sixth Circuit

Court of Appeals on October 27, 1971, Newman v.

-3a-

Avco CorprAerospace St. Div., Nashville, Tenn, 451

F.2d 743 (6th Cir. 1971), the Court ruling that

the election of remedies doctrine was not appli-

cable to Title VII actions. The Court further

stated:

"In short, major aspects of this District

Court complaint were either not submitted to

arbitration or were beyond the arbitraror's

power of decision. To such issues plainly

neither the doctrine of re judicata nor

collateral estoppel can apply." Id. at 748.

The Court noted that "[nJowhere in the Labor-

management agreement is there any prohibition

against race discrimination in hiring, employment,

promotion or discharge." Id.

The Court of Appeals concluded that:

"this case must be reversed and remanded to

the District Court ‘to take testimony and

enter findings of facts and conclusions of

law upon appellant's charges of unfair

representation by respondent union, in

violation of Title VII, Sec. 703(c)(1) and

upon appellate'’s chages of violations of

Title VII, Sec. 703(a)(1) by respondent Avco

as set forth above." Id. at 749.

Title VII, Sec. 703(a)(1) provides:

§2000e-2. Unlawful employment prac-

tices -- Employer practices

"(a) It shall be an unlawful employment

practice for an employer --

- 6a -

"(1) to fail or refuse to hire or to

discharge any individual, or otherwise to

discriminate against any individual with

respect to his compensation, terms, condi-

tions, or privileges of employment, because

of such individual's race, color, religion,

sex, or national origin;" 42 U.S.C. §2000e-

2(a)(i).

Title VII, Sec. 703(c)(1) provides:

"(c) It shall be an unlawful employment

practice for a labor organization --

"(1) to exclude or expel from its

membership, or otherwise to discriminate

against, any individual because ©. his race,

color, religion, sex, or national origin;" 42

U.S.C. §2000e-2(c)(1).

Plaintiff Newman was discharged by defendant

Avco on February 1, 1966. On February 2, 1966,

plaintiff signed a grievance protesting his

discharge and seeking reinstatement. This griev-

ance was filed with Avco by defendant union.

Plaintiff Newman amended the grievance five days

later on February 7, 1966, to allege that his

discharge was racially motivated. After the

defendant union, Aero Lodge No. 735, refused to

allege racial discrimination in the grievance,

plaintiff retained an attorney to argue his racial

- Se -

discrimination before the arbitrator at the

hearing on April 21, 22, 1966. Plaintiff filed

charges of discrimination with the Equal Employ-

ment Opportunity Commission ("EEOC") against both

defendant Avco Corporation and defendant Aero

Lodge No. 735 on May 2, 1966. The arbitrator

rendered his decision unfavorable to plaintiff

on all grounds on June 28, 1966.

Plaintiff Newman filed this suit in federal

court on December 30, 1968, after the EEOC notifi-

ed him that there was reasonable cause to believe

that he had been the subject of unlawful discrimi-

nation by Avco Corporation and Aero Lodge No.

735.

Plaintiff Ramsey Alexander signed and forward-

ed a formal charge of racial discrimination with

the EEOC on September 8, 1965. The EEOC determin-

ed that there was reasonable cause to believe that

Avco Corporation and Aero Lodge No. 735 had

engaged in unlawful employment practices within

the meaning of §703 of the Civil Rights Act of

1964, 42 U.S.C. §2000e-2. The EEOC, by letter

dated December 13, 1965, and received on or about

December 17, 1965, advised plaintiff Alexander

that conciliation efforts had failed and that he

could institute suit in federal court within

- 6a -

thirty days from the receipt of the letter.

Plaintiff Alexander filed this suit in federal

court on January 13, 1966. Plaintiff Alexander did

not attempt to ulitize the grievance procedure.

In this regard the court notes that the collective

bargaining agreements between Avco and the union

at the time, and prior to the time Alexander

filed this suit contained no prohibition against

racial discrimination by the employer Avco Corp-

oration or by defendant union.

Raymond L. Dennis, who filed a charge with

the EEOC against defendants Avco Corporation and

Aero Lodge No. 735, alleges in this intervening

complaint that he was discharged by Avco for

racial reasons on January 26, 1971. Dennis

alleges that Aero Lodge No. 735 discriminatorily

refused to fully and fairly represent him in

challenging his discharge.

Warner McCreary alleges in his intervening

complaint that he was discriminatorily suspended

for protesting against what he believed was Avco's

racially discriminatory firing of co-intervenor

Raymond L. Dennis. McCreary alleges that defen-

dant Aero Lodge No. 735 discriminatorily repre-

sented McCreary in this matter by refusing to

—

- Ja -

protest and challenge this alleged racially

discriminatory suspension.

On June 1, 1971, Dennis and McCreary filed a

motion to intervene as plaintiffs pursuant to Rule

24, Fed. R. Civ. P. This Court, on July 29, 1971,

allowed Dennis to intervene to obtain injunctive

and individual relief. The court allowed McCreary

to intervene solely for injunctive relief.

McCreary filed a notice of appeal of the court's

order; however, his appeal was subsequently

voluntarily dismissed on December 29, 1971.

The court must initially determine whether

this suit is properly maintained as a class

action, and if so, define the class and determine

whether or not the plaintiffs may properly rep-

resent the class. The allegations of the Alex-

ander complaint with the EEOC and those of the

Newman complaint with the EEOC are practically

identical, except that Newman alleges additionally

a racially motivated discharge. On appeal in the

Newman case, the Sixth Circuit Court of Appeals

stated:

"We conclude that this case must be

reversed and remanded to the District Court

- 6a -

to take testimony and enter findings of

fact and conclusions of law upon appellant's

charges of unfair representation by respon-

dent union, in violation of Title VII,

§703(c)(1) and upon appellant's charges of

violation of Title VII, §703(a)(1) by respon-

dent Avco, as set forth above. As to these

latter charges, appellant is an appropriate

representative of the class described in the

complaint and the class action aspect of this

suit must likewise be the subject of hearing,

findings and conclusions. [Citing cases. ]"

Newman v. Avco Corp~Aerospace St. Div.,

Nashville, Tenn., supra, at 749.

The Sixth Circuit Court of Appeals construed

plaintiff Newman's judicial complaint as follows:

"We read appellant's complaint as

alleging a long-standing conspiracy to

maintain a system of race discrimination

participated in by both company and union

(the contracting parties which created the

arbitration machinery and chose the arbitra-

tor), an element totally lacking in Dewey.

This totality of circumstances appears to

represent a fundamental attack upon the

fairness and impartiality of the arbitration

proceeding and specifically to represent an

allegation of bad faith against defendant:

union. (See Vaca v. Sipes, 386 U.S. 171

(1967).)" Id., at 747, 748.

Plaintiff Alexander, in his judicial com-

plaint, factually alleges racial discrimination by

defendant Avco Corporation in the areas of train-

- 9a -

ing, transfers, upgrading opportunities, promo-

tions, wage increases, job classification and

reclassification. Alexander charges Aero Lodge

No. 735 with acquiescing and cooperating with Avco

Corporation in this alleged discrimination, and

with maintaining and pursuing a tacit agreement

and/or conspiracy with the defendant Avco Cor-

poration to encourage, permit, enforce, and

perpetuate the racially discriminatory employment

practices.

Plaintiff Dennis, in his intervening com-

plaint of July 29, 1971, alleges a racially

discriminatory discharge on the part of Avco

Corporation. He further alleges discrimination

by Avco in the areas of initial employment,

re-employment, promotions, demotions, transfers,

suspensions and terminations. Dennis also alleges

that defendant Avco permitted, encouraged,

and condoned hars.sment and mistreatment of black

employees by white employees. Dennis alleges

that Aero Lodge No. 735 has participated in,

encouraged, caused and attempted to cause this

racial discrimination.

; Plaintiff McCreary asserts in his intervening

complaint of July 29, 1971, that he was the victim

of a racially motivated suspension by defendant

Avco. McCreary claims that he was also subjected

- 10a -

to harassment because of his efforts to elimi-

nate racial discrimination -at Avco. As to Aero

Lodge No. 735, McCreary claims that the union.

participated in, cause cc attempted to cause this

racial discrimination to which he was allegedly

sub jected.

Plaintiff Alexander filed a charge of discrimi-

nation with the EEOC on September 8, 1965.

Alexander made the following charges of racial

discrimination.

"4. Please tell your story of discrimina-

tion. Explain what unfair thing was done to

you.

"I have worked as a laborer for about 12

years and as a janitor for about 2 years. I have

not been given an opportunity to advance into

other maintenance departments as white workers

with less experience and seniority. I informed

Avco that I had about twenty years experience as a

concrete finisher and brick layer. I have been

refused these type jobs because of my race. The

union, Local 735 Machinists, nor the company

has informed me of any jobs available that I could

bid on in this type work." Exhibit "A" to

Complaint, Civil Action No. 4335.

Plaintiff Robert F. Newman filed a charge of

discrimination with the EEOC on May 2, 1966. This

- lla -

charge as summarized in the EEOC decision of July

19, 1967, is as follows:

"Charging Party alleges discrimination

on the basis of race (Negro) as follows: that

he was discharged from his job on the ground

of failure to perform satisfactorily; that

his request for transfer to another job was

denied while a Caucasian employee holding

the same job was transferred upon request;

that Respondent has refused to reinstate

him; and that his union failed to properly

represent him in his complaint." Newman

v. Avco Corp~Aerospace St. Div. Nashville,

Tenn., supra, at 753.

The court concludes that the scope of the

investigation which could reasonably be expected

to have grown out of the EEOC charges of discrimi-

nation against Avco by Alexander and Newman covers

discrimination in (a) classification as to the

types of employment available to black people, (b)

training, (c) working conditions, (d) promotions,

(e) transfers, (f£) compensation, and (g) termina-

tions. Thus, these charges on discrimination,

allegedly violations of 42 U.S.C. §2000e-2(a)(i),

are proper allegations in the judicial complaints

filed. The charges of discrimination by Dennis

and McCreary in their intervening complaints are

within the proper scope of the Alexander and

- l2a -

Newman judicial complaints. As to the alleged

violations of 42 U.S.C. §2000e-2(c)(1) by defen-

dant Aero Lodge No. 735, the scope of the Alexan-

der and Newman judicial complaints properly

encompasses allegations that defendant Aero

Lodge No. 735 unfairly, inadequately, arbitrarily,

discriminatorily, and in bad faith failed to

properly represent black employees to protect

them from discriminatory conduct by Avco in the

areas of (a) classification as to the types of

employment available to black people, (b) train-

ing, (c) working conditions, (d) promotions, (e)

transfers, (f) compensation, and (g) terminations.

Thus, provided the requirements of Rule 23(a) and

(b)(2) are satisfied, plaintiffs may represent a

class consisting of past black employees, present

black employees, and prospective black employees

of the defendant Avco who have been affected, are

affected, or may be affected by these alleged

discriminatory practices encompassed within the

scope of the EEOC investigations of the charges

made by plaintiffs Alexander and Newman.

Plaintiffs and intervenors may properly

represent the above defined class provided the

requirements of Rule 23(a) and (b)(2) are met.

- l3a -

Otis v. Crown Zellerbach Corporation, 398 F.2d

496 (Sth Cir. 1968); Smith v. North American

Rockwell Corp-Tulsa Division, 50 F.R.D. 515 (N.D.

Okla. 1970); Butler v. Local No. 4 and Local 269,

Laborers’ International Union of North America

(ALF-CIO), 308 F.Supp. 528 (N.D. Ill. 1969).

Rule 23(a) and (b)(2), Fed.R.Civ. P., reads

as follows:

"(a) Prerequisites to a Class Action.

One or more members of a class may sue or

be sued as representative parties on behalf

of all only if (1) the class is so numerous

that joinder of all members is impracticable,

(2) there are questions of law or fact common

to the class, (3) the claims or defenses of

the representative parties are typical of the

claims or defenses of the class, and (4) the

representative parties will fairly and

adequately protect the interests of the

class. :

"(b) Class Actions Maintainable.

An action may be maintained as a class

action if the prerequisites of subdivision

(a) are satisfied, and in addition:

* ve *

"(2) the party opposing the class has

acted or refused to act on grounds generally

applicable to the class, thereby making

appropriate final injunctive relief or

corresponding declaratory relief with

respect to the class as a whole; ... .".

- l4a -

The numerosity requirement of Rule 23 (a)(1)

is clearly satisfied as the class includes past,

present and prospective black employees. Also, it

is clear that a common question of fact exists as

to all members of the class - whether they have

been the subject of racially discriminatory

employment practices. Carr v. Conoco Plastics,

Inc., 423 F.2d 57, 63 (Sth Cir. 1970). Also, the

claims of the plaintiffs are necessarily typical

of the claims of the class they represent. Butler

v. Local No. 4 and Local No. 269, Laborers'

International Union of North America (AFL-CIO),

supra, at 533.

The remaining requirement of Rule 23(a) is

that plaintiffs will fairly and adequately protect

the interests of the class. Rule 23(a)(4).

The court holds that the plaintiffs and

intervenors are adequately representatives of the

class as defined since their interests are substan-

tially the same as the interests of the members of

the class. Williams v. Humble Oil & Refining Co.,

234 F.Supp. 985, 987 (E.D. La. 1964). If the

interests the class representative is protecting

for himself individually are substantially coexten-

sive with the interests of the members of the

class, the court feels that this representative

- 15a -

will ordinarily be an adequate protector of the

interests of the class. Clearly the two original

plaintiffs, Alexander and Newman, and intervenor

Dennis, who seek damages tor alleged discrimina-

tory practices, including the discharge of Newman

and Dennis, have coextensive interests with the

members of the class who allegedly have suffered

or may suffer the same experiences. As to inter-

venor McCreary, he has interests which are coex-

tensive with those of the class who would also

benefit from the sought injunctive relief. The

plaintiff Newman and the intervenors Dennis and

McCreary seek reinstatement, and thus they have

an interest in the abolition of racially discrimi-

natory employment practices in the areas defined

hereinabove, as to present and prospective black

employees.

The court knows of no reason why the plain-

tiffs and the intervenors, through their counsel,

will not properly and adequately represent the

interests of the members of the class. Therefore,

in the exercise of its discretion, the court holds

that plaintiffs will fairly and adequately

protect the interests of the class under Rule

23(a)(4).

As to the Rule 23(b)(2) requirement, the

factual allegations of the complaints are clearly

- loa -

sufficient, as it is alleged that defendants have

acted or refused to act on grounds generally

applicable to the class, i.e., om the basis of

race, thereby making appropriate final injunctive

relief or corresponding declaratory relief with

respect to the class as a whole.

Therefore, the court holds that the plain-

tiffs and the intervening plaintiffs are proper

representatives of a class consisting of past,

present and prospective black employees of the

defendant Avco Corporation, and past present and

prospective black members of Aero Lodge No. 735,

who allegedly have suffered or may suffer by reason

of the alleged sicriminatory practices of the

defendants. These plaintiffs have standing to

properly challenge the alleged racially discrimi-

natory policies and practices of the defendant

company, Avco Corporation, in the areas of (a)

classification as to the types of employment

available to black people, (b) training, (c)

working conditions, (d) promotions, (e) transfers,

(f£) compensation, and (g) terminations. Plain-

tiffs further have standing to challenge the

alleged racially discriminatory policies and

practices of defendant union Aero Lodge No. 735 in

allegedly unfairly, inadequately, arbitrarily,

- l7a -

discriminatorily, and in bad faith representing

the interests of black employees in these areas.

The court determines that it is not bound by

the prior arbitration decisions in respect to

claims of racial discrimination by plaintiff

Newman and intervening plaintiff Dennis. This is

true because the collective bargaining agreements

which the arbitrators were authorized to inter-

pret contain no provision forbidding racial

discrimination by defendants Avco and Eero Lodge

No. 735. Thus, the court should not defer to the

fact finding of the arbitrators since they have no

power to make findings on the issues of racial

discrimination. Furthrer, the claims of racial

discrimination by plaintiff Alexander and interven-

ing plaintiff McCreary ere not barred by any

failure to extiaust contractual remedies. Even if

exhaustion of contractual remedies is a condition

precedent to a suit under Title VII, and this

Court does not so rule, the collective bargaining

agreements applicable to this suit contain no

remedies for racial discrimination practices by

defendant Avco. Thus, no contractual remedies

were available whereby Alexander and McCreary

could properly challenge any racia!'y discrimi-

natory actions taken against them.

- 18a -

Avco Pre-Act Background

Prior to the effective date of Title VII,

July 2, 1965, Avco openly practiced racial dis-

crimination in its employment practices and

working conditions. Until 1960 or so, Avco

relegated the few blacks who were hired to posi-

tions of janitor and laborer. All other jobs,

the more desirable ones, were reserved for white

employees. Avco did not permit black employees

to eat with the white employees. Also, Avco

maintained segregated toilet facilities and

segregated water fountains. As a matter of

practice, blacks were required to step aside and

yield to white employees when the employees

were lined up for whatever reason, such as to

punch the time clock.

Avco supervision discouraged black employees

from joining the union, advising blacks that it

was to their interest not to so join. Avco

supervision rarely told blacks about job openings,

and offered black employees no formal or informal

training.

In the middle and late 1950's the black

- employees began to press for promotions. Upon

hearing rcugere of job openings, blacks began to

apply; however, promotions for all practical

purposes were controlled at the foreman, assistant

- 19a -

superintendent and superintendent level, positions |

held by white personnel. When a black employee

sought a promotion, he was confronted with depart-

ment seniority, an adverse recommendation from his

foreman, his lack of experience, his inability to

pass a non-validated test - usually a non-job-

related intelligence or aptitude test. In addi-

tion, Avco had established and defined in writing

the job classifications in such a manner that

blacks could be easily eliminated from considera-

tion. For example, the brick and stone mason

requirements called for the use of algebra,

geometry and trigonometry. No successful white

applicant ever answered the algebra, geometry and

trigonometry questions; however, a white man held

the brick mason job until he died.

Although the company did not have continuous

formal training, whites were given informal

on-the-job training by their fellow white employ-

ees with the knowledge and acquiescence of Avco

supervisors. Blacks were not promoted because

they were not provided on-the-job training and,

thus, did not have the necessary experience to

qualify for the better jobs. However, whites with

basically the same background as blacks were given

the informal on-the-job training and promoted.

- 20a -

Union Pre-Act Background

Until 1957, the defendant union was segregat-

ed all-white, except for one black, who the union

considered a curiosity and a show piece. The

union discouraged blacks from making application

for membership. It assured blacks that their

interests were best served by their remaining

outside the union. In 1957, the union permitted a

few black employees to become members; however, the

union did not encourage them to become active in

union affairs. When there were strikes, the

pickets paid by the union were all white. The

union did not permit its black members to walk the

picket line, but required them to clean the union

hall as its janitors.

Until the 1971 collective bargaining con-

tract, effective October 16, 1971, the union did

not seriously negotiate with Avco for a non-dis-

crimination clause. The union acquiesced in and

encouraged segregation and racially discriminatory

practices and conditions at Avco. Union leader-

ship felt that it was proper and not wrongful

racial discrimination to hire blacks only as

janitors and laborers. When black employees

filed grievances when they did not receive promo-

tions, the union usually either lost the griev-

ances or else did not act on them in good faith on

- 2la -

behalf of its black members. Prior to Title VII,

the union generally refused to process grievances

wihich alleged racial discrimination.

Seniority System

From the 1940's to 1968 Avco and the defen-

dant union maintained departmental seniority by

occupation with the provision that the airframe

occupation, assembler-bench and jig, had plant--

wide seniority. This seniority system applied to

promotions, layoff and recall rights.

The 1968 collective bargaining contract

modified the seniority system by eliminating the

departmental seniority; however, it retained

seniority by occupation and classification. The

1968 contract provided a more complicated promo-

tion system. Under the new promotion system,

employees desiring promotion could file with the

Personnel Office job preference cards, or bids,

for not more than three jobs. Under this new

system, an employee in any department or occupa-

tion could bid on any jobs within the plant.

However, even if the bidding employee had the most

seniority under the order of priorities establish-

ed, he could not get the job unless he was deemed

"qualified" by Avco. For the purpose of determin-

- 22a -

ing “qualifications,” an Avco official would

interview the employee, and take into considera-

tion such factors as related experience, perform-

ance on present job, educational background, test

scores and mechanical aptitude. After th inter-

view, the Avaco official would immediately advise

the employee whether or not he was "qualified."

If Avco deemed the applicant "qualified," his job

preference for that position would then go on

file. Thus, under th 1968 contract, an employee

could only be promoted if Avco found him "qualifi-

ed," with the amount of seniority being a secondary

factor.

Assuming that the applicant-emplioyees were

found "qualified" by Avco, the promotional system

worked basically as follows. The applicant-

employee with the most seniority in the occupation

would have the first opportunity at the job. If

there was no applicant-employee in the occupation,

then the applicant-employee with the most senior-

ity who filed ajob preference card would be

entitled to the job. If the job was not filled

under the first two priorities, Avco would post

notices seeking applications from current em-

plcoyees. If no "qualified" employee responded to

the notices, then Avco could hire a person from

off the street, i.e., non-Avco individual.

- 23a -

The 1971 contract contained basically the

same promotional bid system as under the 1968

contract, except that it allowed six bids, as

opposed to three, to be on file. Also, the 1971

collective bargaining contract contained for

the first time in Avco history a prohibition

against racial discrimination by company and

union. This anti-discrimination clause, Article

XIV, Section 13 of the collective bargaining

contract between Avco Corporation and Aero Lodge

No. 735, effective October 16, 1971 provided:

"Neither the Company nor the Union

shall discriminate against any employee

because of race, creed, color, sex or na-

tional origin, or because of participation

Or non-p;articipation in Union activity."

Plaintiff's Exhibit No. 5.

Racial Discrimination at VCO

On July 15, 1961, Avco filed a report (Self

Analysis Form) with the President's Committee on

Equal Employment Opportunity. It is most reveal-

ing. At that time Avco had a total employment of

23784. Of that number, 32 were "non-white." All

of the blacks were designated as "Charwomen,

Janitors and Porters."

The Self Analysis Form reveals that: (1) Avco

had no black foremen; (2) Avco had no black

- 24a -

semi-skilled employees; (3) Avco had no black

skilled employees; (4) Avco had no black adminis-

trative employees; and (5) the white employees,

because of departmental seniority, were frozen in

their jobs.

Some black employees filed complaints with

the President's Committee on Equal Employment

Opportunity in 1962 alleging racial discrimination

in employment, promotion, job training, etc.

Avco, a company holding contracts for the

manufacture of airplane parts, then advised its

supervisory personnel that some blacks had to be

promoted.

In 1963, out of a total of 2226, Avco em-

ployees, there were 41 black male and 2 black

female employees. In 1964, out of a total of

1825 employees, there were 41 black male and 2

black female employees, this being no increase in

the number of black employees over 1963. In 1965,

out of a total of 2553 employees, there were 91

black male and 2 black female employees, an

increase of 50 black employees in one year.

In subsequent years, Avco's employment

statistics were as follows:

- 25a-

TOTAL HOURLY BLACK BLACK

EMPLOYEES MALE FEMALE

February, 1966 2335 140 0

December, 1966 3339 294 0

October, 1967 2727 259 l

October, 1968 2565 233 l

January, 1969 2919 295 11

January, 1970 3391 488 83

February, 1971 3318 406 69

January, 1972 2319 235 51

Approximately 16-17% of the population of the

area from which Avco customarily draws a substan-

tial majority of its employees are black. Approx-

imately 17-18% of the population of the Nashville

labor area are non-white.

As of July 9, 1971, Avco employed 725 whites

in salaried jobs. Avco employed nine blacks in

salaried jobs, which number includes black secre-

taries and clerks. ,

The court notes that, as of the date of the

hearing of this suit, Avco had few blacks in the

more desirable jobs. Of 50 engineers, Avco had

one black. Avco had no black mechanic. Avco has

never had a black superintendent, and did not have

a black foreman until 1965. Most of the black

employees were concentrated in assembler-berich and

jig, which is one of the less stable occupations

at Avco. On layoff these employees have tended to

be the first to go.

- 26a -

Beginning in 1961 and continuing thereafter,

due to governmental pressure, federal contract

compliance requirements and the Civil Rights Act

of 1964, Avco has taken actions which it claims

have corrected and removed the effects of past

discrimination. It claims that since July 2, 1965

it has not practiced racial discrimination in any

of its employment practices, policies or condi-

tions, but has complied in good faith with the

1964 Civil Rights Act and Order No. 4, 41 C.F.R.

§60-2, Affirmative Action Programs.

Basically there are two general types of work

for employees at Avco. One is incentive work,

which has a production schedule with the amount of

compensation determined by production of the

employee or group of employees. The other is

non-incentive work, the more desirable jobs

of which are in maintenance, in which there are

several departments, and which include such jobs

as engineers, draftsmen, mechanics, brick masons,

etc. Generally, there is more job stability in

the Maintenance Department. By reason of depart-

mental seniority, there have been few openings in

- 27a -

this department, which openings were sought by

both whites and blacks.

In 1962 Avco promoted five black employees

from the janitor and laborer classification to

press operators. Referring to the press operator

job, an Avco official who advanced through the

ranks to management stated: "Frankly, I doubt if

I could go down in the basement and cua a press.

These presses make people nervous. It made

Robert [plaintiff Newman] nervous." |

Thus, after years as custodians and laborers,

five black employees, provided a “raining period

of only a few hours, were placed on incentive

work, under pressure, operating machines which

were capable of cutting off fingers or a hand.

Two of the five made the grade. Three of the

black employees were returned to their previous

classifications and their failure became a per-

manent mark of lack of ability on their wotk

record. As to plaintiff Newman, it was uged

against him in the trial of this case.

From July 2, 1965, to 1968, black employees

at Avco were subjected to discriminatory treatment

by Avco. It was only through rumors and informal

word of mouth thet black employees could learn of

job openings, while Avco supervision regularly

- 28a -

informed white employees of openings. As is

obvious, black employees were competing with white

employees for those jobs. It is pertinent that

Avco foremen and supervisory pessonnel, almost all

white, ascertained that white employees had

qualification which did not appear on company

records. However, these same foremen and supervi-

sory personnel considered black applicants solely

on what was listed on their applications. Some of

these applications had been on file for many

years.

Avco supervisory personnel stated that they

could not give informal on-the-job training to

nonqualified employees. However, Avco supervisory

personnel did give this type of informal training

to white employees. Whites with less seniority

than blacks were promoted to maintenance jobs even

though some of those promoted were no more quali-~

fied than the blacks. Nonvalidated tests were

given to employees who desired promotion. As

previously stated, an outstanding example was

the test for brick mason. Avco introduced no

credible evidence to justify this test as being

necessary or useful in determining whether indi-

viduals were qualified for this job. No employee

who held the brick mason job passed the test.

- 29a -

However, it was a material consideration in

preventing the promotion of plaintiff Alexander.

A black employee was fired because of inability to

perform a particular job assignment when whites,

under the same conditions, were not. When

whites, with substantial seniority, could not

perform a particular job because of some inability,

they were moved to other jobs which they were

capable of performing. Blacks were not given such

opportunities.

As a requirement of the collective bargaining

contract effective August 12, 1968, an Avco

official in the Personnel Office, Industrial

Relations Department, began to interview all

applicants for promotion. In some instances the

applicants were given tests. However, in many

instances, significant reliance was still placed

on the evaluations of Avco foremen, assistant

superintendents, and superintendents. These

supervisory personnel insisted that there was no

racial bias in their evaluations; however, the

majority of these individuals thought the segrega-

tion practiced at Avco was not racial discrimina-

tion. Despite grievances and complaints alleging

racial discrimination, both in on-the-job treat-

ment and in promotions, Avco did not make an

30a -

inquiry into whether or not the subjective evalua-

tions of the black employees by tne white Avco

supervisory personnel were affected by racial

bias.

Avco is bound by the knowledge and actions of

its supervisory personnel. These Avco personnel

both knew of and participated in practices,

policies and conditions of racial discrimination.

Numerous oral and written complaints about the

racial discrimination at the plant were made to

Avco officials and supervisory personnel. How-

ever, the Avco officials and supervisory personnel

generally took no effective affirmative action,

either before or after the effective dates of

Title VII, to correct valid complaints of discrimi-

matory treatment. Although Avco did require

apologies in certain instances, it did not widely

disseminate to its employees the fact of the

apoligies.

Some other examples of racially discriminatory

treatment of black employees since the effective

date of Title VII are as follows:

- 3la -

(2) some white employees stated openly

that they did not want to work with "niggers"

(3) white employees campaigned against

a black employee for a union position,

falsely asserting that the blacks were

seeking and would get "super seniority"

if the black was elected;

(4) white supervisory personnel assign-

ed black employees to the more distasteful

jobs; and

(5) Avco consistently allowed racially

derogatory writing about blacks to remain on

restroom walls, for example, "We hate niggers.

Globe-Wernicke Incident

The protestations of nondiscrimination, and

the credibility by both Avco and Aero Lodge No.

735, were completely negated and destroyed by

their actions in the Globe-Wernicke incident. As

background, assembler-bench and jig is an assembly

line occupation connected with the Avco airplane

contracts. The demand for assembler-bench and jig

employees fluctuates substantially, being affected

by the completion of one contract and the acquisi-

tion of others. As a result of these fluctua-

tions, these employees are generally the last to

be hired and the first to be laid off at Avco.

The great percentage of black employees hired

- 32a -

after the effective date of Title VII were hired

into this occupation. Seniority is defined as

"length of service computed for each employee from

his most recent date of employment." Thus,

most employees in this occupation tend to accumu-

late relatively short seniority periods.

In 1971, Avco had projected that there would

be a reduction of the assembler-bench and jig work

force some months later between the fall of 1971

and January, 1972. However, a strike took place

and the completion of a contract was delayed for a

few weeks.

In the latter part of 1971, Avco phased out

its Globe-Wernicke Division. None of the em-

ployees of the Globe-Wernicke Division, white or

black, were qualified for the assembler-bench and

jig occupation. Under the union contract, these

Globe-Wernicke Division employees were not

entitled to transfer to assembler-bench and jig,

but were to be laid off when the Globe-Wernicke

Division was phased out.

Included among the employees to be terminated

by reason of the phasing out of the Globe-Wernicke

Division were 73 white employees whose seniority

dated from 1950 to August 12, 1960. Because of

pressure from the defendant union, Avco agreed to

a ee

- 33a-

initiate a training program to train these

euphapane in the assembler-bench and jig occupa- -

tion and then hire them into this occupation. The

effect of this was to place these 73 white em-

ployees ahead of those who had accumulated less

than 1l years seniority.

As projected Avco shortly thereafter had a

cutback in personnel in assembler~bench and jig.

This resulted in terminating the regular assembler-

bench and jig employees and retaining the old

Globe-Wernicke employees who had been on assembler-

bench and jig only two or three months.

Avco attempted to justify this procedure by

asserting that it was hiring bench and jig em-

ployees from the street, i.e., new employees or

former employees with no seniorty. The company

and the union felt justified in training its old

employees and hiring them instead of actually

hiring new employees, even though this violated

the collective bargaining contract.

In determining whether or not the defendants

discriminated against black employees in the

course of the Globe-Wernicke incident, the court

must keep in mind the past racial discrimination

practiced by both defendants. On this issue, the

court finds the following. The procedure utiliz-

- 34a -

ed violated the collective bargaining agreement in

effect. Due to past racial discrimination, most

black employees in assembler-bench and jig had

very short seniority status. This procedure

violated Avco's written affirmative action

program. Avco recognized that this procedure would

result in the termination of black employees

legally entitled to their jobs on assembler-bench

and jig. Avco, which had seniority lists in its

possession, knew that a great many black employees,

entitled to their jobs under the collective

bargaining contract, would be terminated as a

result of this procedure agreed on by Avco Corpora-

tion and Aero Lodge No. 735.

The court will now examine the effect of the

procedure.’ The number of employees in assem-

bler-bench and jig on January 14, 1972, totaled

898, of which 177 were black. Avco admits that

at least 52 black emloyees lost their jobs

as a result of this procedure. As of this time,

the number of hourly employees at Avco totaled

2319, of which 286 were black.

V/ The Avco official who agreed to this proce-

dure was also the company official who had the

responsibility to prevent and correct racial

discrimination at the Avco plant.

eee

- 35a -

Thus Avco and Aero Lodge No. 735, by this

procedure , eliminated a substantial percentage of

Avco's black employees and only a far smaller

percentage of Avco's white employees. The sum and

substance of their joint action was to state that

white employees are entitled to preference over

black employees in the area of job classifica-

tion, working conditions, transfers, compensation

and termination.

The court holds that such activity by Avco

Corporation and Aero Lodge No. 735 constituted

active and willful racial discrimination against

black employees and union members in violation of

Title VII of the Civil Rights Act of 1964.

Ramsey Alexander

This black man was born on March 29, 1917,

and was employed by Avco on July 31, 1951. From

1951 until March 26, 1966, he worked essentially

as a laborer, although prior to his employment

with Avco, he had work experience as a brick

mason. All through these years he endured

the segregated and discriminatory practices and

policies of Avco and the union. After he had

worked for a short period of time with Avco, he

was assigned to work as a helper to a brick mason

- 36a -

named Stevenson, a white employee. On this

assignment, Alexander performed the work” required

of a brick mason. After he had performed the

work of a brick mason for an extended period of

time, he filed a grievance against Avco in about

1958 under Article II, Section E of the collective

bargaining contract asking to be upgraded. This

contract provision provided that if an employee

performs the work of a higher rated employee over

a two week period, he is entitled to be upgrad-

ed to the higher rate provided he has sufficient

seniority. Alexander had sufficient seniority at

the time. His grievance was denied by Avco and

not processed by the defendant union. Thereafter

no laborer or general helper was permitted to help

the brick mason for any continuous two weeks in

succession.

Alexander filed a complaint with the Presi-

dent's Committee on Equal Employment Opportunity

in 1962. This complaint resulted in Avco's

elimination of certain overt discrimination and

segregation. Also, Avco offered Alexander a

promotion to incentive work. However, realiz-~-

ing that departmental seniority existed and that

the more stable jobs were in maintenance, he

refused the promotion. However, in 1962, Alexan-

- 37a -

der and a few other black employees were promoted

to the job of general helper, or helper-general,

which paid only slightly more than a laborer. The

duties were essentially the same menial ones

as before.

Alexander remained in maintenance, and

applied for the next opening as a brick mason in

that department on July 12, 1965. Even though he

had practical experience as a brick mason, he was

denied that promotion. He also applied for

several jobs between July, 1965, and March, 1966,

but to no avail. The supervisory employees

of Avco could not discover that Alexander had

qualifications for jobs other than laborer or

general helper.

In 1965 plaintiff was offered training in the

occupation of assembler-bench and jig in another

department of the plant. Plaintiff declined this

training, preferring to remain in the Maintenance

Department. His reasoning for this decision was

- 38a -

sound in that promotions and lay-offs were depart-

mental in 1965. This system of promotion theoret-

ically allowed the most senior man in a department

to get first opportunity at a job vacancy. The

Maintenance Department contained several jobs which

paid the highest wages in the plant. Plaintiff

Alexander had accumulated substantial seniority

in this department. If he had transferred he

would have sacrificed his competitive standing

in maintenance and diminished the number and

variety of jobs available to him, since most of

the departments wherein assembler-bench and jig

was located had only this one occupation.

The brick mason Stevenson died in July, 1966,

and Alexander applied for the job. Avco supervi-

sory personnel denied him the job because of his

lack of qualifications, including a lack of

knowledge of algebra, geometry and trigonometry.

Knowledge of algebra, geometry and trigonometry

was listed by Avco as requirements for the brick

mason job. However, according to the evidence

presented in this case, no brick mason had such

knowledge nor answered questions dealing with such

subjects on the non-validated tests given to

applicants. Defendant Avco introduced no credible

evidence to justify such job requirements as being

- 39a -

necessary or useful for safe, efficient job

performance as a brick mason.

Despite the brick laying experience of

Alexander, Avco, through its substantially subjec-

tive evaluating procedures, denied him the job and

hired a white person, a Mr. Cooper, who had not

previously worked for Avco. Defendant Avco

produced no credible evidence that the white person

so hired possessed equal or superior qualifica-

tions to those possessed by Alexander.

Alexander, who joined the defendant union in

1957, has filed several grievances against defen-

dant Avco, alleging that Avco failed to promote

him due to racial discrimination. Defendant

union, both before and after the effective date

of Title VII, failed to process Alexander's

grievance alleging racial discrimination. Defen-

dant Aero Lodge No. 735 was less than vigorous in

acting on Alexander's charges that Avco refused to

promote him even though he possessed the requisite

qualifications and seniority. Both before and

after the effective date of Title VII, defendant

Aero Lodge No. 735 has shown less vigor and

enthusiasm in representing Alexander and other

black members than it has in representing its

white members.

- 40a -

Alexander filed a complaint with EEOC on

September 8, 1965, alleging that he had been

discriminatorily denied advancement. By letter

dated December 13, 1965, the EEOC notified Alexan-

der of the failure of their conciliation efforts

and of his right to sue in federal court. This

suit was filed on January 13, 1966. On March 26,

1966, Avco apparently discovered hidden talent in

Alexander and promoted him to the position of

oiler in the Maintenance Department. after Alexan-

der had filed a request for the position on March

15, 1966.

The maintenance-oiler position is not one

requiring special skills or considerable training.

However, the evidence shows that Avco, after

attempting to discourage him from taking the

job, required that Alexander take and pass a

written test before he could be deemed qualified

for the low-skill oiler position. Avco had

not previously required other employees filling

this position to take and pass such a written

test. Alexander was also required to pass a

"in which he was required to

"practical test,

climb a high ladder while hot steam dropppings

fell on him. The credible evidence shows that

Avco had not previously required white employees

to pass such a "practical test." Alexander

- 4la -

successfully passed both tests and was allowed to

fill the oiler position on March 26, 1966.

The court holds that defendant Avco, by its

practices in the area of promotions, engaged in

racial discrimination against plaintiff Alexander

in: violation of Title VII of the Civil Rights Act

of 1964 subsequent to the effective date of

the Act.

The court further holds that defendant Aero

Lodge No. 735 wrongfully discriminated against

Alexander because of his race in refusing to

protect Alexander's right under Title VII not to

be denied promotions because of his race. Aero

Lodge No. 735 discriminatorily represented

Alexander in violation of Title VII, subsequent to

the effective date of the Act, by providing

unfair, inadequate, arbitrary, discriminatory and

bad faith representation to Alexander. The

representation provided by defendant union to

Alexander was inferior to that representation

provided to white union members.

Robert F. Newman

Robert F. Newman, a black man 52 years of

age, was hired by Avco on May 9, 1951. He continu-

ed as an employee, except for occasional lay-offs

- 42a -

due to reduction in force, until he was fired on

February 1, 1966. From 1957 until the date of

his discharge, Newman was a regular member in good

standing of defendant union Aero Lodge No. 735.

Through the first eleven years of his employment,

he worked in the menial occupations of laborer and

general helper. During these eleven years, Newman

worked under segregated and discriminatory

conditions with no training, formal or informal.

White employees gave other white employees, but

not black employees, on-the-job training. All

supervisory personnel were white.

On October 20, 1962, after he filed a com-

plaint with the President's Committee on Equal

Empoloyment Opportunity, Newman was one of the

five black employees transferred into the unnerv-

ing incentive work position of press operator,

which required agility of movement and physical

coordination. Newman was not offered a semi-

skilled position in maintenance, but was offered

this incentive position which placed in danger the

worker's fingers and hands. After a minimum

of instruction from a segregation-practicing

foreman, Newman was expected to meet a production

quota.

- 43a -

After approximately two weeks on the incen-

tive job, Newman was returned to his former

occupation of laborer. Newman claims he requested

the return to his previous occupation because he

had obtained information indicating a reduction in

force in the press department. On the other hand,

his supervisor stated Newman was afraid of the

press and was apprehensive of injury. In any case,

the foreman transferred Newman subsequent to his

failure to make production.

Before discussing the last series of events

which preceded his being fired, the court will

analyze Newman's work record.

Newman is a large, slow talking and slow

moving individual. He concedes he is slow to

learn new tasks. Until 1964, Avco's primary

complaint as to Newman's performance was that he

was slow to learn, but that once he learned a job

he could adequately perform it. Evidence was

presented that Avco foremen had repremanded Newman

on occasion for talking, drinking a Coca-Cola on

the job, and wasting time. However, from 1951 to

1964, so long as Newman remained a laborer, Avco

was basically satisfied with his work performance.

- 44a -

In October, 1964, Newman was transferred at

his own request to an incentive job, a stove, or

range, assembly line operation in Department 380.

He was assigned to crating the finished product at

the end of the assembly line. The credible proof

indicates that he performed this job satiséactor-

ily. Then, as a result of a cutback in produc-

tion, Newman was transferred to assembly line

production in another department in June, 1965.

He was slow to learn, but eventually became a

satisfactory employee there.

In October, 1965, Avco's quality of work

increased and the stove assembly line reopened.

Newman, with his many years of seniority, transfer-

red back to Department 380. Because of his senior-

ity, Newman would have been entitled to his

previous crating job. However, a union steward,

with less actual seniority, successfully claimed

the crating job because of his artificial senior-

ity due to his union position. The Avco foreman

in charge of this department did not want Newman

back on the crating job, stating that he felt that

Newman could not perform the work. He explored

the possibility of Newman's taking a demotion back

to a laborer classification. Newman, however,

refused the demotion. Then for some time Newman

- 45a -

was assigned to day work as a utility man instead

of being placed on the assembly line. However, a

white employee, Stover, could not perform the work

at position #1 "stove lifter," on the stove line

because of the extreme physical demands of the

position. A less strenuous job was found for

Stover in another department. Although there were

several employees on the assembly line with less

seniority than Newman, he was nevertheless assign-

ed to this position on December 22, 1965. The

evidence reveals that the job of stove lifter is

the most physically demanding job on the stove

line. It entails lifting from above the head a

stove frame weighing approximately 50 pounds,

placing it on the floor, performing several

additional functions thereon, and then placing it

on the move line for conveyance to another sta-

tion. Newman was required to repeat this process

every five minutes for the entire shift.

Newman advised the foreman that he was not

physically able to do the job, but was told that

he would do the job or would be reported to higher

company officials. On the morning of his second

day as stove lifter, when Newman insisted that he

was working in pain, he was taken to the front

- 46a -

office, where Avco suspended him for three days to

give him time "to think it over." On the way

home from the plant on the day of his suspension,

Newman had an automobile accident in which he

sustained injuries to his left hip, knee and

ankle. After medical treatment for several days,

Newman reported back to work at Avco on January

17, 1966, but the stove line was in the midst of a

two-week shutdown. On company instruction, he

reported again on January 24, 1966, when the stove

line was reopened. He brought a letter from his

personal physician stating that he was still

disabled and would be so for two more weeks. He

was then sent to Avco's Director of Industrial

Relations, who advised him to obtain medical

evidence of his disability. Newnan obtained a

statement from his personal physician, dated

January 24, 1966, in which the doctor stated that

Newman had "apparent residual disability of some

minimal degree in the left knee." He was then

sent to the company doctor. Newman testified that

the company doctor just observed him from a

distance of several feet and stated, "There is

nothing wrong with you - you are just looking for

sympathy." When Newman returned to work on

January 31, 1966, at the direction of the Director

- 47a -

of Industrial Relations, he insisted that he was

physically unable to perform the heavy work on

station #1 on the range line and asked to be

transferred to a less physically exacting posi-

tion. Avco refused his request for transfer and

fired Newman on February 1, 1966, after he had

worked as stove lifter for approximately a day and

a half.

At the time of Newman's discharge, the

defendant Avco Corporation had other jobs which

plaintiff could have performed satisfactorily to

which he could have been transferred. Plaintiff

had in fact requested such transfer to another job

which he could perform both prior to and at the

time of his discharge. In the department where

plaintiff was working, several white employees had

been changed from one job to another within the

department, or had been encouraged to seek transfer

to jobs under other supervisors when they were

unable to perform or were unsuitahle for the

particular job to which assigned. This was the

general practice of the defendant Avco where

white employees were concerned.

- 48a -

Upon being notified of plaintiff's discharge,

the defendant, Aero Lodge No. 735, declined and

refused to raise the plaintiff's grievance that he

had been the victim of racial discrimination.

Instead, the defendant union filed a grievance

charging a violation of the collective bargaining

contract in that the company was wrong in its

contention that plaintiff failed to perform his

job properly. In the hearing on this grievance

the defendant, Aero Lodge No. 735, urged that

plaintiff had a right to receive at least two days

of training on the new job. The defendant union

refused to raise and prosecute plaintifff's

grievance and contention that the defendant Avco

accorded white employees privileges and preroga-

tives not accorded black employees, although there

was considerable evidence to support the charge.

[Significant Findings and Conclusions]

On the issue of whether or not defendants

Avco and Aero Lodge No. 735 violated the Title VII

rights of plaintiff Newman subsequent to the

effective date of the Act, the court makes

the following findings and conclusions which it

believes are particularly significant:

l. Newman was one of five black employees

who filed a complaint of racial discrimination

- 49a -

against Avco with the President's Committee on

Equal Employment. Opportunty in 1962.

2. As was its practice, Avco did not

investigate to determine whether any racially

discriminatory employment practices existed

as alleged in the complaint filed with the

President's Committee.

3. Avco's white stove line foreman did not

want Newman on the stove line.

4. The Avco stove line foreman had previous-

ly made up his mind that Newman could not do the

work.

5. The Avco foreman assigned Newman to the

most difficult job on the stove line, leaving

employees with less seniority in the less

demanding jobs.

6. The Avco formean advanced no satisfac-

tory explanation for Newman's assignment to the

stove lifter job.

7. The Avco foreman permitted and assisted

in the transfer of Newman's white predecessor, who

could not physically perform ae job, to a less

strenuous job.

8. In the foreman's 25 years with the Avco

Corporation, this was the first time he had taken

an employee with Newman's number of years of

seniority to the Avco front office to be fired.

- 50a -

9. Avco had transferred several white

employees, physically incapable of performing a

job, to less strenuous jobs in the past.

10. Avco had less strenuous jobs available

to which Newman could have been transferred.

ll. This was the first time in the company's

history that Avco fired an employee with as many

years of seniority as Newman possessed.

12. Aero Lodge No. 735 declined to include a

charge of racial discrimination in Newman's

grievance of his discharge in spite of consider-

able evidence that Newman was discriminatorily

refused a transfer to a less strenuous position

and discriminatorily discharged.

13. When Newman's private counsel amended

the grievance to include a charge that Newman

was fired because of racial discrimination, Aero

Lodge No. 735 advised the arbitrator that it

expressly disclaimed that part of the grievance.

14. Aero Lodge No. 735 refused to demand

that Avco treat Newman in the same manner as it

treated white employees and union members in the

areas of job classification, working conditions,

transfers and terminations.

- 5la -

The court holds that Avco's discharge of

Newman and Avco's refusal to provide Newman with a

less strenuous job was racially discriminatory in

violation of Title VII of the Civil Rights Act of

1964. Avco discriminated against Newman in the

areas of job classification, working conditions,

transfers and terminations.

The court further finds that defendant Aero

Lodge No. 735 unfairly, inadequately, arbitrarily,

discriminatorily and in bad faith represented its

member Newman in his efforts to be reinstated and

in his efforts to be accorded nondiscriminatory

treatment equal to the treatment afforded white

employees and union members. Accordingly, the

court holds that defendant Aero Lodge No. 735

discriminated against plaintiff Newman because of

his race in violation of Title VII.

Intervenor Raymond L. Dennis

Intervening plaintiff Raymond L. Dennis, a

black man, was hired by Avco on February 21, 1966,

and fired on January 26, 1971. At all times

during this period he was a member in good

standing of Aero Lodge No. 735. Prior to his

termination, his work record was generally clean

- 52a -

except for an admonition for loitering at a soft

drink machine on one occasion.

In 1970, Dennis became a board member of an

organization known as the Cause~Find~-Commission,

formed by Avco black employees to eliminate racial

discrimination existing at the Avco plant purport-

edly practiced by both defendant Avco and defefl-

dant Aero Lodge No. 735. The organization was

formed as a result of what was felt to be an

alarming rate of black employee terminations.

Sometime in the fall of 1970, Dennis was elected

by other employees as union committeeman of

Department 928, a department in which groups of

employees worked on assembly jigs in the manufac~

ture of wings for the Lockheed L-1011 aircraft.

A union committeeman investigates complaints

of the hourly employees, files grievances, and

performs other duties incident to the well-being

of department employees. In this project contain-

ing approximately 1500 employees, plaintiff Dennis

was the only black union committeeman on the day

shift. Often, black employees would approach him

and he would give them guidance and assistance.

Sometimes he would direct them to the plant

committeeman, to their department committeeman if

- 53a -

they were not in his department, or to the Cause-

Find-Commission.

In the fall of 1970, it came to the attention

of plaintiff Dennis, in the course of his duties

as a union committeeman, that three black employ-

ees who had been assigned to his department were

transferred to another department in violation of

their seniority rights. The seniority rights of

the three should have allowed them to remain in

Department 928, and employees with less seniority

within the department would have ordinarily been

transferred. Upon the transferring to the new

department, the three black employees were "rolled"

to the night shift. After the complaints were made

to plaintiff Dennis, though he could not personal

ly correct the situation since the employees were

no longer in his department, he demanded an

explanation from the foreman of Department 928.

The foreman conceded to Dennis that the transfers

were improper but attempted to justify the

transfers om the ground that there were too many

individuals on one side of the department working

area. Shortly thereafter, two white women were

transferred into the department. One of these

white women was named Betty Urtubees, who had been

- 54a -

transferred from the night shift. Night shift

employees are unable to replace day shift employ-

ees unless the night employee has greater seniority.

At the time of her transfer Miss Urtubees had only

a few months seniority with the company. Dennis

went to the foreman again for an explanation since

the arrival of these employees was inconsistent

with the earlier explanation given to him. Plain-

tiff Dennis was not given an adequate explanation

for this inconsistency.

Miss Urtubees apparently enjoyed a continuing

friendship with William Honeycutt, a superinten-

dent of the L-1011 project, which included several

departments, including Department 928. This

friendship was evidenced by his regular visits to

talk with her while she was in her working area.

Approximately a month or so after the trans-

fer incident, around the first week in January,

1971, plaintiff Dennis encountered Superintendent

Honeycutt near Department 928 reprimanding a black

employee who was assigned to Dennis' department.

Dennis approached the man and asked "What is going

on?" At the time, plaintiff Dennis had his union

badge plainly in sight. The superintendent

replied to Dennis, "None of you damn business.

Are you on union Time?" Plaintififf immediately

secured the union plant grievanceman, returned to

- 55a -

Honyecutt's office, where Honeycutt, in foul

language, refused to apologize to the black

union official for examplifying such discrespect to

him while he was carrying out his union respon-

sibilities. Plaintiff Dennis thereafter filed a

grievance against Superintendent Honeycutt. After

the second step in the grievance procedure,

Honeycutt signed a written apology. After pres-

sure was exerted upon Honeycutt from higher

company officials, Honeycutt was required to make

an oral apology to the plaintiff.

On or about January 26, 1972, about two or

three weeks after the aforesaid incident, plain-

tiff Dennis was fired by the defendant company on

the alleged ground that he had said to two white

female employees something to the effect of: "Slow

down. We won't make overtime this way." A third

employee, a white male, claimed that he overheard

the plaintiff make this remark to one of the two

females. One of the white females was Betty

Urtubees.

On January 25, 1971, Honeycutt turned over to

William Ashlaw, Manager of Labor Relations,

three written statements from the three employees,

all claiming that Dennis had made the aforesaid

- 56a-

remarks concerning a slow-down. Thereafter,

Ashlaw -interveiwed Dennis in the presence of other

union officials, and immediately suspended him and

had Dennis escorted from the Avco premises. There-

after, Ashlaw interviewed the three informants,

who reaffirmed their statements that Dennis had

made remarks concerning a slow-down. Ashlaw fired

Dennis on January 26, 1971.

Pursuant to an investigation by the Manager

of Labor Relations, no one else in the department

came forth to support the allegations of the three

white employees. The defendant union also made an

investigation. All members of the department,

other than the accusing white employees, advised

union officials that they knew of no such "slow

down" statements by Dennis. MThis particular

department had primarily black employees at the

time.

A grievance was filed by the union on behalf

of Dennis and the grievance was submitted to

arbitration. The arbitrator ruled in favor of the

defendant company, stating that the punishment may

be harsh, but noting in the decision that Dennis

said in the arbitration hearing that if he made

the remark, he made it jokingly. At the trial of

- 5Ja -

this suit, as the court interprets his testimony,

Ashlaw asserted that even if Dennis made the

remark jokingly, this was grounds for firing

Dennis since he was a union committeeman.

At the trial of this suit, Dennis denied

making the remark. This denial went uncontrovert-

ed since the defendants failed to put on witnesses

claiming the contrary. No slow down ever occurred

in Department 928 during the time Dennis was

employed there. No other employees had ever been

fired at the Avco plant for making an alleged

"slow down" remark.

The two accusing white female employees did

not like blacks, having made remarks to other

white employees regarding their racial hostility

toward black people. Miss Urtubees, a friend of

Mr. Honeycutt, the superintendent who was forced

to apologize to Dennis some two to three weeks

earlier, specifically disliked Dennis. Dennis had

on occasion asked Miss Urtubees for dates.

The court finds that plaintiff Dennis has

proven by a preponderance of the evidence that

Ashlaw, who fired Dennis, was at best an innocent

conduit for the racial hostilities of an Avco

superintendent and at least two Avco employees.

Ashlaw, who had been Manager of Labor Relations at

- 58a -

the Nashville plant since only September 15, 1970,

is chargeable with knowledge of the historical

racially discriminatory background and practices

of Avco. However, between September 15, 1970, and

January 26, 1971, when he fired Dennis, the

Manager of Labor Relations made no inquiry into

the past and current racial attitudes of Avco

supervisory personnel. When Honeycutt brought the

three accusing statements to him, the Manager of

Labor Relations suspended Dennis and dispatched

him from the premises without confronting the

accusing witnesses or inquiring into their cred-

ibility. The Manager of Labor Relations fired

Dennis without making a serious investigation as

to whether or not the accusing empoloyees and/or

the accusing superintendent had racial motivations

behind their accusations. He did not inquire into

past incidents and past statements which would have

raised serious questions as to the motives of the

accusers. He accepted without serious investiga-

tion the moral indignation expressed by the

accusing employees as the reasons for their

signed statements. The Manager of Labor Relations

immediately accepted as true the written state-

ments fostered, collected and delivered by racial-

satithedatinenteies

- 59a -

ly biased- supervision. Ashlaw testified that he

fired Dennis without discovering that doneycutt

had been forced to both orally and in writing

apologize to Dennis just a few weeks earlier in

the same month, January, 1971. Ashlaw testified

that he had no knowledge of this recent dispute,

even though Dennis filed a grievance against

Honeycutt, which was just recently settled at the

second step of the grievance procedure. He

further stated that he was not aware of any

friendly relationship between Honeycutt and Miss

Urtubees when he fired Dennis. The Manager of

Labor Relations also testified that when he fired

Dennis, he did not know of Miss Urbutees' dislike

of Dennis for asking her for dates on occasion.

The Manager of Labor Relations said that when he

fired Dennis he was further unaware that Miss

Urtubees was one of the two white female empoloyees

who transferred from the night shift to the day

shift in the fall of 1970. This transfer, which

occurred after the transfer of three black em-

ployees to another department where they were

promptly "rolled" to the night shift, was protested

by Dennis in his role as union committeeman.

- 60a -

Plaintiff Dennis, as union committeeman, had

been diligent and aggressive in protecting the

rights of black employees in his department. The

court finds that Dennis had done his job well as

union committeeman and in so doing had angered and

irritated Avco supervision, for example the

foreman of Department 928 in the Urtubees trans~

fer incident in the fall of 1970, and Superinten-

dent Honeycutt in the January, 1971 incident in

which Dennis protested the superintendent's

reprimand of a black employee.

The court finds that statements such as "Slow

' were

down. We won't make overtime this way,'

common expressions at the Avco plant, which

statements were not and should not have been taken

seriously or literally. The statements were

commonly made in a joking manner and were 80

understood by Avco employees and Avco supervision.

The court finds that the charge of advocating

a slow down was merely a pretextual basis for

firing Dennis. The real reason for firing Dennis

was Avco supervision's irritation and anger over

Dennis' aggressive but proper representation of

black employees. The court finds that Avco fired

Dennis as an example to those other black employ-

- 6la -

ees who might be inclined to assert their rights

under the collective bargaining contract and under

anti-discrimination laws such as Title VII of the

Civil Rights Act of 1964.

The court holds that the discharge of Raymond

L. Dennis was racially discriminatory in violation

of Title VII of the Civil Rights Act of 1964,

specifically 42 U.S.C. §2000e-2(a)(1).

As to defendant Aero Lodge No. 735, the court

holds that it did not discriminate against plain-

tiff Dennis in violation of Title VII in its

representation of Dennis as to his discharge by

Avco Corporation.

Intervenor Warner McCreary

Warner McCreary, a black male with a high

school education and a few hours of college

credit, was accepted by Avco as a trainee in its

Aircraft Assembly School on July 5, 1966. McCreary

was employed in August 1, 1966, as an assembler-

bench and jig, Class C employee. He was promoted

to Class B as an assembler-bench and jig employee

on November 25, 1967. He then bid for a job as a

pat*ern maker, wood and metal, which he was

awarded after taking company tests and reciving

high marks. He began as a Class C employee in

this pattern-making occupation in or about July,

- 62a -

1969, and was subsequently promoted to Class B in

November, 1969. McCreary, the only black employee

in the pattern-making occupation, was terminated

because of a reduction in force in April, 1971.

Plaintiff McCreary was an organizer and

leader of a black organization of Avco employees

knows as the Cause-Find-Commission. As a leader

of this organization, he engaged in many conversa~

tions and negotiations with both company and union

officials in an attempt to relieve some of the

many complaints of black employees at Avco Corpora~

tion and aid in eliminating racial discrimination

and mistreatment. He was a member of Aero Lodge

No. 735.

This employee experienced the follv.

discriminatory treatment while working at Avco.

l. He was reprimanded by Avco supervision

for talking while he worked, even though his

production was good. White employees were not so

reprimanded.

2. He was reprimanded for the faulty work

of a white employee. When the Avco supervisor was

finally convinced that a white person was at

fault, this white person was not repremanded.

~ 63a -

3. White Avco supervision permitted criti-

cism of white employees for talking to black

employees.

4. McCreary was a candidate for plant

grievance committeeman. A company man and a union

official spread rumors that if McCreary were

elected it would result in "super seniority" for

blacks. The Manager of Labor Relations, William

H. Ashlaw, refused to take any steps to correct

the situation, and did not openly state to Avco

employees that the rumors were false even though he

knew them to be untrue.

a McCreary, when promoted to the pattern

shop as the only black therein, was hazed by the

white employees. His tool box was stolen, his

chain to tie down his tool box was broken,

and he was pelted with clay balls. The Avco

supervisor refused to take any action.

6. McCreary was called "nigger" by fellow

employees and an official of defendant Aero Lodge

No. 735.

7. When McCreary and other employees protest-

ed certain actions, Avco and Aero Lodge No. 735

officials referred to the blacks as “you people."

Subsequent to the firing of plaintiff Dennis

on January 26, 1971, plaintiff McCreary participat-

ed in a mass walkout by some 100 or so black Avco

- 64a -

employees in protest of the Dennis firing. The

walkout lasted for about a week and a half.

McCreary was suspended for thirty days, beginning

with the first day of the walkout, for his

part in organizing and participating in the

walkout. The court holds that Avco's suspension of

McCreary was not racially discriminatory in

violation of Title VII, but was justified since

participation in the walkout was a violation

of the collective bargaining contract then in

effect.

This employee, a quiet determined and

perservering individual, was terminated by reason

of a reduction in force in April, 1971. Plaintiff

has not proven by a preponderance of the evidence

that his termination was racially discriminatory

or in violation of his seniority rights. Accord-

ingly, the court holds that defendant Avco, by

terminating McCreary in April, 1971, did not

violate the rights of the plaintiff under Title

VII of the Civil Rights Act of 1964.

As to defendant Aero Lodge No. 735, the court

holds that plaintiff McCreary has not proven by a

preponderance of the evidence that the union

violated the rights of plaintiff under Title VII.

- 65a -

As far as the record shows, defendant union did

not discriminate against plaintiff McCreary on the

basis of race in its representation of the plain-

tiff as to his suspension and termination.

Accordingly, Warner McCreary is not entitled

to injunctive relief against either defendant

under Title VII.

Discrimination Against the Class

The court concludes that subsequent to the

effective date of Title VII of the Civil Rights

* Act of 1964, July 2, 1965, the defendant Avco

racially discriminated, in violation of the Act,

against the class of Avco employees represented by

plaintiffs as follows:

(1) by preserving through the seniority and

promotion systems past discrimination in the areas

of classification as to the types of employment

available to black employees, training, working

conditions, promotions, transfers, compensation

and terminations;

(2) by failing, through its supervisory

personnel, to afford black employees the same

training afforded to white employees, thereby

effectively excluding black employees from

opportunities for advancement to semi-skilled and

skilled occupations;

- 66a -

(3) by considering subjective and racially

discriminatory evaluations of its foremen and

other supervisory personnel in determining qualifi-

cations for advancement without ascertaining

whether or not such eval. itions were affected with

racial bias; and

(4) by discriminating against black assem-

bler-bench and jig employees in the Globe-Wernicke

incident.

As to defendant Aero Lodge No. 735, the court

concludes that defendant union has acquiesced and

participated in these discriminatory practices of

Avco, and has represented the interests of its

black members unfairly, inadequately, arbitrarily,

discriminatorily, and in bad faith in violation of

Title VII of the Civil Rights Act of 1964.

The court has concluded that the plaintiffs

and the class they represent may be afforded

relief under Title VII of th Civil Rights Act of

1964, 42 U.S.C. §;2000e-2000e-15.

The attorneys for plaintiffs and defendants

shall submit, within sixty (60) days from the

entry of this memorandum, proposals stating

specifically what relief is justified under Title

VII of the Civil Rights Act of 1964, 42 U.S.C.

§§2000e, et seq. by the findings and conclusions

as stated in this memorandum.

/s/ L. Clure Morton

United States District Judge

- 67a -

DISTRICT COURT IMPLEMENTING

ORDER OF AUGUST 20, 1974

UNITED STATES DISTRICT COURT

M. D. Tennessee

Nashville Division

CAPTIONS OMITTED

MEMORANDUM

MORTON, District Judge.

On July 12, 1974, a hearing was held in which

attorneys for plaintiffs and defendants espoused

their theories as to the implementation of this

Court's memorandum opinion of December 18, 1973.

Prior to the hearing, the parties to the lawsuit

had filed their proposed plans. Essentially, the

plaintiffs propound a scheme whereby this Court

would monitor the daily activities of the defen-

dants; the defendants' proposal, on the other

hand, grants no relief to the plaintiffs. This

Court, therefore assumes the duty of structuring

relief which is formulated to remedy past dis-

- 68a - - 69a -

criminatory practices of the defendants. United ed to displace any brickmason presently in its

wr empl i d . :

States v. Masonry Contractors Association of mpioy in order to compensate Mr. Alexander

Memphis, Inc., 497 F.2d 871 (6th Cir. 1974).

INDIVIDUAL RELIEF

Plaintiff, Robert F. Newman, must be re~em-

Raymond L. Dennis

Plaintif, Raymond L. Dennis, must be re-em-

ployed by Avco with no loss of seniority. Further,

. — Avco is to compensate Mr. Denni i

ployed by defendant Avco with no loss of seniority. ad r. Dennis with those wages

— ; which he would have earned on and subsequent to

Furthermore, plaintiff is to recover from Avco

January 26, 1971, 1 i i

those wages which he would have earned on and cer! , » 4ess concomitant pay received

by him f 1 ; i

after December 30, 1967, less all income received y him from any employment, unemployment compensa

; tion, and the normal withholding for FICA and

by him from subsequent employment and unemployment

; income tax. H hall j

compensation. The usual FICA and income tax - ms e shall also be subject to any

withholding shall also be deducted from plain- requisite physical examination of the company

afte applicable to those employees who have been

tiff's recovery.

reinstated after a layoff from work.

GENERAL RELIEF

The defendant Avco will implement the follow-

Mr. Newman shall also be subject to any

requisite physical examination of the company

applicable to those employees who have been

in ced ;

reinstated after a layoff from work. S procccurss

Ramsey Alexander l. Up-to-date applications, which shall

. detail all educati l b i

Plaintiff, Ramsey Alexander, is to be awarded CSUSee AORe ackground and previous

a lle , work experience at Avco and elsewhere, will be

seniority status as a brickmason from July, 1966 |

taken from all black employees. Appropriate

to the present. Further, he is to recover from

P officers at A hall d i is-

Avco those wages which he would have earned in the veo shall render good faith assis

ta t h . . . .

aforementioned status as a brickmason from August nce to each black employee in eliciting the

1, 1966, to the present, minus any pay received aforementioned information which shall be kept in

* eee ae during said period. Avoc is not requir- a file with the employee's name affixed thereto.

No other information, correspondence or docwments

- 70a -

shall be placed in these files, which shall be

adverted to hereafter as the "transfer" files.

2. Bid procedures currently in effect will

be circulated in writing to all black employees.

3. “Occupational Recall" is hereby elim-

inated.

4. All job openings for non-supervisory

employees shall be prominently posted in each of

the company's working areas (e.g., “Bench and

jig," "Maimtenance," etc) not less than three days

prior to filling the jobs. During said three-day

period, black employees may go to the company

office and make bids for the jobs during or

subsequent to their respective shifts.

5. Blacks may bid on all job openings based

on plantwide seniority without the contract

limitation of occupational seniority. No limita-

tion shall be placed on the number of bids

which may be made annually by blacks.

6. Upon receipt of a bid from a black

employee, the appropriate company "employee"

(defined and designated, infra, No. 9) shall

examine only the “transfer" file of such employee

to determine the appplicant's fitness for the job

opening. No other information, evaluation,

- 7la-

opinion or documentation shall be received or used

by said company employee in ascertaining the

fitness of the bidder.

In those instances where there are both black

and white aspirants for a job opening, the company

employee shall review only those up-to-date

application forms of white employees which are

similar to those of the black employees in the

"transfer" file. Any other information, evalua-

tion, opinion or documentations is strictly

prohibited from review by said company employee in

deciding between the black and white applicants.

Job equity is hereby eliminated as a factor

in the aforesaid determination. The previous

experience of an applicant, however, as reflected

on an up-to-date application form, may be con-

sidered in the evaluation by the company employee

@s to who would best satisfy the job opening.

a To offset the previous policy of in-

formal on-the-job training when a black employee

is selected for transfer to a new job, the black

transferee shall be afforded twice the "customary

trial period" to meet the job requirement than

that given to white transferees. If the black

transferee has not satisfied the job requirements

within such stipulated time, he may be demoted to

- 72a -

his. previous job position without loss of senior-

ity, subject to the grievance procedure herein-

after set forth (No. 8, infra.). During such

aforesaid period, good faith, informal, on-the-job

training should be made available to the black

employee by the immediate supervisory personnel.

8. When a black employee asserts that the

foregoing steps have not been properly implemented

or alleges that he is the subject of any racially

discriminatory treatment, he may file a written

grievance which sets forth his complaints against

Avco through the company employee. Avco shall

have five (5) days within which to evaluate the

grievance. If the company determines that the

grievance is proper, it must remedy the situation.

If the company rejects the grievance, it shall

notify the complainant in writing of its conclu-

sion within five (5) days after the grievance was

filed. Concomitantly, Avco shall also request in

writing that the Federal Mediation and Concilia-

tion Service submit a panel of five arbitrators.

On receipt of the designation of the panel, the

company shall submit said list of panelists to the

complainant. Within three (3) days thereafter, the

complainant shall deliver a written statement to

. tte

- 73a -

Avco in which the complainant selects one member

of the designated panel to hear the grievance.

At the hearing, the company, the union, the

complainant and his attorney, if any, may appear

to submit evidence and argue the issues. A copy

of the memorandum opinion of this Court filed

December 18, 1973, and a copy of this particular

memorandum shall be furnished to the arbitrator.

The decision of the arbitrator, if supported by

substantial evidence, shall be final and conclu-

sive as to the company, the union and the com-

plainant.

9. The “company employee" adverted to

hereinbefore, may be any employee of the company

who is not an officer, stockholder, director, and

who was not a witness in the trial of this lawsuit.

10. The above plan will remainin effect for

one year. The company shall file with the court

within thirty (30) days from the date of this

memorandum documents reflecting the total number

of non-supervisory employees, their job class-

ifications, their race and the number and percent-

age of blacka in each job classification. A

similar report shall be filed at three-month

intervals thereafter. A review of Avco's pro-

gress in alleviating racial discrimination will be

- 74a -

held by the court subsequent to the filing of the

fourth quarterly report by said company. On

application of any party, the court may consider

an earlier review.

ll. The provisions of the existing collec-

tive bargaining agreement and those of any future

agreements between the company and the union are

not binding if their enforcement is «ontrary

to the provisins of this memorandum or if the

enforcement would result in discrimination against

any black empoloyee.

12. The defendant Avco is enjoined and

restrained from racial discrimination of any kind

in the classification, transfer, promotion or

termination of its employees.

CLASS ACTION

Defendant contend that this cause must not

continue as a class action. The basis for this

assertion is that no notice has been given to any

member of the class.

The action was sustained as a 23(b)(2) class

action, Rule 23, F.R.Civ. P. The primary impetus

of this suit is the expurgation of defendants'

discriminatory employment practices. Pecuniary

remuneration is purely incidental to this suit's

- 75a -

principal purpose. See Robinson v. Lorillard

Corporation, 444 F.2d 791 (4th Cir. 1971); Johnson

v. Georgia Highway Express, Inc., 417 F,2d 1122

(Sth Cir. 1969); see also Bowe v. Colgate~Palmo-

live Company, 416 F.2d 711 (7th Cir. 1969).

In situations where both (b)(2) and (b)(3)

are appropriate, it is said that the (b)(2) action

is preferable because of its broader res judicata

effect; this is especially the case in civil

rights suits. See Bing v. Roadway Express, Inc.,

485 F.2d 441 (Sth Cir. 1973); Johnson v. City of

Baton Rouge, Louisiana, 50 F.R.D. 295 (E.D. La.

1970). To some courts the desirability of the

(b)(2) action has appeared to emanate, at least in

part, from the idea that notice is not required in

(b)(2) actions (e.g., school desegregation and

discrimination in employment cases).

There is, however, a growing body of author-

ity, including the Sixth Circuit Court of Appeals,

which espouses the theory that notice as a matter

of due process is required in all representative

actions if the resulting judgment is to be

binding on absent class members; i.e., if there is

no notice, there is no class action. Zeilstra v.

Tarr, 466 F.2d 111 (6th Cir. 1972); Schrader v.

- 76a -

Selective Service Sys. Loc. Bd. No. 76 of Wis.,

470 F.2d 73 (7th Cir. 1972); Eisen v. Carlisle &

Jacquelin, 391 F.2d 555 (2nd Cir. 1968); Pasquier

v. Tarr, 318 F.Supp. 1350 (E.D. La. 1970), aff'd.,

444 F.2d 116 (Sth Cir. 1971); Cf, Gregory v. Tarr,

436 F.2d 513 (6th Cir. 1971), n.2, p. 514.

Thus one cannot assume that proper represen-

tation of the class plus any attendant publicity

will meet due process. Due to the posture of the

record in this cause, it is unnecessary to discuss

what type of notice must be given in (b)(2) and

(b)(3) cases. See Hansberry v. Lee, 311 U.S. 32,

61 S.Ct. i115, 85 L.Ed. 22 (1940); Mullane v.

Central Hanover Back & Trust Company, 339 U.S.

306, 70 S.Ct. 652, %% L.Ed. 865 (1950); Eisen v.

Carlisle & Jacquelin, supra.

The Court concludes therefore that this cause

must not proceed as a class action.

This does not terminate the matter however.

In the previous memorandum filed in this cause,the

court determined that approximately fifty-two (52)

black employees were "laid off" in connection with

the Globe-Wernicke incident. The court further

found that said terminations were racially motivat-

ed, in violation of the collective bargaining

- 77(l)a -

agreement and in violation of the affirmative

action program of Avco. If the court merely

determines that his cause can no longer proceed as

a class action, the one“year statute of limita-

tions in Tennessee may terminate what legal

remedies the affected fifty-two (52) employees

have. However, the court recognizes that while

this cause is pending as a class action, the

statute of limitations may be tolled. See Ameri-

can Pipe and Construction Co., et al v. Utah, 414

U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). As

a matter of fundamental fairness, considering

the interest of efficiency and economy, and to

avoid the possibility of mutitudinous Litigation,

the court feels that the approximately fifty-two

(52) individuals hereinbefore mentioned not only

should be given notice of this litigation and the

termination of it as a class action, but they

should also be given an opportunity to intervene

in the matter under Rule 24 of the Federal Rules

of Civil Procedure. See American Pipe and Con-

struction Co., et al. v. Utah, supra.

The defendant Avco is directed to furnish the

names and last known addresses of the black

employees who were terminated as a result of the

- 77(2)a -

Globe-Wernicke incident. The attorney for

the plaintiffs will prepare, submit to the court

for approval, and mail to said employees a notice

of their right to intervene in this cause.

ATTORNEYS' FEES

The court finds that the plaintiffs, acting

through their attorneys, are essentially vicarious

“private attorney[s] general" who are striving to

vindicate a policy that Congrees considers of the

utmost priority. Attorneys’ fees will there-

fore be awarded. See, e.g., Milburn v. Huecker,

Commissioner, 500 F.2d 1279 (6th Cir. 1974).

If the parties cannot agree on a suitable

fee, an evidentiary hearing will be held for such

determination.

Determination of the apportionment of attor-

neys' fees and the costs between defendants is

reserved.

This case will remain on the active docket;

jurisdiction is retained.

An appropriate order shall be entered.

—7Sa-

Nos. 75-1776 and 2097-8-9

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RAMSEY ALEXANDER and Roserr F. |

NEWMAN, et al.,

| Plaintiffs-Appellees,

Rarmonp L. Dennis and Waarner

McCreary,

Plaintiffs-Intervenors,

v. APPEAL from the

Azro Lopce No. 735, INTERNATION United States District

ASSOCIATION OF MACHINISTS rd Court for the Middle

AgnosPace Workers AFL-CIO, District of Tennessee.

Defendants-Appellants

(75-1776 and 75-2098),

Avco CoRPORATION, AEROSPACE

Structures Division,

Defendants-Appellants

(75-2097/9).,

Decided and Filed November 1, 1977

Before: Epwarps and Ence1, Circuit Judges and Cecz,

Senior Circuit Judge.

EncEL, Circuit Judge, delivered the opinion of the Court, in

an ‘totes aes Circuit Judge, joined. Epwanps, Circuit

» (p. a te opini

ad Gewese opinion, concurring in part

-7Ia~—

2 Alexander, et al. v. Aero Lodge Nos. 75-1776 & -2097-8-9

Ence, Circuit Judge. These appeals involve two employ-

ment discrimination actions brought under Title VII of the

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

1 of the Civil Rights Act of 1866, 42 U.S.C. § 1981. The suits

were consolidated for trial and present common issues con-

cerning individual and class wide allegations of racial dis-

crimination.

Plaintiff Ramsey Alexander, a black male, commenced a

class action on January 13, 1966 against Avco Corporation's

Aerospace Structures Division in Nashville, Tennessee ( Avco)

and against the union, Aero Lodge No. 735 of the International

Association of Machinists and Aerospace Workers, AFL-CIO

(Aero Lodge), which represents the hourly employees at that

facility. Alexander alleged that on account of his race Avco

had denied him certain promotional opportunities and that

Aero Lodge had failed to represent him fairly. He sought to

represent a class of black employees and job applicants, com-

plaining that Avco had engaged in discriminatory practices as

to them in the areas of training, transfers, promotional oppor-

tunities, and job classifications and that Aero Lodge had

cooperated with the company in these practices.'

In 1971 the district court allowed two black males, Raymond

L. Dennis and Warner McCreary, to intervene in this action,

based on their allegations that Avco was racially motivated in

discharging Dennis and in suspending McCreary and that

Aero Lodge did not fairly present their grievances.

Plaintiff Robert F. Newman, a black male, filed a separate

class action on December 30, 1968, alleging that Avco had

unlawfully discharged him on the basis of his race and that

Aero Lodge failed to process his grievance adequately. He

1 to blacks “who

— ng a By - xP .—~ and are

cents and/or prospective applicants for employment by a. Ha

4 in the defendant,

‘Acro Lodge No. - ot t-5-y- A,

—Z0a ~

Nos. 75-1776 & -2097-8-9 Alexander, et al. v. Aero Lodge 3

raised allegations of discriminatory class wide practices sim-

ilar to those contained in the Alexander complaint. Both

plaintiffs sought injunctive and other equitable relief, as well

as monetary awards for their lost wages. By an amendment

filed shortly before trial, they also requested back pay for class

members.

On a summary judgment motion the district court dismissed

Newman’s complaint on the ground that he had made a bind-

ing election of remedies by earlier submitting his claim to an

arbitrator. Rejecting that conclusion, this court reversed and

remanded for a hearing on the merits. Newman v. Avco Cor-

poration, 451 F. 2d 743 (6th Cir. 1971).

A consolidated trial was held between June 26 and August

5, 1972, and the parties presented evidence concerning the

individual and class wide claims. By a memorandum decision

of December 18, 1973, the district court sustained the individ-

ual claims of plaintiffs Alexander and Newman against both

the company and the union. It sustained Dennis’ claim against

the company, but held that the union had in fact represented

him fairly. The court found no violation of McCreary’s rights.

Further, the court held that the plaintiffs were proper repre-

sentatives of a class:

[C]onsisting of past, present and prospective black em-

ployees of the defendant Avco Corporation, and past,

present and prospective black members of Aero Lodge

No. 735, who allegedly have suffered or may suffer by

reason of the alleged discriminatory practices of the de-

fendants. These plaintiffs have standing to properly

challenge the alleged racially discriminatory policies and

eqpeneelye yah eee acca gap ses a

the areas of (a) classification as to the types of employ-

ment available to black people, (b) training, (c) working

conditions, (d) promotions, (e) transfers, (f) compensa-

tion, and (g) terminations. Plaintiffs further have stand-

~V/a-~

4 Alexander, et al. vy. Aero Lodge Nos. 75-1776 & -2097-8-9

735 in allegedly unfairly, inadequately, arbitrarily, dis-

criminatorily, and in bad faith representing the interests

of black employees in these areas.

Significantly, this class did not include unsuccessful black job

applicants, but only black employees at Avco. The court found

that both the company and the union had engaged in several

ye ger practices that unlawfully discriminated against the

eave eillils Mies tila ies Wien dailies

under Rule 23(c)(1), Fed. R. Civ. P., as to whether the suits

were properly brought as class actions. Three days before

trial, the plaintiffs did file a motion for an evidentiary hearing

on this question, but it was not expressly resolved until the

decision on the merits 18 months later.

At a subsequent hearing the defendants contended that the

failure to give notice of the suit to class members violated due

process. The district court agreed and decertified the class

on August 20, 1974, while allowing certain black employees to

intervene individually. It ordered Avco to reinstate Newman

and Dennis to their former positions, to promote Alexander to

a better job, and to pay the men lost wages. However, upon

reconsideration the court reversed this ruling as to the class

and by a February 11, 1975 order reinstated the class action

and required that notice be then given to the class members.

The individual relief was reaffirmed and the defendants were

required to comply immediately with a plan of general injunc-

tive relief. Defendant Avco filed a timely motion to amend

a small portion of the injunctive relief, which request was

granted in part on July 16, 1975.

Following an additional hearing, the court entered an order

on June 3, 1975 fixing the amounts of back pay for the individ-

ual plaintiffs and awarding attorney fees. A June 20, 1975

order slightly modified the latter award.

Both defendants noted an appeal from the orders of Febru-

ary 11 and June 3, and Avco also appealed from the June 20

~—- §2a~

Nos. 75-1776 & -2097-8-9 Alexander, et al. v. Aero Lodge 5

order. The company and the union challenge the class action

on procedural grounds, dispute the findings of discriminatory

practices, and assert that the district court exceeded its au-

thority as to certain aspects of the injunctive relief and by

awarding excessive attorney fees.

We reverse in part the findings of class wide violations,

vacate the injunctive relief, and remand for further proceed-

ings. As to the individual claims, we affirm the orders as to

Robert F. Newman and Raymond L. Dennis, but reverse as

to Ramsey Alexander.

I. JURISDICTIONAL ISSUES

While not specifically raised by the parties, we consider the

threshold question of jurisdiction of the appeal herein, because

it is, apparent that the orders appealed from are not final.

Though the plaintiffs expressly requested an award of back

pay for class members, the district court has not disposed of

this particular prayer for relief.? Jurisdiction properly lies,

however, under 28 U.S.C. § 1292(a)(1), because the defen-

dants have appealed from an interlocutory order granting in-

junctive relief. Liberty Mutual Insurance Co. v. Wetzel, 424

U.S. 737, 744 (1976).

We recognize that a court of appeals should ordinarily limit

its review to the narrow question of whether the district court

abused its discretion in issuing the interlocutory injunction, in-

truding into the merits of the case only to the extent necessary

to decide that issue. See Blaylock v. Cheker Oil Co., 547 F.

2From language appearing in several orders and opinions, it is

epparees, Sak Ce Sentiet, court com ane dened Be

to qualifying t

~¥3an~

6 Alexander, et al. v. Aero Lodge Nos. 75-1776 & -2097-8-9

2d 962, 964-65 (6th Cir. 1976); Mercury Motor Express, Inc.

v. Brinke, 475 F. 2d 1086, 1091 (5th Cir. 1973); Hurwitz v.

Directors Guild of America, Inc., 364 F. 2d 67, 70 (2d Cir.),

cert. denied, 385 U.S. 971 (1966). The rule, however, is “one

of orderly judicial administration and not a limit on jurisdic-

tional power.” Mercury Motor Express, Inc. v. Brinke, supra,

475 F. 2d at 1091. Such self-restraints, which are normally

highly desirable in interlocutory appeals, are less attractive

where, as here, the case is one of long standing, has already

been tried on the merits, and where most of the issues are

clearly defined. It is generally recognized that a court

possesses the jurisdictional power on the appeal of an interlocu-

tory order containing injunctive relief to reach and decide other

aspects of the order which would not be independently re-

viewable by interlocutory appeal. Deckert v. Independence

Shares Corporation, 311 U.S. 282, 287 (1940); Myers v. Gilman

Paper Co., 544 F. 2d 837, 847 (5th Cir. 1977), resolved on

other grounds, —— F. 2d —— (5th Cir. July 29, 1977). We

agree that:

Once a timely appeal is taken from an order made appeal-

able by statute, the power of a court of appeals should be

plenary to the extent that it chooses to exercise it. A

court should not close its eyes to what is plainly there.

9 Moore’s Federal Practice, § 110.25(1) at 273 (2d ed. 1975).

See, e.g., Myers v. Gilman Paper Company, supra, 544 F. 2d

at 847; E. P. Hinkel & Co. v. Manhattan Co., 506 F. 2d 201,

204 (D.C. Cir. 1974); Hedburg v. State Farm Mutual Automo-

bile Insurance Co., 350 F. 2d 924, 933 (8th Cir. 1965). There-

fore, in the posture of this case, we wiil fully review the district

court’s rulings on the merits.

The defendants’ appeals from the court’s injunctive order

of February 11, 1975 were technically premature because of

the pendency of an outstanding motion to modify that order,

which was not acted upon until July 16, 1975. Rule 4(a),

~24a-

Nos. 75-1776 & -2097-8-9 Alexander, et al. v. Aero Lodge 7

Fed. R. App. P.* While the time for filing a notice of appeal

properly commenced from this latter date, the omission is not

jurisdictional. United States v. Dean, 519 F. 2d 624 (6th

Cir. 1975); Keohane v. Swarco, Inc., 320 F. 2d 429 (6th Cir.

1963). We decline to prejudice the appeal on this account,

especially where the intent of the parties was clear and the

appellees have in no way been misled. Given the choice, the

court should prefer an excess of diligence to the absence of it.

II. PROCEDURAL ISSUES

The defendants contend that for several reasons these cases

were improperly maintained as class actions and that relief

to the class members should be denied.

A. Delayed request for class monetary relief.

Defendants urge that they were prejudiced by the failure of

time for appeal fixed by this subdivision commences to

is to be computed from the entry of any of the following orders

made upon a timely motion under such rules: (1) ——

or denying a motion for judgment under Rule 50(b); (2) grant-

ing or denying a motion under Rule 52(b) to amend or make

gran or denying a motion under Rule 59 to alter or amend

adhe ; (4) denying a motion for a new trial under

On Fe 19 Avco filed a tim motion to modify the February

1l order. ero Lodge filed a ce of al from this order on

—F5a-

8 Alexander, et al. v. Aero Lodge Nos. 75-1776 & -2097-8-9

raising back pay claims after the filing of a complaint for

injunctive relief, or even after a trial on the merits of the

discrimination claim, absent an actual showing of substantial

prejudice. Albemarle Paper Co. v. Moody, 422 U.S. 405, 424

(1975). Because the defendants have failed to show specific

evidence of prejudice and because there has yet been no class

award of back pay, we think this question should be addressed

in the first instance by the district court.

B. Failure to certify a class until the decision on the

merits.

Defendants claim that they were prejudiced by the trial

judge's failure to certify the class until after trial on the merits,

which violated the provisions of Rule 23(c)(1), Fed. R. Civ.

P.5 Our circuit has held that the provisions of Rule 23 (c)

(1) are mandatory and that the district court is required to

enter an order of determination whether requested by the

parties or not. Senter v. General Motors Corp., 532 F. 2d

511, 520 (6th Cir. 1976); Garrett v. City of Hamtramck, 503

F. 2d 1236, 1243 (6th Cir. 1974). While the language of the

rule is directed to the district court, Senter v. General Motors

Corp., supra, 532 F. 2d at 521, we note that the Supreme

Court has concluded that the named plaintiffs’ failure to move

for class certification prior to trial bears strongly on the ade-

quacy of representation provided to the class members. East

Texas Motor Freight System, Inc. v. Rodriguez, 45 U.S.L.W.

4524, 4527 (U.S. May 31, 1977). Here the plaintiffs did not

press the issue until three days before trial began on June 26,

1972.

Notwithstanding our strongly expressed views on the de-

sirability of an early determination of whether a class action

S Rule 23(c) (1) states:

(1) As soon as practicable after the commencement of an

action brought as a class action, the court shall determine by

order whether it is to be so maintained. An order under this

subdivision may be conditional, and may be altered or amended

before the decision on the merits.

—- Soa

Nos. 75-1776 & -2097-8-9 Alexander, et al. v. Aero Lodge 9%

will be maintained, our circuit has required a showing of

actual prejudice to the protesting party, Senter v. General

Motors Corp., supra, 532 F. 2d at 521-22, which we are un-

able to discover here. The action itself was unquestionably

filed as a class action and proceeded to trial on that basis.

In both complaints allegations were made of class wide dis-

crimination and the requested remedy was to benefit the class

of which plaintiffs were members. The defendants recog-

nized this feature of the suit by responding in their answers

to the complaint with the affirmative defense that plaintiffs

were not proper class representatives. On a motion to dis-

miss the Alexander complaint, the district court entered an

order denying the motion and indicated that “the action is

a proper class action.” In Newman's appeal to this court,

we noted that he was “an appropriate representative of the

class ‘lescribed in the complaint.” Newman v. Avco Corp.,

sup~1, 451 F. 2d at 749. Finally, the pretrial orders clearly

stated that the named plaintiffs would seek to prove class

discrimination and the trial itself proceeded on that basis.

These considerations, together with the particular nature of

the suit at hand, convince us that it would be a miscarriage of

justice to deny class relief on this basis if it is otherwise

justified.

C. Improper certification under Rule 23(b)(2).

Defendants claim that the district court erred in certifying

the class under Rule 23(b) (2) because that subdivision con-

templates only injunctive or declaratory relief and here mone-

tary relief was also requested. This claim is without merit.

6 Rule 23(b) (2) provides:

(b) Class Actions Maintainable. An action be maintained

as a class action if the prerequisites of subdivision (a) are

satisfied, and in addition:

(2) the party ng the class has acted or refused to act

on grounds $ - y applicable to the class, thereby making

appropriate final injunctive relief or corresponding declaratory

relief with respect to the class as a whole... .

— $7a-

10 Alexander, et al. v. Aero Lodge Nos. 75-1776 & -2097-8-9

Title VII actions alleging class wide discrimination are

particularly well suited to 23(b) (2) treatment since “the

common claim is susceptible to a single proof and subject to a

single injunctive remedy.” Senter v. General Motors Corp.,

supra, 532 F. 2d at 525. A request for back pay does not

preclude certification under that subdivision. Senter v. Gen-

eral Motors Corp., supra, 532 F. 2d at 525; see Franks v.

Bowman Transportation Co., 424 U.S. 747, 751, 755 (1976);

Head v. Timken Roller Bearing Co., 486 F. 2d 870, 876 n. 9

(6th Cir. 1973).

Likewise, defendants’ claim that the class of black employees

lacks the homogeneity contemplated under Rule 23(b) (2)

is without merit. As we stated in Senter v. General Motors

Corp., supra, “Race discrimination is peculiarly class discrim-

ination.” 532 F. 2d at 524. The class here is homogenous,

as the discrimination in employment is claimed in all instances

to be on the basis of one common characteristic, the race of

the employee. Thus it is proper to certify a class under Rule

23(b) (2) even though “the discrimination may have been

manifested in a variety of practices affecting different mem-

bers of the class in different ways and at different times.”

Gibson v. Local 40, Supercargoes & Checkers, 543 F. 2d

1259, 1264 (9th Cir. 1976).? Avco will have an opportunity

later to prove that individual members of the class were not

subjected to discriminatory employment practices. See In-

ternational Brotherhood of Teamsters v. United States, 45

U.S.L.W. 4506, 4515-16 (U.S. May 31, 1977); Franks v. Bow-

man Transportation Co., supra, 424 U.S. at 773 n. 32.

Along the same line, Avco argues in a supplemental briet

that class certification was improper in light of the recent

decision in East Texas Motor Freight System Inc. v. Rodriguez,

4. EWA. Rhy A Fo

Aimee See een Septeines oS that were beyond the

Tease foam ae many Pasian 2, ema

& Co., 443 F. 2d 125, 131 See McBride v. Delta Air

Lines, 551 F.2d 113 (6th

~ S¥a -

Nos. 75-1776 & -2097-8-9 Alexander, et al. v. Aero Lodge 11

45 U.S.L.W. 4524 (U.S. May 31, 1977), because the named

plaintiffs do not “possess the same interests and suffer the

same injuries” as the class members.

In Rodriguez the plaintiffs attacked a “no-transfer” rule and

in one unit of the business. Since the named plaintiffs had

stipulated that they had not been discriminated against as

and since the district court found that

On the other hand, the named plaintiffs here complained of

specific acts of discrimination that were typical of the cate-

gory of practices raised on behalf of the class, and the district

court ruled after a trial that the plaintiffs had in fact suffered

by reason of certain of these practices. Thus, we think that

the named plaintiffs suffered the same sort of injuries and

possessed a sufficient similarity of interests to make them

proper class representatives.

D. Lack of notice to absent class members prior to

the decision on the merits.

Even if properly brought as a Rule 23(b) (2) action, de-

fendants urge that the imposition of class wide liability was

improper, because absent class members were not given actual

notice of the suit prior to the decision on the merits, thereby,

in their view, violating both Rule 23 and the constitutional

requirements of due process. Individual notice was not re-

quired until the district court’s order of February 11, 1975,

about a year and a half after the decision on the merits.

Nothing in Rule 23 explicitly requires prejudgment notice

to absent members of a class by virtue of a certification

— FFa~

12 Alexander, et al. v. Aero Lodge Nos. 75-1776 & -2097-8-9

under Rule 23(b) (2). The mandatory notice provision of

Rule 23(c) (2) is expressly confined by its terms to actions

under (b) (3),® and a number of courts have indicated that

actual prejudgment notice is not required by Rule 23 in actions

certified under sections other than (b)(3). See, e.g. Bolton

v. Murray Envelope Corp., 553 F.2d 881, 883 (5th Cir. 1977).

Ryan v. Shea, 525 F. 2d 268, 275 (10th Cir. 1975); Wetzel v.

Liberty Mutual Insurance Co., 508 F. 2d 239, 254, cert. denied,

421 U.S. 1011 (1975); Hammond v. Powell, 462 F. 2d 1053,

1055 (4th Cir. 1972); Yaffee v. Powers, 454 F. 2d 1362, 1366

(Ist Cir. 1972); Johnson v. Georgia Highway Express, Inc.,

417 F. 2d 1122, 1125 (5th Cir. 1969).

Likewise we find unpersuasive defendants’ contentions that

due process requires prejudgment notice for absent class

members in all actions under Rule 23 (b) (2). Generally, one

is not bound by a judgment unless he was a party or in

privity with a party to the action. Hansberry v. Lee, 311 U.S.

32, 40 (1940). However, the judgment in a “class” or “repre-

sentative” suit has been treated as an exception, and to an

extent “not precisely defined by judicial opinion,” it may

bind members of the class who were not made parties to the

litigation. 311 U.S. at 41. Due process is satisfied if the

procedure “fairly insures the protection of the interests of

absent parties.” 311 U.S. at 42. Thus, the issue is whether

prejudgment notice is in all cases required for (b) (2) actions

in order to adequately protect the absent class members.

The Advisory Committee’s Note to Rule 23 concluded that

notice was not required in all cases of (b)(1) and (b)(2)

any class action maintained under subdivision (b) (3),

eM = oo By By. ome ha individeal

circumstances,

notice identified reasonable

will exclude him from the class if he so requests by a

date; (B) the judgment, whether favorable or not, will

all members who do not request exclusion; and (C) any

eS SS a ee

— Goa

Nos. 75-1776 & -2097-8-9 Alexander, et al. v. Aero Lodge 13

Subdivision (d)(2) does not require notice at any stage,

but rather calls attention to its availability and invokes

the court’s discretion. In the degree that there is cohe-

siveness or unity in the class and the representation is

effective, the need for notice to the class will tend

toward a minimum. . . . {MJandatory notice pursuant to

subdivision (c)(2), together with any discretionary

notice which the court may find it advisable to give

under subdivision (d)(2), is designed to fulfill require-

ments of due process to which the pro-

cedure is of course subject.

39 F.R.D. 69, 106-07.

We agree with the Advisory Committee that prejudgment

notice of a (b)(2) class suit need not in all cases be sent to

quate: Due Process Requirements in Class Actions under

Federal Rule 23,” 123 U.Pa.L.Rev. 1217, 1233-41 (1975);

Note, “Collateral Attack on the Binding Effect of Class Action

Judgments,” 87 Harv. L. Rev. 589, 605 (1974); 7A C. Wright

& A. Miller, Federal Practice and Procedure: Civil § 1786 at

143-44 (1972).

This position is supported by recent views expressed in other

circuits. Souza v. Scalone, —— F. 24 ——-, No. 74-3485 (9th

Cir. Jan. 3, 1977); Larionoff v. United States, 533 F. 2d 1167.

1186 (D.C. Cir. 1976), affd 45 U.S.L.W. 4650 (U.S. June

13, 1977); United States v. Allegheny-Ludlum Industries, Inc.,

517 F. 2d 826, 878-79 (5th Cir. 1975), cert. denied, 425 U.S.

944 (1976); Frost v. Weinberger, 515 F. 2d 57, 65 (2d Cir.

1975), cert. denied, 424 U.S. 958 (1976); Wetzel v. Liberty

Mutual Insurance Co., supra, 508 F. 2d at 255-57. The district

court expressly found that the named plaintiffs were adequate

-TFTla~

14 Alexander, et al. v. Aero Lodge Nos. 75-1776 & -2097-8-9

representatives of the class, as they possessed interests sub-

stantially identical to the class members. In addition, the court

had authority to require notice if any of the purposes listed in

23 (d)(2) were in need of being served. Thus, failure to order

prejudgment notice does not invalidate the class action here.

Ill, THE MERITS

Avco’s Nashville facility is devoted primarily to the manu-

facture and assembly of aircraft parts. It has also in the recent

past manufactured appliances and furniture for brand name

distributors. Perhaps typical of the aircraft industry, total

employment has fluctuated widely from time to time due to

the nature of private subcontractor work on the aircraft pro-

jects. Thus, employment rose from 2335 persons in 1966 to

3391 in 1970, only to decline thereafter markedly until by

November 15, 1975, only 1509 persons were employed.

Jobs at Avco are grouped into departments and occupations,

with departmental lines having had great significance before

1968. Until 1971, occupations consisted of several related job

classifications such as A, B and C categories in a particular

craft or operator position, the A position being the most skilled

and hence the best paying. Many occupations were found in

several departments throughout the plant. The basic aircraft

manufacturing occupation, known as “assembler-bench and

jig,” had the largest number of employees in the plant and

was the focus of much testimony at trial. In 1971 the A, B, and

C categories were abolished and instead the company used 4

system of varying pay levels within each occupation with

automatic progression over a period of time. Occupations carry

pay rates keyed to an hourly wage rate system of labor grades

from 11 (the lowest) to 1 (the highest). Certain menial posi-

tions, such as janitor, are not in the grade system at all and

pay less than the grade 11 rates. Many job rates can vary

accoiding to individual or group production output under an

incentive system.

-FJ2Za~

Nos. 75-1776 & -2097-8-9 Alexander, et al. v. Aero Lodge 15

Job changes, including promotions, transfers, rollbacks and

recalls, were governed until the time of trial by the detailed

seniority provisions of the three successive collective bargain-

ing agreements in effect since 1965. «There was an overriding

requirement that an employee be qualified to perform any

particular job in question. The operation of the system is

best paraphrased from the description contained in the brief

of defendant Avco. In the 1965 contract between Avco and

the Union, as in all subsequent labor agreements, seniority is

“defined as length of service computed for each employee from

his most recent date of employment”, meaning the plant

service. Employees were permitted by the 1965 agreement to

bump to other jobs during a reduction in force, but only within

a department. In other words, an employee utilized his com-

pany hire date, or “plant seniority”, to bump other employees

from occupations for which he was qualified by prior experi-

ence, but he did so only within his department. There was

one exception to this pattern. Bumping in the assembler, bench

and jig occupation was conducted on a plant-wide basis. Pro-

motions under the 1965 agreement were awarded to qualified

lower-classed employees, after first returning prior incumbents

holding “equity”, on the basis of plant seniority exercised with-

in the department. In all situations, an employee assigned

to a new department would compete with other employees of

that department for promotional opportunities on the basis of

plant seniority.

Major changes were negotiated by Avco and the Union in

the seniority system incorporated in the succeeding 1968 col-

lective bargaining agreement. Seniority continued to be de-

fined solely on a plant-wide basis, but bumping privileges in

the event of a reduction in force were broadened. Thereafter,

an employee could displace a junior employee in a different

department in either his current classification or in the last

classification which he may have held in the other department,

provided the bumping, candidate satisfied certain conditions of

— 73a

16 Alexander, et al. v. Aero Lodge Nos. 75-1776 & -2097-8-9

minimum seniority and of satisfactory service when he sought

a previously-held classification. If a bumping employee lacked

the minimum seniority required, he could nevertheless displace

a less senior employee in a lower classification of the same

previously-held occupation.

Further, the scope of exercise of plant seniority was ex-

panded for the purpose of promotion by the 1968 agreement. A

new procedure of advanced bidding was instituted, which per-

mitted an employee to compete for any job in the plant for

which he was qualified irrespective of his particular depart-

mental assignment. By filing a “job preference” card, a can-

didate for promotion could obtain placement, if qualified for

the duty, on a job preference list, and thereby would become

eligible for automatic promotion in line of plant-wide seniority

when an opening became available. Openings not filled by

advance bids were required to be posted on bulletin boards

for the employees’ scrutiny.

The next collective bargaining agreement between the com-

pany and the union was negotiated in 1971 and was in effect

at the time of trial. Bumping privileges during a reduction

in force were further expanded, being limited only in essence

by a requirement of capability for the relevant work derived

through prior service in the occupation in which bumping was

desired. Promotional opportunities were improved by an

increase in the number of permissible simultaneous job bids

to six instead of the previous limit of three.

The evidence was convincing that prior to July 2, 1965,

the effective date of Title VII, discrimination in employment

was indeed substantial at Avco. In an area where 14.7% of

the work force was black, only 1.3% of the employees of Avco

were black in 1961. This increased by 196° only to 3.6%. Dur-

ing that period those few blacks who were employed served

almost exclusively in the lowest paid jobs, as janitors, porters,

and charwomen. A self-analysis form furnished to the Presi-

—F¢a-

Nos. 75-1776 & -2097-8-9 Alexander, et al. v. Aero Lodge 17

dent’s Committee on Equal Employment Opportunity in 1961

showed that Avco had no black foremen, no black skilled or

semi-skilled employees, and no black administrative employees.

Toilet, eating and other facilities were segregated by race,

and many of those furnished for the use of blacks were inferior.

Likewise, Aero Lodge had excluded blacks from membership

altogether until 1957. Thereafter for many years there had

been only a token membership of blacks in the union. The

district judge found that the union had systematically discrim-

inated against its black members in the processing of griev-

ances and in the assignment of duties with respect to union

affairs during this pre-Act period.

Following trial the district court held that the company

and the union had violated Title VII by discriminating on the

basis of race against the class of black employees by engaging

in the following practices:

1) preserving through the seniority and promotion sys-

tems past discrimination in the areas of classification

as to the types of employment available to black

_ employees, training, working conditions, promotions,

transfers, compensation and terminations;

2) failing, through its supervisory personnel, to afford

black employees the same training afforded to white

employees, thereby effectively excluding black em-

ployees from opportunities for advancement to semi-

skilled and skilled occupations;

3) considering subjective and racially discriminatory

evaluations of its foremen and other supervisory per-

sonnel in determining qualifications for advancement

without ascertaining whether or not such evaluations

were affected with racial bias; and

4) discriminating against black assembler-bench and

jig employees in the Globe Wernicke incident.

— wa

18 Alexander, et al. v. Aero Lodge Nos. 75-1776 & -2097-8-9

A. Perpetuating Past Discrimination

In its opinion the district court found that Avco maintained

a departmental seniority system until 1968 and thereafter

retained seniority by occupation and classification. However, it

is apparent that Avco’s system did not employ departmental

or occupational seniority in the traditional sense. While de-

partmental units had great significance until 1968, during that

period as in all others the measure of seniority was an indi-

vidual’s length of plant-wide service with the company. On

the other hand, the existence of job “equity”, which was the

preference accorded an employee who had previously per-

formed a particular job, tended to cause the competition for

positions to be based in part on considerations akin to those in

an occupational seniority system.

The district court, in its opinion, particularly stressed that

the job equity feature was primarily responsible for perpetuat-

ing pre-Act discrimination. The 1965, 1968, and 1971 con-

tracts all gave an absolute preference in filling a vacancy to

employees with prior, satisfactory service in the particular

occupation. In other words, whenever a vacancy occurred, alli

employees having equity in that occupation were given the

right to return to that job before it was opened to the promo-

tional bidding system. As among those holding equity, the

vacancy would be awarded to the employee with the greatest

plant-wide seniority, not the longest period of experience at

that job. Similarly, when layoffs were ordered, employees

could return to occupations they had formerly held if their

current jobs were eliminated. The effect of this system was

that an employee with job equity would always be preferred

over an employee without job equity, even though the latter

was deemed qualified for the position by the company and

had longer plant-wide service.

‘The plaintiffs complained that this system, though neutral

on its face, discriminated against blacks where there had been

- Zianr

Nos. 75-1776 & -2097-8-9 Alexander, et al. v. Aero Lodge 19

an historical preference toward whites in awarding the better

jobs. By giving absolute priority to those with any experience

at Avco in a particular occupation, the company disproportion-

ately excluded blacks from the selection process, where they

had previously been denied that very experience.

The district court decision and the parties’ initial briefing

on appeal were made without the benefit of the recent Supreme

Court pronouncement on Title VII coverage in International

Brotherhood of Teamsters v. United States, 45 U.S.L.W. 4508

(U.S. May 31, 1977). There, the Court held that a bona fide

seniority system which perpetuates the effects of prior dis-

crimination is immunized from a finding of illegality by reason

of § 703(h) of the Civil Rights Act, 42 U.S.C. § 2000e(h),

which states in part:

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 . . . system, .. .

provided that such differences are not the result of an

tention to discriminate because of race . . . or national

origin.

In reaching this conclusion the Court took a substantially dif-

ferent approach to Title VII litigation than had been followed

in at least six of the circuits, including our own. See, e.g.,

EEOC v. Detroit Edison, 515 F. 2d 301 (6th Cir. 1975),

vacated and remanded in light of Teamsters, 45 U.S.L.W.

3789-790 (U.S. June 6, 1977); Palmer v. General Mills, Inc.,

513 F. 2d 1040 (6th Cir. 1975); Head v. Timken Roller Bearing

Co., 486 F.2d 870 (6th Cir. 1973).

In Teamsters the defendant employer was a common carrier

of motor freight with nationwide operations. Employees work-

ing as “line-drivers” engaged in long distance hauling between

the terminals of the company and composed a bargaining unit

which was distinct from that representing “city-drivers”, who

made deliveries within the immediate area of a particular

—F7a~

20 Alexander, et al. v. Aero Lodge Nos. 75-1776 & -2097-8-9

terminal. The Fifth Circuit held that the company and the

union had discriminated against black and Spanish-surnamed

persons in the hiring process for the lucrative line-driver posi-

tions and in using a seniority system that penalized prior

victims of discrimination. The Supreme Court agreed that

the government had sustained its burden of proving a system-

wide pattern or practice of employment discrimination. As for

the seniority system, the problem was succinctly described by

Mr. Justice Stewart:

For purposes of calculating benefits, such as vacations,

pensions, and other fringe benefits, an employee's senior-

ity under this system runs from the date he joins the

company, and takes into account his total service in all

jobs and bargaining units. For competitive purposes,

however, such as determining the order in which em-

ployees may bid for particular jobs, are laid off, or are

recalled from layoff, it is bargaining-unit seniority that

controls. Thus, a line driver's seniority, for purposes of

bidding for particular runs and protection against lay-

off, takes into account only the length of time he has

been a line driver at a particular terminal. The practical

effect is that a city driver or serviceman who transfers to

a line-driver job must forfeit all the competitive seniority

he has accumulated in his previous bargaining unit and

start at the bottom of the line-drivers’ “board.”

The vice of this arrangement, as found by the District

Court and the Court of Appeals, was that it “locked”

minority workers into inferior jobs and perpetuated prior

discrimination by discouraging transfers to jobs as line

drivers. While the disincentive applied to all workers,

including whites, it was Negroes and Spanish-surnamed

persons who, those courts found, suffered the most be-

cause many of them had been denied the equal oppor-

tunity to become line drivers when they were initially

hired, whereas whites either had not sought or were

refused line-driver positions for reasons unrelated to their

race or national origin.

— 782—-

Nos. 75-1776 & -2097-8-9 Alexander, et al. v. Aero Lodge 21

The linchpin of the theory embraced by the District

Court and the Court of Appeals was that a discriminatee

who must forfeit his competitive seniority in order finally

to obtain a line-driver job will never be able to “catch

up” to the seniority level of his contemporary who was

not subject to discrimination. Accordingly, this continued,

built-in disadvantage to the prior minatee who

transfers to a line-driver job was held to constitute a

continuing violation of Title VII, for which both the

employer and the union who jointly created and maintain

the seniority system were liable.

45 U.S.L.W. at 4511 (footnotes omitted).

The Supreme Court candidly admitted that this seniority

system did, in fact, perpetuate the effects of discriminatory

employment practices that occurred in the pre-Act period.

Nevertheless it ruled that $ 703(h) immunized such a facially

neutral system as long as an intent to discriminate did not

enter its adoption and it had heen maintained free from any

illegal purpose:

The seniority system in this case is entirely bona fide.

It applies equally to alli races and ethnic groups. To the

extent that it “locks” employees into nonline-driver jobs,

it does so for all. The city drivers and servicemen who

are ciscouraged from transferring to line-driver jobs are

not all Negroes or Snanish-surnamed Americans; to the

contrary, the overwhelming majority are white. The

placing of line drivers in a separate bargaining unit from

other employees is rational, in accord with the industry

practice, and consistent with NLRB precedents. It is

conceded that the seniority system did not have its

genesis in racial discrimination, and that it was nego-

tiated anc has been maintained free from any illegal

purpose. In these circumstances, the single fact that the

system extends no retroactive seniority to pre-Act dis-

criminatees does not make it unlawful-

22 Alexander, et al. v. Aero Lodge Nos. 75-1776 & -2097-8-9

Because the seniority system was protected by § 703

(h), the union’s conduct in agreeing to and maintaining

the system did not violate Title VII. On remand, the

District Court's injunction against the union must be

45 U.S.L.W. at 4514 (footnotes omitted).

Like the Supreme Court in Teamsters, we are totally unable

to find that the system under attack in the instant case was

established or maintained with an intent to discriminate. Like

that in Teamsters, it applies equally to all races and ethnic

groups. To the extent that it “locks employees into . . . jobs, it

does so for all.” :

With regard to the job equity features of the collective bar-

gaining agreements, it could be argued that they are not a

facet of the seniority system but a separate element affecting

job competition and hence not immune under § 703(h) of the

Act. The Act, however, speaks not simply of seniority but of

a bona fide seniority . . . system”. A preference to those with

experience in a given occupation is in a sense limited occupa-

tional seniority and we see nothing in the statute or in

Teamsters to indicate that it should stand on a different footing

than traditional plant-wide or departmental seniority. It is

a contractual provision neutral on its face and is, in our view,

an integral part of Avco’s unique but nonetheless bona fide

seniority system.’

Therefore we are obliged to hold that in light of Teamsters,

the district court erroneously concluded that the defendants

violated Title VII by utilizing a seniority system, including its

job equity feature, that perpetuated pre-Act discrimination.

the remedy stage might ve entitled to erential con-

sideration for an ft job, would on q — an earlier

seniority date, with attendant benefits, than he would under the

departmental seniority system in Teamsters and Texas Motor Freight.

Conversely, see the impact upon less senior employees, many of them

—— discussed with respect to the Globe-Wernicke incident, infra

- /00a ~

Nos. 75-1776 & -2097-8-9 Alexander, et al. v. Aero Lodge 23

B. Globe-Wernicke Incident

The so-called Globe-Wernicke incident was not mentioned

in the plaintiffs’ complaints, and only became an issue midway

through the trial on the merits. While no injunctive relief was

specifically directed at remedying the effects of this incident,

it is apparent that it loomed large in the Court's considerations

of the case and thus we are compelled to address it here.

Late in 1971, while Avco’s aircraft workforce in the assem-

bler-bench and jig classification was expanding, its operation

of a furniture manufacturing line for the Globe-Wernicke

Company was terminated, and the employees of that division,

most of whom had seniority dating back to the 1950’s and

1960's, were faced with a layoff. The company’s response

caused the “incident”, which is described in more detail in

the district court’s opinion. Except as later noted, the findings

of fact, while disputed, are not clearly erroneous:

As background, assembler-bench and jig is an assembly

line occupation connected with the Avco airplane con-

tracts. The demand for assembler-bench and jig em-

ployees fluctuates substantially, being affected by the

completion of one contract and the acquisition of others.

As a result of these fluctuations, these employees are

generally the last to be hired and the first to be laid off

at Avco. The great percentage of black employees hired

after the effective date of Title VII were hired into this

occupation. Seniority is defined as “length of service com-

puted for each employee from his most recent date of

employment.” Thus, most employees in this occupation

tend to accumulate relatively short seniority periods.

In 1971, Avco had projected that there would be a

reduction of the assembler-bench and jig work force

some months later between the fall of 1971 and January,

1972. However, a strike took place and the completion of

a contract was delayed for a few weeks.

In the latter part of 1971, Avco phased out its Globe-

~ (Ola

24 Alexander, et al. v. Aero Lodge Nos. 75-1776 & -2097-8-9

Wernicke Division. None of the employees of the Globe-

Wernicke Division, white or black, were qualified for the

assembler-bench and jig occupation. Under the union

contract, these Globe-Wernicke Division employees were

not entitled

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