# Petition — Alexander v. Aero Lodge No. 735, International Ass'n of Machinists & Aerospace Workers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0778%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 436 U.S. 946 ## Text > SSS : -~ Supreme Court, U. §~ 'f PILED 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, v. 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 ll 17 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) ....... 17 14,16 16 14 17 15 3,5 Passim 16 - iii PAGE IN THE SUPREME COURT OF THE UNITED STATES October Term, 1977 NO. 77 - RAMSEY ALEXANDER, et al., Petitioners, v. 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), 2/ 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. * * * (c) It shall be an unlaw- 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 ee 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 7/ 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 eT - 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, er - 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 en - 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. ee 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- j - 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. [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0778%3A1. Public record. Not legal advice.