Petition — American Cast Iron Co. v. Pettway

Suprema Court, U, ay

FILED

NOV § 1978

LLMAEL RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

CTOBER TERM, 1978

No. .. Z8 -76 6

AMERICAN CAST IRON PIPE COMPANY,

Petitioner,

V.

RUSH PETTWAY, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Fifth Circuit

JAMES R. FORMAN, JR.

GUY V. MARTIN, JR.

1600 Bank for Savings Building

Birmingham, Alabama 35203

(205) 251-3000

Counsel for Petitioner

THOMAS, TALIAFERRO, FORMAN,

BURR & MURRAY

1600 Bank for Savings Building

Birmingham, Alabama 35203

(205) 251-3000

Of Counsel

November 8, 1978

RRS ATES RTE TTC LE AOSV ETE IIE DTI OT NLL ELLEN ELT STL IEE!

St. Louis Law Printing Co.. Inc.. 812 Olive Street 63101 314-231-4477

eS

ee

fin itt st

TABLE OF CONTENTS

2 Page

errr Tree ee Tee ee ee l

Leake ae bese rcercccscccns 2

EE EE oe 2

Constitutional Provisions and Statutes Involved ......... 4

CE eC a cede sae sicceccccces 4

Eases sees ccceceecscce 4

B. The District Court’s 1972 Decision ........... 5

C. The Court of Appeals’ 1974 Decision ......... 7

D. Proceedings in the District Courton Remand... 7

i cn ccc asc ee cee cccees 11

Reasons for Granting the Writ .............000000 00 17

Ge Gs sp aw e's cccescccees 44

ES e tate ecesscccccccees A-1

A. Decree entered May 14, 1975 ............... A-1

B. Judgment entered June 12, 1975 ............. A-41

C. Final Order and Modified Judgment entered

Tee TT ee te ees A-47

D. Opinion of the Court of Appeals ............ A-57

E. Constitutional Provisions and Statutes Involved . A-191

TABLE OF AUTHORITIES

Cases

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

GRRE SAN Ga Gas Gee bev 80/0 x0 2, 33, 39, 40, 41, 42

Alexander v, Gardner-Denver Co., 415 U.S. 36 (1974) . .17, 37

City of Los Angeles v. Manhart, — U.S. —, 98 S.Ct.

SRO ENE saree eked peace were ean 33, 41

Dent v. St. Louis-San Francisco Ry., 406 F.2d 399 (5th

Ey) WU Nor oe ots aOR aoe Lee oc bay eevee oak 6

Dothard v. Rawlinson, 433 U.S. 321 (1977) .......... 39, 40

Franks v. Bowman Transportation Co., 424 U.S. 747

i eT Pry es er eee ee 33, 36

Fuentes v. Shevin, 407 U.S. 67 (1972) .............. 32

Furnco Construction Corp. v. Waters, — U.S. —, 57 L.

me Te Ge CR 6 oho ve beacause 17, 29, 33, 39. 40

General Electric v. Gilbert, 429 U.S. 125 (1976) ........ 40

Griggs v. Duke Power Co., 401 U.S. 424 (1971) ...... 40.

International Brotherhood of Teamsters v. United States,

S30 WS, FRACS) cscs 2, 17, 33, 35, 36, 42, 43

Lemon v. Kurtzman, 411 U.S. 192 (1973) ............ 33

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973 35, 39

Milliken v. Bradley, 418 U.S. 717 (1974) ............. 33

Minnesota State Senate v. Beens, 406 U.S. 187 (1972) .. 33

Mitchell v. Mid-Continent Spring Co., — F. 2d —, 17

FEP Cases 1594 (6th Cir., Sept. 8, 1978)....... vs 43

a < — —

Pettway v. American Cast Iron Pipe Company, 494 F.2d

211 (Sth Cir, 1974)

“Pettway v. American Cast Iron Pipe Company, 7 FEP

Cases 1010 (N.D. Ale. 1972) 0.0.0 cc ccccscccvaves 7,43

Pettway and Wrenn v,. American Cast Iron Pipe Co., 411

Fe Pee Ge OE OE i hors Coekeae ti eh cakes 6

Sniadach v. Family Finance Corporation, 395 U.S. 337

Serer eer ek sree ko eR RSD AD oe 32

Swann v. Charlotte-Mecklenburg Board of Education, 402

2 So eee rrr ee ee ee ee 33

Taylor v. Armco Steel Corp., 373 F.Supp. 885, 910 (S.D.

Es A kip eevee then abes wp ene tte sss 22

United States v. Allegheny-Ludlum Industries, Inc., 517

F.2d 826 (Sth Cir. 1975) ...... cee eeeeeeees 21, 33, 37

United States v. H. K. Porter Co., 7 FEP Cases 1021 (N.D.

Ala), aff'd, 491 F.2d 1105 (Sth Cir. 1974) ........ 21, 33

United States v. United States Steel Corp., 371 F.Supp.

1045 (N.D. Ala. 1973), rev’d on other grounds, 520 F.

2d 1043 (Sth Cir. 1975S) 0... cece re ee eccvevveees 22

Whitcomb v. Chavis, 403 U.S. 124 (1971) .......... 33

Whitfield v. United Steelworkers, 156 F.Supp. 430 (S.D.

Tex. 1957), aff'd, 263 F.2d 546 (Sth Cir.), cert. denied,

360 U.S. 902 (1959) 2... ccccccvvcvcrnvsceveves 22

Other Authorities

Due process clause of the Fifth Amendment, U.S.C.A.

Cee WE FD occ ee vee Ever ecncresicens 4

, Bib oie E' ” | | are herr rrr 2

i a | en ree eee ee er 2, 6

42 U.S.C. § 2000S-2fO) .. cr ccccrcccrescacccecs 4

42 U.S.C. $ 2000]-2Th) 0. ccc cree sccervscccccens 4

42 U.S.C. § 2000e-S(g) .... ccc c cece crrceccveeeee 4

42 U.S.C.A. § 2000e et Seq. 0. cece cere ee ee eens 2,6

Steel Industry Consent Decree, 8 BNA FEP Manual

CEE Ce ace e Ved cscs ces t rege eersneene Teepe 33

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

Sy pie

AMERICAN CAST IRON PIPE COMPANY.

Petitioner,

V.

RUSH PETTWAY, et al..

Respondents.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Fifth Circuit

The Petitioner, American Cast Iron Pipe Company (“ACI-

PCO”, or the “company”), respectfully prays that a writ of cer-

tiorari issue to review the judgment of the United States Court

of Appeals for the Fifth Circuit entered in this proceeding on

July 24, 1978.

OPINIONS BELOW

The opinions of the District Court for the Northern District

of Alabama are not reported, but are set forth in the Appendix

as follows: (1) Decree entered May 14, 1975 (App. 1); (2)

a yom

Judgment entered June 12, 1975 (App. 41); and (3) Final

Order and Modified Judgment entered November 20, 1975

(App. 47). The opinion of the Court of Appeals for the Fifth

Circuit, not yet reported, appears in the Appendix (App. 57).

JURISDICTION

The judgment of the Court of Appeals was entered on July

24, 1978 (App. 57). Timely petitions for rehearing and re-

hearing en banc were denied on September 11, 1978. This pe-

tition for certiorari is being filed within 90 days of that date. This

Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED'

This employment discrimination class action was brought

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

§ 2000e et seq., and under 42 U.S.C. § 1981, against a sub-

stantial manufacturing company employing approximately 3,300

employees in 13 production and maintenance departments. The

questions presented are:

l

May a Court of Appeals properly require, sua sponte, a Dis-

trict Court immediately on remand to enter injunctive relief

' Petitioner desires to preserve a fifth and sixth question for argu-

ment if this petition is granted, as follows: (5) Does the decision be-

low conflict with this Court’s decision in Albemarle Paper Co. v.

Moody, 422 U.S. 405 (1975), by improperly precluding the District

Court from exercising its discretion over the award of back pay

consonant with the statutory objectives of the back pay remedy, to

compensate discriminatees and to insure future compliance with the

Act? (6) Does the decision below conflict with this Court’s decision

in International Brotherhood of Teamsters v. United States, 431 U.S.

324 (1977), by improperly affording class members injunctive relief

and back pay eligibility without finding that any individual class

member was a potential victim of unlawful discrimination?

a on

not sought by plaintiffs in the District Court, making extensive

alterations in the employer’s operating procedures, including

the abolition of its promotion and transfer system, without any

evidence having been adduced in the District Court—before or

‘after the remand—directed to the necessity, fairness, and work-

ability of that relief?

2

Does the promotion by an employer of its employees on the

basis of their relative qualifications (i.e., promotion of the best

qualified employee), without regard to race, constitute unlaw-

ful discrimination?

3

Are releases of claims under employment discrimination laws,

executed by 399 class members in exchange for almost a half

million dollars of back pay received by them, properly inval-

idated by a Court of Appeals without any attempted showing

by the releasors that the releases were not voluntarily and know-

ingly executed?

4

“Does the decision below conflict with the procedure set forth

by this Court governing application of the “business necessity”

doctrine, by (a) precluding employers from preserving “job

related” employment practices neutrally applied yet found to

perpetuate past discrimination, unless they can be shown to be

“essential” to safety and efficiency, by (b) omitting considera-

tion of whether any alternative practices exist that are equally

safe and efficient, and by (c) relieving the plaintiffs of any bur-

den to prove that such satisfactory alternative practices exist?

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED

The constitutional provision involved is the due process

clause of the fifth amendment to the United States Constitution,

U.S.C.A. Const. Amend 5. The statutory provisions involved

are 42 U.S.C. §§2000e-2(a), 2(h), and 5(g). These provisions

are reproduced in the Appendix (App. 191).

STATEMENT OF THE CASE

A

The Facts

Petitioner is a manufacturing company with its principal

complex in Birmingham, Alabama, consisting of six primary

production departments,* three maintenance supporting depart-

2 The production departments are: (1) The Monocast Depart-

ment, which contains three producing units for the production of cast

iron and ductile iron pipe. The major process used in the depart-

ment is centrifugal iron casting in rotating molds, although two cast-

ing processes and two different annealing processes are used. (2)

The Fittings Foundry which produces between 35,000 to 40,000 dif-

ferent accessories to complement the pipe produced in the pipe shops.

The major process used is static casting in green sand molds com-

pacted by three different processes. (3) The Steel Foundry, which

produces steel tubes and casting of various alloys and shapes. The

major process used is centrifugal steel casting by ceramic mold

casting techniques. (4) The Melting Department, which melts all

of the hot metal required by the Monocast Department, the Fittings

Foundry, and Steel Foundry, uses three different melting processes,

cupola melting with electric furnace adjustment and pressure treating,

electric induction melting with pressure treating, and electric arc

melting. The department also produces mag coke alloy for ductile

iron and melts and casts brass parts for valves and hydrants. (5)

The Steel Pipe Mill, which produces steel pipe from steel skelp, ac-

complished basically by uncoiling, forming, and continuous welding

of the skelp into steel pipe. (6) The Machine Shop, which performs

all of the machining required on items produced in Steel Foundry,

Fittings Foundry, and Monocast, as well as producing replacement

parts required in maintenance operations and valve assembly. Ma-

chine Shop operations require precision finish machining of steel

products, polishing, honing, dynamic balancing, and fabrication.

‘tes al

ments,” three material supporting departments,‘ and the in-

spection department.”

Several of petitioner’s production departments are larger

than the plants of most comparable manufacturing companies.

The 13 P & M departments are spread out over 100 acres in

separate buildings. Each department requires different skills

and utilizes different production or support processes and

techniques.

Petitioner employs approximately 3300 employees, of whom

approximately 27% are black. Most of the employees have

never worked in more than one of petitioner's departments

and have never been inside some of petitioner’s departments

(several being over % mile apart).

B

The District Court’s 1972 Decision

This employment discrimination class action suit was filed

on May 13, 1966, under the provisions of Title VII of the

‘* The maintenance supporting departments are: (1) The Mechan-

ical Maintenance department, which maintains numerous machines

throughout the plants and performs plumbing and installation of

machines. (2) The Electrical department, which performs electrical

and electronic repair, installation services, motor repair, and operates

the power house. (3) The Construction department, which performs

carpentry, concrete, brickmason, tinsmith, paint and scale mechanic

work.

4 The material —— departments are: (1) The General

Yards department, which unloads stores, and distributes bulk ma-

terials, removes refuse, and maintains railroad tracks and roads. (2)

The Shipping re which performs product storage, gathering,

shipping, and billing functions. (3) The Central Stores department,

which orders, receives, distributes, and accounts for supplies and

spare parts.

* The Inspection department performs all final and some inter-

mediate inspections in all producing departments and is responsible

for monitoring and insuring final product quality.

ne’ BS

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

U.S.C.A. §1981. After a prior appeal to the Fifth Circuit on

procedural grounds, Dent v. St. Louis-San Francisco Railway

Co., 406 F.2d 399 (Sth Cir. 1969), and an appeal from the

discharge of one of the named plaintiffs, Pettway and Wrenn

v. American Cast Iron Pipe Co., 411 F.2d 998 (Sth Cir. 1969),

the class action charges were tried in October, 1971.

After the trial, the District Court found, inter alia, that: (1)

the company had made a good faith effort to comply with all

federal equal employment opportunity laws and regulations;®

(2) the company’s departmental seniority system was applied

neutrally to all employees, was justified by business necessity,

and did not perpetuate past discrimination;’ (3) the company’s

lines of progression (“LOP’s”) within each department* were

applied neutrally and were justified by business necessity, the

jobs in each LOP being functionally related to the other jobs |

within the LOP and affording training and experience neces-

sary to advance and perform proficiently the higher-rated jobs;

(4) the company’s testing program was illegal and resulted in

post-Act discrimination, but was not enjoined since all testing

6 The District Court found that the company had endeavored to

hire the hard core unemployed, had applied its employment practices

equally to black and white employees, and had extended its testing

program (found to be illegal by the District Court) to black em-

ployees only on the advice of a representative of the Office of Federal

Contract Compliance, who stated that white and black employees

would have to be treated alike with respect to testing and other hiring

and promotion qualifications.

* In support of the finding that the departmental seniority system

did not perpetuate past discrimination, the District Court relied upon

evidence showing that older blacks were generally not qualified to

perform more precise higher-paying jobs in other departments, that

blacks had refused promotions, requested demotions, declined train-

ing opportunities, and failed or refused to bid on higher-paying jobs,

thus “voluntarily freezing themselves” into lower-paying jobs.

* Each department is organized into one or more LOP’s into which

employees can enter and move up into more demanding jobs as

vacancies occur, on the basis of seniority, ability, and experience.

ee ee

had been discontinued before trial; and (5) the class was not

entitled to back pay due to the good faith efforts of the com-

pany to comply with equal employment laws and regulations

and because a back pay award was not necessary to insure

future compliance therewith. Pettway v. American Cast Iron

Pipe Company, 7 FEP Cases 1010 (N.D. Ala. 1972).

Cc

The Court of Appeals’ 1974 Decision

On appeal, the Fifth Circuit reversed the District Court’s

decision, holding, inter alia, that: (1) the company had en-

gaged in pre-Act discrimination in the assignment of blacks to

lower-paying, non-skill departments; (2) the company had

maintained illegal testing and educational requirements (for

hiring, promotion and transfer) from 1964 to 1971; (3) the

departmental seniority system, although applied neutrally, had

the effect of perpetuating the effects of past discrimination; (4)

the District Court should issue an injunction on remand re-

quiring, inter alia, plant-wide posting of all vacancies and

transfer of qualified personnel to such vacancies based on plant-

wide seniority, subject to the company’s right to demonstrate

that the LOP’s were justified by business necessity; and (5)

good faith and lack of necessity to insure future compliance

with EEO laws were insufficient bases to support a denial of

back pay. Pettway v. American Cast Iron Pipe Company, 494

F.2d 211 (Sth Cir. 1974).

D

The Proceedings in the District Court on Remand

On remand in June of 1974, at the direction of the District

Court, the parties engaged in an intensive and lengthy effort—

joined in actively by the District Court—to resolve by consent

mee Rien

the remaining issues involved in this case. The effort included

numerous conferences between counsel and with the District

Court, exchanges of evidence, and consideration of proposals,

counterproposals and objections by the parties and by the Dis-

trict Court. The substance of these proceedings was described

in a lengthy Stipulation of the Parties signed by Mr. Adams

(counsel of record for the plaintiff class), and petitioner’s coun-

sel (see infra).

The parties were unable to reach an agreement concerning

the injunctive relief or the back pay, and the District Court,

on the basis of the informal proceedings just described, includ-

ing a computer printout which showed a marked improvement

in black promotions and transfers,” entered on May 14, 1975,

its Decree (the “May Decree”), which, inter alia, (1) revised

the company’s LOP’s extensively to assure job-relatedness be-

tween lower and higher-paying jobs therein, removing pre-

entry base group jobs therefrom and establishing advance entry

jobs, job boxing and job connecting with the effect of job

skipping (See App. 116-17); (2) modified its seniority rules by

replacing departmental seniority with plant seniority with cer-

tain safeguards to insure the retention of essential qualifica-

tions; (3) provided rate retention for eligible blacks, enabling

them to transfer into other departments without loss of pay;

(4) provided for a grievance procedure and an implementa-

tion committee; and (5) directed the company to make back

” The Printout of February 20, 1975 showed, inter alia, that: (1)

the number of blacks employed in pay groups 9-17 (the higher-paying

pay groups) increased by 24.2% from 1971 to 1975, whereas the

number of whites in those pay groups decreased by 3%; (2) the

number of blacks in pay groups 0-8 (the lower-paying pay —

decreased by 3% in the same period, whereas the number of whites

in those pay groups increased by 13%; and (3) the number of

blacks employed in four of the departments found to be “predomi-

nantly white” by the Court of Appeals increased dramatically (e.g.,

in the Machine Shop, blacks increased by 25% from 1971 to 1975,

while whites decreased by 4%; in Inspection, blacks increased by

1400% while whites increased by only 26%; in Steel Pipe, blacks

increased by 2400% while whites increased by 186%).

—

pay calculations in accordance with specific instructions con-

tained in that decree, including instructions pertaining to the

definition of the eligible back pay subclass.'°

The back pay directive contained in the May Decree was

made after the District Court realized that efforts to settle the

back pay issue'' had failed. The District Court thereupon

made the back pay determination itself after consideration of

the contentions of the parties and by directing that several

modifications be made to the back pay calculation plan de-

veloped by the company during the settlement stage.'* On June

12, 1975, the District Court entered its final judgment (the

“June Judgment”) awarding back pay totalling $1,000,000 to

19 Basically, the District Court ordered that only employees hired

before July 2, 1965, who were as of the time of the Decree actively

working for the Company, or who, after July 2, 1965, left the em-

ployment of the Company with at least one year of Company service,

should be included in the back pay calculations (App. 13). The

Court found that “no black employee employed subsequent to July

2, 1965 has suffered any economic loss due to the Company’s testing

and educational requirements or from any other alleged discrimina-

tory practice” (App. 50) (emphasis added ).

11 In February, 1975, the company suggested a back pay calcula-

tion plan (the “Simplified Plan”) and, based upon the plan, ultimately

made a final offer to settle the back pay issue for $560,000 which it

deemed excessive in view of the lack of qualifications and promo-

tional opportunities declined by certain class members whom the

company deemed should be excluded from the back pay award al-

together. Plaintiffs rejected the offer, refusing to abandon their com-

parability approach, which advocates the calculation of back pay

based upon the difference between the gross earnings of a black and

a white with comparable seniority—regardless of other factors such

as qualifications, ability, and voluntary freezing; and the company

would not abandon its (a) individual-proof-of-claims’ approach,

whereby each affected class member would be required to file a

claim and prove his entitlement to a specific amount of back pay,

or, in the alternative, its (b) final offer of $560,000 based upon its

Simplified Plan.

12 The District Court directed the company to modify its Simpli-

fied Plan (see n. 11, supra) by (1) extending the back pay period,

(2) including certain additional employees in the back pay class,

(3) taking into account the average bonus paid to employees over

rants ON cis

841 class members, denying back pay to the remaining 1401

class members, and making further modifications to the LOP’s

(App. 41).

In all of the proceedings referred to above, the law firm of

Adams, Baker and Clemon, in association with Jack Greenberg

and other attorneys of the NAACP Legal Defense Fund, Inc.,

served as the counsel of record for the plaintiff class. Mr.

Adams stated that although the May Decree and June Judg-

ment did not contain every provision sought by Plaintiffs, they

“constituted . . . good decree[s]” and “[sJhould be given an

opportunity to work” and “if they did not work” plaintiffs’

lead counsel, who then had over 27 years experience in civil

rights litigation, “was prepared to come back to the Court for

additional relief to make them work... .”

No motion or request for a trial of the case was made by

Mr. Adams, his firm, or his associate counsel, or by counsel

for the company, at any time after the remand.'* Nor did the

District Court set the case down for trial on the merits at any

time after the remand.

On June 20, 1975, post-judgment objections to and a motion

for reconsideration of the May Decree and June Judgment were

filed pro se by 661 class members, of whom 147 had cashed

their back pay checks and signed the requisite release of claims.

the 9'42-year back pay period, and (4) extending the interest period.

These adjustments raised the total award to slightly less than $1,-

000,000, which the Court rounded off to that figure. The Court then

devised its own method of allocating the gross award, after finding

that the company’s method produced widely disparate results.

13 Mr. Adams supported several of the objections that he made

to the proposed decrees (the first such objections having been filed

in August, 1974) by pointing to the fact that no evidence was in the

record to support various aspects of the proposed decrees. The par-

ties were engaged in settlement negotiations at the time, however,

and after such negotiations failed, no formal motion was made by

Mr. Adams for a trial of the case. As stated above, Mr. Adams

considered the decrees to be good decrees and expressly declined to

take any appeal from the same.

Soon thereafter, several other post-judgment pleadings were

filed purportedly on behalf of the plaintiff class by new counsel,

Mr. Robert L. Wiggins, including motions to present additional

evidence and to substitute Mr. Wiggins’ firm as counsel for the

plaintiff class in lieu of Mr. Adams’ firm and associate counsel.

After two hearings,'* the District Court (1) denied the post-

judgment motion for substitution of counsel but permitted Mr.

Wiggins’ firm to represent the disaffected employees as amicus

curiae; arid (2) entered its Final Order of November 20, 1975

(the “Final Order”), which modified the June Judgment so that

any back pay award not accepted by December 15, 1975. would

be set aside and annulled, and afforded any non-accepting back

pay awardees the right to pursue their individual back pay

claims independently, free of res judicata or collateral estoppel

defenses. The Final Order also overruled all of the remaining

post-judgment motions (App. 47).

On December 4 and 19, 1975, notices of appeal were filed

by 480 class members, of whom 35 had accepted their back

pay awards and executed releases of claims.'*

E

The Decision Below x

On appeal, the Court of Appeals first determined that the

injunctive relief award and the definition of the back pay

subclass were accomplished by the District Court as its own

judgment, whereas the determination of the back pay award

was accomplished by consent of the parties.

In evaluating appellants’ challenges to the injunctive relief,

the Court of Appeals described its “fundamental problem” as

14 At the second hearing, the Stipulation of the Parties referred to

above was read into the record for the purpose of explaining to class

members how the May Decree and June Judgment were arrived at.

19 A total of 399 class members cashed their back pay checks

totalling almost $500,000 and signed the requisite release of claims.

ee We aes

the “absence of an adequately developed factual record” (App.

110). The Court emphasized that it did not criticize the Dis-

trict Court for attempting to resolve the dispute by informal

conciliation procedures (App. 108, 110), but stated that

when it became clear that settlement negotiations would not

bear fruit, “it was incumbent on the court to base its conclu-

sions on evidence in the record” (App. 110).

In response to the company’s contention that the District

Court considered ample evidence in chambers which supported

its findings, the Court of Appeals acknowledged that the

“learned and experienced” district judge may have “conscien-

tiously, logically and intelligently” concluded that his judgment

was correct, and that “[t]here may have been rivers of evidence

coursing through the chambers of the district judge” (App.

110). But the Court of Appeals concluded that without evi-

dence available to it on the record, it was unable to “gauge

the depth of those rivers or assess their navigability as a route

to the district judge’s conclusions” (id.).

Recapitulating its findings in its 1974 decision that class

members were generally concentrated in the less desirable de-

partments, the Court of Appeals found that the injunctive re-

lief fashioned by the District Court, although improving the

transfer and promotional opportunities of class members, none-

theless “[fell] short of the rightful place goal” (App. 128).

The central fault with the injunctive relief was the “initial

preference” given to LOP employees for job vacancies within

the LOP.'®

'® Under the May Decree, whenever a job vacancy occurs within

an LOP, the job is offered first to employees within the same LOP

(typically to the senior incumbent in the job immediately below the

vacant job). If the vacancy is not filled by an employee within the

LOP, it is posted for bidding plant-wide, based upon plant-wide

seniority. e basis for this “initial preference” to LOP employees

was the District Court’s finding that experience within the lower level

LOP jobs is necessary to the safe and efficient operation of higher

jobs in the LOP.

ne

Citing the “well-established principle” that a promotion and

transfer system which impedes the attainment by class members

of their “rightful place” within the company “must be justified

by business necessity” (App. 132), and reiterating the “heavy

burden” placed on the defendant to prove that such “structural

impediments are essential to the goals of plant safety and effi-

ciency (/d.), the Court of Appeals overturned the District Court's

finding that the LOP’s in the departments designated as “non-

craft” by the Fifth Circuit were based upon business necessity,

holding that the finding was “unsupported by the record” (App.

138). In support of its holding, the Court of Appeals pointed to

the (undisputed) fact that no new hearings were held and no ad-

ditional evidence’* was introduced into the record, and that the

District Court improperly relied upon the record of the 1971

trial in support of its findings of business necessity.

Instead of remanding the LOP issue to the District Court for

a trial on the merits, however, the Court of Appeals stated that:

ACIPCO has now had two opportunities to demon-

strate business necessity for lines of progression in the non-

craft departments. It has failed both times to satisfy its

burden of submitting competent evidence on the record

that these lines of progression are functionally related. We

cannot allow the vindication of the statutory rights of black

employees to await yet another proceeding below and a

possible third appeal to this court. The time has come

for definite, if preliminary, action. (App. 140).

The Court of Appeals thereupon ordered the District Court

on remand to enter an “interim order” providing for plant-wide

bidding based on plant seniority on all vacancies in those de-

partments designated “non-craft” by the Court of Appeals,'"

17 Except for the Stipulation of the Parties described above.

1s The company has no designation of its departments as “craft”

or “noncraft”. The departments designated as “noncraft” by the

Court of A s contain approximately one-half of the company’s

craft jobs. Section I(c)(7), infra.

—_ ee

limited only by objective standards for measuring qualifications

to be devised by the company. Under the order, petitioner is ex-

pressly forbidden to promote its employees on the basis of their

relative qualifications,'® although there had been no finding in

any decision rendered in the 1 2+year history of this case that the

company’s practice of promoting on the basis of relative quali-

fications was discriminatory.

The interim order was directed to be entered without any

prior hearing in the District Court. Only if the District Court

“at its discretion” saw fit would the company be given a “final

opportunity” to prove business necessity for its non-craft LOP’s

(App. 142).

The Court of Appeals also reversed in part and affirmed in

part other portions of the injuestive relief awarded by the Dis-

trict Court.?°

1® T.e., the company cannot promote its best qualified employees

to fill job vacancies. Promotions are to be based under the interim

order on plant seniority initially. The company may then reject the

senior bidder only if he fails to meet a “threshold level” of qualifica-

tions (App. 141 n.48).

20 (1) Rate Retention On Transfer (“red circling”). (a) The

limitation on the red circling remedy to class members employed

prior to February 18, 1968, was cihened (App. 145). (b) The

ceiling placed on the retention rate (of Pay Group 8) was removed,

and the District Court was required to provide full red circling for

eligible class members without further hearing on the issue (App.

146). (c) The limitation of the red circling rights to transfers made

within three years of the decree was reversed (App. 147). (d) The

provision terminating the retained rate where the transferee volun-

tarily freezes in the new line or where 104 weeks have elapsed since

the transfer was affirmed as to the voluntary freezing portion but

reversed and remanded as to the 104-week limitation (App. 148).

(2) Supervisory Positions. The District Court’s findings pertaining

to the method of selecting supervisors were reversed and the issue

was remanded (App. 151). (3) Reduction in Workforce and

Recall Provisions. (a) The provision that layoffs will be made in

descending job sequence order in each LOP based on plant seniority

was affirmed (App. 153). (b) The provision that recalls after lay-

offs are to be made in the reverse order of layoffs was reversed, and

the Court of Appeals ordered that after layoffs, less senior

eee

ee et rt ce

» ed et

ee

peak, Sie

Concerning the definition of the back pay subclass, the Court

of Appeals held that it was unable to determine from the record

whether the District Court properly concluded that class mem-

bers employed subsequent to July 2, 1965 had not suffered any

economic loss due to alleged discrimination (App. 164). The

District Court’s denial of back pay to the subclass was vacated

and remanded for a trial.

After having characterized the back pay award as a consent

settlement, the Court of Appeals held that the District Court

abused its discretion in approving the settlement in view of

the widespread dissent to the award (App. 176).

In addition to invalidating the settlement, however, the

Court of Appeals held that the 339 awardees who cashed their

back pay checks and executed releases of claims were nonethe-

less entitled to “reject their awards and participate in further

back pay proceedings” (App. 186).*! Earlier in its opinion,

whites would lose their entitlement to their former jobs in favor of

senior blacks (App. 154). This order was made without reference

to any evidence in the record and without providing for a hearing

on remand. (4) Apprenticeship Program. (a) The age limitation on

apprenticeship applicants was reversed in part, and the District Court

was ordered to modify its order accordingly, without any prior hear-

ing on remand (App. 157). (b) The District Court was also

directed to reconsider the length of the apprenticeship period. (5)

On-the-Job Training. This portion of the District Court’s decree was

remanded for detailed findings concerning the operation of the on-

the-job training program (App. 162).

The reasons given by the Court of Appeals for its rulings just de-

scribed varied widely, including the plainiiffs’ failure 10 demonstrate

on the record sufficient facts in support of certain of their arguments

(App. 145 & 147), the lack of sufficient evidence on the record—

without stating whose burden it was for the same (App. 148, 151, 153)

—and the company’s failure to show business necessity for certain

items (e.g., App. 159). Also widely divergent was the disposition

of these issues by the Fifth Circuit, including the outright imposition

of a remedy without a remand (App. 147, 154 & 157) and the re-

— — issues to the District Court for further hearings (e.g.,

pp. 162).

“1 No requirement was imposed for the return of accepted back

pay as a condition —— to participating in further back pay pro-

ceedings (App. 186)

ee

the Court of Appeals held that these same releasors had stand-

ing to maintain the appeal “notwithstanding the fact that the

waiver form they signed in cashing their checks could be con-

strued as a waiver of their right to appeal” (App. 106) (em-

phasis added ).**

The Court of Appeals stayed its mandate on September 21,

1978, pending review by this Court on certiorari.

22 No attempt was made by the releasors to invalidate their re-

leases in the District Court, and the Court of Appeals did not address

the question of whether the releases were executed voluntarily and

knowingly.

Poe Lo ee

ee a ee ee eed

om Pe

II

REASONS FOR GRANTING THE WRIT

This case presents questions of federal law of great impor-

tance not only to petitioner but also to the sector of the economy

subject to the jurisdiction of federal courts under Title VII.

The unprecedented “interim order,” which not only makes sub-

stantial alterations in petitioner's operating procedures that will

be damaging to plant safety and efficiency, but also requires

the alterations to be made without any evidence having been

adduced in the District Court at any time—prior to or after

the remand—directed to the necessity, fairness, or workability

of the relief, conflicts with this Court’s decision in Furnco

Construction Corp. v. Waters, — U.S. —, 57 L.Ed. 2d 957

(1978), deprives petitioner of due process of law, improperly

usurps the power of the District Court, and exceeds the proper

ambit of appellate court equitable jurisdiction. The unprece-

dented declaration by the Fifth Circuit that petitioner cannot

promote employees on the basis of their relative qualifications

(i.e., petitioner cannot promote its best qualified employees)

conflicts with this Court’s opinion in /nternational Brotherhood

of Teamsters v. United States, 431 U.S. 324 (1977), and po-

tentionally will affect the productivity of a broad sector of the

economy. The Fifth Circuit's invalidation of releases executed

by 399 class members who cashed back pay checks totalling

almost half a million dollars conflicts with this Court’s decision

in Alexwgnder v..Gardner-Denver Co., 415 U.S. 36 (1974).

The Fifth Circuit’s “business necessity” doctrine and the stand-

ards it enunciates governing the award of back pay conflict with

the standards set forth consistently by this Court.

Under these circumstances, this Court should exercise its

powers of supervision to resolve the conflicts that now exist

and to relieve petitioner of the manifest injustice of the de-

cision below.

“7

=

I

The Interim Order

The interim order charts a dangerous new course in enforce-

ment proceedings under employment discrimination laws. It

raises questions of critical importance pertaining to (1) the

proper disposition of an employment discrimination action by

a court of appeals after reversing a district court's findings,?*

and (2) the extent to which and the manner in which a court

of appeals may alter employment practices under Title VII.

A. Upon vacating the District Court’s decree for lack

of a formal trial, the Court of Appeals should

have remanded the case for a formal trial.

As stated above, the parties endeavored conscientiously for

several months on remand to settle this lawsuit, settlement efforts

failed, and the District Court thereupon adjudicated the case

based upon the substantial information it had acquired during

the settlement stage and the 1971 trial.?*

2% This Section I is directed to the Fifth Circuit's disposition of

the promotion and transfer system, which resulted in its imposition

of the interim order, The same arguments are intended to apply,

however, to that Court's disposition of the remaining injunctive issues

without a prior trial. See note 20, supra.

*4 The District Court's decision to adjudicate the case without a

formal trial is, in retrospect, difficult to criticize. It was exhausted

from the settlement efforts, neither party had requested a formal trial,

and the Court felt that it had already been thoroughly educated con-

— the pertinent issues. Even the Fifth Circuit acknowledged

that:

Much of the information and evidence necessary to frame an

adjudicated decree may be known to the district court through

its participation in settlement negotiations .

° * * * * * *

Evidentiary hearings and the submission of exhibits into the

record may sometimes appear redundant and inefficient from

ST ele —?

es - wee FS Oe et ee ee ee

oe

=

Only at the post-judgment stage, when the various post-judg-

ment motions were filed by dissatisfied class members, could

the District Court have second-guessed its decision not to con-

duct a formal trial. By that time, the sheer inertia of the ex-

tensive injunctive relief being implemented and the back pay

checks being mailed out was enough to discourage any serious

thoughts of scrapping the entire package—especially a package

deemed acceptable by counsel of record for both parties.

Under the Fifth Circuit's analysis, the fatal flaw in the

District Court's disposition of the case was that it failed to

conduct a formal trial after settlement efforts failed. The re-

sponsibility for the lack of a trial, under the Fifth Circuit rea-

soning, was upon the District Court:

Sometimes, however, settlement efforts do not achieve

fruition. In these instances the trial court must alter its

role and adjudicate the dispute among the parties. (App.

109) (emphasis added).

It is this background that makes the stated predicate for the

interim order shockingly anomalous and manifestly unfair. In

stating that “ACIPCO” has now had two opportunities to demon-

strate business necessity for its LOP’s and has “failed both

times”—as an apparent justification for imposing the interim

order—the Fifth Circuit illogically placed the entire blame for

the perspectives of the parties and the district court . . . (App.

109) (emphasis added),

Besides, the pronpest of making the wong endless findings en-

visioned by the Fifth Circuit’s 58-page 1974 opinion—inc uding

trudging through its renown “q re of hypothetical possibilities

in the back pay area—was more than enough to persuade the Senior

Judge not to formally transcribe what he already knew. Indeed,

after the June Judgment was entered, finally resolving all of the

issues in the case, plaintiffs’ counsel of record and associate counsel—

both firms enjoying impeccable reputations in the discrimination liti-

gation area—advised the class not to — because of their belief

= decrees were good decrees and should be given a chance to

work,

—

the lack of a formal trial on petitioner. At the very least it

should have divided the blame between all parties—including

the plaintiff class whose counsel of record did not seek a formal

trial—and simply should have remanded the case for a trial.

B. By directing the entry of the interim order the Court of Ap-

peals became a far more serious victim than the District

Court of the same impropriety of which it criticized the

District Court.

The Court of Appeals’ fundainental criticism of the District

Court was that it entered an injunctive decree in the absence

of a fully-developed evidentiary record.*® But the question the

Fifth Circuit never considered was how could there be any

formal evidence, sufficient or insufficient, when the case was

never formally tried on remand?

Instead of remanding the case, however, the Court of Ap-

peals proceeded blithely ahead to direct the entry of an in-

junctive decree without any evidence on the record to support

that decree—precisely the same miscreant procedure of which

it criticized the District Court.

But in this regard the Court of Appeals outdid the District

Court. At least the District Court had the benefit of having

tried the case in 1971 and having become thoroughly educated

in all aspects of the case during the settlement stage. The Court

of Appeals had the benefit of none of the same,

Not only did the Fifth Circuit direct the entry of the interim

order (1) without any evidence on the record directed to the

workability, safety, and efficiency of that order and (2) without

25 Repeatedly, the Court of Appeals vacated various aspects of

the District Court's decree because of “insufficient evidence on the

record” or because the “evidence did not support” the decision or

because there was “no evidence adduced” pertaining to the particular

matter.

Lames ——

scitin . cli

the benefit of the information gained by the District Court on

remand, but—and far more seriously—it directed the entry of

that order (3) in disregard of the findings of the District Court

that the existing system (the LOP-based promotion and transfer

system) was necessary for the safe and efficient operation of

petitioner’s plant.*® Ironically, however, the Fifth Circuit

acknowledged that such findings by the District Court could

have been supported by substantial evidence and intelligently

made (App. 110). By abolishing the present system, therefore,

the Fifth Circuit gambled in an evidentiary vacuum with the

safety and efficiency of petitioner's plant. That Court had to

realize that if such evidence did exist—proving that the pres-

ent system is necessary for the safety and efficiency of the

plant—then the interim order would directly foster dangerous

and inefficient working conditions at petitioner's plant. Peti-

tioner adamantly contends that such evidence does exist and

that the interim order is unworkable, unsafe, and inefficient.

C

The interim order is unworkable and potentially dangerous.

Petitioner feels compelled to summarize briefly the practical

problems created by the interim order, realizing that these have

not been subjected to cross-examination at trial, considered by

the District Court, or reviewed by the Court of Appeals. The

summary action of the Court of Appeals, however, has short-

“6 To compound matters further, the Fifth Circuit ignored the

fact that the District Court’s decree was modeled after decrees im-

plementing virtually identical LOP-based promotion and _ transfer

systems approved by the same Fifth Circuit. E.g., United States v.

Allegheny-Ludlum Industries, Inc., 517 F.2d 826 (Sth Cir, 1975)

(virtually identical LOP-based system approved for application to

some 250 ry in the steel industry); United States v. i K. Porter,

491 F.2d 1105 (Sth Cir.) (virtually identical LOP-based system en-

tered at Fifth Circuit's direction by the same District Judge who de-

cided the instant case at 7 FEP Cases 1021 (N.D. Ala, 1974)).

an 99 oe

circuited these two stages from the federal system of trial and

review, and it is of critical importance to petitioner that the

severity of the problems be appreciated by this Court.

1. The Drastic Nature of the Change—In General. Under

the District Court’s decree, vacancies within an LOP are first

filled by employees within the LOP (usually in the next-lower

job within the LOP). Resulting vacancies are also filled within

the LOP. This system, often referred to as the “team con-

cept”, assures the company of better qualified personnel in its

LOP’s.?? Experience has proven that the employees already

working within the LOP should be given the first opportunity

to fill job vacancies in the LOP (and resulting vacancies) and

that only the relatively less-skilled entry-level jobs should be

filled by a stranger to the LOP. Under the interim order, how-

ever, all vacancies in LOP’s located in the “non-craft” depart-

ments are to be filled by plant-wide bidding based on plant

*7 Years of experience has proven that employees who have

worked together on certain machines (usually different from any

other machines in the plant), who have dealt with their LOP’s prob-

lems over a substantial period of time, and who have learned the

productive functions accomplished by their LOP, are able to perform

the various LOP jobs with a higher degree of efficiency and safety.

When vacancies occur within the LOP, the employees who have

worked in the LOP are possessed with a valuable familiarity of the

vacant job and know-how which usually makes them by far the best

qualified to perform the vacant job. The necessity of LOP’s in simi-

lar manufacturing plants has long been acknowledged, e.g., Whitfield

v. United Steelworkers, 156 F.Supp. 403, 435 (S.D. Tex.

1957), aff'd, 263 F.2d 546 (Sth Cir.), cert. denied, 360 U.S. 902

(1959) (“Efficient and prudent operations require the progression

and promotional system that is carried out in the Lines of Progres-

sion”); United States v. United States Steel Corp., 371 F. Supp. 1045,

1056 n.27 (N.D. Ala. 1973), rev’d on other grds, 520 F.2d 1043

(Sth Cir. 1975) (court found based upon the evidence that business

necessity had been shown for the “basic principle involved in the line

of promotion concept.”); Taylor v. Armco Steel Corp., 373 F. Supp.

885, 910 (S.D. Tex. 1973) (“The LOP’s promote safety and effi-

ciency by insuring job related training and job familiarity. While

other configurations of the jobs and lines can no doubt be arranged,

the line concept itself is a valid one, reasonably related to legitimate

business purposes and ‘essential’ to their attainment.”).

—

seniority. Senior bidders will typically be less-skilled employ-

ees from wholly different departments—and they will typically

be bidding on jobs involving entirely new machines and proc-

esses, and requiring much higher skills and experience that

only having worked in the LOP for a substantial period of time

can provide. More importantly, however, the interim order

reveals that the Fifth Circuit was unaware of the necessity of

the LOP’s themselves, as an integral part of a productive proc-

ess (see Sections 2, 3, 4, 5, and 8, infra). Obviously concerned

only with the functional-relatedness of jobs within each LOP,

the Fifth Circuit never thought to ascertain the function of the

LOP-based system itself. In short, the interim order attempts

to make a seriously disruptive, major alteration in the produc-

tive process utilized by the company. LOP’s in “non-craft”

departments are totally abolished under that order and a com-

pletely new system—heretofore untried and untested—is re-

quired to be imposed.

2. The Multiplier Effect. Under the interim order, when a

vacancy is bid, the supervisor will receive a list of bidders from

numerous other departments, and after several days of paper-

work and harried effort to ascertain the experience and capa-

bilities of the bidders, followed by several meetings between

supervisors to investigate and evaluate the relative qualifica-

tions of the bidders, the vacancy will be awarded ww the suc-

cessful bidder who will transfer from, say, department “X”.

That will automatically create a vacancy in department “X”.

Then the same bidding and investigative procedure will have

to be repeated to fill that vacancy. After the department “X”

vacancy is filled, another vacancy in department “Y” will be

created. The procedure will again have to be repeated. The

interim order will transform what has been an efficient and

routine procedure for filling vacancies into a major brushfire

spread automatically by the wind each time it was thought to

have expired.

an oe

3. Inability to Add Shifts in Time to Meet Increased Prod-

uct Demand. One of ACIPCO’s competitive advantages has

been its ability to add shifts of employees quickly and thereby

increase production in response to rapid demand increases.?”

This advantage has been made possible by the flexibility af-

forded by the LOP’s. Progression lines provide clearly-under-

stood paths for the expansion of trained manpower in minimum

time. Under the interim order, it would take weeeks to evalu-

ate and select bidders from departments all over the plant.

Training of an entire LOP of strangers would require months.

The same chain of vacancies throughout the plant discussed

above would result—on a much larger scale. In short, under

the interim order, the company could not commit to the type

of rapid production increases which are necessary to obtain

important orders. Its competitive advantage would be lost.

4. Inefficiency in Shift Reductions, As with most substantial

manufacturing companies, ACIPCO experiences shift reduc-

tions in periods of recession and low demand. Under the

District Court’s decree, the company cuts back from two to

one shift, for instance, by cutting back employees in descending

job sequence order in each LOP, based on plant seniority (App.

2). Employees bump down the LOP until they reach a job

on which they are most senior. Having progressed up the same

jobs in the LOP, the employees are well qualified to perform

any lower-level job in the LOP. Under the interim order, an

employee might transfer into a strange new LOP with minimum

qualifications and finally be taught to perform his job. But

when a reduction in force occurs, he will not have performed

and will not know how to perform the lower-level job(s) in the

LOP. To what job will he transfer? The interim order does

not say. Shift reductions occur in lean times when costs are

28 Asa direct result of this flexibility and responsiveness, petitioner

has been able to compete successfully with foreign producers and

has received several large export orders (to oil-producing countries

in the Middle East).

= Aen

competitive. Petitioner must have well-trained, highly-produc-

tive employees to weather recessions. It should not be required

to iose its better-qualified employees and have to rely on less-

qualified trainees when economic conditions sour.

5. Inability to Fill Vacancies With Employees Known to Be

Qualified. Under the LOP system, promotions up the progres-

sion line to fill vacancies are not automatic. The foreman has

observed each employee in the LOP at work?" for a substantial

pcriod of time, and it is his responsibility to insure that no

employee stepping up is unqualified to perform his job. Under

the interim order, when vacancies are posted, a foreman will

be faced with a list of bidders who not only are strangers to

him, but whose work performance he has not observed and

whose qualifications he does not know. The foreman will not

be able to be sure or even relatively sure that any bidder will

be able to perform the vacant job, and could never be held

accountable for having placed an incompetent employee on a

job. The result will be an inability to fill job vacancies with

employees known to be qualified.

6. Destruction of Trainee Program. Perhaps the best op-

portunity for black advancement into the highest-paying jobs

in the plant is the trainee program,"” which requires advance-

ment through designated LOP jobs for the acquisition of the

skills and training needed for craft rating. With all vacancies

** Typically, employees within the LOP prepare themselves for

anticipated promotional opportunities by acquiring training on higher

jobs in the LOP, usually by filling temporary vacancies on the jobs.

%0 The company has two training methods by which employees

can become craftsmen (the highest-rated P & M jobs in the plant),

the apprenticeship program and the trainee program. Of the 41

blacks on craft jobs, 25 reached craft status through the trainee pro-

gram and 16 through the apprenticeship program. This program is

especially well-suited for employees (black and white) who are be-

yond apprentice age and who are unable to keep pace with ICS les-

sons and the faster training provided under the apprenticeship pro-

gram.

aa 26 —=

subject to plant bidding, however, blacks in trainee progression

jobs will be impeded repeatedly when the higher jobs required

for craft training are filled by senior bidders—black and white.

Furthermore, the employees who bid into those intermediate

jobs, being typically senior employees, will be less likely to

want to progress to craft status. Thus, not only will there be

fewer opportunities for blacks to become craftsmen, but the

company’s ability to obtain experienced craftsmen will be com-

promised.

7, Administrative Anomaly. Under the interim order, four

of petitioner’s departments were characterized as “craft and

technical” departments, which will retain their LOP’s. In nine

departments labeled as “non-craft,” the LOP’s will be abol-

ished and all vacancies will be filled by plant wide bidding

(App. 139-140 & n.45). What the Fifth Circuit failed to

realize, however, is that: (1) Although the overall skill levels

are higher in the departments characterized as “craft and tech-

nical,” neither departments nor LOP’s are properly classified

as “craft” or “non-craft”. Approximately one-half of petition-

er’s craft jobs are located in the “non-craft” departments.*!

LOP’s are rarely filled exclusively by craft jobs; almost every

LOP (in “craft” and “non-craft” departments) that contains a

craft job will contain only one or two such jobs.** (2) The

41 If the Fifth Circuit intended to classify petitioner’s departments

based on the existence of craft jobs within the department, therefore,

it misclassified as “non-craft”, five departments which contain

LOP’s with one or more craft jobs. The construction department,

for instance, which received the “non-craft” label, is a major craft

department in the sense that it contains craftsmen from five different

crafts (carpenters, brickmasons, tinsmiths, painters, and scale me-

chanics).

%2 The skill levels in the LOP’s do not jump from “unskilled”

to “craft”. The skill levels in each LOP vary in fairly even grada-

tions from relatively low in the entry-level jobs to high in the top

craft jobs. There are numerous jobs in each department that, while

not classified as craft jobs, — high levels of skill, are specialized,

and are critical to operational éfficiency and product quality. These

jobs are designated as “critical” jobs in the LOP’s.

ee

presence of numerous craftsmen in “non-craft” department

LOP’s creates several anomalies in the operation of the various

provisions of the interim order, such as the layoff and transfer

provisions.” The interim order creates an irreconcilable dual

system calling for one promotion system (using LOP’s) in 4

departments and another system (using plant-wide bidding) in

9 departments, with craftsmen caught squarely in the middle.

Due to its conceptual infirmities, the interim order would be

extremely difficult to administer,** especially in the craft area

which is of vital importance to petitioner's productive efficiency.

8. Loss and Dispersion of Valuable Skills. Petitioner has

an important interest in maintaining high skill levels in each

LOP. The training and experience gained by employees in an

LOP are invaluable in terms of performing higher-rated jobs

within the LOP. Under the interim order, random job-hopping

will occur between LOP’s. Always interested in greener pas-

tures, employees—both white and black—will transfer to in-

termediate jobs in unrelated LOP’s. That will result in an ab-

solute loss to the company of (1) the transferee’s accumulated

skills in his old LOP, ana (2) the skills of the incumbent in the

‘8 Surely a vacancy in a craft job should not be subject to plant-

wide bidding based on plant seniority simply because it is in a “non-

craft” department. Such a result would allow employees to attempt

to bypass the meg and trainee programs to fill craft jobs

that even the Fifth Circuit acknowledged were highly-skilled and in-

appropriate for ;.ant-wide bidding. Likewise, craftsmen in “non-

craft” department LOP’s should not be laid off ahead of non-crafts-

men possessing more plant seniority, nor should they be bumped by

senior non-craft blacks on recalls from layoffs. Logically, crafts-

men should not be treated differently merely because they work

in separate departments, one labeled “craft” and the other “non-

craft”.

‘4 By comparison, implementation of the District Court's injunc-

tive relief, which was infinitely less complex and which provided de-

tailed policies and procedures explaining a wide range of situations,

required several training sessions with over 300 supervisors and count-

less telephone conversations, meetings, and conferences by all levels

of management.

=

transferee’s new LOP who was better qualified than the trans-

feree to fill the vacancy.

9, Increased Hazard to Employee Safety. Allowing strangers

from remote departments to transfer by plant-wide bidding into

intermediate jobs in different departments to work around mov-

ing machinery, under overhead cranes, handling molten metal,

etc., is sucidal in terms of employee safety. Working in a large

plant in the hot-metal industry is not like attending school—

even standing still in the wrong place can lead to a serious ac-

cident. When accidents do occur, the potential is present for

them to be quite serious, all too often resulting in explosions,

deaths, and losses of limbs. With present progression lines, stran-

gers with rare exception enter only on entry level jobs generally

around the fringes and learn the flow of materials and hazards

as they move up into higher-speed, more technical jobs.*° ’ Un-

der the new system, a significant increase in accidents can be

expected. Working conditions will simply be more hazardous

to everybody, the transferees and those around him on his

team.

10. Decrease in Qualified Personnel. The Fifth Circuit stated

that nothing in its opinion should be construed to mean that

the company must place anyone in a job for which he is not

qualified (App. 141). Unfortunately, under the practical reali-

ties of the interim order, that caveat amounts to academic lip-

service to a standard impossible to reach under the requisite

means, as explained hereinabove. Practically, the interim or-

der will result in the filling of jobs with less-qualified** and

unqualified employees. The result will be a decline in product

5 Under the present system, ACIPCO’s accident rate has been held

to one-third the rate of the industry. Last year petitioner received a

major award for safety from the National Safety Council.

36 See Section II, infra.

Li TI ee

quality and an increased hazard to employee and consumer

safety.**

In summary, the interim order exemplifies the problems

that courts of appeals face when they act without the benefit

of findings by district courts and thereby meddle in areas in

which they have no independent expertise. The problem was

addressed by this Court recently in surprising!y similar circum-

stances in Furnco Construction Corporation v. Waters, — U.S.

—, 57 L.Ed. 2d 957, 968 (1978):

The dangers of embarking on a course such as that

charted by the Court of Appeals here, where the court

requires businesses to adopt what it perceives to be the

“best” hiring procedures, are nowhere more evident than

in the record of this very case. Not only does the record

not reveal that the court’s suggested hiring procedure

would work satisfactorily, but there is nothing in the record

to indicate that it would be any less “haphazard, arbitrary,

and subjective” then Furnco’s method, which the Court

of Appeals criticizes as deficient for exactly those reasons.

Courts are generally less competent than employers to re-

structure business practices, and unless mandated to do so

by Congress they should not attempt it. .

On the authority of Furnco alone, the interim order re-

quirement and the other items of injunctive relief awarded by

the Fifth Circuit in a similar manner (see note 20, supra)

should be vacated.

*7 The company’s products generally transmit high pressure water

and gas. Failures in service due to defective castings, pipe, or de-

ficient iron strength can cause gas explosions or water flooding with

property damage and injury. These failures are often extremely

costly as in the case where miles of defective pipe are installed under

city streets and buildings.

is Nt

‘D

The Interim Order Deprives Petitioner of Due Process of Law

The imposition of we interim order prior to a trial** on re-

mand, and without the issues raised by the interim order having

been tried in the 1971 trial, fails to afford petitioner even the

rudiments of due process.

Standing alone, this due process deprivation constitutes a sub-

stantial departure from the accepted and usual course of judicial

proceedings. But when juxtaposed with the drastic nature of the

remedy imposed, which affects the very ability of petitioner to

produce—and with the fact that the Court of Appeals was

unaware of the effects of that order—the due process depriva-

tion is egregious.

The Court of Appeals’ reasoning for imposing the interim

order was in part based upon a waiver-of-proof theory, that

petitioner had had two opportunities to prove the business neces-

sity of its LOP’s and had failed both times. The most recent

opportunity referred to was the 1974-1975 remand period fol-

lowing the Court of Appeals’ 1974 decision. As petitioner

has already shown above, it proved the business necessity in its

LOP’s during that remand period in the informal proceedings

before the District Court. The District Court expressly found

the same in its Final Order (App. 48). To ignore totally the

evidence adduced in those proceedings, to deprive the company

of the opportunity to have such evidence transcribed in a hear-

ing on remand, and further to impose relief flatly repugnant

to the evidence informally adduced and the findings of the

District Court,*® constitutes not only a deprivation of due proc-

ess but is also manifestly unjust to petitioner.

38 Even the opportunity for that trial is subject to the discretion

of the District Court.

39 See Section 1(B), supra.

—

The earlier opportunity referred to by the Court of Appeals

was the October 1971 trial. But the central issue raised at that

trial was whether petitioner’s departmental seniority system was

justified by business necessity. The concern of plaintiffs has

always been to streamline the existing LOP’s (by increasing the

number of connecting lines between jobs within LOP’s, the job

boxing, etc.) so as to expedite the upward movement of class

members,.*” The question of the validity of the LOP structure

itself was never raised—at the October 1971 trial or even in

the post-1974 remand period in which plaintiffs’ counsel of

record made objections to the decrees proposed by petitioner.

Indeed, at the October 31, 1975 post-judgment hearing—some

four years after the trial—plaintiffs’ counsel of record, Mr.

Adams, stated that:

I talked with the company’s experts and I’ve talked with

and we had our own experts in the trial and I must say

that when they look at the lines of progression, they did not

make any substantial alteration. They did say there were

some transfers of skill.*!

In short, the question of the validity of petitioner's LOP-based

promotion and transfer system was not legally relevant in the

1971 trial and was answered in favor of the validity of that

system by the District Court in the last remand.** The abolition

4° As stated above, the District Court’s May Decree substantially

altered the pre-existing LOP’s by requiring such connecting, boxing,

etc., to allow such upward movement.

4! Transcript of October 31, 1977 hearing (emphasis added. )

That statement alone should have put the Court of Appeals on notice

that the District Court's a business necessity in the LOP’s

was based on sound evidence. Even the plaintiffs’ counsel of record

for over 10 years was basically satisfied not only with the LOP-based

system, but also with that system as modified by the District Court.

*2 Respondents’ present counsel moved the District Court for a

trial on the merits, asserting as one ground the lack of ar 4

rt

the record in support of the District Court’s injunctive relief,

motion was made post-judgment and was denied by the Dist ourt.

Pe

of that system was never sought by plaintiffs’ counsel of record

in the 12-year history of this case. For the Court of Appeals,

therefore, to assert that petitioner has waived an opportunity to

put on evidence relating to issues that have never been relevant

or which have been resolved in petitioner's favor by the District

Court is erroneous and unjust. And its subsequent imposition

of « remedy before trial denies petitioner of due process of law.

The Court of Appeals, in effect, admits that its interim order

deprives petitioner of due process, It provided that—after the

imposition of the interim order—the District Court “may, at

its discretion” give petitioner a “final opportunity” to prove

business necessity for its LOP’s (App. 142). The right of

petitioner to a hearing on the interim order requirement is

accordingly recognized—yet, only after the massive alterations

in plant operations have been made affecting the ability of pe-

titioner to operate its plant efficiently and safely. This amounts

to no more than due process “after the fact”. Due process,

however, requires an opportunity for a hearing to be afforded

prior to the deprivation of any interest in liberty or property.

E.g., Fuentes v. Shevin, 407 U.S. 67 (1973); Sniadach v.

Family Finance Corporation, 395 U.S. 337 (1969). If pe-

titioner is entitled to a hearing at all—which the Court of Ap-

peals apparently concedes—then it is entitled to a hearing prior

to the entry of the interim order.

E

The Decision Below Improperly Usurps the Power of the Dis-

trict Court on Remand and Is Beyond the Ambit of Appellate

Court Remedial Jurisdiction.

The Court of Appeals in the decision below directs the Dis-

trict Court to enter the interim order prior to any findings by

the District Court that the interim order is necessary, fair, or

workable. This is an intrusion on the proper function of the

~~. oe

District Court. It is also beyond the ambit of appellate court

remedial jurisdiction.

Although the jurisdiction of intermediate appellate courts

to review final decisions of district courts, 28 U.S.C. § 1291,

and to r-verse, remand, modify or otherwise dispose of district

court orders, 28 U.S.C. § 2106, is undeniably broad, equitable

powers are not without limitation. In decisions involving the

restructuring of public or private instructions, the limits of

equitable jurisdiction have been scrupulously observed.*"

In Lemmon v. Kurtzman, 411 U.S. 192 (1973), this Court

stated that “. . . equitable remedies are a special blend of

what is necessary, what is fair, and what is workable.” Id. at

200 (emphasis added). The restructuring of the operating pro-

cedures of a substantial manufacturing company should be left

in the first instance to the District Court. That Court should

decide whether the restructuring is necessary, and if so, should

determine how best to tailor and fashion the relief to the

peculiar circumstances of the employer so that the restructured

system will be workable and fair to all concerned.**

1% E.g., Whitcomb v. Chavis, 403 U.S. 124, 161 (1971) (sweep-

ing legislative reapportionment remedy mandated by three-judge

district court overturned); Minnesota State Senate v. Beens, 4

U.S. 187, 199 (1972) (drastic modification in Minnesota Legisla-

ture by three-judge court overturned); Milliken v. Bradley, 418 U.S.

717 (1974) (this Court overturned a multidistrict areawide remedy

in an educational discrimination action noting the limits of equitable

jurisdiction and, especially, the lack of a “meaningfu! opportunity”

for the outlying school districts to present evidence concerning t

propriety of the multidistrict remedy). See Swann v. Charlotte-Meck-

lenburg Board of Education, 402 U.S. 1, 31 (1971) (public school

system ).

‘4 E.2., International Brotherhood of Teamsters v. United States,

431 U.S. 324, 376 (1977); Albemarle Paper Co. v. Moody,” 422

U.S. 405, 416, 436 (1975); Franks v. Bowman Transportation Co.,

424 U.S. 747, 779 (1976); Furnco Construction Co. v. Waters, —

U.S. —, 57 L.Ed. 2d 957 (1978). Cf., City of Los Angeles v. Man-

hart, — U.S. —, 98 S.Ct. 1370, 1386, 1388 (1978) (Marshal, J.,

concurring in part and dissenting in part).

ae OO ve

Il

Relative Versus Minimal Qualification

Under the District Court's decree, the standard for selecting

among employees for purposes of promotions was set forth

as follows (App. 141 n. 48):

Qualifications considered in promotion are:

A. Skill, knowledge, training and efficiency

B. Physical fitness

C. Length of service

Where factors A and B are relatively equal, employees

with the greatest length of plant continuous service will

be given preference.

A virtually identical promotion standard is contained in nu-

mcrous collective bargaining agreements across the country for

similar manufacturing concerns organized by unions.***

The Court of Appeals found that definition of “qualifications”

to be inappropriate insofar as it allowed petitioner to consider

relative skill, knowledge and training “before seniority is con-

sidered”, stating that (App. 141 n. 48) (emphasis added):

If accepted, this definition [of qualifications] would allow

the company in almost every case to place an incumbent

in the line because he was “more qualified” than a trans-

feree, even though the transferee may be fully qualified and

have superior plant seniority. On remand the court must

448 For those applicable in the steel industry, see e.g., Steel In-

dustry Consent Decree, 8 BNA FEP Manual 431:125, para. 9 at

pp. 137-138, approved, United States v. Allegheny-Ludlum Indus-

tries, Inc., 517 F.2d 826 (Sth Cir. 1975) (same basic standard for

promotion contained in collective bargaining agreements approved

for application to some 250 plants in steel industry); United States

v. H. K. Porter, 7 FEP Cases 1021, 1026 (N.D. Ala.), approved,

491 F.2d 1105 (Sth Cir. 1974) (same standard approved).

aT,

provide that bidding be based initially on plant seniority.

The plant may then reject the senior-most bidder only if

he fails to meet a threshold level of skill, knowledge and

training necessary to perform that job adequately.

Curiously, the Court of Appeals acknowledged in the above-

quoted passage that incumbents in the LOP will be more quali-

fied to fill vacancies in the line than transferees, in “almost

every case.” That is precisely the point argued by petitioner,

and, in addition, petitioner argues that transferees (with rare

exceptions) will be unqualified to perform intermediate jobs in

LOP’s safely and efficiently.

But the critical issue is whether petitioner is prohibited from

filling job vacancies with its best qualified employees. The

Court of Appeals flatly proscribes it, saying that only a “thresh-

old level” of qualifications necessary to perform the job “ade-

quately” is sufficient to entitle the senior bidder to the job.

Filling a job on the basis of relative qualifications is, per se,

nondiscriminatory. See 42 U.S.C.A. § 2000e-2(a) (App. 191).

This Court in Teamsters stated that only employment deci-

sions “based on a discriminatory criterion illegal under the

Act” can support inferences of discrimination, and that the

formula set forth in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973) for proving the elements of a prima facie case:

[DJoes demand that the alleged discriminatee demonstrate

at least that his rejection did not result from the two most

common legitimate reasons on which an employer might

rely to reject a job applicant: an absolute or relative lack

of qualifications or the absence of a vacancy in the job

sought. (431 U.S. at 358 n. 44) (emphasis added).

This Court in Teamsters further stated that even though an

employee can show that he was qualified for a certain job and

would have applied for such job absent discrimination, the em-

=

ployer can show that such employee was nevertheless not a

victim of discrimination:

For example, the employer might show that there were

other, more qualified persons who would have been chosen

for a particular vacancy, or that the nonapplicant’s stated

qualifications were insufficient.

431 U.S. at 369 n. 53, citing Franks v. Bowman Transporta-

tion Co., 424 U.S. 747, 773 n.32 (1976).

Under Teamsters, therefore, relative qualification is clearly

not a criterion illegal under the Act. The prohibition in the de-

cision below against promoting on the basis of relative qualifi-

cations is contrary to Teamsters, will cast a shadow on numer-

ous collective bargaining agreements across the country, and

will encourage mediocrity in employee performance. Cognizant

that promotions will be based on seniority alone, employees will

have no incentives to excel and improve their performance. The

result will be an overall decline in the ability, aggressiveness, and

efficiency of the workforce—a result clearly never intended by

Congress in enacting Title VII. The ability of ACIPCO to com-

pete successfully in the highly competitive pipe industry is due

in large part to its ability to encourage and harness the collective

competitive energies of its employees. The prospect of denying

a job vacancy to an employee who has put forth the extra effort

necessary to be the best qualified, whose performance will di-

rectly result in higher overall efficiency, fewer accidents, and

higher profits—in favor of an employee barely qualified to per-

form a job—is contrary to common sense and certainly unwar-

ranted under Title VII as construed by this Court.

lil

The Back Pay Releases

Are releases of claims under employment discrimination laws

valid if voluntarily and knowingly executed? Petitioner under-

wie WT ale

stood that question to have been answered by this Court in Alex-

ander v. Gardner-Denver Co., 415 U.S. 36 (1974), which held

that the mere submission of an employment discrimination claim

to arbitration did not, on election of remedies grounds, preclude

a suit in federal court under Title VII. In dicta, however, the

Court stated that had the parties reached a “voluntary settle-

ment” of their claims “conditioned on a waiver of petitioner’s

cause of action under Title VII,” that such waiver would be

valid if “voluntary and knowing.” 415 U.S. at 52 n.15.

Even the Fifth Circuit in United States v. Allegheny-Ludlum

Industries, Inc., 517 F.2d 826 (Sth Cir. 1975), upheld the use

of release forms in connection with the nationwide steel industry

consent settlement, stating that:

Very frankly, we cannot conceive of how any employment

discrimination dispute could ever be resolved outside, or

indeed inside, the courtroom, if defendants were forbidden

to obtain binding, negotiated settlements. No defendant

would ever deliver money, promises, o1 any other considera-

tion—not even a peppercorn—except after entry of a con-

tested, final court order, and even this, on appellants’ rea-

soning, might not end the matter. (517 F.2d at 858-59).

But the same Fifth Circuit in the instant case rode roughshod

over releases executed by 399 class members who received

and cashed back pay checks totalling almost half a million

dollars—without any attempted showing by the releasors that

the releases were involuntarily or unknowingly executed or any

discussion of such issue by the Court of Appeals.

The Court of Appeals accomplished this feat by first char-

acterizing the back pay judgment as a consent judgment, and

then by holding that the class members should not have been

required to “opt into” the back pay “settlement” before a final

determination of the propriety of that settlement is made (App.

186).

—

Petitioner is still unable to comprehend how the back pay

judgment became a consent judgment without its consent to

the same, but apart from that problem, petitioner submits that

releases of claims are valid, if executed voluntarily and know-

ingly, whether executed in connection with consent settlements

or litigated judgments on the merits. Releases of claims should

not be subject to invalidation without a showing that the releases

were involuntarily or unknowingly executed. The invalidation

of the releases in the instant case without a trial has deprived

petitioner of property (almost half a million dollars) without

due process of law.

In view of the increasing number of employment discrim-

ination actions, the numerous forums available for the vindi-

cation of equal employment rights, and the numerous parallel

and overlapping remedies available for such vindication, the

release of claims is about the only means by which an em-

ployer may obtain an end to discrimination lawsuits. The

decision below is of critical importance to enforcement pro-

ceedings in the employment discrimination area and this Court

should exercise its supervisory powers to resolve the conflict

and uncertainty in this important area created by the decision

below.

IV

Business Necessity

This Court has consistently set forth a three-step standard

governing the determination of whether a particular business

practice is unlawful: First, the plaintiff must make out a prima

facie case of discrimination (for example, that employment

tests select applicants for promotion in a racial pattern sig-

nificantly different from that of the pool of applicants). Second,

the employer may rebut the prima facie case by showing that

the employment practice is “job related.” Third, the burden

—

then shifts back to the plaintiff to demonstrate that other sub-

stitute employment practices will also serve the employer's

legitimate interest in efficient and trustworthy workmanship.**

In the Fifth Circuit, however, a far different standard exists

for determining whether a business practice is unlawful. Upon

finding in 1972 the existence of discrimination*® and that peti-

tioner’s departmental seniority system perpetuated the effects

of the discrimination,*’ the Fifth Circuit ordered the abolition

of that system, including the progression lines, subject only to

petitioner’s right to demonstrate a “business necessity” for the

LOPs (App. 115). The burden on petitioner to prove busi-

ness necessity was said to be “heavy”; the fact that the

LOPs served “legitimate management functions” and “directly

foster safety and efficiency of a plant” was not enough (App.

115-16). For the LOP system to be preserved, petitioner was

required to sustain its burden of demonstrating an “irresistible

demand” for such system as being “essential” to petitioner’s

safety and efficiency and further demonstrate “no acceptable

alternatives” for accomplishing those goals (id.).

The procedure mandated by the Fifth Circuit directly con-

flicts with the procedure set forth by this Court, in two major

4° Furnco Construction Corp. v. Waters, — U.S. —, 57 L.Ed. 2d

957, 968 (1978); Albemarle Paper Co. v. Moody, 422 U.S. 405,

425 (1975); Dothard v. Rawlinson, 433 U.S. 321, 339 (1977)

(concurring opinion of Rehnquist, J.); McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802, 804-805 (1973).

46 Basically pre-Act assignment discrimination and unlawful test-

ing and education requirements. See note 6, supra.

4" Because of the seniority system, the Court of Appeals found in

1972 that black employees desiring to transfer to a department with

better promotional opportunities would have to forfeit seniority in

transferring, and after transferring, would not be able to compete

equally for promotion with whites who had more departmental sen-

iority yet less plant seniority than the transferee (App. 114). This

“lock-in” effect was eliminated by the May, 1975 Decree, however,

which awarded transfer rights based on plant seniority to all employees

and rate retention for transferring blacks.

=e ee

respects. First, under the second step referred to above, the

employer need only show that the practice is “job related.”

Albemarle, 422 U.S. at 425; Furnco, 57 L.Ed. 2d at 968

(“the employer need only ‘articulate some nondiscriminatory

reason’ for the practice in question), The Fifth Circuit im-

properly transforms the “job related” burden into a Herculean

burden of showing an “irresistible demand” for the system and

“no acceptable alternatives ”

Second, under the decision below, the third step of this

Court’s standard is omitted. The plaintiff is not required to

propose any alternative practices under the Fifth Circuit's

standard, or sustain any burden whatsoever to prove that an

alternative system exists that will be as workable, safe, and

efficient as the existing system.**

Comprised in petitioner’s fourth question is the important

subsidiary question of whether this Court’s three-step proce-

dure applies to employment practices found to be neutrally

applied, without regard to race, but which have been found

to perpetuate the effects of past discrimination.*” Petitioner

submits that it should. When deciding whether to restructure

neutral employment practices’ in an effort to enable discrim-

inatees to achieve their rightful places, district courts should

45 Technically, under the Fifth Circuit’s standard, this Court’s

third step is compressed into this Court’s second step and the burden

is reversed, by requiring the employer to prove the negative—that no

acceptable alternative practices exist.

#° In every case in which this Court has applied its three-step pro-

cedure discussed above, the question has been whether a specific

etnployment practice shown to be discriminatory should be enjoined.

Griggs v. Duke Power Co., 401 U.S. 421, 432 (1971) (employment

tests); Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975)

(employment tests); General Electric v. Gilbert, 429 U.S. 125, 97

S.Ct. 409 n.14 (1976) (pregnancy leave disability plan); Dothard

v. Rawlinson, 433 U.S. 321, 329 (1977) (minimum height and

weight requirements).

5” E.g., petitioner’s LOP-based promotion and transfer system.

ee ee ee

wom 0 ne

not cast aside every practice thought to impede such advance-

ment without proof that alternative measures exist that are

equally as safe and efficient as the existing practices. Plaintiffs

should be required to shoulder some burden for this proof,

and employers should be allowed to demonstrate that certain

alternative measures suggested are less efficient and safe than

the existing procedures.

Vv

The District Court’s Discretion Over

the Back Pay Award

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

this Court held that the award of back pay is not an “automatic

or mandatory” remedy, but is subject “in the first instance” to

the discretion of the district courts, which discretion is to be

guided by the “twin statutory objectives” of the back pay rem-

edy—to insure future compliance with the Act and to com-

pensate victims of discrimination.”' This Court thereby over-

turned the “special circumstances” test which made the award

of back pay virtually automatic, expressly citing the Fifth

Circuit’s prior decision in the instant case, Pettway v. American

Cast Iron Pipe Co., 494 F.2d 211 (Sth Cir. 1974), as one of

the circuits articulating such a test. 422 U.S. 413 & n.6.

In the decision below, however, the Fifth Circuit in its guide-

lines to the District Court for the award of back pay,®? requires

that Court to follow the guidelines set forth in its prior opinion,

Pettway, 494 F.2d 211, and other Fifth Circuit opinions (App.

163-69). Nowhere is the District Court clearly required (or

51 Accord, City of Los Angeles v. Manhart, — U.S. —. 98 S.Ct.

1370, 1381 & n.35 (1978) citing Albemarle.

52 Although back pay was awarded to 841 class members, it was

denied to the 1401 class members who were hired after July 2, 1965

(see Statement of the Case, Section C, supra).

_~.

allowed) to exercise any discretion over the award of back

pay consistent with Albemarle. The award of back pay appears

once again to be virtually automatic in the Fifth Circuit.

VI

Class Members’ Burden to Demonstrate That They

Were Victimized by Unlawful Discrimination

The Fifth Circuit's approach to the back pay and injunctive

relief issues was premised upon its statement that “[t}here is

no way of determining which jobs the class members would

have bid on and have obtained” in the absence of the discrim-

inatory policies. 494 F.2d at 260. Therefore, as stated by the

Fifth Circuit, the “maximum burden” that can be imposed on

the individual claimant for back pay purposes is to require a

“statement” of his (1) current position and pay rate, (2) the

jobs he was denied because of discrimination and their pay

rates, (3) a record of his employment history that qualified

him for the denied positions, ard (4) an estimation of the

amount of requested back pay. The burden then shifts to the

company to challenge particular class members’ entitlement to

back pay (App. 169). In computing the final award, “un-

realistic exactitude” is not required, and “uncertainties” in

determining what an employee would have earned but for the

discrimination “are to be resolved against the discriminating

employer” (J/d.).

In Teamsters, this Court made it clear that even though

discriminatory employment policies are found to exist, indi-

vidual class members must show that they were potentially

victimized by those policies, or else there is no unlawful discrimi-

nation as to them:

Because [a nonapplicant] is necessarily claiming that he

was deterred from applying for the job by the employer's

—

discriminatory practices, his is not always the easy burden

of proving that he would have applied for the job had it not

been for those practices (431 U.S. at 367-68).

Thus, in the instant case, any class members who would

not have desired to transfer to a different department even

though no discriminatory educational or testing policies existed,

cannot claim to be potential victims of unlawful discrimination

under Teamsters.** More importantly, the question of whether

class members would have transferred absent such policies can-

not be avoided by concluding that “[t]here is no way of de-

termining” the matter.

The injunctive relief awarded by the District Court has been

in effect for over three years, and petitioner does not contend

that class members should be required now to prove that they

were potential victims of discrimination as a prerequisite to

their entitlement to that relief. Petitioner does contend, how-

ever, that class members should be required to bear such burden

as a prerequisite to any back pay relief*’ and to any transfer

rights under the interim order.

** In the District Court’s 1972 opinion, one of the principal rea-

sons for its denial of back pay to the class was the “voluntary freezing”

by class members into lower-paying go consisting, inter alia, of:

(1) declinations by class members of promotional opportunities of-

fered to them; (2) demotions of class members due to their inability

to perform certain jobs satisfactorily; and (3) refusals by class mem-

bers to bid on job vacancies posted in the plant. 7 FEP Cases 1016.

*4 See Mitchell v. Mid-Continent Spring Co., — F.2d —,.17 FEP

Cases 1594, 1601 (6th Cir., Sept. 8, 1978) (Sixth Circuit cOnstrued

Teamsters as overturning Fifth Circuit’s standard for awarding back

pay articulated in Pettway, 494 F.2d at 260, quoted above).

pee

CONCLUSION

For these reasons, a Writ of Certiorari should issue to review

the judgment of the United States Court of Appeals for the

Fifth Circuit.

Respectfully submitted,

J. R. FORMAN, JR.

GUY V. MARTIN, JR.

1600 Bank for Savings Building

Birmingham, Alabama 35203

Telephone: (205) 251-3000

Counsel for Petitioner

THOMAS, TALIAFERRO,

FORMAN, BURR

& MURRAY

1600 Bank for Savings Building

Birmingham, Alabama 35203

Telephone: (205) 251-3000

Of Counsel

November 8, 1978

oe

APPENDIX A

Decree of the District Court for the Northern

District of Alabama Entered May 14, 1975

— =

In the United States District Court

For the Northern District of Alabama

Southern Division

Rush Pettway, et al., a

Plaintiffs,

v. Civil Action

No. 66-315

American Cast Iron Pipe Company,

Defendant. J

DECREE

The Court having jurisdiction over the subject matter of this

action and of the parties, and the Court being advised in the

premises,

It is hereby ORDERED, ADJUDGED AND DECREED

that the defendant, American Cast Iron Pipe Company (here-

inafter the Company), its officers, agents, employees, and suc-

cessors and aii persons in concert or participation with it be,

and hereby is, enjoined and restrained from engaging in any

acts or practices which have the purpose or effect of discrimi-

nating against any individual because of race, religion, sex or

national origin, and is ordered and directed as more specifically

set out in the body of this Decree:

1. This Decree is and shall be applicable to the Company’s

plant located at Birmingham, Alabama.

2. LENGTH OF PLANT CONTINUOUS SERVICE.—

(a) Plant continuous service (hereinafter plant service)

shall be used beginning with the effective date set out in

paragraph 16 of this Decree for all purposes in which a

measure of continuous service is presently being utilized,

ay oe . —_

provided, however, the change to plant service shall be within a department and between departments shall be accom-

accomplished without that change in and of itself affecting plished in accordance with the procedures set forth in this Para-

the relative position of any employee within a line of graph 3 and in Paragraph 5.

progression. In other words, there shall be no leapfrogging

over or bumping between employees solely as a result of

the entry of this Decree. However, all future promotions,

step-ups, demotions, layoffs, recalls and other practices

affected by seniority shall be in accordance with plant

service provided that, (1) demotions, layoffs, and other re-

ductions in force shall be made in descending job sequence

order in each line of progression starting with the highest

affected job and with the employee on such job having

the least length of plant service, (2) the sequence on a

recall shall be made in the reverse order so that the same

people shall return to their jobs in the same positions rela-

tive to each other that existed prior to the reductions, and

(3) where economic conditions necessitate an overall re-

duction in the plant-wide work force, employees with the

lesser plant service shall, subject, however, to the Com-

pany’s right to retain in its active service such employees

with craft, critical job and other specialized skills as may

be reasonably required for the continued efficient and. safe

operation of the Company, be laid off from active service

with the Company prior to those employees with greater

plant service, and the laid-off employees shall be recalled

to active service in the reverse order of their layoff,

(b) Where an employee transfers subsequent to the

effective date of this Decree from one line of progression

to another or from one department to another, his plant

service shall be used for all purposes as provided in Para-

graph 2(a) subject, however, to the residency provision in

Paragraph 4.

3. PERMANENT VACANCIES AND TRANSFER

RIGHTS.—Permanent transfer between lines of progression

(a) A permanent vacancy is a vacancy created by an

employee promotion or demotion (permanent), death, dis-

charge, quit, retirement, or transfer out of the seniority

unit or department.

(b) A two-step procedure for filling permanent vacan-

cies within lines of progression shall be established. A

permanent vacancy shall be filled from within the first step

of competition (incumbent employees working in or laid

off from a line of progression within the department). Each

succeeding vacancy shall be filled in the same manner and

the resulting vacancy in the entry level job or other job, if

not filled by employees working in or laid off from the line

of progression within the department, shall thereafter be

filled on a plant-wide bid basis,by employees with at least

six months of plant service on the date the vacancy is

posted.

(c) An employee who transfers pursuant to this Decree

shall have the right to return to his former department

within a thirty working day period commencing from the

date of his transfer or may be returned by management

within such period, in the event he cannot meet the re-

quirements of the job to which he has been assigned in his

new department. Such employee shall be returned to his

former job, if available, or if not then available to a com-

parable job within his former department, if available, or

if none, then to the next lower rated available job in his

former department, and his return to his former depart-

ment within such period shall be without loss of his sen-

iority standing in his former seniority unit and department.

(d) Permanent vacancies on entry level jobs or other

jobs if not filled by employees working in or laid off from

a = poe

the line of progression within the department, to be filled

in plant-wide competition as provided in Paragraph 3(b)

above, shall be posted on a plant-wide basis in accordance

with Paragraph 10 of this Decree and such other admin-

istrative rules as the Company may reasonably adopt,

provided, however, such rules shall require that (1) the

notice of vacancy posted shall indicate the department,

job title, the pay group of the job, any prerequisite quali-

fications, training, experience or skill, the estimated num-

ber of employees needed, and the date of posting, (2) the

Company shall provide in the department where the va-

cancy occurred and in the Company’s Employment Office

bid lists which employees desiring to bid on the vacancy

may sign, (3) the subsequent notice of the prevailing bid-

der or bidders shall indicate his or their plant continuous

service dates.

(e) Permanent vacancies may be filled by temporary as-

signments until such time as the prevailing bidder is se-

lected and assigned.

4. RESIDENCY.—Whenever an employee by successful

bidding enters a new line of promotion, his continuous service

date for promotional purposes in the new line shall, for the

period of one year following the date he begins work in such

new line on a permanent basis, be the date on which he so

begins work in such line. After the expiration of such year

his continuous service date for promotional purposes in such

line shall be his plant continuous service date, which said date

shall even during such first year be his seniority date for pur-

poses of retention in or recall to such line.

5. PRE-ENTRY GROUP AND ADVANCED ENTRY

JOBS.—

(a) Pre-Entry Group Jobs. Certain lower-rated, unskilled

jobs in certain departments have been identified on the

lines of progression charts for those departments as pre-

—*

entry group jobs and have been placed together in a pre-

entry group box. A permanent vacancy occurring on a job

within a pre-entry group box shall be filled by the qualified

employee who is working on or is laid off from another

job within the pre-entry group box, who has the greatest

plant service, provided he is physically able and qualified

to perform the job, and who has, prior to the occurrence

of the permanent vacancy, indicating in writing to the office

of the department where the permanent vacancy occurs

his preference to be considered for the next vacancy on such

job, provided, however, an employee shall be eligible for

only one such job preference award a year.

(b) Advanced Entry Jobs. Notwithstanding the provi-

sions of Paragraph 3 and notwithstanding the location of

any of the following jobs within a line of progression, the

following jobs, the job descriptions of which are attached

to this Decree as Appendix E and made a part hereof, are

established as advanced entry jobs within the departments

indicated and permanent vacancies on those jobs shall be

posted and filled on a plant-wide basis by the bidder with

the longest plant service provided he has had the pre-

requisite training and is qualified and physically able to

perform the job:

Department Advanced Entry Job

Monocast Department Mold Machinist and Welder

Steel Pipe Department Toolman

Machine Shop Radial Drill Operator

Electrical Department Machinist

Construction Department Roof and Drainman

Heavy Equipment Operator

Shipping Department Tractor Trailer Operator

aay Pe

6. TRAINING.—AIll employees shall continue to have rea-

sonable opportunity to acquire on-the-job training for jobs next

in line to which they are eligible for permanent or temporary

assignments within their respective lines of progression.

7. RATE RETENTION.—

(a) Any black employee whose plant continuous service

date precedes February 18, 1968, shall be entitled to rate

retention hereinafter set out on the occasion of one transfer

into a line of progression in a department other than the

department in which he is employed on the effective date

of this Decree provided that transfer is made within three

years of the date of the entry of this Decree.

(b) An employee who transfers with rate retention pur-

suant to this paragraph shall, if the rate for the job to which

he transfers is lower than the rate he was being paid on his

former job, retain and be paid at his rate on his former job.

In no event shall an employee’s retained rate exceed the

lower of (1) the standard hourly wage rate in effect for jobs

in pay group 8 on the date of the employee’s transfer or (2)

the standard hourly wage rate of the highest job in the line

of progression to which the edployee is transferring.

(c) An employee’s retained rate shall be adjusted only

for general wage increases.

(d) An employee’s retained rate shall be terminated for

all purposes on the occurrence of any one of the following:

(1) He has progressed in his new progression line

to a job of equivalent rate to his retained rate.

(2) He fails to progress in the new progression line.

(3) He declines to progress in the new progression

line.

(4) 104 weeks have elapsed since his transfer to a

new progression line.

aa? Ss. oe

(5) He bids to another line of progression or de-

partment.

8. APPRENTICESHIP PROGRAM.—The Company shall

eliminate from its apprenticeship program any requirement that

any candidate for the program be a high school graduate or

equivalent unless and until such educational requirement or any

other educational requirements which are proposed for use in

selecting employees for entry into the Company’s apprentice-

ship program shall have been validated in accordance with the

Equal Employment Opportunity Commission’s “Guidelines On

Employee Selection Procedures.” (29 CRS § 1607). In con-

sidering applications for entry into the Company's apprenticeship

program by black employees who reached the maximum age

for entry into the program between July 2, 1965 and April 1,

1971, the Company shall as to those black employees enlarge

its age prerequisite for entry into the apprenticeship program to

age not past thirty-fifth birthday provided that any such em-

ployee file with the Company’s Personnel Department within four

months of the date of entry of his Decree on a form to be sup-

plied by the Company a written indication of his interest in

being considered for a specific apprenticeship opening.

9. TRAINEE PROGRAM.—From and subsequent to the

effective date of this Decree plant continuous service shall be

utilized as the measure of continuous service rather than de-

partmental continuous service in the administration of the Com-

pany’s Trainee Program.

10. NOTICES, RECORDS AND REPORTS.—

(a) The Company shall publish and post the terms of

the Decree in prominent places throughout the plant. Fur-

ther copies of this Decree and the attachments hereto shall

be available in the Company's Personnel Office to all

employees.

— YY

(b) Notices of all permanent vacancies which occur

in entry level jobs, advanced entry jobs, or other line of

progression jobs not filled by employees working in or

laid off from the line of progression involved shall be

posted on the bulletin boards located at the clock house

located at the entrance to the Company’s pipe shop and the

clock house located at the West end of the Company’s

Construction Department Building and may be posted

elsewhere as determined by the Company, at least three

working days in advance of their being permanently filled

so as to insure that all eligible employees will be notified

of their existence and eligible employees shall have an

opportunity to make application therefor.

(c) Notices of the filling of all permanent vacancies in

any jobs shall be posted for three working days on the

bulletin boards of the clock houses identified in preceding

subparagraph (b) and may be posted elsewhere as de-

termined by the Company. This notice shall show the

name, badge number, and plant service date of the em-

ployee selected, the department and job title of the job

involved and the effective date of the selection.

(d) The Company shall maintain appropriate personnel,

payroll, bidding, and other records necessary to monitor

compliance with and progress made under the provisions

of this Decree. Such records shall include for every

vacancy posted on a plant-wide basis the job title, job

pay group, department and, in order of plant service dates,

the name, badge number, race, and plant service date of

every bidder, with an indication of the prevailing bidder.

Where a prevailing bidder is other than a bidder with the

earliest plant service date the reason or reasons therefor

shall be indicated. All such records shall, on reasonable

notice, be made available for inspection by the Court or its

designated representative.

—— yoo

11. GRIEVANCE PROCEDURE.—Pursuant to the prior

Decree of this Court dated January 21, 1970, removing the

racial restrictions tor election to membership on the Company's

Board of Operatives and disestablishing the advisory Auxiliary

Board limited to black employees, the Company made provi-

sion for continued bi-racial employee representation on its long

established employer-employee committees, such as the Seniority

Committee, the Rate Committee, the Discipline Committee,

and the Apprentice Committee, by providing that two white

members and two black members from the Board of Operatives

serve on each of those committees or in the absence of a suffi-

cient number of members of a particular race on the Board of

Operatives, employees of that race receiving the most votes in

the prior election of Board members serve on those committees

and the Court determines that questions as to application of and

compliance with the provisions of this Decree can be fairly and

properly referred to and handled bp the appropriate committee.

Accordingly, any differences arising between the Company and

any employee as to the interpretation or application of, or com-

pliance with, the provisions of this Decree shall be submitted

to the grievance procedure set forth in the Company's current

grievance procedure, a copy of which is hereto attached as

Appendix A and made a part of this Decree or in any future

grievance procedure adopted by the Company consistent with

this Decree and Title VII of the Civil Rights Act of 1964, pro-

vided, however, a copy of any “Decree Related” grievance shall

be promptly furnished to the Implementation Committee in ac-

cordance with Paragraph 12 of the Decree and provided, further,

that, in no way, shall this provision infringe upon or in any

way limit this Court’s continuing jurisdiction of this action, nor

shall it in any way limit the right of any employee to seek ju-

dicial review or affect the rights provided any employee by

Title VII of the Civil Rights Act of 1964.

— A-10 —

12. IMPLEMENTATION COMMITTEE.—

(a) Within ten days after the entry of this Decree, the

Company shall designate an individual (and an alternate

to act in his unavoidable absence) to serve as convener

and ex officio non-voting chairman of a four person Im-

plementation Committee. The Chairman of the Board of

Operatives and the Chairman of the Working Conditions

Committee of the Board of Operatives shall serve as two

members on the Implementation Committee and two addi-

tional members shall be black employees of the Company

who shall be appointed by the Court after considering

nominations by plaintiffs’ counsel. The convener shall be

responsible for convening the Implementation Committee

as required to handle its business and shall also be re-

sponsible for preparing a record of actions taken at Com-

mittee meetings for signature by the Committee members

who shall, when performing services on the Committee,

be compensated at the expense of the Company at a rate

comparable to the income which would have been received

by them had they remained on their respective regular

job assignments. Any matter as to which there is disagree-

ment among Committee members may be submitted to

the Court for resolution.

(b) The Implementation Committee shall:

(1) Take all steps necessary to monitor compliance

with this Decree.

(2) Assure that information is provided to em-

ployees concerning their rights and opportunities

under this Decree.

(3) Not process or handle complaints or grievances.

Employees having complaints or grievances arising

out of actions taken or not taken pursuant to this

Decree shall process such complaints or grievances

~ en

through the Company's established grievance pro-

cedure. Any complaint or grievance appropriately

initialed by an employee which is alleged to involve

the application of this Decree in whole or in part shall

be noted on the grievance form as “Decree Related”.

Copies of all such “Decree Related” grievances shall

be furnished promptly to the Implementation Com-

mittee. All actions taken with respect to such griev-

ance shall be promptly reported in writing to the

Committee for its review and, if appropriate to effectu-

ate this Decree, its recommendation for appropriate

action. If the Implementation Committee is dissatis-

fied with the action taken relative to its recommenda-

tion the Implementation Committee or any member

thereof or the aggrieved employee may bring the

matter before the Court for determination.

(4) Be available at a central location during hours

convenient to mose employees for at least a period

of five consecutive days during the initial implemen-

tation of this Decree and at such times thereafter as

may be reasonably required. At least ten days prior

to the effective date of the substantive provisions of

this Decree, the Company shall address a letter to

each employee at its Birmingham plant. The letter

shall explain and outline in general terms the provi-

sions of this Decree and procedures eestablished by

it. The letter shall also advise of the establishment

of the Implementation Committee, the identity, busi-

ness address and telephone number of its members,

the dates, times, and places at which its members will

be available to provide further information and ex-

planations concerning this Decree and its implementa-

tion. The text of such letter shall be submitted to

the Court for approval prior to its issuance. Nothing

herein shall prevent the Company from sending

appropriate information to its employees at any time.

— A-12 —

(5) The Implementation Committee shall function

until December 31, 1977 except that, for good cause,

shown, the Court may extend such period.

13. DETERMINING QUALIFICATIONS.—The Company

shall have the right to refuse to promote or assign on a tempo-

rary or permanent basis, or to allow transfer of, any employee

it determines is unqualified.

14. SENIORITY AND LINES OF PROGRESSION.—The

Company’s policies, rules, and procedures governing seniority

filling job openings, promoting, job bidding, cutting back and

layoff attached hereto as Appendix B (collectively referred to

as “seniority rules and regulations”) are consistent with the

principles set forth in this Decree and are hereby established

in the form of Appendix B attached hereto and made a part of

this Decree by reference. The lines of progression of the Com-

pany’s departments to be effective upon the entry of this Decree

are hereby established in the form set out on the lines of pro-

gression charts attached hereto as Appendix C and made a part

of this Decree by reference. The seniority rules and regulations

and lines of progression may be altered or added to by the Com-

pany provided that any such alteration or addition is consistent

with the purposes of this Decree and the principles of seniority

established herein.

15. BACK PAY.—

A. The Company is directed to calculate back pay in ac-

cordance with the following directions:

(1) The Company shall prepare by departments and

chronological order a list of the permanent job openings

which occurred in the jobs in the lines of progression in

each department in pay group 4 and above between July

2, 1965 and March 31, 1971.

— A-13 —

(2) The Company shall prepare by departments and in

employment date sequence a seniority list of black em-

ployees

(a) whose employment date with the Company

precedes July 2, 1965 and

(b) who are presently working in the department

or are presently on pension from that department or

(c) who after July 2, 1965, left the employment

of the Company from, that department with at least

one year of Company service.

The Company shall prepare similar seniority lists for white

employees.

(3) The Company shall prepare from its rate progres-

sion schedules in effect during the period from July 2,

1965 through December 31, 1974 a table of the maximum

wage increases or differential which any employee accept-

ing a promotional opportunity could have enjoyed in mov-

ing up from a job in one pay group to a job in the next

higher pay group in any six month period from July 2,

1965 through December 31, 1974, the wage differential

for each six month period to be calculated on the basis

of the then existing differential in wage rate between pay

groups multiplied by 1,040 hours.

(4) The Company shall then assign for calculation pur-

poses the highest promotional opportunity which occurred

during a calendar year or during the first three months

of 1971 as the case may be, and which were not in fact

filled by another black or senior white employee to the

black employee having the greatest plant seniority in that

department. Similar assignments shall be made in plant

seniority sequence to the other black employees on the

seniority list up through March 31, 1971.

— ss)

(5) The Company shall then in accordance with specific

instructions attached to the Decree as Appendix D calcu-

late for each black employee assigned a promotional op-

portunity in accordance with the next preceding subpara-

graph the v ige differential that he would have earned

on the assig: :d job in accordance with the table referred

to in foregoing subparagraph A(3) over the wage rate he

was paid on the job held by him or would have been paid

on promotional opportunities declined by him during said

period for the period of time beginning with the date of

the assigned job opening until the first of the following

is reached:

(a) December 31, 1974;

(b) Date the employee went on pension;

(c) Date the employee left the Company’s service;

or

(d) The employee’s advancement on the assigned

job reaches the pay group equal to the highest level

job the employee has successfully performed to date,

provided, however, this limitation shall not apply to

those pensioners who retired between July 2, 1965

and July 1, 1969, and did not within that period de-

cline promotional opportunities.

(6) The Company shall, in making the calculations spec-

ified in the next preceding subparagraph, treat a promo-

tional opportunity declined by a particular employee the

same as an accepted one to the end that the wage differen-

tial between what the employee would have earned on

the assigned job will be measured from the wage level

which the employee would have enjoyed had he accepted

the promotional opportunity and advanced thereafter in

accordance with the wage progression schedule then in

effect.

— A-15 —

(7) When an employee has failed on a higher level job

and moved to a lower level job and then later succeeded

on a higher level job than the lower job to which he moved,

the time spent on the higher level job failed on and the

time spent on the lower level job to which he moved on

such failure will be removed from the calculation of any

back pay for such employee. Similarly, where an employee

has bid down from a higher level job to a lower level job

and has subsequently bid to a job at a higher level than

said lower level job, the time spent on the higher level

job from which he bid down and the time spent on the

lower level job to which he bid down shall be removed

from the calculation of any back pay for such employee.

(8) The Company shall prepare for each black employee

on the seniority lists referred to in foregoing subparagraph

A(2) above a back pay calculation sheet in a form sub-

stantially similar to the form constituting a part of Appen-

dix D attached to this Decree and shall compute interest

at 6% per annum from the midpoint of each six-month

period in which back pay is determined to be payable un-

der the directions contained herein to December 31, 1974

by multiplying the back pay determined for any six-month

period by the appropriate factor set out on the table of

interest calculation factors constituting a part of Appendix

D attached to this Decree.

(9) The Company shall prepare by departments and in

plant seniority sequence a tabulation of the black emplovees

on the seniority lists referred to in foregoing subparagraph

A(2) above, showing for each such black employee the

amount, if any, of back pay calculated for such employee

and separately the amount, if any, of interest calculated

thereon.

B. The Company shall by June 6, 1975, file the tabulation

described in foregoing subparagraph A(9) with the Court for

©”

initial review in camera. Following review by the Court and the

entry of such order as the Court deems appropriate to remedy

any apparent inequities, the Court will direct forthwith the

publication of the tabulation as may be modified or changed

by the Court in the due exercise of its discretion and there-

after the parties hereto and any person listed in the tabulation

shall have ten days from the date of the publication of the tabu-

lation within which to file his or their objections or exceptions

to the published tabulation or any part thereof. The Company

shall also make available to plaintiffs’ counsel all supporting

documents necessary or appropriate to check the accuracy of

the ( ompany’s calculations.

C. The Court reserves for later determination the question

of whether objections and exceptions shall be heard and de-

cided by the Court or shall be referred to a Special Master.

The Court retains jurisdiction to enter in favor of each black

employee for whom back pay is determined in accordance with

these directions a judgment in the amount of such back pay

plus the interest calculated thereon in accordance with these

directions and denying back pay relief to all other black em-

ployees involved in this suit.

D. It shall be a condition to the receipt of any back pay

that the recipient execute a release, in a form to be approved

by the Court, of any claims against or liability of the Company,

its officers, directors, agents, employees, successors and assigns,

resulting from any violation or alleged violation based on race

or color, occurring on or before the date of the entry of this De-

cree, of any equal employment opportunity laws, ordinances,

regulations, or orders, including but not limited to Title VII

of the Civil Rights Act of 1964 as amended, 42 USC § 2000e

et seq. the Civil Rights Act of 166, 42 USC et seq., and any

other applicable federal, state, or local constitutional or statu-

tory provisions, orders or regulations.

~~

— A-17 —

16. EFFECTIVE DATE.—The provisions of this Decree

shall apply fully beginning June 1, 1975 except as a time table

set out in a special provision of the Decree provides otherwise.

This is a final order and judgment; provided, however, that in-

asmuch as certain matters have been reserved for further pro-

ceedings this shall not constitute an appealable judgment until

all remaining issues have been determined or until the Court

hereafter enters an order under Rule 54(b).

17. PRIOR DECREES.—Except as herein and hereby su-

perseded, supplemented or modified, the prior decrees entered

by this Court in this action shall remain in full force and effect.

18. COSTS AND ATTORNEY’S FEES.—Taxation of cost

and award of attorney’s fees and the amount thereof will be

determined by the Court upon hearing.

19. RESOLUTION OF THE CASE.—This Decree resolves

all issues between plaintiffs, plaintiff class and defendant relating

to alleged acts of discrimination arising on the grounds of race

under Title VII of the Civil Rights Act of 1964, as amended,

and under 42 U.S.C. § 1981, occurring prior to the effective

date of this Decree and relating to testing, seniority and transfer

system, bidding procedures and other matters subject to this

Decree.

20. RETENTION OF JURISDICTION.—The Court will

retain jurisdiction not only until disposition of those matters on

which further proceedings are needed under this Order, but also

thereafter, for the purpose of issuing any and all additional

orders or decrees as may be necessary to effectuate full and

complete compliance with Title VII of the Civil Rights Act of

1964 or to enforce or clarify the implementation of the De-

cree. At any time after three (3) years from the date of entry

of this Decree, defendant may move, upon sixty (60) days’ no-

tice to counsel for plaintiffs, and upon a showing of compliance

—S

with the terms and conditions of this Decree, for its modification

or dissolution.

DONE this the 14th day of May, 1975.

/s/ Seybourn H. Lynne

UNITED STATES DISTRICT JUDGE

Appendix A to Decree*

GRIEVANCE PROCEDURE

Any employee who has a question or possible grievance con-

cerning successful bidder, qualifications, or any decisions from

the bid system or seniority administration should question his

foreman immediately and the foreman should explain or obtain

explanation.

If not satisfied with the foreman’s explanation, the employee may

file a written grievance to the department head or his designated

representative within ten working days of the announcement of

successful bidder, or promotion within the progression line. The

written grievance should indicate the job bid and the basis for

his grievance. If he chooses, the employee may obtain the help

of the Board of Operatives’ member in his district in processing

his grievance.

Within ten working days after receiving such grievance, the de-

partment head must answer in writing with a copy to the Person-

nel Department. The department head should explain to the

aggrieved employee. If the employee wishes, the Board of Opera- *

tives’ member in his district may be requested to be present.

If the employee is not satisfied with the answer from the depart-

ment head, he can file a written grievance within ten working

days to the Personnel Department which should be answered

within ten days.

* (Certain other appendices attached to this decree have been

omitted in printing. A copy of the omitted appendices has been

lodged with the Clerk of this Court under separate cover. )

— A-19 —

If still not satisfied, the employee may file a written grievance

within ten working days to the Works Manager’s office re-

questing review by the Senority Committee, (or appropriate com-

mittee if grievance applies to Apprentice Committee, Rate Com-

mittee or another committee.)

At any previous step the department head or the Personnel De-

partment may request interpretation by the Seniority Committee

or appropriate committee.

If the Seniority Committee on any of the previous steps deter-

mines that the grieving employee should have received the job

in question, he shall be assigned the job and displace the em-

ployee erroneously assigned to the job. The employee errone-

ously assigned to the job will be returned to his previous job.

If no grievance is filed within ten working days of announce-

ment of successful bidder or filling a vacancy in the progression

line, no grievance shall be entertained challenging the job assign-

ment made.

No grievance will be recognized unless all necessary procedures

outlined above have been followed.

August 15, 1974

Appendix B

POLICIES, RULES AND PROCEDURES

SENIORITY, PROMOTIONS, BIDDING

Following are Policies, Rules, and Procedures for administration

of Seniority, Filling Job Openings, Promoting, Job Bidding, Cut-

ting Back, Laying off, and all aspects of fair administration of

Seniority principles toward keeping jobs filled and maintaining

safe and efficient operation.

— A-20 —

These Policies, Rules, and Procedures have been revised to

comply with our interpretation of directives contained in the

opinion of the United States Court of Appeals for the Fifth

Circuit dated April 29, 1974.

These rules apply to jobs in the plant. Seniority is based on

continuous service with the Company at the Birmingham Plant.

In referring to an employee’s job, rate, or seniority, any refer-

ence to “he” or “his” simply relates to the employee person

whether male or female. All Policies, Rules, and Procedures

apply equally to male and female and to all races, religions

and national origins.

August 16, 1974

Changes 2/3/75

SENIORITY POLICY

Filling job openings

When an opening occurs on an entry level job in any pro-

gression line in any department, the job vacancy will be posted

plant wide for bids for three working days.

The vacancy will be filled by the qualified bidder with the

longest plant seniority. If no acceptable bid is received the

job will be filled from the pre-entry group, labor pool, or

with new hires.

For developing skills necessary for competitive efficiency, pro-

gression lines will be maintaiined in each department for each

type of work, skill, or craft. These lines will include normal

progression of skills and experience as an employee moves

from entry level up through more skilled jobs in that progres-

sion line. Record of the latest approved progression lines will

be maintained in department office and Personnel Department.

— A-21 —

Higher jobs in a progression line above entry level will be

filled with the qualified candidate with the most plant seniority

in one of the jobs next below in the progression line.

Certain designated jobs at advanced level above entry level

will be open to plant wide bidding. (Where skills in other de-

partments are applicable.)

In the event the senior candidate holding the next job below

the vacancy is not qualified or declines to accept the job

opening, those satisfactorily performing the next lower jobs in

the progression line will be considered on the basis of qualifi-

cation and seniority.

An employee who refuses a permanent promotion will be re-

quired to sign a waiver form specifying whether such refusal

is limited to that particular occupation or all such promotions.

Such waiver will apply on all future promotions as indicated

in the waiver form unless revoked in writing before a job

opening.

Qualifications

Qualifications considered in promotion are:

A. Skill, knowledge, training, and efficiency

B. Physical fitness

C. Length of service

Where factors A and B are relatively equal, employees with

the greatest length of plant continuous service will be given

preference.

On jobs requiring job progression or prerequisite training, the

employee must meet the minimum requirements of the job.

— A-22 —

Transfers

Employees transferred on a permanent basis from one depart-

ment to another shall retain their plant seniority for purposes

of benefits and lay off protection.

Whenever an employee bids into a new progression line his

seniority for purposes of promotion will be his time in the

progression line until he has one year’s experience in the new

progression line. After one year in the progression line his

promotion seniority will be based on continuous plant service.

Employees who are transferred from one department to an-

other through bids on plant wide postings shall not be eligible

to bid on another job requiring departmental transfer for a

period of one year.

Lay-off

Should economic conditions make it necessary to reduce the

working force, plant seniority shall be followed. Those laid

off will be employees with the least plant wide continuous

service. The selection of people to be laid off shal! be sub-

ject to approval by the Seniority Committee.

Recall

Recall from any lay-off caused by reduction in work force shall

be made on a plant seniority basis. Any job opening in the

plant occurring subsequent to any such lay-off within two

years from the date of the lay-off shall be offered to the em-

ployee in lay-off status who has the longest company service

and whose qualifications meet the requirements of the job to

be filled. Such employees shall have the option of accepting

the first job opening which he is qualified to fill or waiting

until a job comes open in the department or classification held

by him prior to the lay-off. This procedure shall be followed

— A-23 —

until all employees in lay-off status have been given an op-

portunity to return or until an employee shall have been in

lay-off status for two years, upon the expiration of which his

plant seniority shall terminate.

August 15, 1974

JOB BIDDING PROCEDURE

Probationers

Temporary employees with less than six months company serv-

ice are not qualified to bid on job openings until declared

Permanent employees.

Entry Level

When a permanent opening occurs in an entry level job in any

progression line, bid notice will be posted plant wide by the

Employment office and in the department for three working

days.

Employees within the department in which the vacancy occurs

may bid on the posted job vacancy by signing the bid list in

the departmental office. Other employees outside of that de-

partment may bid on the posted job vacancy by signing the

bid list in the Employment Office.

After three working days the two lists will be consolidated by

the Personne! Department. From those qualified the bidder with

the longest plant service will be declared the successful bidder.

The bid notice will give department, job title, pay group, and

estimated number of openings, plus a brief description of job

requirements, skills required, prerequisite experience or train-

ing, and any job related skills that must be demonstrated.

— itn

Any job vacancies that cannot be filled from plant wide bids

may be filled from the preentry group, labor pool, or new

hires.

Exceptions

Apprenticeships, Working Foremen positions and Leadmen po-

sitions shall be excluded from the bid procedure and normal

progression seniority system. Because of their special qualifi-

cations, certain jobs of a confidential or technical nature or

vital to product quality shall be listed as excluded jobs and

shall be excluded from the bid procedure and normal progres-

sion seniority. Those interested in any of these excluded jobs

should make application to the department office and the Per-

sonnel Department providing all information on special quali-

fications.

Those in excluded jobs may bid for or be promoted to higher

jobs in the progression line in line with their qualifications

and seniority.

Advanced Entry Jobs

An advanced entry job is defined as a job of higher pay group

than regular entry level jobs on which an employee may enter

into a department or an advanced stage of the line of pro-

gression. In order for an employee to enter in one of these

advanced entry jobs evidence must be produced that indicates

the employee has _ had the prerequisite training and is qualified.

Advanced entry jobs are as follows:

Mold Machinist and Welder

Steel Cast Department.. Toolman

Machine shop ........ Radial Drill Operator

Electrical Department .. Machinist

Monocast Department . .

Construction Department Roof and Drainman

...+ Heavy Equipment Operator

Shipping Department... Tractor Trailer Operator

ee ee

— A-25 —

More Than One Job in Box

In those cases where several jobs of relatively the same earn-

ings are placed in the same box in a line of promotion all such

jobs are considered as one job for seniority purposes. The in-

cumbents of all such jobs are considered as occupying the

immediately preceding occupation to a vacancy in an occupa-

tion immediately above the box or connected laterally to the

box.

Where one job is boxed separately from a group of jobs in a

larger box, only those employees who are on the separately

boxed job or have had satisfactory prior experience on this job

may move in the line of progression connected to the separately

boxed job.

Preentry Group Jobs

In the larger production departments a number of Preentry

base jobs are included in a Preentry Group box.

Any employee within the Preentry box who would prefer an-

other job within the box may indicate such a preference on a

Job preference form in the departmental office. Whenever that

job becomes open it will be awarded to the employee in the

Preentry box with the most plant seniority who has requested

the job on a Job Preference form, provided he is physically able

and qualified to perform the job. An employee is eligible for

one such Job Preference award a year.

Permanent employees in a Preentry Group box may bid on en-

try level jobs in any progression line above the box or plant

wide bid openings in any other department.

August 15, 1974

— A-26 —

RULES FOR UPGRADING AND

CHANGING WAGE RATE JOBS

1. Whenever a successful bidder or one promoted in the pro-

gression line fails to show satisfactory progress and perform-

ance toward learning the job during the 30 working day

trial period and must be removed from the job, or when-

ever a successful bidder or one promoted in the progression

line asks to be taken off the job during the 30 working

day trial period, he shall be returned to his old job if it

has not been filled. If his previous job has been filled, he

shall be assigned to another job carrying the same rate

as his old job if such a job is available. If it is not, then

he shall be placed on the next job available and his rate

reduced to the job rate at the beginning of the next esti-

mate.

2. Whenever business conditions make it necessary to remove

a shift in a department within one year of its addition,

employees will return to lower jobs held before the shift

addition. Employees with the least experience in the pro-

gression line will be reassigned to other departments that

need additional manpower. The rate of pay for those re-

assigned to other departments will be the job rate to which

they are assigned. These rate adjustments will be made at

the beginning of the next payroll estimate after the date of

reassignment.

3. Whenever it is necessary to remove a shift or curtail opera-

tions in a department after one year or more, at that level

of operation, the excess employee or employees at the

highest job level in the progression line with least plant

seniority will be moved to successively lower levels in the

line of progression. If a department has more than one

progression line with similar skills, an employee displaced

from one progression line will have seniority rights in an-

im et

other progression line with similar skills in the depart-

ment toward a job of comparable rate or a next lower rate

job available, if he is qualified and physically able to per-

form the job. Employees who must leave the department

will be those displaced from the progression lines with least

plant seniority. Those leaving the department will be placed

in other departments if manpower is needed, and their rates

adjusted to the jobs filled.

4. When an employee with long service is declared by an Acipco

doctor to be limited in physical activity due to shop accident

or illness, a job opening that fits the employee’s physical

limitations may be filled first by the physically impaired

employee before promoting up the progression line or post-

ing for bids. If an opening occurs within the department

that fits the physical limitation of long service employee

it may be filled with “such employee by the Department

Head. If necessary to move to another department to fill

a job opening that fits the physical limitation, it will be

done by the Personnel Department and Works Manager.

5. When an employee has been removed from a department be-

cause of a reduction in work load, and has been perma-

nently reassigned to another department, he shall have the

right on one occasion to return to his old progression line

if an opening occurs within two years of his permanent re-

assignment. He shall have return rights to his old job over

new hires and bidders from outside the department.

6. If a certain high level job is eliminated from a department

due to changing business trends or a deep reduction in force

in that department and an opening for that job skill occurs

in another department, the opening will be filled with the

employee with the displaced skill before opening the job

for bids, or moving up a less qualified employee in the

progression line. Placement of employees with displaced

— A-28 —

skills will be done with approval of the Seniority Com-

mittee.

7. If the work load in a depzertment decreases making it neces-

sary to reduce manpower, temporary assignments of em-

ployees may be made from one job to another and from

one department to another. However, any temporary job

assignment that extends beyond 60 calendar days will auto-

matically become a permanent assignment or transfer. The

employee’s rate of pay will be adjusted to the job rate to

which he is reassigned, on the beginning date of next pay-

roll estimate, following his 60 day period on the reassigned

job.

8. If higher level jobs are reduced or eliminated from a depart-

ment due to technological improvements or permanent re-

duction in demand, the displaced employees may be as-

signed in order of plant seniority to comparable rate jobs or

the nearest jobs below which they have worked before and

are able and fully trained to perform. If the reduction goes

beyond normal openings, some shifting back of jobs may

be necessary to protect job rates of employees with long

service.

9. Temporary job assignments may be made to cover for em-

ployees who are off from work because of illness, vactation,

jury duty, leave of absence, etc. Employees will be expected

to temporarily work higher jobs in the progression line as a

part of their training for the higher jobs. The rate of any em-

ployee filling such a temporary job assignment shall not

be altered as a result of working the temporary job a pe-

riod of up to 30 working days. If the temporary assignment

extends beyond 30 working days, then the employee's rate

who is working the job shall be temporarily increased to

the rate, or toward job rate according to the rate pro-

gression schedule if his permanent rate is below the rate

— =

of the job. If his permanent rate is above, no change shall

be made imhis rate as a result of the temporary assignment.

Such temporary transfer may continue until the employee

off from work returns to work or a decision is made that

the job be filled permanently. If within a year an em-

ployee has filled in on a higher rate job several times for

intervals of one week or more equivalent to a cumulative

total of 30 work days, his rate will be temporarily increased

to job rate or along the rate progression schedule. If an

employee has received the temporary rate after 30 days,

and the sick employee returns to his job and rate, but

later within a year is off again the employee who filled in

previously shall be given the temporary rate immediately

if for a period of one week or longer.

10. Whenever an employee is assigned to a job temporarily

and the job subsequently comes open for promotion, the

experience gained while on the job temporarily shall not

be considered eligible experience toward any experience

requirement if such experience would place a junior em-

ployee over a senior employee who is otherwise qualified.

11. Whenever an employee is a successful bidder, he should be

moved to the job within 30 working days. But if circum-

stances cause a delay he shall be notified of the reason. If job

circumstances change to eliminate the opening, the bid

will be voided and notice posted.

12. When a job becomes open on a permanent basis and in

the interim must be filled temporarily, such temporary

assignment shall not exceed a period of 60 working days

unless an exception is made by the Works Manager.

13. Those jobs which are critical to product quality, safety

and/or efficiency of operations are designated as “critical

jobs” in the lines of progression by small circles on the

box around the job title. In restoring shifts following a

— A-30 —

plant lay-off or departmental cut back the same experienced

employees would return to these critical jobs in the same

positions relative to each other that existed prior to the

plant lay-off or departmental cut back. Under conditions

requiring a shift reduction and/or departmental cut back

employees fully trained on critical jobs with special skills

essential to product quality, safety and/or efficiency of

operations will be retained in progression line. Under con-

ditions requiring a plant lay-off, management may require

that employees fully trained on certain critical jobs with

special skills essential to product quality, saftety and/or

efficiency of operations be retained and these will be

subject to approval of the Seniority Committee.

14. Filling: “A” Craft Openings: Apprenticeships are offered in

anticipation of future craft openings and apprentice gradu-

ates receive first consideration for craft openings.

For a craft opening beyond apprentices available, a trainee

opening will be available. The qualified candidate next in

the job progression line will be lined up to complete

necessary training and job progression toward the well

rounded job knowledge expected of the craft.

Graduation to craft rate through the Trainee Program

requires a minimum of seven years well rounded experience

in the craft or trade plus compliance with the rules gov-

erning trainees.

A Trainee Designate may be advanced one half the rate

increment between Pay Group 11 and job rate upon satis-

factory completion of six years experience on the job in

the skill and then only with approval of the Apprentice

Committee.

A Trainee Graduate may be advanced the remaining one

half of the rate increment between Pay Group 11 and the

ID.

— A-31 —

job rate upon satisfactory completion of seven years ex-

perience on the job in the skill, when recommended by the

Department Head and approved by the Employment Man-

ager, Personnel Director and Works Manager.

A “Trainee Candidate” is any employee working any of the

jobs considered potential training progression steps toward

a craft job.

A “Trainee Opening” is an expected craft opening beyond

apprentice availability.

A “Trainee Designate” is the senior qualified candidate

next in the progression line who has been designated for

completion of training and job progression toward “A”

craft.

A “Trainee Graduate” is a trainee designate who has com-

pleted the seven years minimum experience, has the well

rounded training required, has the approval of the Ap-

prentice Committee, and has complied with any special

rules for the craft. He is entitled to the rate and job re-

sponsibilities of the craft.

The number and ratio of “A” craft jobs must be approved

by the Works Manager and Personnel Department.

An employee cannot move beyond Craft “B” until an

opening for Craft “A” has been approved or a vacancy has

occurred.

Rate increases on trainee craft candidates will be initiated

by the Department Head, if an employee has made ex-

pected progress in development of skills and broad ex-

perience expected of the craft. If expected progress has

not been made, the employee’s rate will be held to the

level commensurate with his ability.

Within a department a lateral bid type mechanism may be

used for employee expression of departmental job pref-

16.

17.

18.

19.

— A-32 —

erence where a few designated jobs have some attractive-

ness for employees with long service and/or health limita-

tions. These jobs known as and traditionally designated

as “lateral bid” jobs are not a part of the upgrading pro-

gression system. No rate increase is involved. All appli-

cants must be on the job classification and fully qualified.

The bidding mechanism merely expresses preference for

type of work within the job classification.

Bid sheets remain valid for 30 working days after a job

has been filled. If the first successful bidder asks off or

must be removed from the job, the next qualified senior

bidder may be awarded the job without rebidding.

Whenever a successful bidder has been removed from a job

because of failure, he must show evidence he has obtained

training, attended classes, or improved his skill before

being considered a qualified bidder on the same job or one

requiring the same basic knowledge and skill level.

If an employee is awarded a bid requiring a departmental

transfer, and before being placed on the job he requests

to cancel his bid, he may be required to take the job until

replacement has been obtained, if his previous job has been

filled. If his previous job has not been filled, he may be

released from the bid and not forced to take the job, but

his decline will count as a departmental transfer.

When an employee has not reached job rate, in Pay Group

9 and above, and his work performance becomes unsatis-

factory, the employee will be removed from the job at the

discretion of the Department Head. Prior to the removal

of the employee from the job, it will be the responsibility

of the Department Head to have written assurance that the

employee has been adequately and thoroughly counselled,

instructed and advised as to his lack of progress during

20.

21.

22.

— A-33 —

his period of unsatisfactory work performance while learn-

ing the job.

When an employee has reached job rate and his work per-

formance becomes unsatisfactory, the employee can be re-

moved from the job upon recommendation of the Depart-

ment Head and with the approval of the Seniority Com-

mittee. Reassignment will be as follows:

The employee shall be returned to his old job if it has not

been filled. If the old job has-been filled, the employee

will be assigned to another job carrying the same rate as

his old job, if such job is open. If such job is not available

then the employee shall be placed on the next job open

and his rate will be reduced to the job rate at the beginning

of the next estimate.

Whenever a Foreman or Leadman requests or is requested

to come off a supervisory job, he may return to the job

previously held if open. If not open then he will be as-

signed to the nearest job rate open in the progression line

in line with his seniority. His rate will be adjusted to the

job rate. If a Foreman or Leadman job is eliminated in a

cut back or shift reduction, he returns to a former job in

the progression line and resumes his seniority position in

the line.

Whenever a successful bidder has been moved to the job

and later decides he wants to return to his previous job,

he may be required to hold the job six months to justify

the cost of moving and training.

In case of reduction of force in a department requiring

craft jobs or specialized skills, apprentices, craft trainees,

or specialists who have completed half their training, shall

be retained in the department over employees under Pay

Group 10 will less than ten years service if their skill is

deemed by Management as essential to the future of the

department.

— A-34 —

23. Whenever an employee is removed from a department

because of a reduction in force, and an opening occurs

in that department within two years, he shall be given one

opportunity to return to that department before filling the

job.

24. A number of plant general laborers may be employed and

assigned temporarily by the Personnel Department to de-

partments like General Yards, Construction, Shipping, etc.

They may be used in any department to fill a temporary

need.

When a permanent opening occurs in any department for a

new hire, one of the Labor Pool temporary employees may

be sent to the opening, if qualified, on the same basis as

a new hire.

If a Labor Pool employee should remain in the Labor Pool

beyond probationary period he may bid on job vacancies

posted plant wide.

25. An employee who has taken special courses which are job

related to the work involved will be given qualification

credit for completed ICS units, Acipco Night School, col-

lege or trade school courses. Credit for any other job

related training may be recommended by the Training

Director and approved by the Seniority Committee. Evi-

dence of certificates or satisfactory grades and progress

must be on record in the Personnel Department before the

time of bidding or applying. (Guidelines are attached.)

26. An employee who gained job related experience in the

military or previous employment will be given qualification

credit for that experience for advancement openings within

the department and for employees seeking to enter the de-

partment. Amount of credit will be determined by the

Department Head with approval of the Personnel De-

partment.

— A-35 —

27. On any job bid an employee will be given qualification

demerits equivalent to two years seniority *f he has on

record a disciplinary lay-off or two reprimands within the

last year and after March 18, 1974 on the following viola-

tions of Plant Rules affecting job performance: No. 4,

assault; No. 5, assault with threatening or abusive language

or gestures; No. 6, disobedience; No. 9 and No. 10, ma-

licious damage and carelessness causing damage; No. 12,

quitting work, sleeping, etc.; No. 15 and No. 16, intoxicants;

No. 18 and No. 19, safety; No. 21 loafing; No. 22, tardi-

ness; No. 23, absenteeism; No. 34, horseplay.

August 15, 1974

Changes 2/3/75

GUIDELINES QUALIFICATION CREDIT FOR

TRAINING AND EXPERIENCE

For the sake of uniformity in evaluating credit for training

and experience of those bidding for higher skilled jobs, the

following guidelines have been agreed upon.

Among bidders for a higher skilled job, six months qualifica-

tion credit will be allowed for satisfactory completion with a

passing grade of—

Six units of completed ICS study.

One Acipco Night School course.

*Six months accredited vocational trade school.

One year of college if applicable.

* Since Trade Schools vary widely, credit will depend on quality

of course and school. Credit indicated is for the best recognized and

accredited vocational schools. Less credit can be allowed for less

comprehensive courses as evaluated by the Training Director and the

Personnel Department.

— A-36 —

Other type courses may be considered equivalent if recom-

mended by the Training Director and approved by

the Seniority Committee.

For qualification credit, courses must be directly and fully

applicable to prerequisite training requirements for the job.

The course must be up to date and more advanced thay the

job already being performed.

To receive credit, certification of satisfactory completion must

be on record in the Personnel Office before the posting of the

job bid.

Experience credit granted for previous experience in military

service or another plant may be full credit if considered to be

fully and directly in line with prerequisite training for the job.

Fractional credit may be given if considered only partially in

line with training needed for the job or if below some of the

skills learned on present job.

Department Heads have the responsibility to determine qualifi-

cations and prerequisite training for jobs in their department

and whether training courses are applicable to job qualification.

Any questions or uncertain interpretations about accredited

courses or relative qualifications of applicants will be settled

by the Seniority Committee.

RATE ADJUSTMENT POLICY

1. An employee who bids for or requests and receives a lower

rate job will go to the rate of the new job the next pay

estimate after going on the job. An employee who fails on

a higher job and must return to a previous job will go to

the rate of the job to which he is returned on the next pay

estimate.

——s

—*

_ Exception will be made according to Court decree

for Black employees employed before February 14,

1968, who bid into another department or progres-

sion line to a lower rate job and qualify for rate reten-

tion under the Court decree. Souch an employee's

rate will not be cut until he has progressed to a job

of equivalent rate, or unless he fails or declines to

progress or bids into another department or progres-

sion line as provided in the Court decree. Rate reten-

tion lasts for 104 weeks next following the transfer

with rate retention and this exception expires three

years after the date of the Decree.

2. Whenever reduced business makes it necessary to reduce

manpower in a department, those with least seniority who

leave the department and are assigned to another depart-

ment will go to the rate of the new job at the next estimate.

3, Whenever by reducing shifts or any curtailment the number

of higher rate jobs in a department are reduced, those

employees with less seniority who must shift down to pro-

gression lines to lower rate jobs will go to the rate of

their new jobs on the next pay estimate after the change is

declared permanent or at the end of a 60 calendar day

temporary period, whichever first occurs.

4. Whenever, due to job evaluation, reduced responsibility, or

any reason, the rate on a job is reduced, those employees

on the job and at the rate at the time will not have their

rate reduction so long as they are on the job, but will be

placed on a special “red circle” over the rate status. When-

ever higher rate jobs are reduced or eliminated by tech-

nological or equipment changes, employees at rate on these

jobs who are relocated on other jobs will not have their

rate cut but will be placed on red circle over rate status.

Employees on red circle over rate status will be given

priority on job openings equal to or nearer to their over

— A-38 —

rate. Whenever an over rate employee declines to accept or

fails on a job opening equal to or approaching his over rate,

he loses his over rate status and goes to the rate of the job

held.

5. Employees with 30 years service and 10 years at present job

rate who are forced by health limitatign to take a lower

rate job will not have their rate cut but will remain on

a red circle over rate status. The health limitation must

be declared by a company doctor. All employees on red

circle over rate are subject to Management approval and

review.

6. An employee within five years of pension age, who, for health

reasons, takes a lower rate job will have his pension based

on earnings for the highest five years within the last ten

years of his employment next preceding his retirement.

7. Whenever a general rate increase is given, employee on red

circle over rate status will be given that part of the increase

that the new job rate of their present job exceeds their

individual red circle over rate, except as otherwise provided

in the Court decree.

INSPECTION DEPARTMENT—JOB PROCEDURES

Because of the special critical nature of inspection work and

the smallness of the department, it is important to have flexi-

bility of training, and it is necessary that employees on the

entry level jobs have the qualification potential to move up to

the more specialized jobs whenever needed and sufficient ex-

perience has been acquired.

For these reasons it is not practical to fill Inspection De-

partment openings from plant wide bids.

— A-39 —

FILLING OPENINGS—INSPECTION DEPARTMENT

Employees interested in jobs in the Inspection Department

should make application in the Personnel Department. Appli-

cants will be required to demonstrate required knowledge for

inspection jobs.

A job related test will be given answering questions, meas-

urements, and decisions faced in inspection work. Major con-

sideration must be given to the special qualification for inspec-

tion work.

When an opening occurs, the superintendent of the Inspec-

tion Department will establish with the Personne! Department

the necessary qualifications for the job opening and select the

most qualified candidate.

Whenever an opening occurs and two or more applicants

have similar qualifications and test scores, the job will be given

to the employee with the longest plant seniority.

DEPARTMENTAL REDUCTION—INSPECTION

DEPARTMENT

Employees in the Inspection Department will be rated into

two classes.

1. Limited ability—limited to lowest level jobs only. (An

employee may be limited either because of lack of

speed or lack of knowledge and versatility.)

2. Versatile ability in several jobs.

In the event of reduction of forces in the Inspection De-

partment, those in Limited classification will be the first to

leave the department in the inverse order of their plant sen-

iority of they have been in the Inspection Department one

year. Any who have been in the Inspection Department less

¢

,

— A-40 —

than one year will leave in the inverse order of their time in

the department or progression line.

Next to leave the department will be those in Versatile clas-

sification in the inverse order of their plant seniority.

Last to leave will be those who have qualified on Critical

jobs according to plant seniority.

RETURN RIGHTS—INSPECTION DEPARTMENT

Under conditions of a departmental cut back, those who

leave the Inspection Department with a Limited rating will not

be eligible to return when opening occurs in the Inspection

Department. Those who leave the Inspection Department with

a Versatile rating will be eligible for one opportunity to re-

turn until two years after leaving, in line with general policy.

APPENDIX B

Judgment of the District Court for the Northern District of

Alabama Entered June 12, 1975.

re A te te

_—

In the United States District Court for the

Northern District of Alabama

Southern Division

Rush Pettway, et al. )

Plaintiffs

V. Civil Action

No. 66-315

American Cast Iron Pipe Company,

Defendant |

Judgment

Filed June 12, 1975)

IT IS ORDEREN. ADJUDGED AND DECREED as follows:

1. Class Action—The Court confirms its conclusion hereto-

fore entered in this action that this action is due to be main-

tained as a class action for a class composed of all black em-

ployees of the defendant Company employed at its Birmingham

plant prior to May 14, 1975, the Court finding that in this

action the prerequisites of Federal rule 23(a) are satisfied and

that in addition the provisions of Rule 23(b)(2) are applicable.

2. Back Pay—Pursuant to the reservations contained in

Section 15-B of this Court’s decree of May 14, 1975, the Court

has further considered the methodol

This text is long and has been trimmed here. Open the source document for the complete record.