Petition — Local 13000, United Steelworkers of America v. Parson

Supreme Court brief1979

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= Supreme Court of the Un .

oes October Term, 1978

pes ane

Loca 13000, Unrrep STeEeELWorKERS OF AMERICA,

AFL-CIO-CLC,

Petitioner,

Harris A. Parson, Kaiser ALUMINUM

& CHEemicaL CorPORATION,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

Bernarp KiLEIMAN MicuagL H. GorresMan

1 East Wacker Drive Rosert M. WEINBERG

Chicago, Illinois 60601 Bredhoff, Gottesman, Cohen

& Weinberg

ra PRAvER 1000 Connecticut Avenue, N.W.

nited Steelworkers ,

ol Adiietinen Washington, D.C. 20036

Five Gateway Center JEROME A. Cooper

Pittsburgh, Pa. 15222 JoHN F'ALKENBERRY

Cooper, Mitch and Crawford

409 N. 21st Street

Birmingham, Ala., 35203

Attorneys for Petitioner

Sup 3 | n%

TABLE OF CONTENTS

Page

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QUESTIONS PHERBENTED ...3...0..c-csccvcccsccecscsessscssecsesecsesenses 2

STATUTORY PROVISIONS INVOLVED ....................00 3

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ELS EEL AA 6

REASONS FOR GRANTING THE WRIT ...................00.:. 9

The Decision Of The Court Below Is In Direct Conflict

With A Decision of Another Circuit And Is Incon-

sistant With A Controlling Precedent From This

Court On An Important Question Of Federal Law .. 9

RE eacateratiaddi acticin satintatisnictdesscnrsincsesscceccreconeczees 18

TABLE OF AUTHORITIES

Cases

Alexander v. Aero Lodge No. 735, Intern. Ass’n. Etc.,

Fe Ce te ee BEE) cncncnsinnsnsenceecinsiesssicccceeceeses 10-12

Crocker v. Boeing Co. (Vertol Div.), 437 F. Supp.

tS EEE ae ae OCC 12

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

CD sake isles bins c aia deeh dashathedtichinbicdeasdianitntenninessnesenees 12

Griggs v. Duke Power Co., 401 U.S. 424 (1971) ...... 17

Humphrey v. Moore, 375 U.S. 335 (1964) ............ 12

Machinists Local v. Labor Board, 362 U.S. 411 (1960) 2,17

Patterson v. American Tobacco Co., 586 F.2d 300 (4th

Cll, SED ansnicstiieaiaaticaaeateiaalesieactenncaresnsciscenen 16

Pettway v. American Cast Iron Pipe Co., 576 F.2d

ROT CO ae, Te eaten ctl sceeseiern ciccentntecenness 16

Teamsters v. U.S., 4381 U.S. 324 (1977) .......eceseeeees 4, 6, 8-17

United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977) 2

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

517 F.2d 826 (Sth Cir. 1975), cert. denied, 425 U.S.

BOE ID session sistas peeieacenatanstinctmitessianousninhichioreviverssenrives 16, 17

Statute

Title VII of the Civil Rights Act of 1964... passim

Rule

Federal Rule of Civil Procedure, Rule 41(b) ............... 7

In THE

Supreme Court of the United States

October Term, 1978

No.

Loca. 13000, Unirep SreELWoRKERS OF AMERIOA,

AFL-CIO-CLC,

Petitioner,

Harris A. Parson, Kaiser ALUMINUM

& CHEMICAL CoRPORATION,

Respondents.’

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

Local 13000, United Steelworkers of America, AFL-CIO-

CLC, hereby petitions for a writ of certiorari to the United

States Court of Appeals for the Fifth Cireuit, enabling this

Court to review the Fifth Cireuit’s judgment in Parson v.

Kaiser Aluminum and Chemical Corporation, and Local

13000, United Steelworkers of America, AFL-CIO-CLC, 575

}'.2d 1374 (5th Cir. 1978), as amplified on denial of rehear-

ing, 583 F.2d 132 (5th Cir. 1978).

OPINIONS BELOW

The opinion of the United States District Court for the

Kastern District of Louisiana is not officially reported, but

is reprinted as App. A to this petition. The judgment of the

1 Althongh nominally a respondent herein, Kaiser Aluminum &

Chemical Corporation was a co-defendant with petitioner in the

district court, and a co-appellee in the Court of Appeals.

district court is reprinted as App. B to this petition. The

opinion of the United States Court of Appeals for the Fifth

Cireuit is reported at 575 F.2d 1374, and is reprinted as

App. C to this petition. The order of the Court of Appeals

denying rehearing, and the opinion accompanying that

order, are reported at 583 F.2d 132, and are reprinted as

App. D to this petition.

JURISDICTION

The opinion and judgment of the Court of Appeals for the

Fifth Cireuit were issued on July 10, 1978 (App. C).

Timely petitions for rehearing were denied on November 1,

1978 (App. D). On January 22, 1979, Justice Powell signed

an order extending the time for filing a petition for writ of

certiorari to and ineluding March 31, 1979 (App. E). This

Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Does Section 703(h) of Title VII of the Civil Rights

Act of 1964 immunize provisions of a seniority system that

define which employees are eligible to compete for particu-

lar vacancies, when those provisions are applied equally to

blacks and whites and were not instituted or maintained for

a discriminatory purpose?

If the answer to Question 1 is no, then:

2. Did the court below apply an erroneous standard in

holding that a seniority system installed years before the

enactment of Title VII, which allocates jobs on the basis

of length of plant service but which gives a priority to per-

manent employees within the department where a vacancy

occurs, unlawfully perpetuates pre-1956 initial assignment

discrimination. .

3. Consistent with Machiiists v. Labor Board, 362 U.S.

411 (1960) and United Air Lines, Inc. v. Etans, 431 U.S.

553 (1977), can a eurrent, otherwise lawful employment

practice be converted into a violation of Title VII solely

because of discrimination which was comhmitted by the em-

ployer prior to 1956 (i.e., nearly a decade before the effec-

tive date of Title VII) and which is therefore not directly

actionable.

STATUTORY PROVISIONS INVOLVED

Section 703(a) of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-2(a), provides as follows:

(a) It shall be an unlawful employment practice for

an employer—

_(1)_to fail or refuse to hire or to discharge any indi-

vidual, or otherwise to discriminate against any indi-

vidual with respect to his compensation, terms, condi-

tions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin;

(2) to limit, segregate, or classify his employees or

applicants for employment in any way which would

deprive or tend to deprive any individual of employ-

ment opportunities or otherwise adversely affect his

status as an employee, because of such individual’s

race, color, religion, sex, or national origin.

Section 703(c) of Title VII, 42 U.S.C. § 2000e-2(¢), pro-

vides, in pertinent part, as follows:

a labor organization—

* * +

(3) to cause or attempt to cause an employer to dis-

criminate against any individual in violation of this

section. ws

Section 703(h) of Title VII, 42 U.S.C. § 2000e-2(h), pro-

vides, in pertinent part, as follows:

(h) Notwithstanding any other provisions of this

title, it shall not be an unlawful employment practice

for an employer to apply different standards of com-

pensation, or different terms, conditions, or privileges

of employment pursuant to a bona fide seniority or

merit system, or a system which measures earnings by

quantity or quality of production or to employees who

work in different locations, provided that such differ-

ences are not the result of an intention to discriminate

because of race, color, religion, sex, or national

origin. ...

STATEMENT OF THE CASE

Introduction

This is an action brought by two black employees on be-

half of themselves and a class of similarly situated black

employees, alleging that their employer and union violated

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

in numerous respects, only one of which is of concern here:

the maintenance of a provision granting priority in bidding

for vacant jobs within a department to the employees al-

ready working in that department over employees working

in other departments.

The district court granted judgment in favor of the de-

fendants on all issues at the close of the plaintiffs’ case at

trial. On appeal, the court of appeals reversed the decision

of the district court in four respects, only one of which im-

plicated the Union and is raised in this petition: the court

ruled that the intra-departmental bidding priority contained

in the collective bargaining agreement between the em-

ployer and union perpetuated the effects of the employer’s

pre-1956 initial assignment discrimination and, therefore,

unless justified by business necessity violated Title VII. It

was the Union’s contention below that the priority was an

integral part of a seniority system protected by § 703(h) of

Title VII. While the court below acknowledged that the

intra-departmental priority applied equally to blacks

and whites, and was neither negotiated nor maintained with

a discriminatory purpose, the court held nonetheless that

§ 703(h) was not applicable, reasoning that the priority was

not part of a ‘‘seniority system’’ within the meaning of

§ 703(h).

The Union seeks review because on an issue of great prac-

tical importance to employers and unions the decision below

(1) is contrary to Congress’ intent in enacting § 703(h) and

to the construction given to § 703(h) by this Court in Team-

sters v. U.S. 431 U.S. 324 (1977), (2) squarely conflicts with

the decision of another cireuit rendered post-Teamsters, but

(3) is one of several recent decisions construing Teamsters

in a manner which we believe undermines § 703(h).

eae ee

_——

Facts

Petitioner, Local 13000, United Steelworkers of America,

AFL-CIO-CLC (hereinafter ‘‘the Union’’) is the exclusive

bargaining representative of the production and mainten-

ance employees at the Chalmette, Louisiana plant of Kaiser

Aluminum and Chemical Corporation (hereinafter ‘‘the

Company’’). The Company employs more than 2400 people

at the Chalmette plant, of whom approximately 20% are

black.

When the plant was first opened in 1951, the Company

assigned blacks only to positions as laborers and porters.

The Company ceased this racially discriminatory as-

signment policy in 1956 at the latest, and from that point

forward hired and assigned production employees on a non-

discriminatory basis.

At all times material to this case, the central feature of

the collective-bargained seniority system at the plant has

been the intra-departmental bidding priority: when a

vacancy arises in a high-level job in a department, the em-

ployees eligible to bid for that vacancy are those already

working in that department. When such a vacancy is filled,

there is a resultant vacancy in the entry-level job in the

department, and that vacancy is available to employees else-

where in the plant who wish to transfer to that department.

Beginning at least as early at 1956, all employees in the

plant, including the blacks who were discriminatorily as-

signed from 1951-56, had a right to transfer to other pro-

duction departments. The right to make interdepartmental

transfers was afforded on the basis of seniority, plant ser-

vice being the seniority measure from at least as early as

1962.

By reason of the intra-departmental bidding priority, the

seniority system normally operates so that an employee

desiring to transfer from one department to another must

enter at the lowest level job in the new department. He is

then given a 10 day trial period in his new department, at

the end of which he must decide whether he wishes to re-

main in the new department or to return to his former job.

If, upon expiration of the 10 day trial period, he elects to

remain in the new department, he forfeits his right to re-

turn to his prior job, but may from then on bid for all vacan-

cies arising in any of the higher level jobs in his new depart-

ment, with plant seniority as the competitive measure. The

transferring employee may not hid on such higher jobs in

his new department prior to the expiration of the 10 day

trial period.

The provisions that interdepartmental transfers be to

entry level jobs, and that the right to bid thereafter for

higher level jobs in the new department accrues only upon

completion of a 10 day trial period, have been at all times

uniformly applied to blacks and whites, and there is no con-

tention that they were either negotiated or maintained with

a discriminatory purpose.

Proceedings Below

The plaintiffs contended that these provisions violated

Title VII, despite their neutrality and lack of discrimina-

tory purpose, because they perpetuated the effects of the

Company’s pre-1956 discrimination in initially assigning

blacks to laborer and porter jobs. Specifically, plaintiffs

contended that these requirements: (1) discouraged pre-

1956 discriminatees from transferring, because they would

first have to take an entry level job in the new department,

often at lower rates of pay; and (2) delayed their advance-

ment to their ‘‘rightful place’’ (the jobs which they would

now be occupying had they initially been assigned to the new

department) by preventing them from transferring directly

from their old department to a high level job in the new

department.

The lawsuit was tried prior to this Court’s decision in

Teamsters, supra, at a time when the law of the Fifth Cir-

cuit invalidated seniority systems which perpetuated the

effects of pre-Title VIT employer discrimination even when

such systems were negotiated and maintained without

discriminatory intent. Nevertheless, even applying the

then-prevailing Fifth Circuit standards, the district court

concluded that as a matter of fact the challenged provisions

did not have the effect of locking employees into the depart-

ments to which they had been discriminately assigned,? and

consequently did not violate Title VII. This ruling was

made upon a motion of defendants at the close of the plain-

tiffs’ evidence, and resulted in a dismissal and judgment

pursuant to F.R. Civ. P. 41(b).

The plaintiff class appealed from this ruling (as well as

from certain other rulings involving claims solely against

the Company) to the Fifth Cireuit. The Fifth Circuit, in an

opinion issued about a year after Teamsters had been de-

cided, acknowledged that the seniority provisions in ques-

tion were not the product of any discriminatory purpose or

intent, and that they applied equally to all employees

regardless of race. Nevertheless, the Fifth Circuit, disagree-

ing with the district court’s finding that these provisions

had had no ‘‘lock-in’”’ effect, reversed the dismissal of plain-

tiffs’ challenge to the provisions, and declared that even

though they fostered safety and efficiency they would have

to be invalidated unless defendants could show that they

were required by ‘‘business necessity.’’

* The district court made the following finding of fact (App. 7a) :

“‘The evidence established beyond a doubt that’ many black

employees have taken advantage of these transfer opportunities

and have rapidly advanced to higher paying jobs.

‘*This Court finds that the method of transfer from depart-

ment to department at the Chalmette Works does not discrimi-

nate against the class. This Court further finds that there is no

loss in an employee’s seniority as a result of his transferring

between departments and that there is full plant seniority

carryover on all such transfers. It should also be noted that a

substantial number of black employees, who testified at the

trial, had reached the top jobs in their respective departments

prior to the passage of the Civil Rights Act of 1964. Such

evidence clearly illustrates that the seniority system, as de-

veloped through the collective bargaining process, does not now

nor did it historically exclude blacks or other employees from

utilizing their plant seniority for transfer and promotion at

the Chalmette Works.’’

The Fifth Circuit cited Teamsters in two sections of its

opinion dealing with unrelated claims against the Company

(App. 32a, 39a). However, Teamsters was not cited in the

portion of the opinion relating to the seniority system, In-

stead, the court applied its pre-Teamsters’ decisions to

strike down the provisions described above, declaring that

the ‘‘system gives the old seniority criterion a continuing

discriminatory effect’’ (App. 42a). The court’s analysis was

as follows:

**. . . We have held that similar plans that restrict

transfer to entry level jobs and limit advancement to

upper level jobs to persons already in the department

are invalid. ... Such a system gives the old seniority

criterion a continuing discriminatory effect; blacks are

kept at a disadvantage hegun by the past practices that

kept them out of the nonlaborer departments. ... We

hold that the District Court’s finding is based on a mis-

taken understanding of what constitutes the ‘present

effects of past discrimination,’ and cannot stand.’’

(App. 42a).

The Union petitioned for rehearing, noting that the

court’s opinion was based upon its pre-Teamsters’ deci-

sions, which were no longer good law, and that in light of

Teamsters, the court could not invalidate a seniority system

which applied equally to white and blacks and indisputably

was neither negotiated nor maintained with a discrimina-

tory purpose. In denying rehearing, the court issued an

opinion declaring that it had been fully aware of Teamsters,

and that its conclusion that plaintiffs had established a

prima facie case with respect to the intra-departmental

priority had not ‘‘rested upon a theory of liability repudi-

ated in Teamsters, although our discussion of the system

of interdepartmental transfers established by the Kaiser-

Union collective bargaining agreement ... might have been

somewhat more explicit in this regard.’’ (App. 50a). The

court explained that the challenged provision ‘‘is not a

seniority rule at all’’ and thus ‘‘is not immunized by § 703

(h) and Teamsters,’’ ibid:

‘*We did, however, hold clearly and unmistakably that

the central problem with the system of interdepart-

mental transfers was the ten-day bottom entry require-

ment, the result of which is that employees can use their

plant seniority to bid for jobs in a new department only

if they are willing to take the risk of being frozen in

an entry level position with lower pay for an indefinite

amount of time because some other employee already

in the new department and with more plant seniority

bids for the vacancy after the required ten-day waiting

period. While the rules for bidding for vacancies within

a department are governed by seniority and thus by

Teamsters, the ten-day bottom entry requirement is

not a seniority rule at all. Rather, it is a condition upon

transfer wholly extraneous to the prevailing seniority

system, and, as such, is not immunized by § 703(h) and

Teamsters.’’ (Emphasis in original).

The case was thus remanded to the district court under

terms which will require that court to invalidate the chal-

lenged provisions unless defendants can show that they are

required by ‘‘business necessity,’’ even though the provi-

sions were negotiated without discriminatory intent and

were maintained for reasons of safety and efficiency (App.

42a-43a).

REASONS FOR GRANTING THE WRIT

The Decision Of The Court Below Is In Direct Con-

flict With A Decision Of Another Circuit And Is Incon-

sistent With A Controlling Precedent From This Court

On An Important Question Of Federal Law

Section 703(h) of Title VII provides in part:

‘*... it shall not be an unlawful employment practice

for an employer to apply different standards of compen-

sation, or different terms, conditions, or privileges of

employment pursuant to a bona fide seniority .. . sys-

tem, ... provided that such differences are not the re-

sult of an intention to discriminate because of race... .’’

(Emphasis added).

In Teamsters v. United States, 431 U.S. 324 (1976), this

Court ruled that a seniority system does not lose the pro-

tection of §703(h) because it has the effect of perpetuating

pre-Title VII discrimination:

‘«.. [We hold that an otherwise neutral, legitimate

seniority system does not become unlawful under Title

VII simply because it may perpetuate pre-Act discrimi-

nation, Congress did not intend to make it illegal for

employees with vested seniority rights to continue to

exercise those rights, even at the expense of pre-Act

discriminatees.’’ (Jd. at 353-354, footnote omitted.)

In its initial opinion, the court below did just what Team-

sters forbade: it found the departmental preference and ten-

day waiting period to be prima facie unlawful ‘‘simply be-

cause [they] may perpetuate pre-Act discrimination.’’ In its

further opinion denying the petition for rehearing, the court

sought to rationalize the apparent inconsistency of its hold-

ing with this Court’s holding in Teamsters (App. 50a) :

‘*While the rules for bidding for vacancies within a

department are governed by seniority and thus by

Teamsters, the ten-day bottom entry requirement is not

a seniority rule at all. Rather, it is a condition upon

transfer wholly extraneous to the prevailing seniority

— and, as such, is not immunized by §703(h) and

eamsters.’’ (Emphasis in original).

As we show herein, the Fifth Circuit’s attempt to carve

out integral parts of the seniority system from the protec-

tion of §703(h) conflicts squarely with the decision of the

Sixth Cireuit in Alexander v. Aero Lodge No. 735, Intern.

Ass’n, Etc., 565 F.2d 1364 (6th Cir. 1977) ; and misconstrues

the rationale of this Court’s holding in Teamsters. As we

further show, the decision below is not aberrational; the

same misconstruction of Teamsters has been adopted by a

panel of the Fourth Circuit and another panel of the Fifth

Cireuit, and the issue is currently pending decision in nu-

merous cases in the lower federal courts.* The issue pre-

sented here is, accordingly, worthy of review by the Court

at this time.

1. In Alexander, supra, the Sixth Cireuit faced the issue

3If the court below were correct in its ruling as.to the issue

discussed in text, then this case would raise other issues worthy

of this Court’s consideration. See pp. 17-18, infra.

raised here on analytically indistinguishable facts. As de-

scribed in the court’s opinion, the feature of the seniority

system in Alexander which the district court (pre-T'eam-

sters) had found to have perpetuated pre-Act discrimina-

tion was the following:

‘“‘The district court, in its opinion, particularly

stressed that the job equity feature was primarily re-

sponsible for perpetuating pre-Act discrimination. The

1965, 1968, ar 1971 contracts all gave an absolute pref-

erence in filling a vacancy to employees with prior,

satisfactory service in the particular occupation. In

other words, whenever a vacancy occurred, all employ-

ees having equity in that occupation were given the

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

promotional bidding system. As among those holding

uity, the vacancy would be awarded to the employee

with the greatest plant-wide seniority, not the longest

period of experience at that job. Similarly, when layoffs

were ordered, employees could return to occupations

they had formerly held if their current jobs were elimi-

nated. The effect of this system was that an employee

with job equity would always be preferred over an em-

ployee without job equity, even though the latter was

deemed qualified for the position by the Company and

had longer plant-wide service.’’

565 F.2d at 1376-1377. The Alexander court expressly re-

jected the argument that the ‘‘job equity features’’ of the

system there could be carved out from the rest of the senior-

ity system and thus be found outside the protection of §703

(h):

‘*With regard to the job equity features of the collec-

tive bargaining agreements, it could be argued that they

are not a facet of the seniority system but a separate

element affecting job competition and hence not immune

under §703(h) of the Act. The Act, however, speaks not

simply of seniority but of ‘‘a bona fide seniority . . . sys-

tem.’’ A preference to those with experience in a given

occupation is in a sense limited occupational seniority

and we see nothing in the statute or in Teamsters to in-

dicate that it should stand on a different footing than

traditional plant-wide or departmental seniority. It is

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

view, an integral part of Avco’s unique but nonetheless

bona fide seniority system.

Therefore we are obliged to hold that in light of

Teamsters, the district court erroneously concluded

that the defendants violated Title VII by utilizing a

seniority system, ineluding its job equity feature, that

perpetuated pre-Act diserimination.’’ (Footnote omit-

ted).

Accord: Croker vy. Boeing Co. (Vertol Div.), 437 F.Supp.

1138, 1186-1188 (E.D. Pa. 1977).

2. In Teamsters, this Court found that

‘the congressional judgment was that Title VII

should not ... water down the vested seniority rights

of employees simply because their employer had en-

gaged in discrimination prior to the passage of the

Aet.”’

431 U.S. at 353. As the Teamsters court recognized, Con-

gress accomplished that goal by extending a measure of

protection to seniority ‘‘systems.’’ Seniority systems are

not abstract constructs. They exist as a means to choose be-

tween employees in allocating employment opportunities.

As this Court has repeatedly recognized, one of the ‘‘major

functions’’ of seniority systems ‘‘is to determine who gets

or keeps an available job.’’ JTumphrey v. Moore, 375 U.S.

335, 346-347 (1964) ; Franks v. Bowman Transportation Co.,

424 U.S. 747, 766 (1976). Once a seniority system is estab-

lished, employees depend on the rules of the system in

planning their employment careers. It was this reliance that

Congress meant to protect. Teamsters, 431 U.S. at 350-355.

There is no one form of seniority system. This Court

found that Congress did not distinguish between the various

forms of seniority systems in affording the protection of

§703(h) :

... [T]here is no rexson to suppose that Congress

intended in 1964 to extend less protection to legitimate

departmental seniority systems than to plant-wide sen-

iority systems. Then, as now, seniority was measured in

a number of ways, including length of time with the em-

(13

ployer, in a particular plant, in a department, in a job,

or in a line of progression. . . . The legislative history

contains no suggestion that any one system was pre-

ferred.’’ 431 U.S. at 355, n. 41.

Whatever the form, the heart of any seniority system

consists of the rules determining eligibility to compete for

given positions and the measure of competition. In some

systems, the determination of eligibility to compete is im-

plicit in the measure of competition. Thus, where the mea-

sure is departmental seniority, eligibility to compete is by

definition limited to the members of a given department ;

where the measure is job seniority, eligibility is limited to

those holding a particular job. Had this case involved a pure

departmental seniority system, therefore, it would have

been obvious to the Court below that limiting transfers by

those outside the department to the entry level jobs was an

integral part of a seniority system protected by § 703(h) ;

for that was precisely what the Court held in Teamsters.‘

*In a departmental system, after all those within a department

have exercised their respective seniority rights an opening will re-

sult, generally in a bottom level job in the department. Teamsters

itself describes this basic phenomenon in the context of a bargain-

ing unit seniority system:

‘*For competitive purposes, however, such as determining

the order in which employees may bid for particular jobs, are

laid off, or are recalled from layoff, it is bargaining-unit

seniority that controls. Thus, a line driver’s seniority, for

purposes of bidding for particular runs and protection against

layoff, takes into account only the length of time he has been

a line driver at a particular terminal. The practical effect is

that a city driver or serviceman who transfers to a line-driver

job must forfeit all the competitive seniority he has accumu-

lated in his previous bargaining unit and start at the bottom

of the line drivers’ ‘board’.’’ (Footnotes omitted, emphasis

added).

Normally, departmental seniority systems will include a set of

seniority rules for filling the resulting vacancy in the entry-level

job in a department—e.g., employees in all other departments

might be eligible to compete for it based upon their plant seniority.

But what the Court below apparently failed to understand

is that the seniority system here, albeit slightly different in

its struture, is governed by the same legal principle. lronie-

ally, the only difference between a pure departmental sys-

tem and the system involved here is that the system here

provides more opportunity than a pure departmental sys-

tem would for an employee from outside a department to

advance rapidly to higher level jobs within the new depart-

ment—for here, as we show below, upon becoming a perma-

nent employee in the new department, he can bid for any

job based upon his plant seniority.

It is quite common to find large mills divided into fune-

tional departments, with plant seniority (rather than de-

partmental seniority) the measure of competition as be-

tween those within a department, This is the system now

uniformly operative in the steel and aluminum industries.

Indeed, where plani seniority is the measure of competition,

limiting the competitors for a vacancy to those within a

department is a practical imperative.°

The system in this case is one common form of a ‘‘plant

seniority within departments’’ system, Whenever a vacancy

exists in other than an entry-level job within any depart-

ment, all permanent employecs within the department are

eligible to compete for it, but the measure of competition is

length of plant, rather than department, service. All em-

ployees in the other departments in the plant are then eligi-

ble to bid for the resulting vacancy in the department, with

length of plant service as the measure of that competition

as well. After the ten-day trial period, the employee filling

such a resulting vacancy would then become a permanent

employee in that department eligible, as are all other perma-

* Otherwise the employer would confront the impossible burden

of moving a series of employees all over the mill each time a vacancy

arises (with each successful bidder creating a vacancy by his de-

parture). This speetre—commonly called ‘‘musical chairs’’—is

precisely what the decision below appears to necessitate.

nent employees in the department, to bid on any vacancy

within the department based upon his plant seniority.

The decision of the court below artificially severs from the

seniority system the rules excluding from competition for

non-entry-level jobs in a department all who are not perma-

nent employees within the department, i.e., those who have

not been in the department at least ten days. Stated other-

wise, the court below held that a collective bargaining provi-

sion declaring that the eligible bidders for a vacancy in a de-

partment are those permanently employed in that depart-

ment is not part of a ‘seniority system’’ within the meaning

of § 703(h). This holding is reached, without a word of anal-

ysis, simply by declaring the provision not to be a ‘‘seniority

rule’’ but rather a ‘‘condition upon transfer wholly extran-

eous to the prevailing seniority system.’’ (App. 50a).

That holding reflects a fundamental misunderstanding of

the nature of seniority systems and thus of the extent of the

protection established by § 703(h), as the Sixth Circuit ree-

ognized in Alexander, supra. The effect of the holding is to

require that pre-1956 discriminatees outside a department

be permitted to compete on an equal basis with those within

the department, unless the defendants can prove such a

change precluded by ‘‘business necessity.’’ But Teamsters

expressly declared that parties could continue to conduct

competition on the basis of existing bidding lists (there, line-

drivers; here, those within a given department) even if

certain employees were kept from those lists as a result of

pre-Act discrimination:

““(T\he congressional judgment was that Title VII

should not outlaw the use of existmg seniority lists and

thereby destroy or water down the vested seniority

rights of employees simply because their employer had

engaged in discrimination prior to the passage of the

Act. ;

‘¢ |. Congress did not intend to make it illegal for

employees with vested seniority rights to continue to

exercise those rights, even at the expense of pre-Act

diseriminatees.

‘‘That conelusion is ineseapable even in a case, such

as this one, where the pre-Act discriminatees are ineum-

bent employees who accumulated seniority in other [de-

partments] . . . Congress in 1964 made clear that a

seniority system is not unlawful because it honors em-

ployees’ existing rights ... It would be . . . contrary to

that mandate to forbid the exercise of seniority rights

with respect to diseriminatees who held inferior jobs

...? 431 U.S. at 353-355 (emphasis added).

The holding of the court below that elements of a senior-

ity system may be treated as outside the scope of § 703(h)

cannot be reconciled with this Court’s decision in Teamsters.

3. There are innumerable cases now pending in the lower

courts which will turn upon the correctness of the decision

below. A provision defining the eligible bidders as those

within a department, such as the one at issue here, is a

common feature of seniority systems. Indeed, such a provi-

sion is incorporated in the seniority system set up in the

steel industry consent decree which applies in approxi-

mately 250 basic steel plants throughout the country.’ In

many eases which began, pre-Teamsters, as attacks on sen-

iority systems alleged to perpetuate discrimination, the ap-

proach of plaintiffs and sometimes courts has now shifted

to that adopted by the court below: isolate segments of the

seniority system; declare that they are ‘‘extraneous”’ to the

system; and then proceed to the result which would have

been reached pre-Teamsters. See, e.g.. Patterson v. Ameri-

can Tobacco Co., 586 F.2d 300, 308, 305-306 (4th Cir. 1978)

(holding that seniority rules limiting competition to those

on the next lower rung of a line of progression are outside

the coverage of 4 703(h)); Pettway v. American Cast Tron

Pipe Co., 576 F.2d 1157, 1193-1200 (5th Cir. 1978) (holding

that line of progression rules—as in Patterson—and depart-

mental priority rules—as here—are outside the scope of

§ 703(h)).

®*The Fifth Cireuit reviewed that decree with approval in

‘Onited States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826

(5th Cir. 1975), cert. denied, 425 U.S. 944 (1976).

Unless this issue is resolved now, unions and employers

will face, unnecessarily, continued extensive litigation of a

particularly burdensome nature, since the effect of finding

a seniority rule unprotected by § 703(h) is to make it a ve-

hiecle for litigating claims of discrimination dating back—

as here—well before the passage of Title VII.7 Moreover,

the prospect of decisions like that below will necessarily af-

fect and distort the collective bargaining process in numer-

ous industries. If the decision below is incorrect, as we be-

lieve it is, this Court should act promptly to interdict the

proliferation of an erroneous notion which will cause much

mischief and will inevitably require this Court’s attention.

4, If we should prove wrong that the provisions at issue

here are covered by § 703(h), then this case would raise ad-

ditional issues which are worthy of this Court’s considera-

tion.

In Teamsters, 431 U.S. at 349, this Court indicated that

were it not for § 703(h) a seniority system which ‘‘perpetu-

ates the effects of prior discrimination’’ would be subject

to attack under the rationale of Griggs v. Duke Power Co.,

401 U.S. 424 (1971). This Court has never had occasion to

define the parameters of the perpetuation doctrine. Were

the provisions at issue here not protected by § 703(h), the

question would arise whether the Fifth Circuit applied the

proper standard in reversing the finding of the district

court that the intra-departmental priority and ten-day trial

period did not constitute actionable ‘‘perpetuation’’ of as-

signment discrimination that had occurred some twenty

years earlier—in the context of a plant seniority system

that had made inter-departmental mobility a reality since

well before the enactment of Title VII. And, the related

question would arise whether Title VII permits the litiga-

tion and remedying of alleged pre-Act discrimination, which

7 For example, the Steelworkers Union alone is defending a num-

ber of challenges to its indisputably ‘‘bona fide’’ seniority system

predicated upon the rationale adopted below.

is not directly actionable, through the mechanism of a suit

nominally directed at a current, otherwise lawful employ-

ment practice—i.e., the validity of the current practice

would, under the Fifth Circuit’s ruling, depend entirely on

whether the Company had discriminated a decade before

the passage of the Act. See Machinists Local v. Labor Board,

362 U.S. 411 (1960); United Air Lines, Inc. v. Evans, 431

U.S. 553 (1977).

CONCLUSION

For the reasons set forth above, this petition for a writ of

certiorari should be granted.

Respectfully submitted,

BreRNARD KLEIMAN MicuageL H. GorresMANn

1 East Wacker Drive Rosert M. WEINBERG

Chicago, Illinois 60601 Bredhoff, Gottesman, Cohen

& Weinberg

Cart FRANKEL ‘

Sula Mites iranlonrs 1000 Connecticut Avenue, N.W.

i * 90036

ok aieiiinn Washington, D.C. 20036

Five Gateway Center JEROME A. Cooper

Pittsburgh, Pa. 15222 JoHN FALKENBERRY

Cooper, Mitch and Crawford

409 N. 21st Street

Birmingham, Ala., 35203

Attorneys for Petitioner

APPENDIX A

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

Harris A. Parson anp ArceLL WILLIAMs,

Plaintiffs,

versus

Kaiser ALUMINUM AND CHEMICAL Corporation, LocaL 225,

AtuMInuM Workers INTERNATIONAL Union, CHALMETTE,

LOUISIANA AND INTERNATIONAL UNton oF District 50,

Unitep Mryr Workers or AMERICA,

Defendants.

Civil Action No. 67-1257

SECTION ‘‘E”’

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

This is an action brought pursuant to Title VII of the

‘*Civil Rights Act of 1964,’’ as amended, 42 USC § 2000e,

et seq., and Section 1 of the ‘‘Civil Rights Act of 1866,’’ 42

USC § 1981, in which plaintiffs, individually and as repre-

sentatives of a class, have prayed for relief for alleged dis-

crimination in employment,

This matter is now before the Court on motions filed by

all defendants at the conclusion of plaintiffs’ case in chief

for involuntary dismissal. I grant defendants’ motion for

involuntary dismissal and make the following findings of

fact and conclusions of law.

FINDINGS OF FACT

Plaintiff, Harris A. Parson (hereinafter referred to as

‘*Parson’’) is a Black citizen of the United States and the

State of Louisiana.

2. :

Plaintiff, Areell Williams (hereinafter referred to as

‘‘Williams’’) is a Black citizen of the United States and the

State of Louisiana.

Defendant, Kaiser Aluminum and Chemical Corporation

(hereinafter referred to as ‘‘Kaiser’’) is a corporation or-

ganized under the laws of the State of Delaware and main-

tains and operates an aluminum reduction plant in Chal-

mette, Louisiana (hereinafter referred to as ‘‘Chalmette

Works’’). It is an employer in an industry affecting com-

merce and employs more than twenty-five employees.

Defendant, United Steelworkers of America, AFL-CIO,

CLC (hereinafter referred to as ‘‘Steelworkers’’), is a

labor organization in an indrstry affecting commerce, and

has more than twenty-five members. The Steelworkers he-

came the certified collective bargaining agent for all pro-

duction and maintenance employees at the Chalmette Works

on August 9, 1972, after merging with and succeeding de-

fendant, International Union of District 50, United Mine

Workers of America (hereinafter referred to as ‘‘Dis-

trict 50’’).

Defendant, District 50, became the collective bargaining

agent for production and maintenance employees on July

14, 1968, succeeding defendant, Aluminum Workers Inter-

national Union and its Local 225, District 50, the Aluminum

Workers, and Local 225 are or were all labor organizations

in an industry affecting commerce and have or had more

than twenty-five members.

Defendant, Local 13000, United Steelworkers of America

(hereinafter ‘‘Local 13000’’), which was prior to merger

a local union of District 50, is a labor organization in an

industry affecting commerce, and has more than twenty-five

members.

This action was brought individually by Parson and Wil-

hams and was subsequently amended to allege a class action

under Rule 23 (b)(2) of the Federal Rules of Civil Pro-

cedure. The Court heretofore has found that this is a valid

class action pursuant to Rule 23 of the Federal Rules of

Civil Procedure and that the class consists of all Black

hourly employees who were employed at the Chalmette

Works at the time of trial.’

Plaintiff, Parson, was first employed at the Chalmette

Works as a laborer in August, 1953. After holding several

intermediate jobs, Parson was promoted on July 27, 1964

to the job of furnace operator which is a top job in the

Metal Products Department. Parson’s promotion to the job

of furnace operator was prior to the effective date of the’

Civil Rights Act of 1964.

In June, 1966, and on several occasions thereafter, Parson

requested to be considered for promotion to foreman and/or

Foreman Trainee in the Metal Products Department. The

testimony at trial revealed that Parson was considered for

promotion to foreman but did not get the job because he

did, not possess or demonstrate the requisite attributes

necessary to perform the job. Parson did not get the job of

foreman not because he was black but rather because he was

not qualified. In fact, other black men have been made fore-

man and other salaried positions in a number of depart-

ments of the Chalmette Works. For example, the Senior

Industrial Relations Representative and the Supervisor of

the Employment Office, who is in charge of the recruiting

and hiring of all hourly workers, are both black.

10.

The process for the selection of a foreman by Kaiser is

untainted by any overtones of racial discrimination. Al]-

1 Determination of the class, in oart, was made by sending a no-

tice to all hourly Black employees employed by Kaiser at the Chal-

mette Works at the time of trial. All employees who chose not to be

bound by this action are listed in Appendix A.

though the post of foreman is not controlled by the Collec-

tive Bargaining Agreement, as vacancies occur they are

posted on the plant bulletin board and any employee can

initiate, on his own behalf, an application for consideration

as foreman. All applications for foreman are considered by

a review board. Individuals who have initiated an applica-

tion are reviewed and evaluated by a Management Commit-

tee composed of: the Industrial Relations Superintendent,

the Employee’s Supervisor, the Departmental Supervisor

where the vacancy exists, the plant manager or his designee,

and a Black representative.

11.

Plaintiff, Williams, was first employed at the Chalmette

Works as a laborer in January, 1953. Williams worked in

several jobs and departments during the 13-year period

that he was employed by Kaiser. In 1962 Williams became

an assistant furnace operator (the second highest job in the

department) in the Metal Products Department.

12.

In July, 1966, Williams was given a five-day suspension

prior to discharge and was subsequently discharged. The

evidence demonstrates that Williams had a long and poor

disciplinary record and was dismissed for just cause.

13.

Following his discharge, Williams filed a grievance with

Local 225, which was subsequently processed through the

various steps of the grievance procedure as set forth in the

parties’ Collective Bargaining Agreement. After Local 225

investigated all of the facts surrounding Williams’ com-

plaint, the grievance was dropped short of arbitration. The

Court finds that neither Local 225 nor the Aluminum Work-

ers breached its duty of fair representation to Williams in

its handling of his grievance.

14.

Plaintiffs complain that Kaiser discriminated against

blacks as a class, by *‘(r)equiring (them) ... to use segre-

gated shower rooms, lunch rooms, comfort facilities and

drinking fountains located at its plant.’’? However, the

testimony at trial proved that beginning in 1963, Kaiser

actively moved to desegregate its facilities by removing all

signs and by posting notices on the company bulletin boards

that all the facilities at the Chalmette Works were available

to all employees. The company even tore down some of its

existing facilities and rebuilt them into single room facili-

ties that were available to all employees. The evidence dem-

onstrates that today there are no segregated facilities at the

Chalmette Works.

15.

Plaintiffs complain that Kaiser not only discriminated

against plaintiff Parson in failing to promote him to fore-

man but discriminated against blacks, as a class, in ‘‘ failing

and refusing to promote ... the class ... to foremen.’’ As

previously indicated herein, the evidence quite clearly dem-

onstrated that blacks occupy many salaried positions at the

Chalmette Works. There was no evidence indicating any

present effects of any past discrimination which may have

existed and the evidence relating to the selection process for

foreman currently in operation at the Chalmette Works

revealed no obstacles, overt or subtle, which prevent blacks

from being promoted to the position of foreman. In fact,

the very selection process that permits an individual to

initiate his application for foreman and to be reviewed by

a diversified Selection Committee contains appropriate safe-

guards to insure that blacks will be given consideration

equal to that of whites.

16.

Plaintiffs complain that Kaiser refused to ‘‘ promote and

upgrade’’ the class, represented by plaintiffs ‘‘because of

their race.’’ To the contrary, the evidence adduced at trial

indicated that blacks were in top positions even before the

effective date of the Civil Rights Act of 1964, and since July

1, 1965, the upward movement for blacks has not been re-

tarded by any artificial barriers or requirements. In fact,

the evidence showed both that blacks and whites enjoy the

same upward mobility and that there are no present effects

of past discrimination.

17.

Plaintiffs complain that Kaiser discriminated against the

class by ‘‘engaging in racial discriminatory policies and

practices by and through means of enforcing more stringent

punitive measures for infraction of rules against Negro

employees.’’ The record is totally void of any evidence to

support this claim. As previously indicated, the disciplinary

action taken by Kaiser against plaintiff Williams, which

ultimately resulted in his termination, was justified.

18.

Plaintiffs complain that Kaiser discriminates against the

class by maintaining ‘‘. . . a promotional and seniority sys-

tem which continues and preserves, and which has the effect

of continuing and preserving, Kaiser’s policy, practice and

usage [of] limiting the employment and promotional oppor-

tunities of Negro employees of the company because and by

reason of color.’’ Plaintiffs also allege that Kaiser has dis-

criminated against the class by ‘‘(d)enying Negro employ-

ees the same rights of transfer ... as are afforded white

employees.’’ The complaints relative to promotion and/or

upgrading have been considered above. Similarly, this Court

finds that the seniority system employed by Kaiser does not

‘limit the employment and promotional opportunities of

Negro employees’’ nor does Kaiser deny ‘‘ Negro employ-

ees the same rights of transfer.’’

Although there was some testimony to the effect that

blacks were excluded from some departments in the early

1950’s, it was shown that by 1956, black employees had

begun to transfer to almost every department at the Chal-

mette Works. There was also uncontroverted evidence that

plant seniority was established for all purposes within the

production departments by 1962 and that the same principle

was applied in the craft departments by 1965. It was further

shown that the seniority system in effect since 1962 allowed

any employee to bid for a vacancy within his department on

the basis of his total continuous plant seniority. It was fur-

ther shown that, although there are lines of progression in

the various departments, an employee is not required to bid

up the line job by job, but rather he may bid to any job in

the department for which there is a vacancy and in so doing

may move around other employees who are junior to him

by plant seniority. It was further shown that an employee

wishing to transfer between departments, who is a success-

ful bidder, enters the new department for a 10-day trial

period and if he decides that he does not like the department

or the job to which he has transferred, he has a right to

return to his former job without losing any seniority. On

the other hand, if he wishes to stay in the new department,

after expiration of ten-day period, the employee is free to

bid on the basis of his qualifications and plant seniority on

any vacancy in that department. The evidence established

beyond a doubt that many black employees have taken ad-

vantage of these transfer opportunities and have rapidly

advanced to higher paying jobs.

This Court finds that the method of transfer from depart-

ment to department at the Chalmette Works does not dis-

criminate against the class. This Court further finds that

there is no loss in an employee’s seniority as a result of his

transferring between departments and that there is full

plant seniority carryover on all such transfers. It should

also be noted that a substantial number of black employees,

who testified at the trial, had reached the top jobs in their

respective departments prior to the passage of the Civil

Rights Act of 1964. Such evidence clearly illustrates that the

seniority system, as developed through the collective bar-

gaining process, does not now nor did it historically exclude

blacks or othey employees from utilizing their plant se-

niority for transfer and promotion at the Chalmette Works.

19.

Plaintiffs have generally claimed that the testing and

training procedures employed at the Chalmette Works dis-

criminates against the class. The testimony at the trial

indicated that prior to 1968, the company had required al]

applicants to pass the ‘‘ Wonderlic Test’’ and various other

tests used for promotional purposes within the departments

of the Chalmette Works. In 1968 Kaiser evaluated their

testing procedures and determined that the process was not

valid for the purposes utilized. Consequently, in the latter

part of 1968, the company abolished the testing procedure

then in operation. There is, however, no evidence in the

record to suggest that but for the use of the tests prior to

1968, any member of the class would have obtained a higher

paying position. Except for some craft positions, no testing

is currently utilized. In order to qualify for a crafts position

an applicant need only possess two years industrial experi-

ence or comparable trade school or service connected experi-

ence. For some craft jobs an applicant is required to per-

form a practical exercise, such as building a cement brick

wall, to demonstrate his qualifications as a bricklayer. I find

that the requirement that applicants for crafts positions

- possess some experience does not discriminate against the

class.

The testimony revealed that the training for most posi-

tions at Kaiser is obtained through direct observation and

participation in the particular tasks of that job (‘‘on-the-

job training’’). However, in some instances Kaiser has

developed training programs for certain positions. There

Was no evideiice at the trial that these methods of training

discriminated against the class. In fact the testimony indi-

cated that blacks were able to avail themselves of these

training opportunities and thereby advance as rapidly as

whites up the line of progression in the various departments

at the Chalmette Works.

Plaintiffs have generally complained that the ‘“‘lay-off

pool’’ discriminates against the class. The ‘‘lay-off pool,’’

which is fully described and detailed in the Collective Bar-

gaining Agreement, sets forth the procedure which is fol-

lowed when there is a partial or plant-wide reduction in the

work force at the Chalmette Works. This Court finds from

the evidence adduced at trial that this mechanism, for deter-

mining which employees must leave the plant in the event of

a reduction in the work force and which employees are re-

turned to work when the work force is increased after reduc-

tion, does not discriminate against the class because there

was no past discrimination in hiring laborers.

22.

Plaintiffs claim that the defendants, Local 225, District 50

and Steelworkers, discriminated against the class as fol-

lows: .

(a) Refusing and failing to file and process grievances

which refusal is the result of racial discrimination

pursued by the Local.

(b) Refusing and failing to accord plaintiffs and the

class represented fair and adequate representation.

tiffs and the class represented because of and by

reason of their race.

However, with the exception of testimony relating to plain-

tiff Williams, plaintiffs failed to introduce any conclusive

evidence with regard to the contentions relating to unfair

representation in the day-to-day handling of grievances.

This Court has previously indicated its position regarding

Local 225’s process of Williams’ discharge grievance.? The

evidence introduced by the plaintiffs with respect to union

representation revealed that the unions consistently pro-

cessed the grievances of black employees in good faith; the

testimony also revealed that blacks have continually held

significant positions in the various unions.

‘

* Local 225 had successfully processed a prior discharge griev-

ance in 1965 for Williams which resulted in Williams’ reinstate-

ment.

10a

CONCLUSIONS OF LAW

This Court has jurisdiction of this action pursuant to 28

USC § 1345 and 42 USC § 2000e-5(f) (3).

The individual plaintiffs, Parson and Williams, are

authorized to institute this action under 42 USC § 2000e,

et seq., and 42 USC § 1981.

Under Rule 23 of the Federal Rules of Civil Procedure,

Parson and Williams represent a class which consists of all

Black hourly employees who were employed at the Chal-

mette Works at the time of trial, with the exception of those

individuals who opted not to be represented by Williams

and Parson and who are listed in Appendix A hereto.

Defendant, Kaiser, is an employer within the meaning of

Section 701(b) of the Civil Rights Act of 1964, 42 USA

§ 2000e(b) and is engaged in an industry affecting com-

merce within the meaning of Section 701(h) of the Act,

42 USC § 2000e-(h).

Defendant, Steelworkers, is a labor organization within

the meaning of Section 701(d) of the Civil Rights Act of

1964, 42 USC § 2000e-(d) and is engaged in an industry

affecting commerce within the meaning of Section 701(e) of

the Civil Rights Act of 1964, 42 USC § 2000e-(e).

Defendant, District 50, which merged with Steelworkers,

is a labor organization within the meaning of Section

701(d) of the Civil Rights Act of 1964, 42 USC § 2000e-(d)

and is engaged in an industry affecting commerce within the

meaning of Section 701(e) of the Civil Rights Act of 1964,

42 USC 4 2000e-(e).

lla

Defendant, Local 225, is a labor organization within the

meaning of Section 701(d) of the Civil Rights Act of 1964,

42 USC § 2000e-(d) and is engaged in an industry affecting

commerce within the meaning of Section 701(e) of the Civil

Rights Act of 1964, 42 USC § 2000e-(e).

Defendant, Kaiser, did not discriminate against Parson

within the meaning of 42 USC 4 2000e, et seg. or 42 USC

§ 1981 and, particularly, Kaiser did not violate the provi-

sions of 42 USC § 2000e, et seg. or 42 USC § 1981 in failing

to promote Parson to the position of foreman.

Defendant, Kaiser, did not discriminate against Williams

within the meaning of 42 USC § 2000e, et seg. or 42 USC

§ 1981 and, particularly, Kaiser did not violate the provi-

sions of 42 USC § 2000e, et seg. or 42 USC § 1981 in ter-

minating Williams’ employment.

10.

Defendant, Local 225, did not discriminate against Wil-

liams within the meaning of 42 USC § 2000e, et seq. or 42

USC § 1981 and, particularly, did not violate the provisions

of 42 USC § 2000e, e# seg. or 42 USC § 1981 with respect to

handling Williams’ grievances.

11.

Defendants, Kaiser, Local 225, District 50, and Steel-

workers, have not since July 1, 1965, and do not presently

discriminate within the meaning of 42 USC § 2000e, et seq.

or 42 USC § 1981 against the class previously identified and

represented by Williams and Parson. The Court further

concludes, as a matter of law, that there are no present

effects of any past discrimination at the Chalmette Works.

12.

Defendant, Kaiser, has not maintained segregated facili-

ties at the Chalmette Works since July 1, 1965, and, accord-

12a

ingly, has not violated the provisions of 42 USC § 2000e,

et seq.

13.

While some segregated facilities were maintained by

Kaiser at times prior to July 1, 1965, in violation of 42 USC

§ 1981, the class is not now entitled to an injunction for such

previous violations. An injunction is remedial, not punitive,

Hodgson v. First Fed. Sav. & L. Ass’n., 455 F.2d 818 (Sth

Cir. 1972), and looks to the future, not the past, Dombrow-

ski v. Pfister, 380 U.S. 479 (1965). Thus, an injunction

should not issue where the basis for it has been removed,

Roberts v. Pegelow, 313 F.2d 548, 552 (4th Cir. 1963);

Black v. Brown, 355 F.Supp. 925 (N.D. Til. 1973).

14.

Defendant, Kaiser, has not discriminated against the

class in the selection of foremen since July 1, 1965, and,

accordingly, has not violated the provisions of 42 USC

§ 2000e, et seq. Rowe v. General Motors Corp., 451 F.2d 418

(5th Cir, 1971), cert. denied, 406 U.S. 906 (1.972).

15.

The class is not entitled to any affirmative relief for any

possible pre-July 2, 1965 discrimination in the selection of

foremen, An injunction is not in order since any alleged

violations have been cured and no member of the class is

entitled to back pay for these alleged violations since back

pay claims under § 1981 are limited to July 2, 1965, the

effective date of Title VII of the Civil Rights Act of 1964,

Johnson v. Goodyear Tire and Rubber Co., 7 DPD 9233

(5th Cir. Mar. 27, 1974), and plaintiffs have failed to show

that the class sustained any damages after July 1, 1965 as

a result of possible violations.

16.

Defendant, Kaiser, has not since July 1, 1965, and does

not now discriminate against the class with respect to its

policies relating to promotion and upgrading and, accord-

ingly, has not violated either the provisions of 42 USC

13a

§ 2000e, et seqg., or the provisions of 42 USC § 1981 from

that date. Plaintiff is not entitled to the affirmative relief

sought for violations of 42 USC’ $1981 occurring prior to

that date because the prohibited conduct has ceased, back

pay prior to July 1, 1965 is not recoverable, and there is no

evidence of present effects of past discrimination.

17.

Defendant, Kaiser, does not discriminate against the class

with respect to its policies relating to disciplinary action for

the infraction of company rules and, accordingly, has never

violated the provisions of 42 USC § 2000e, et seg. and 42

USC § 1981.

18.

Defendants, Kaiser and Steelworkers, do not now dis-

criminate and have not discriminated since at least July 1,

1965, with respect to their promotional and seniority sys-

tem, including the transfer provisions thereof, and, accord-

ingly, have not violated the provisions of 42 USC 4 2000e,

et seq. While violations of 42 USC § 1981 may have occurred

in this area prior to that date, no injunction will issue be-

cause the prohibited behavior has long since ceased, and no

damages are recoverable for back pay prior to that date.

Further, unlike the seniority systems discussed and ana-

lyzed in Johnson v. Goodyear Tire & Rubber Co., 7 EPD

§ 9233 (5th Cir. Mar. 27, 1974) ; Bing v. Roadway Express,

Inc., 485 F.2d 441 (5th Cir. 1973) ; United States v. Georgia

Power Co., 474 F.2d 906 (5th Cir. 1973); United States v.

Hayes International Corp., 456 F.2d 112 (5th Cir. 1972), the

promotional and seniority system, including the transfer

provisions thereof, in effect at the Chalmette Works does

not disclose any present effects of past discrimination, nor

has the system prevented members of the class from achiev-

ing the top position to which they are entitled.

19.

Defendant, Kaiser, has not since 1968 discriminated

against the class with respect to its testing and training pro-

cedures and, accordingly, is not presently violating the pro-

l4a

visions of 42 USC § 2000e, et seq. or 42 USC § 1981. Kaiser,

on its own motion, has abolished written testing, especially

the ‘‘ Wonderlic Test,’’ and has guided itself in conformity

with Griggs v. Duke Power Co., 401 U.S. 424 (1970) ; United

States v. Georgia Power Co., supra, and Johnson v. Good-

year Tire and Rubber Co., supra. While the use of the

Wonderlic Test prior to 1968 may have constituted unlawful

discrimination, no injunction will issue because the viola-

tions have long since been corrected and no award for back

pay will be made because the mere showing of discrimina-

tory employment practices is not by itself a proper premise

for making a back pay award. There must be more, namely,

‘*positive proof that plaintiff was ordinarily entitled to the

wages in question and being without fault, would have re-

ceived them in the ordinary course of things but for the

inequitable conduct of the party from whom the wages are

claimed.’’ United States v. Georgia Power Co., 474 F.2d

906, 921, 922 (5th Cir. 1973) ; Jinks v. Mays, 464 F.2d 1223,

1226 (5th Cir. 1972). Since there has been no presentation of

positive proof that any members of the class would have

achieved a higher paying position but for the use of the

Wonderlic Test, the class is not entitled to recover any

damages for back pay.

20.

Defendants, Kaiser and Steelworkers, do not now nor

have they in the past discriminated against the class with

respect to the operation of the ‘‘lay-off pool,’’ and, accord-

ingly, have not violated the provisions of 42 USC § 2000e,

et seq. and 42 USC § 1981. Unlike the lay-off provisions

discussed and analyzed in this Court’s opinion in Watkins v.

Steel Workers (USA), Local 2369, 7 EPD 9130 (E.D. La.

Jan. 14, 1974), the lay-off pool operative at the Chalmette

Works does not discriminate against black employees.

21.

Defendants, Local 225, District 50 and Steelworkers, do

not now nor have they in the past discriminated against the

class with respect to the filing and processing of grievances

15a

and providing fair and adequate representation and, accord-

ingly, have not violated the provisions of 42 USC § 2000e,

et seg. and 42 USC § 1981.

22.

In accordance with the foregoing conclusions of law, there

shall be judgment in favor of defendants, Kaiser, Local 225,

District 50, and Steelworkers, and against plaintiffs, Parson

and Williams, individually and as representatives of the

class of all hourly employees employed at the Chalmette

Works at time of trial, with the exception of those noted on

Appendix A, dismissing their complaint, as amended, at

their costs.

New Orleans, Louisiana, May 22, 1974.

Frep J. Cassrpry,

United States District Judge

Copy to all counsel

16a 17a

APPENDIX B

UNITED STATES DISTRICT COURT

[The following was Appendix A to the District Court’s

Findings Of Fact And Conclusions of Law]

PARSON ET AL V. KAISER ET AI.

Civil Action No. 67-1257

SECTION ‘‘E”’

JOSEPH AUGUSTUS

ALFRED Bank

Wiuu1am CELESTIN

Hersert Coiuins

Smon R. Corny, Jr.

Rosert GeDavuu

Grec R. Green

Leroy Hotmgs, JR.

Jor Homer, JR.

SpenceR Howarp

JosEPH A. MARCHAND, Sr.

JAMES PIERRE, JR.

Fart C. Raymonp

JosEPH G. SENEGAL

KeEtMeEr L. STEVERSON

Frank TRIM

—

—S

EASTERN DISTRICT OF LOUISIANA

[Caption omitted]

JUDGMENT

This cause came on for trial on a former day, and after

testimony of witnesses and argument of respective counsel,

the Court took the matter under submission.

Now, therefore, considering the written reasons of the

Court on file herein, and considering the direction of the

Court as to entry of judgment.

Ir 1s ORDERED, ADJUDGED AND DeEcrREEpD that there be judg-

ment in favor of defendants, Kaiser, Local 225, District 50,

and Steelworkers, and against plaintiffs, Harris A. Parson

and Arcell Williams, individually and as representatives of

the class of all hourly employees employed at the Chalmette

Works at time of trial, with the exception of those noted on

Appendix A, dismissing their complaint, as amended, at

their costs.

New Orleans, Louisiana, this 23 day of May, 1974.

/8/ Frep J. Cassisry,

United States District Judge

18a

APPENDIX C

Harris A. Parson,

Plaintiff-Appellant,

Kaiser ALUMINUM & CHEMICAL CorpP., anD Locat 13000,

Unrtep Stree.workers or America, AFL-CIO, CLC

Defendants-Appellees

No. 74-3468

United States Court of Appeals, Fifth Circuit

July 10, 1978

Appeal from the United States District Court for the

Eastern District of Louisiana.

Before Brown, Chief Judge, THornserry, Circuit Judge

and Mmuer,* Associate Judge.

Joun R. Brown, Chief Judge:

Plaintiff, a black employee at the Chalmette, Louisiana

plant of Kaiser Aluminum and Chemical Corporation

(Kaiser), appeals from a judgment dismissing his indi-

vidual and class claims of racial discrimination in employ-

ment. Finding errors of both fact and law in the dismissal

at the close of the plaintiff’s case, we reverse and remand.

In July 1966, the named plaintiff, Harris Parson, filed a

charge with the Equal Employment Opportunity Commis-

sion (EEOC) under section 706(e) of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e-5(e), claiming that Kaiser dis-

criminated against him on the basis of his race in refusing

to promote him to the position of foreman. Parson also

alleged that Kaiser maintained racially segregated facilities

and that, with the cooperation of the employees, bargain-

ing representative, Local 225 of the Aluminum Workers In-

* Of the U.S. Court of Customs and Patent Appeals sitting by

designation.

19a

ternational Union (Local 225),’ denied black employees

equal opportunities for advancement. The EEOC found

reasonable cause to believe that Kaiser and Local 225 en-

gaged in discriminatory practices and, after attempting a

cure by conciliation, issued Parson a right to sue notice in

August 1967.

Parson brought suit in September 1967, seeking relief

against Kaiser under the Civil Rights Act of 1866, 42 U.S.C.

§ 1981,? and Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e et seq.,> and against the Union for viola-

1 At the time legal proceedings began, Local 225 was the bargain-

ing representative for Kaiser’s employees. Several replacements

and mergers have occurred since that time, resulting in two changes

in bargaining representative. These changes were reflected in addi-

tions to the party defendants named in the litigation. The present

representative is Local 1300, United Steelworkers of America, AF'L-

CIO, CLC, named as a defendant and now an appellee in this suit.

2 42 U.S.C. § 1981 provides:

All persons within the jurisdiction of the United States shall

have the same right in every State and Territory to make and

enforce contracts, to sue, be parties, give evidence, and to the

full and equal benefit of all laws and proceedings for the se-

eurity of persons and property as is enjoyed by white citizens,

and shall be subject to like punishment, pains, penalties, taxes,

licenses, and exactions of every kind, and to no other.

342 U.S.C.A. § 2000e-2 in pertinent part provides:

‘*(a) It shall be an unlawful employment practice for an

employer— |

(1) to fail or refuse to hire or to discharge any individual,

or otherwise to discriminate against any individual with re-

spect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s race, color, religion,

sex, or national origin; or

(2) to limit, segregate, or classify his employees in any way

which would deprive or tend to deprive any individual of em-

ployment opportunities or otherwise adversel~ affect his status

as an employee, because of such individual’s race, color,

religion, sex, or national origin.

* e e

20a

tions of Title VII and of the duty of fair representation

imposed by 29 U.S.C. §§ 151 et seq. Another black employee,

(d) It shall be an unlawful employment practice for any

employer, labor organization, or joint labor-management com-

mittee controlling apprenticeship or other training or retrain-

ing, including on-the-job training programs to discriminate

against any individual because of his race, color, religion, sex,

or national origin in admission to, or employment in, any pro-

gram established to provide apprenticeship or other training.

(h) Notwithstanding any other prevision of this subchapter,

it shall not be an unlawful employment practice for an em-

ployer to apply different standards of compensation, or differ-

ent terms, conditions, or privileges of employment pursuant to

a bona fide seniority or merit system, or a system which mea-

sures earnings by quantity or quality of production or to em-

ployees who work in different locations, provided that such

differences are not the result of an intention to discriminate

because of race, color, religion, sex, or national origin, nor

shall it be an unlawful employment practice for an employer

to give and to act upon the results of any professionally de-

veloped ability test provided that such test, its administration

or action upon the results is not designed, intended or used to

discriminate because of race, color, religion, sex or national

origin. It shall not be an unlawful employment practice under

this subchapter for any employer to differentiate upon the

basis of sex in determining the amount of the wages or com-

pensation paid or to be paid to employees of such employer

if such differentiation is authorized by the provisions of section

206(d) of Title 29.

42 U.S.C.A. § 2000e-3 provides:

(a) It shall be an unlawful employment practice for an

employer to discriminate against any of his employees or ap-

plicants for employment, for an employment agency to dis-

criminate against any individual, or for a labor organization to

discriminate against any member thereof or applicant for mem-

bership, because he has opposed any practice made an unlawful

employment practice by this subchapter, or because he has

made a charge, testified, assisted, or participated in any man-

2la

Arcell Williams, joined Parson in the suit, claiming that he

had been discriminatorily discharged. Parson and Williams

subsequently amended their complaint to include allegations

of discriminatory employment practices against a class of

black hourly employees.* After extensive and prolonged

pretrial proceedings, the case came to trial in 1973. At the

conclusion of the plaintiffs’ case, the defendants moved

under F.R.Civ.P. 41(b) for an involuntary dismissal on the

ground that ‘‘plaintiffs have shown no right to relief’’ on

either their individual or class claims. The District Court

recessed the trial, dismissed Williams’ claim and, in May

1974, some fourteen months later, dismissed Parson’s indi-

vidual suit and the class action. In its findings of fact and

conclusions of law issued under F.R.Civ.P. 52(b), the Dis-

trict Court held that no discrimination ‘was present in any

of the actions or practices asserted by the plaintiffs. Parson

appeals on behalf of himself and the class he represents

from the judgment in favor of the defendants.

Although the complaint alleged a variety of discrimina-

tory practices,® the appeal is limited to the following find-

ings and conclusions : defendant Kaiser did not discriminate

against Parson by refusing to award him the promotion he

sought; Kaiser did not discriminate against the class in

making promotions to supervisory positions; Kaiser did

ner in an investigation, proceeding or hearing under this sub-

chapter.

* The District Court Judge ruled that the class action was valid

under F.R.Civ.P. 23(b) (2) and found that the class consisted of all

black hourly employees working at the Chalmette plant at the time

of trial, except those who had chosen not to be represented by the

named plaintiffs.

5 No appeal was taken from the dismissal of Arcell Williams’ in-

dividual claim.

®In particular, plaintiffs do not contest the findings or conclu-

sions that the following allegations were meritless: segregation in

plant facilities, discrimination in promotion and advancement to

nonsupervisory positions or positions outside the crafts; discrimina-

tion in sanctioning infractions of plant rules; and discrimination

in the composition of the ‘‘lay-off pool.’’

22a

not discriminate in providing training and opportunities

for entry to craft positions; and Kaiser and the Union did

not discriminate in the contractual procedures governing

bidding and transfers.

We hold that as to each of these issues, the District Court

erred in holding that no discrimination was evidenced and

in dismissing the suit. We reverse and remand for further

proceedings consistent with the standards developed in this

Circuit and the Supreme Court for judging claims of racial

discrimination in employment.

II. The Challenged Employment Practices

Kaiser is engaged in the production of aluminum from

powered alumina at the Chalmette facilities. At the time of

trial, the plant employed over 2,400 people, of whom ap-

proximatly 20 percent were black. Kaiser has operated the

Chalmette plant since 1951. At that time, blacks were hired

only as laborers and the physical facilities of the plant were

rigidly segregated.’ Plaintiff’s essential claim at trial and

on this appeal is that insufficient progress has been made

since then to satisfy the requirements of the civil rights

statutes.®

* Our understanding of the organization of the plent and the

details of its operation is somewhat hampered by the absence of

defendants’ evidence and by the state of the record that does exist,

which, as the plaintiff’s brief concedes, is highly disorganized.

* Discrimination prior to the effective date of Title VII, July 2,

1965, can be considered under two theories. Since the appel-

lant’s allegations are also made under 42 U.S.C.A. § 1981 em-

ployment practices prior to 1965 may be examined. Secondly,

this court specifically explained in United States v. Jackson-

ville Terminal, 451 F.2d 418, 441 (5th Cir. 1971), cert. denied,

406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 815 (1972) ... that

pre-act discriminatory conduct is highly relevant, especially,

when considering neutral practices under Title VII alleged to

earry forward past discriminatory effects.

Pettway v. American Cast Iron Pipe Co., 5 Cir., 1974, 494 F.2d

211, 218 n. 10.

23a

A. Promotions to the Position of Foreman

The plaintiff presented evidence tracing the evolution of

the procedures for selecting foremen from the hourly em-

ployees.® Until April 1966, Kaiser had no written proce-

dures or standards governing such promotions. At that

time, Kaiser adopted a system requiring each shift fore-

man to evaluate the hourly employees under his supervision

every six months and report the names of likely candidates.

Those listed would be further screened by the general fore-

men and departmental superintendents, and if approved,

would be administered two personnel tests, the Wonderlic

Test and the How to Supervise Test. The candidates achiev-

_ ing sufficiently high scores would then be classified as

‘trainee foremen,’’ a status that allowed them to replace

absent permanent foremen and, depending on their success,

to advance to a permanent position as openings occurred.

Parson’s application for promotion was considered one

month after this procedure had been adopted.

This system for considering applicants was modified in

June of 1967 to ameliorate the requirement that an hourly

employee could not become a candidate for a supervisory

position without his immediate foreman’s recommendation.

The revised procedure required each foreman to submit the

names of those employees who had indicated a wish to be

promoted, ‘‘but whom the Foreman believes do not have

the qualifications.’’ An applicant not approved by either

his shift foreman or the department superintendent was

further reviewed by a committee authorized to reverse the

previous decisions and allow the employee to take the per-

sonnel tests.

The following year, Kaiser’s program was revised, ap-

parently to reflect and anticipate changes in the law of em-

ployment discrimination. The use of the Wonderlic Test for

identifying qualified candidates was eliminated after a vali-

® The ‘‘Foreman Selection Programs’’ for 1966, 1967, 1968, and

1970 are set forth in Appendix, Vol. II, at 183-93, Plaintiff’s Ex-

hibit 52-55.

24a

dation study designed to relate the tests to the demands of

the job failed.’® In 1970, Kaiser further revised the proce-

dure for selecting permanent foremen. This procedure was

based on annual evaluations and recommendations from

immediate supervisors subject to review by general fore-

men and department superintendents. When vacancies oc-

curred, the department superintendent and personne] rela-

tions superintendent would select candidates from the

group judged qualified in the annual screening. These

prospects were interviewed and a choice recommended for

the final approval of the plant works manager.

The last revision in the selection procedure relevant to

this litigation occurred in April 1972. For the first time,

vacancies in shift foremen positions were posted on a cen-

tral bulletin board. An hourly employee interested in the

position requested an application form, and the applica-

tions, together with the written evaluation of the appli-

cant’s foreman, were screened by a committee that inter-

viewed the leading candidates and made a final recommen-

dation. The committee, which consisted of five persons, had

a frequently changing membership, and in at least one in-

stance documented in the record, the membership included

blacks. In making its selections, the committee used a writ-

ten list of criteria and standards. This list represents the

first written standards guiding the selection of supervisors

used at the Chalmette plant.

The plaintiff’s brief paints the following statistical pic-

ture of Kaiser’s foreman population." In July 1965, when

10In May 1967, the EEOC found reasonable cause to believe

that the Wonderlic Test discriminated against black employees.

Kaiser’s subsequent validation study revealed that twice as many

blacks failed the test as whites and that the test did not accurately

predict job performance for either race. See Plaintiff’s Exhibit 67.

1 Kaiser and the Union contest the use of these statistics in Par-

son’s brief to this Court, claiming that the figures are drawn from

material never introduced into evidence, including answers to inter-

rogatories, deposition testimony, and EEOC reports. Plaintiff

admits that the data concerning the total number of foremen serv-

2da

Title VILL became effective, there were 209 supervisors em-

ployed at the Chalmette plant, all of whom were white. Of

these, over 150 served as shift foremen, the position to

which Parson aspired. In July of 1965, Kaiser employed

1,873 hourly production workers, of whom 15 percent were

black. In September 1971, when Kaiser filed its last re-

sponses to discovery motions, 164 shift foremen served at

the plant, of whom 8, or less than:5 percent, were black.”

At that time, more than 21 percent of Kaiser’s hourly em-

ployees, and 29 percent of the hourly production workers,

were black. Between July 1965 and September 1971, 9

blacks were promoted to shift foreman jobs. Between Sep-

tember 1971 and the time of trial, April 1973, 4 additional

blacks were promoted.” All but one of this last group was

selected under the 1972 selection procedure.

B. Interdepartmental Transfers

A Kaiser employee who desires to transfer to a position

in another department must follow the procedures estab-

lished by the contractual agreement between Kaiser and

the Union. The Supplement Seniority Agreement [sic] of

February 1, 1972, in effect at the time of trial, requires that

vacancies for permanent jobs (except those openings sub-

ject to ‘‘departmental job bids,’’ discussed below) are to

ing on a given date were drawn from Kaiser’s answers to interroga-

tories not admitted into evidence. However, the information con-

cerning the date and details of the appointments of black foremen

is based on testimony and documents that were put in evidence at

the trial. Plaintiff contends that the comparisons between these

figures and the numbers concerning the total number of foremen

can be drawn, in ‘‘somewhat less exact form,’’ from Kaiser’s

Affirmative Action Report, which ‘vas introduced into evidence.

Plaintiff’s Exhibit 67. We have reviewed the record and are satis-

fied with the plaintiff’s response.

12 Four cf the eight black supervisors were in charge of janitorial

workers ; only one supervisor of janitors was white.

13 Because one of the black foremen selected before 1971 had

taken disability leave and a second had transferred to a nonsuper-

visory position, only ten black foremen chosen under the pre-1972

procedures were working at the plant at the time of trial.

26a

be posted at centrally located bulletin boards and that em-

ployees are to use a formal bidding system to apply for

the openings. Success in transfer is determined by either

plant seniority alone or by a combination of plant seniority

and other qualifications. To assess the impact of these pro-

cedures, it is necessary to examine the development of the

transfer and seniority systems before and after the effec-

tive date of Title VII.

Kaiser restricted blacks to menial positions—laborer and

porter—from 1951 to 1956, when blacks were allowed to

transfer to some production departments.“ Entry into pro-

duction departments remained subject to other restrictions,

however. A ‘‘passing’’ score on the Wonderlic Test was

required as a condition of entry to some of the production

departments until 1968. Until 1962, departmental seniority

determined eligibility for transfer and advancement: em-

ployees within a department would bid on vacancies on the

basis of their relative length of service within that depart-

ment. In 1962, plant seniority was substituted for depart-

mental seniority as the bidding standard within the produc-

tion departments, and in 1962, plant seniority was adopted

as the standard in the craft departments as well. Under

this system, an employee’s eligibility for bidding is based

on his total length of service at the Chalmette plant.

The plaintiff’s major complaint as to the present transfer

system is that employees transferring to a new department

can bid only for entry level jobs in that department, usually

the job of ‘‘spare.’’ Vacancies for positions above the entry

level are posted only within that department and only em-

ployees already in the department are eligible to bid. A

transferring employee must occupy the spare position in

the new department for a minimum of ten days, during

which time he may elect to return to his old job with no loss

in pay, seniority, or eligibility for promotion in the old

During this period, the laborer and porter positions were held

exclusively by blacks. The lowest position for which white em-

ployees were hired was that of ‘‘spare.’’ Testimony of Isadore

Rooker, testimony of J. B. Sims, R., Vol. VII.

27a

department. At the end of the ten-day trial period, the

transferee is eligible to bid for vacancies that arise in the

new department on the basis of his plant seniority. If the

spare job pays less than the job from which the employee

has transferred, he must take the cut in pay until a higher

paying job in the new department becomes available and

the employee is able successfully to bid for it. A depart-

mental employee thus has preference over employees from

other departments for promotion to all nonentry level va-

eancies within his department.”®

C. Entry Into Craft Positions

The craft positions at issue come within the jurisdiction

of the Power Maintenance Department and the Reduction

Maintenance Department at the Chalmette plant.’® Most of

the craft positions are filled without on-the-job training or

apprenticeship programs. The following requirements are

or have been conditions for entry to such positions.

Prior experience. Most of the craft jobs require previous

experience in the craft involved. While the length and type

of experience required varies from craft to craft, industrial

experience is preferred. There is some evidence in the

record that this requirement is not consistently applied and

that decisions to waive or modify it are within the discre-

tion of the supervisor involved in the hiring process.

Testing and educational requirements, Beginning in 1959

and continuing until 1968, Kaiser required that an appli-

cant achieve a certain score on the Wonderlic Test as a

15 This system does not apply to those jobs for which prior service

in another, related position in the department is a prerequisite for

bidding.

16 The plaintiff’s brief lists the craft categories at issue as elec-

trician, lagger, lineman, instrument repairman machinist, mechanic,

painter, welder, air conditioning mechanic, automotive mechanic,

blacksmith, bricklayer, and carpenter. This list does not include

skilled positions that are filled by bidding on the basis of seniority

rather than by hire or transfer. See note 19, infra.

28a

condition for entry to any craft position.’” This requirement

was dropped after a 1967 validation study indicated that the

test could not satisfy the standards governing the permis-

sible use of such employment devices.’* Until 1968, Kaiser

also required each applicant to take a written test relating

to the skills of the particular craft involved. After these

tests were eliminated, Kaiser used ‘‘structured interviews’’

to examine applicants orally on the same information.

Until 1970, a high school diploma was a prerequisite for

entry into several of the crafts.

Training programs. Kaiser adopted its first training pro-

gram for craft jobs in April 1969. Under this program,

which applied to the categories of electrician, instrument

repairman, and mechanic, trainee jobs were open for plant-

wide bidding. However, trainees were required to have com-

pleted two years of high school to be eligible for the me-

chanic program, to have a high school diploma for the other

two craft programs, and to pass an aptitude test adminis-

tered by the Louisiana State Employment Service. Two of

the twelve craft trainees enrolled in the program after a

little over one year of operation were black.

Parson draws on Kaiser’s Affirmative Action Report for

statistical information as to the impact of Kaiser’s entry

requirements."® Of the craftsmen employed in 1965, 3, or

17 Kaiser did not require craftsmen who began work before the

test was adopted to take the examination. All the exempt craftsmen

were white.

18 See note 10, supra.

1° The figures in Kaiser’s report include skilled production jobs

that plaintiff does not group with the craft categories involved in

this appeal. Plaintiff complains of discrimination only in the entry

requirements of those craft positions filled by hire or transfer rather

than by bidding on the basis of seniority. Kaiser’s ‘‘skilled crafts-

men’”’ count results in different numbers but similar ratios ;

1967—629 white 4 black

1968—648 white 16 black

1969—655 white 24 black

1970—606 white 19 black

1971—591 white 23 black

Plaintiff’s Exhibit 19.

29a

less than 1 percent, were black. In 1971, 8 out of 468 crafts-

men, or approximately 2 percent, were black. At the time of

trial, there were a total of 11 black craftsmen employed at

the plant, all working in the Reduction Maintenance De-

partment. While Parson concedes that complete figures as

to employee turnover in the crafts since 1965 are not avail-

able, he convincingly uses Kaiser’s 1970 Seniority List to

provide a rough estimate.”® This list shows that Kaiser

hired 22 of the 96 craftsmen in the Power Maintenance De-

partment after 1965; 1 of the 22 was black. Of the 365

craftsmen in the Reduction Maintenance Department, 65

were hired after 1965, and of these, 3 were black.

Parson bases his challenges to the District Court’s find-

ings on the premise that in each of the areas detailed—

promotions to foreman, transfer, and entry to the crafts—

he presented a prima facie case of racial discrimination.

ITI. The District Court’s Judgment

A. Parson’s Individual Claim

Harris Parson was hired as a laborer at the Chalmette

plant in 1953. In 1961, he transferred to the Metal Products

Department as a ‘‘spare’’ and in 1964 was promoted to the

semiskilled job of furnace operator, one of the top jobs in

the department. In June of 1966, Parson requested that he

be considered for the position of temporary foreman, the

first black in his department to ask for such a promotion.

After his request was denied, Parson filed a complaint with

the EEOC and subsequently brought this suit. At trial, and

on this appeal, Parson claimed that his work record was

excellent, that his union activities demonstrated leadership

capabilities, and that the only reasons for the failure to

promote him were his race and his outspoken efforts to

hasten the integration of the plant’s facilities. To support

his claim of racia] discrimination, Parson introduced evi-

dence of the comparative qualifications of white men who

were promoted shortly after Parson’s request was denied ;

20 See Plaintiff’s Exhibit 19.

30a

asserted that the procedures for awarding promotions

themselves violated Title VII; and urged that statistics

comparing the number of black and white foremen to the

racial composition of the hourly employee population

showed a pattern of discrimination in promotions at the

plant. At the close of plaintiff’s evidence, the District

Court Judge made the following finding of fact :

‘*The testimony at trial revealed that Parson was con-

sidered for promotion to foreman but did not get the

job because he did not possess or demonstrate the

requisite attributes necessary to perform the job. Par-

son did not get the job of foreman not because he was

black but rather because he was not qualified. In fact,

other black men have made foreman and other salaried

ae in a number of departments of Chalmette

orks.

[Appendix, Vol. I, at 25.] On this basis, the District Court

Judge concluded that Kaiser had not discriminated against

Parson.

In reviewing the District Court’s findings of fact, we are

mindful of our limited authority under the clearly erroneous

standard of F.R.Civ.P. 52(a). However, we are equally

mindful that the clearly erroneous standard does not apply

to findings made under an erroneous view of controlling

legal principles. United States v. Jacksonville Terminal Co.,

5 Cir., 1971, 451 F.2d 418, 423-24; cert denied, 1972, 406

U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 815; Rowe v. General

Motors Corp., 5 Cir., 1972, 457 F.2d 348, 356 n. 15. We are

also careful in discrimination suits, where the elements of

fact and the law become particularly intermeshed, of the

distinction between findings of subsidiary fact and findings

of ultimate fact. A finding of nondiscrimination is a finding

of ultimate fact that can be reversed free of the clearly

erroneous rule. ‘‘In reviewing the District Court’s findings,

therefore, we will proceed to make an independent determi-

nation of appeallant’s allegations of discrimination, though

bound by findings of subsidiary fact which are themselves

not clearly erroneous. ... [W]e must [also] determine

whether there are requisite subsidiary facts to undergird

sla

the ultimate facts.’’ Causey v. Ford Motor Co., 5 Cir., 1975,

516 F.2d 416, 420-21 [citation omitted].

In a non-class claim of employment discrimination under

Title VII, the plaintiff carries the initial burden of proving

a prima facie case of discrimination. The elements of a

prima facie case were delineated in McDonnell Douglas

Corporation v. Green, 1973, 411 U.S. 792, 802, 93 S.Ct. 1817,

36 L.Ed.2d 668, 677: (i) the complainant must belong to a

protected minority; (ii) must apply and be qualified for a

job for which the employer is seeking applications; (iii) be

rejected for the job; and (iv) the employer must then con-

tinue to seek applicants with the complainant’s qualifica-

tions. When a plaintiff meets these criteria, the burden

shifts to the defendant to show, by a preponderance of the

evidence, that it had legitimate, nondiscriminatory reasons

for its decision. If the defendant can meet this burden, the

plaintiff must then prove, by a preponderance of the evi-

dence, that the articulated reason is a pretext for discrim-

ination. McDonnell Douglas Corporation v. Green, supra,

411 U.S. at 802-804, 36 L.Ed.2d at 677-79; Turner v. Texas

Instruments, Inc., 5 Cir., 1977, 555 F.2d 1251, 1255. The

District Court’s only finding of fact as to Parson’s claim is

that ‘‘he was not qualified’’ for the position of foreman.

For the reasons outlined below, this finding cannot stand

and cannot serve as the basis for a Rule 41(b) dismissal.

The District Court Judge offered no hints as to the basis

for his finding that Parson was not qualified for promotion

to the position of foreman. We are simply unable to deter-

mine whether the Judge found sufficient subsidiary facts

to undergird the ultimate finding that the decision not to

promote Parson was not racially motivated or taken in re-

taliation for his involvement in racial relations at the

plant.” It is therefore necessary for us to reverse the dis-

21 Parson’s shift foreman, Jim Saucier, his general foreman, Jim

Cruse, and the superintendent of the Metal Products Department,

Paul Petit, testified at trial or through depositions introduced as

‘evidence as to their reasons for denying Parson the promotion.

Reports and memos by Saucier, Cruse, and Jim Mayeaux, who

32a

missal of Parson’s claim and demand for an articulation of

the basis for the Judge’s conclusion that Parson was not

qualified to become a foreman. This articulation is to in-

elude an examination of the comparative qualifications of

nonblacks promoted to foreman.

The District Court Judge’s finding is also tainted by an

incorrect understanding of the legal principles applicable

to individual claims of racial discrimination in employment.

It is clear law in this Circuit and in the Supreme Court that

statistics as to the racial composition of the defendant’s

work force must be considered in judging individual allega-

tions of discrimination. Dothard v. Rawlinson, 1977, 433

U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786, 798; International

Brotherhood of Teamsters v. United States,, 431 U.S. 324,

339, 97 S.Ct. 1843, 1856, 52 L.Ed.2d 396, 417; McDonnell

Dougtas Corp. v. Green, 1973, 411 U.S. 792, 806, 93 S.Ct.

817, 36 L.Ed.2d 668; Peters v. Jefferson Chemical Co., 5

Cir., 1975, 516 F.2d 447, 450-51, Burns v. Thiokol Chemical

Corp., 5 Cir., 1973, 483 F.2d 300, 306. Parson presented

served as Parson’s foreman for a short time during the relevant

period, both contemporaneous with the decision against promoting

Parson and prepared later in connection with EEOC proceedings

or this suit were also introduced. These sources contain several dif-

ferent grounds for Parson’s failure to obtain his promotion, includ-

ing inadequate performance as a furnace operator; inability to

accept criticism ; lack of loyalty to Kaiser; difficulties Parson might

encounter with white subordinates; inability to take orders; and

inability to plan well. R., Vol. II, 91-102, 104-116. Parson contests

the validity of some of these statements, attacks others as clear indi-

cations that he was not promoted because of his activities in at-

tempting to desegregate the plant facilities (he lacked ‘‘loyalty”’

to the company, criticized the company, and could not ‘‘get along’’

with people) ; and identifies others as pretexts for racial discrimina-

tion. While the District Court Judge clearly has the task of evaluat-

ing the credibility of conflicting evidence and witnesses subject to

the clearly erroneous rule, e.g., Volton v. Murray Envelope Corp.,

5 Cir., 1974, 493 F.2d 191, 193-94, his failure to make any factual

findings as to why Parson was not qualified for the position of

foreman makes it impossible for the plaintiff to attack or for us to

review the result under the proper standard.

daa

evidence showing a marked disparity between the number

of black hourly employees and the number of black foremen

at the time he sought his promotion. The three black fore-

men employed at that time were restricted to the super-

vision of janitors, a situation that did not change until the

next year. There is no mention of these figures in the Dis-

trict Court’s findings or conclusions, leaving us with no

assurance that the evidence was accorded the probative

value it was due. Indeed, the Judge’s statement that ‘‘other

black men have been made foreman”? indicates that he gave

little, if any, weight to the evidence of statistical disparities.

Moreover, the two individuals the Trial Court Judge identi-

fied as black supervisors were appointed in 1969 and 1973—

long after Parson applied for and was denied a promotion.

Finally, we agree with Parson’s contention that the Dis-

trict Court Judge erred in ignoring the impact of the pro-

cedure for awarding promotions that was in effect at the

time Parson’s application was denied. The Judge found

that ‘‘[t]he process for the selection of a foreman .. . is

untainted by any overtones of racial discrimination.’’ How-

ever, the process described in the finding does not corres-

pond to that in effect in 1966, but rather to the procedure

as revised in 1972.** At the time Parson made his request,

22 The District Court Judge found that:

The process for the [selection of a foreman] by Kaiser is

untainted by any overtones of racial discrimination. Although

the post of foreman is not controlled by the Collective Bargain-

ing Agreement, as vacancies occur they are posted on the plant

bulletin board and any employee can initiate, on his own

behalf, an application for consideration as foreman. All appli-

eations for foreman are considered by a review board. Indi-

viduals who have initiated an application are reviewed and

evaluated by a Management Committee composed of: the In-

dustrial Relations Superintendent, the Employee’s Supervisor,

the Departmental Supervisor where the vacancy exists, the

plant manager or his designee, and a Black representative.

The procedure described here corresponds to that adopted by

Kaiser in 1972.

34a

Kaiser gave shift foremen veto power over any applicant;

required each applicant to take two written tests; and speci-

fied no substantive criteria for guiding selections.” The

% Jim Cruse, Parson’s general foreman, gave the following testi-

mony as to the procedure followed in deciding Parson’s request:

Q. Now, Parsons I take it discussed with you his, that is Par-

sons, becoming foreman during this period ?

A. Right.

Q. When was the first time? I assume it was more than once.

A. Yes. We had several discussions. First time was—first

part of June in 66. And one night, as I was leaving, he ap-

proached me and said he understood there was a policy on

making foreman and he would like to apply for foreman job.

. . . When he came back on the day shift Friday, we talked

about it and I had been aware of the fact that there was a

written policy on foreman selection which had been communi-

eated to me, oh about a month before that.

Q. How long had there been a written policy for foreman?

A. I’d say a month or two.

Q. Prior to that, what was the procedure for becoming fore-

man?

A. It was essentially the same as what was in the written

policy.

Q. What was that?

A. A recommendation was made by a shift foreman to a gen-

eral foreman on a [man’s] performance, or a man had an

expressed interest on being foreman, he then made his recom-

mendation to the general foreman and they would discuss and

evaluate it and review it with the superintendent. .. .

Q. Alright. Now, you say you would discuss it with him

when he came back on Friday ?

A. Right. O.K. so I checked out the—I went back to the

policy and reviewed it. And started off from the beginning,

where we have the recommendation from the foreman and you

get recommendations from previous foremen. . . . I told his

foreman that Parsons had talked to me about it.

Q. Who was this?

A. Jim Saucier [Parson’s shift foreman]. And that I wanted

him to think about it and make a recommendation. .. . And

the recommendation came in ‘‘no’’. [R. Vol. IT., Doe. No. 52C

at 11-15.]

—"

35a

procedure in effect at the time relevant to Parson’s claim

evidences many of the characteristics that we have long

held violative of Title VII. In Rowe v. General Motors

Corp. 5 Cir., 1972, 457 457 F.2d 348, 358-59, we found that

the following aspects of a promotion procedure were in-

valid:

(i) The foreman’s recommendation is the indispen-

sable single most important factor in the promotion

process.

(ii) Foremen are given no written instructions per-

taining to the qualifications necessary for promotion.

(They are given nothing in writing telling them what to

look for in making their recommendations. )

(iii) Those standards which were determined to be

controlling are vague aud subjective.

(iv) Hourly employees are not notified of promotion

opportunities nor are they notified of the qualifications

necessary to get jobs.

(v) There are no safeguards in the procedure de-

signed to avert discriminatory practices.

These factors result in ‘procedures which depend almost

entirely upon the subjective evaluation and favorable rec-

ommendation of the immediate foreman.’’ They are there-

fore ‘‘a ready mechanism for discrimination against

Blacks.’’ Id., at 359; see also, Jenkins v. Caddo-Bossier

Assoc. for Retarded Children, 5 Cir., 1978, 570 F.2d 1227, at

1229; Pettway v. American Cast Iron & Pipe Co., 5 Cir.,

1974, 494 F.2d 211, 239-41. The District Court Judge clearly

erred in judging Parson’s individual claim as if his promo-

tion request had been processed under a procedure adopted

six years later. We remand for a reevaluation under the

standards that existed in 1966.

B. Discrimination Against The Class:

Promotions To Foreman

The District Judge found that:

the evidence quite clearly demonstrated that blacks

oceupy many salaried positions at the Chalmette

36a

Works. There was no evidence indicating any present

effects of any past discrimination which may have ex-

isted and the evidence relating to the selection process

for foreman currently in operation at the Chalmette

Works revealed no obstacles, overt or subtle, which pre-

vent blacks from being promoted to the position of

foreman. In fact, the very selection process that permits

an individual to initiate his application for foreman and

to be reviewed by a diversified Selection Committee con-

tains appropriate safeguards to insure that blacks will

be given consideration equal to that of whites.

On the basis of this finding, the Judge concluded that Kaiser

had not discriminated against the class in the selection of

foremen since the effective date of Title VII. In so holding,

the Judge ignored the continuing effects of the pre-1972

procedures for the selection of foremen; ignored the statis-

tics relied on by the plaintiff to document these effects; and

ignored testimony as to individual instances of discrimina-

tion. The incorrect legal foundation for the Court’s finding

requires us to reverse and remand.

We have already described the procedures for selecting

foremen at Kaiser and some of the similarities between

the procedures used prior to 1972 and those condemned in

Rowe. After the effective date of Title VII, Kaiser’s method

of selecting foremen granted veto power to immediate su-

pervisors, provided hourly employees little information as

to the necessary qualifications for promotion; provided

those making the decisions no written standards or criteria

for guidance; incorporated a personnel test since found dis-

criminary in impact in a number of Title VII cases,* and

provided insufficient safeguards for avoiding the influence

of discrimination. In 1972, on ‘‘the eve of trial,’’ Rowe v.

General Motors Corp., 457 F.2d at 359, Kaiser did alter its

promotion procedures in ways that promise to mitigate the

likelibood of discrimination. However, as we have noted

before, ‘‘actions taken in the face of litigation are equivocal

™ See, e.g., Griggs v. Duke Power Co., 1971, 401 U.S. 424, 91 C.Ct.

849, 28 L.Ed.2d 158; Johnson v. Goodyear Tire and Rubber Co., 5

Cir, 1974, 491 F.2d 1364.

37a

in purpose, motive and permanence,’’ James v. Stockham

Valves & Fittinas Co., 5 Cir., 1977, 559 F.2d 310, 325 n.18,

cert. denied, 1978, -—— US. , 98 S.Ct. 767, 54 L.Ed.2d

781, quoting Jenkins v. United Gas Corp., 5 Cir., 1968, 400

2d 28, 33, and do not redress the grievances of those in-

jured by the previous practices.

While the 1972 revisions of the selection procedure are

laudable, we do not find sufficient evidence in the record to

convince us that these procedures are not discriminatory in

opevation, although fair in form. The record does not clearly

describe the contents of the evaluation form used in the

selection process,” and testimony as to weight accorded the

25 The following testimony was given concerning the evaluation

form:

Q. (By Mr. Douglas) Is there some basis standard that gov-

erns your determination as to whether a man will or will not be

made a foreman?

A. I would have to say there are some basis considerations.

It starts all the way from a man’s absentee record, safety rec-

ord, his quality to work as evidenced by either a lack or in fact

proof of reprimand or counsellings due to poor workmanship

or inability to get along with fellow workers or things of this

nature. The individual’s apparent ability to communicate or

converse, be understood, his manner, his apparent desire to

be foreman. ...

Q. Are these requirements documented anywhere ?

A. I believe there’s a form that we check off which I think

is available in personnel.

Q. It’s available to whom ?

A. To the members of the committee who are evaluating the

individual.

e e Se ® @

Q. Are those the essential qualities that you would look for

before vou would endorse a man for the job of foreman?

A. I’m trying to indicate here that leadership, which is hard

to find, is involved in there, but it is pretty hard to define. But,

ves, I believe those are the qualifications that I would look for.

[R., Vol. VIII, Doe. No. 187 at 72-73, 76.]

38a

different criteria specified indicates that they remain

susceptible to the exercise of great discretion.”* On remand,

the District Court should determine whether the evaluation

method places undue reliance on general character traits,

such that complete subjectivity remains likely. See Wade v.

Mississippi Cooperative Extension Service, N.D. Miss.,

1974, 372 F.Supp. 126, aff'd in relevant part, 5 Cir., 1976,

528 F.2d 508.

The District Court’s evaluation of the likelihood of injury

suffered by members of the class of the pre-1972 promotion

procedures was a finding that ‘‘ blacks occupy many salaried

positions’’ at the plant. This ignores the statistical context

provided by the plaintiff. We have sketched the disparities

between the numbers of black hourly and black salaried em-

ployees, and between black and white salaried employees.”’

26 The following testimony was given concerning the weight given

the constituent factors :

Q. Is there any flexibility, or how is a man rated for example,

on the chart? Is there a quality of points given?

A. No, it isn’t that statistically designed. It’s a question of

mostly yes or no type of questions.

Q. Give me an example?

A. Well, is there any evidence this individual has character

stability, yes or no. Is he able to communicate properly, yes

or no. This type of thing.

Q. Is there any grade?

A. One through ten, that type of thing!

Q. Yes.

A. No.

Q. Is there a specific number of qualities that he must pos-

sess before he passes or fails?

A. Not really. At the end of the form, which is really an

interview form, you have a place where the consensus of the

committee is should be considered or should not be con-

sidered. ...

[Id. at 80-81. ]

27 Plaintiff was unable to provide record data with which to esti-

mate turnover among foremen after 1965. However, proof of turn-

over is not part of a prima facie case of discrimination. Rather, the

39a

The paucity of black foremen and the concentration of

blacks in nonsalaried positions constitute a substantial

statistical discrepancy that could alone establish a prima

freie case of unlawful discrimination. International Broth-

erheod of Teamsters v. United States, 1977, 431 U.S. 324,

359, 97 S.Ct. 1848, 1856, 52 L.Ed.2d 396; James v. Stockham

Valves & Fittings Co., 5 Cir., 1977, 559 F.2d 310, 329; Wade

v. Mississippi Cooperative Extension Service, 5 Cir., 1972,

528 1.24 508, 416-17; United States v, Jacksonville Terminal

Co., 5 Cir., 1971, 451 F.2d 418, 442, 446, cert denied, 1972,

406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 815.28 Moreover, the

statistical patterns do not complete the plaintiff’s case. In

addition to Kaiser’s use of invalid procedures through

1972, the acknowledged presence of pre-Act discrimination,

and the statistical discrepancies, Parson presented testi-

mony by individuals of their experiences under these pro-

cedures. As the Supreme Court noted in Teamsters, supra,

431 U.S. at 339, 97 S.Ct. at 1856, ‘‘The individuals who

testified about their personal experiences with the company

brought the cold numbers convincingly to life.’’ *

We conclude that the plaintiff’s evidence of racial dispari-

ties in promotions to foreman after 1965, the exclusion of

blacks from such positions prior to 1965, subjectively based

promotion decisions by white supervisors after 1965, and

the testimony by individual class members of discrimination

they suffered, make a prima facie case of discriminatory

defendant has the burden of proving a lack of turnover to justify a

failure to hire minorities. Pettway v. American Cast Iron Pipe Co.,

5 Cir., 1974, 494 F.2d 211, 233.

28 This Court has observed that the significance of statistical dis-

parities between the races ‘‘is magnified when appraised in light of

the fact, that [the defendant’s decision on promotions are] .. . al-

most exclusively a subjective determination made by white super-

visors.’’ Bolton v. Murray Envelope Corp., 5 Cir., 1974, 493 F.2d

191, 195.

2° See, e.g., the testimony of Roosevelt Jackson, Ronald King, and

Isadore Booker, concerning their attempts to secure promotions to

supervisory positions. [R., Vol. VI, Vol. VIT.]

40a

practices in the selection of foremen. The District Court

Judge erred in dismissing this aspect of plaintiff’s case.®

On remand, the ‘‘onus of going forward with the evidence

and the burden of persuasion”’ is now on Kaiser. James v.

Stockham Valves & Fittings Co., supra, 559 F.2d at 331;

United States v. Hayes International Corp., 5 Cir., 1972,

456 F.2d 112, 120.

C. Discrimination Against The Ciass:

Interdepartmental Transfers

Plaintiff’s appellate attack on the transfer system at the

Chalmette plant is focused on the requirement that employ-

ees transferring to another department must enter at the

lowest level job in the new department, with a likely accom-

panying reduction in pay.* The District Court Judge made

the following findings as to the present system governing

transfers:

(This court finds that the seniority system employed

by Kaiser does not ‘‘limit the employment and promo-

tional opportunities of Negro employees’’ nor does

5° Kaiser asserts that even if the plaintiff has established a prima

facie case as to any claim, more is necessary to withstand a Rule

41(b) motion for involuntary dismissal. Under the standard urged,

the trial judge should ‘‘evaluate the evidence without making spe-

cial inferences in the Plaintiff’s favor . .. and [should] resolve the

ease on the basis of preponderance of the evidence.’’ Emerson Elec-

tric Co. v. Farmer, 5 Cir., 1970, 427 F.2d 1082, 1086.

We agree that Rule 41(b) allows a trial judge to make findings of

fact at the close of a plaintiff’s case. However, this does not respond

to the flaw in the findings of fact before us here. Because the Judge

applied incorrect legal principles, we are unable to credit the fact

findings that were made. Kaiser’s argument does not remove the

necessity for a remand.

31 Plaintiff relies on Kaiser’s 1970 Seniority List, Plaintiff’s Ex-

hibit 19, to show examples of blacks who have high seniority in the

nonproduction departments to which they were discriminatorily

assigned during the 1950s. These employees hold jobs that pay at a

higher rate and require less arduous manual labor than the entry

jobs in the production departments.

4la

Kaiser deny ‘‘Negro employees the same rights of

transfer.”’

Although there was some testimony to the effect that

blacks were excluded from some departments in the

early 1950’s, it was shown that by 1956, black employ-

ees had begun to transfer to almost every department

at the Chalmette Works. There was also uncontroverted

evidence that plant seniority was established for all

purposes within the production departments by 1962

and that the same principle was applied in the craft

departments by 1965. It was further shown that the

seniority system in effect since 1962 allowed any em-

ployee to bid for a vacancy within his department on

the basis of his total continuous plant seniority. It was

further shown that, although there are lines of pro-

gression in the various departments, an employee is not

required to bid up the line job by job, but rather he may

bid to any job in the department for which there is a

vacancy and in so doing may move around other em-

ployees who are junior to him by plant seniority. It was

further shown that an employee wishing to transfer

between departments, who is a successful bidder, enters

the new department for a 10-day trial period and if he

decides that he does not like the department or the job

to which he has transferred, he has a right to return to

his former job without losing any seniority. On the

other hand, if he wishes to stay in the new department,

after expiration of ten day period, the employee is free

to bid on the basis of his qualifications and plant sen-

iority on any vacancy in that department. The evidence

established beyond a doubt that many black employees

have taken advantage of these transfer opportunities

and have rapidly advanced to higher paying jobs.

This Court finds that the method of transfer from

department to department at the Chalmette Works does

not discriminate against the class. This Court further

finds that there is no loss in an employee’s seniority as

a result of his transferring between departments and

that there is full plant seniority carryover on all such

transfers. It should also be noted that a substantial

number of black employees, who testified at the trial,

had reached the top jobs in their respective depart-

ments prior to the passage of the Civil Rights Act of

1964. Such evidence clearly illustrates that the seniority

system, as developed through the collective bargaining

42a

rocess, does not now nor did it historically exclude

blacks or other employees from utilizing their plant

seniority for transfer and promotion at the Chalmette

Works.

The Judge’s findings as to the role of plantwide seniority

are not challenged here. We recognize that the relatively

early adoption of plantwide seniority that is carried with

an employee who transfers between departments places

Kaiser’s system above many that we have seen in this Court.

E. g., James vy. Stockham Valves & Fitting Co., 5 Cir., 1977,

59 F.2d 310, 317. However, we do not believe that the trial

judge adequately responded to the plaintiff’s assertion that

the ten-day bottom entry requirement hampered the ad-

vancement of black employees from the laborer positions to

which past practices once restricted them. We therefore re-

verse and remand.

The difficulty with the bottom entry requirement is that

the transferring employee must remain in the spare or low-

est position for ten days or until a vacancy in a higher job

becomes available. Such a vacancy may arise within twelve

days after the transfer. The discriminatory vice rests in the

danger that a vacancy may not arise for months, or even

years. We have held that similar plans that restrict transfer

to entry level jobs and limit advancement to upper level

jobs to persons already in the department are invalid. See

United States v. Hayes International Corp., 5 Cir., 1972,

456 F.2d 112, 117. Such a system gives the old seniority

criterion a continuing discriminatory effect; blacks are kept

at a disadvantage begun by the past practices that kept

them out of the nonlaborer departments. Because the ten-

day period in the spare position is a minimum rather than

a maximum requirement, it does not sufficiently distinguish

Kaiser’s system from those we have found defective. We

hold that the District Court’s finding is based on a mistaken

understanding of what constitutes the ‘‘present effects of

past discrimination,’’ and cannot stand.

Kaiser and the Union attempted to justify the bottom

entry requirement by arguing that it trains transferring

48a

employees and allows them an opportunity to determine if

they wish to remain in the new department. [R., Vol. IX,

Doe. 191, at 113 (testimony of Kaiser’s Industrial Relations

Superintendent).] This argument invokes the so-called busi-

ness necessity justification, which ‘‘except[s] those few

employment practices, which are non-intentionally discrim-

inatory or neutral, but perpetuate the consequences of past

discrimination, because of their overriding business neces-

sity.’’ Pettway v. American Cast Iron Pipe Co., supra, 494

F.2d at 244 [emphasis in original].2* However, this doctrine

is very narrow. A practice which is demonstrably discrim-

inatory in impact must:

not only foster safety and efficiency, but must be essen-

tial to that goal. United States v. Bethlehem Steel Corp.,

446 F.2d 652, 662 (2d Cir. 1971) ; United States v. Jack-

sonville Terminal Co., 451 F.2d 418 (5th Cir. 1971), cert.

denied, 406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 815

(1972). In other words, there must be no acceptable al-

ternative that will accomplish that goal ‘equally well

with a lesser differential racial impact.’

Id., at n.87. In evaluating Kaiser’s argument, the District

Court Judge did not give sufficient consideration to whether

the bottom entry requirement met this standard. On remand,

this assessment must be made.

A Union is jointly liable with the employer for discrim-

ination caused in whole or in part by the provisions of a col-

lective bargaining agreement. See Carey v. Greyhound Bus

Co., 5 Cir., 1974, 500 F.2d 1372; United States v. United

States Steel Corp., 5 Cir., 1975, 520 F.2d 1043 cert denied,

1976, 429 U.S. 817, 97 S.Ct. 61, 50 L.Ed.2d 77, The transfer

and bidding policies that we find deficient were part of the

Supplement Seniority Agreement between Kaiser and the

82 See also, Griggs v. Duke Power Co., 1971, 401 U.S. 424, 431-

32, S.Ct. 849, 28 L.Ed.2d 158; Local 189, United Papermakers &

Paperworkers v. United States, 5 Cir., 1969, 416 F.2d 980, cert.

denied, 1970, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.22 100; United

States v. Jacksonville Terminal Co., 5 Cir., 1971, 451 F.2d 418, 453,

cert. denied, 1972, 406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 815.

44a

Union. [Appendix, Vol. II, at 288-292.] As the representa-

tive of the black employees, the Union is charged with the

duty of protecting them from invidious treatment. ‘‘[I]t

would be difficult to fasten liability on one party to the labor

contract which was a substantial cause of the discriminatory

employment practices and grant total immunity from such

liability to the other party.’’ Johnson v. Goodyear Tire &

Rubber Co., 5 Cir., 1974, 491 F.2d 1364, 1381. Any monetary

liability imposed upon the employer must be shared by the

Union. See Albemarle Paper Co. v. Moody, 1975, 422 U.S.

405, 95 S.Ct. 2362, 45 L.Ed.2d 280; United States v. United

States Steel Corp., 5 Cir., 1975, 520 F.2d 1043; Myers v.

Gilman Paper Co., 5 Cir., 1977, 544 F.2d 837, modified, 556

F.2d 758, cert dismissed, —— U.S. ——, 98 S.Ct. 28, 54

L.Ed.2d 59.

D. Entry Into Craft Positions

After the plaintiff presented evidence as to the require-

ments conditioning entry to the crafts and the racial com-

position of the craft categories, the District Court found

that: the testing procedures had been eliminated in 1968 and

no evidence suggested ‘‘that but for the use of the tests

prior to 1968, any member of the class would have obtained

a higher paying position’’; ‘‘the requirement that appli-

cants for crafts positions possess some experience does not

discriminate against the class’’; and no evidence showed

that Kaiser’s ‘‘methods of training discriminated against

the class.’’ Because the District Court failed to consider

critical aspects of plaintiff’s evidence and applied incorrect

legal principles, these findings must also be reversed.

The District Court Judge again appears to have ignored

the statistical evidence. The plaintiff presented figures

showing that in 1973, less than 3 percent of Kaiser’s crafts-

men were black. These numbers, when placed against the

information as to the percentage and number of blacks

among the hourly employees, are entitled to critical, if not

dispositive weight, in assessing whether plaintiff has shown

a prima facie case of discrimination. The plaintiff’s argu-

45a

ment is that these statistics demonstrate that Kaiser’s prac-

tices with regard to selection of craftsmen contain elements

of present discrimination and facially neutral policies that

perpetuate past bias in hiring for craft positions.

Several of the incidents of past bias are recent—use of

the Wonderlic Test through 1968, a written test until after

1968, and the requirement of a high school diploma. The

practice challenged here is the requirement of prior indus-

trial experience. Under Title VII, practices and procedures

‘*eannot be maintained if they operate to ‘freeze’ the status

quo of prior discriminatory employment practices.’’ Griggs

v. Duke Power Co., 1971, 401 U.S. 430, 91 S.Ct. 879, 853, 28

L.Ed.2d 158. ‘‘If an employment practice which operates to

exclude Negroes cannot be shown to be related to job per-

formance, the practice is prohibited.’’ Id., 401 U.S. at 431,

91 S.Ct. at 853. The statistical evidence, with the testimony

by individual members of the class as to obstacles they

encountered in seeking entry to the crafts, requires the con-

clusion that the plaintiff made a prima facie showing that

the current system, with its prior experience requirement,

is discriminatory in effect. Kaiser therefore has the burden

of showing that the prior experience requirement has ‘‘a

manifest relationship’’ to the legitimate needs of the craft

positions.*® Griggs v. Duke Power Co., supra, 401 U.S. at

432, 91 S.Ct. at 854; see also United States v. Jacksonville

Terminal Co., 5 Cir., 1971, 451 F.2d 418.

The plaintiff also challenged the District Court’s dismis-

sal of the claim of discrimination with regard to training

programs for the crafts. At the time of trial, Kaiser im-

posed testing and educational requirements on applicants

to the training programs, requirements which presumptively

33 An argument based on business necessity to validate the prior

experience requirement in spite of different effects on blacks and

whites must meet rigorous standards. See Watkins v. Scott Paper

Co., 5 Cir., 1976, 5830 F.2d 1159, 1168, 1179-83, cert. denied, 429

U.S. 861, 97 S.Ct. 163, 50 L.Ed.2d 139; Pettway v. American Cast

Iron Pipe Co., 5 Cir., 1974, 494 F.2d 211.

46a

account for the disparities between the number of black and

white craft trainees. Again, this is sufficient to give Kaiser

the burden of showing that these eligibility requirements

are justified by the needs of the programs. Pettway v.

American Cast Tron Co., supra. The District Court erred

in dismissing this claim.

IV. Remedies

We have held that the District Court erred in dismissing

the individual and class claims at the close of the plaintiff’s

case. On remand, the Trial Judge must determine the best

method of completing the proceedings. However, the de-

fendants should be allowed to present their evidence, and

the District Court should give the plaintiff an opportunity

to supplement the present record, in c.f or by rebuttal,

without being required to offer again the evidence already

introduced.**

Because of the likelihood that practices may have altered

since this case was first tried, and because the law has also

changed, the District Court on remand must reexamine the

evidence in light of the present law allocating burdens of

proof in individual and class claims of employment discrim-

ination in determining the existence of liability and the

scope of necessary relief. However, the District Court must

remain conscious that while Kaiser’s recent affirmative

action programs and modifications in past practices will

clearly shape the nature of any prospective, injunctive

relief,** they do not absolve Kaiser or the Union of liability

34 For a general discussion on retrial after a reversal of a Rule

41(b) dismissal following the plaintiff’s case-in-chief, see Riegel

Fiber Corp. v. Anderson Gin Co., 5 Cir., 1975, 512 F.2d 784, 793.

35 In the recent case of Weber v. Kaiser Aluminum & Chemical

Corp., 5 Cir., 1977, 563 F.2d 216, for example, this Court considered

a 1974 plan altering Kaiser’s entry requirements for craft training

positions in an affirmative attempt to recruit blacks into the crafts.

In that case, indeed, this Court found that Kaiser went too far in its

efforts to increase the number of blacks in skilled positions, result-

ing in a plan that violated Title VII by imposing a hiring quota

47a

for the injuries suffered by members of the class from the

continuing impact of past discrimination. As we have clearly

held, ‘‘{o]nce a court has determined that a plaintiff or

complaining class has sustained economic loss from a dis-

criminatory employment practice, back pay should normally

be awarded unless special circumstances are present.’’ Pett-

way v. American Cast Iron Pipe Co., 5 Cir., 1974, 494 F.2d

211, 252-53; Albemarle Paper Co. v. Moody, 1975, 422 U.S.

405, 413-425, 95 S.Ct. 2362, 45 L.Ed.2d 280; Johnson v. Good-

year Tire & Rubber Co., 5 Cir., 1974, 491 F.2d 1364, 1380.%*

Plaintiff also claims that the appropriate remedies for

discrimination in transfers and promotions are those de-

signed to place the black employee in the position he would

have occupied but for the discrimination suffered—that is,

of a minimum number of blacks in a plant where no prior discrim-

ination could be shown.

36 See Baxter v. Savannah Sugar Refining Corp., 5 Cir., 1974, 495

F.2d 437, 443-44, cert. denied, 1974, 419 U.S. 1033, 95 S.Ct. 515, 42

L.Ed.2d 308, for a description of the bifurcated burden of proof

procedure followed in Title VII claims for class-wide back pay:

[a] Title VII class action suit presents a bifurcated burden

of proof problem. Initially, it is ineumbent on the class to es-

tablish that an employer’s employment practices have resulted

in cognizable deprivations to it as a class. At that juncture

of the litigation, it is unnecessarily complicating and cumber-

some to compel any particular discriminatee to prove class cov-

erage by showing personal monetary loss. What is necessary to

establish liability is evidence that the class of black employees

has suffered from the policies and practices of the particular

employer. Assuming that the class does establish invidious

treatment, the court should then properly proceed to resolve

whether a particular employee is in fact a member of the

covered class, has suffered financial loss, and thus [is] entitled

to back pay or other appropriate relief.

See also Sagers v. Yellow Freight System, Inc., 5 Cir., 1976, 529

F.2d 721, 734; Sabala v. Western Gillette, Inc., 5 Cir., 1975, 516

F.2d 1251, 1255; United States v. United States Steel Co., 5 Cir.,

1975, 520 F.2d 1043, 1053-55.

48a

his ‘‘rightful place.’*’ We agree that this comports with

the ‘‘make whole’’ approach of Title VII. Because of the

early termination of the proceedings below, the District

Court did not consider whether such remedies were neces-

sary. On remand, the District Court is directed to consider

the ‘‘rightful place’’ theory, particularly with regard to the

plaintiff’s complaint concerning the transfer system, in

determining the need for and the scope of relief.

REVERSED and REMANDED.

st Under that theory | rightful place theory] blacks are assured

‘the first opportunity to move into the next vacancies and posi-

tions which they would have occupied but for wrongful dis-

crimination and which they are qualified to fill.’’ United States

v. Georgia Power Co., 5 Cir., 1973, 474 F.2d 906. Thus blacks

confined by discrimination to certain positions must be given

the opportunity to transfer into the formerly ‘‘white’’ posi-

tions as vacancies occur in order to assume their ‘‘rightful

place.’’

Pettway v. American Cast Iron Pipe Co., supra, 494 F.2d at 248;

Sagers v. Yellow Freight System, Inc., 5 Cir., 1976, 529 F.2d 721,

730-31 (to be eligible for back pay there is no need for a class mem-

ber to have previously applied for a transfer ‘‘to positions that [he]

reasonably knew to have been closed to [the] class.’’).

49a

APPENDIX D

Harris A, Parson,

Plaintiff-Appellant,

Katser ALumiInum & Cuemricay Corp., anp Locat 13000,

Unrrep Sreetworkers or America, AFL-CIO, CLC

Defendants-Appellees

No. 74-3468

United States Court of Appeals, Fifth Circuit

Nov. 1, 1978

Appeal from the United States District Court for the

Eastern District of Louisiana.

On Petition FoR REHEARING AND PETITION FOR

REHEARING En Bano

(Opinion July 10, 1978, 5 Cir., 575 F.2d 1374)

Before Brown, Chief Judge, THornBerry, Circuit Judge,

and Mruuer,* Associate Judge.

PER CURIAM:

In their petitions for rehearing and rehearing en banc in

this Title VII racial discrimination suit, the employer

(Kaiser Aluminum & Chemical Corp.) and the union (Local

13000, United Steel Workers of America, AFL-CIO, CLC)

assail the decision and opinion of the panel, 575 F.2d 1374,

on a number of points. We fully adhere to our decision, but

feel that clarification of our original opinion is desirable

with respect to two of those points.

(1) Contrary to the assertion of Kaiser and the Un-

ion, we are fully aware that the decision of the Supreme

Court in International Brotherhood of Teamsters v. United

States, 1977, 481 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396,

holds that § 703 (h) of Title VII, 42 U.S.C. § 2000e-2(h),

immunizes from liability even those seniority systems that

* Associate Judge U.S. Court of Customs and Patent Appeals

sitting by designation.

30a

preserve the effects of past discrimination, so long as an

intent to discriminate has not entered into their negotiation,

genesis, or maintenance. See 431 U.S. at 353-56, 97 S.Ct.

1843; see also Pettway v. American Cast Iron Pipe Co., 5

Cir., 1978, 576 F.2d 1157, 1188-92; James v. Stockham

Valves & Fittings Co., 5 Cir., 1977, 559 F.2d 310, 349-52,

cert, denied, 1978, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d

781. None of our findings that plaintiffs had established a

prima facie case of illegal discrimination rested upon a

theory of liability repudiated in Teamsters, although our

discussion of the system of interdepartmental transfers

established by the Kaiser-Union collective bargaining

agreement, see 575 F.2d at 1387-89, might have been some-

what more explicit in this regard. We did, however, hold

clearly and unmistakably that the central problem with the

system of interdepartmental transfers was the ten-day

bottom entry requirement, the result of which is that em-

ployees can use their plant seniority to bid for jobs in a

new department only if they are willing to take the risk of

being frozen in an entry level position with lower pay for

an indefinite amount of time because some other employee

already in the new department and with more plant seniori-

ty bids for the vacancy after the required ten-day waiting

period. While the rules for bidding for vacancies within a

department are governed by seniority and thus by Team-

sters, the ten-day bottom entry requirement is not a seniori-

ty rule at all. Rather, it is a condition upon transfer wholly

extraneous to the prevailing seniority system, and, as such,

is not immunized by § 703(h) and Teamsters. Cf. Pettway,

supra, 576 F.2d at 1193-94.

(2) The Union objects to the suggestion in our origi-

nal opinion, see 575 F.2d at 1389, that if upon remand the

District Court finds the prima facie illegal transfer system

to fail the ‘‘business necessity’’ justification, the Union

must share liability for the Title VII violation and con-

tribute to any monetary relief. Although our view is that

the Union has a major operational responsibility for the

transfer rules established by the collective bargaining

5la

agreement, we have previously approached the attribution

of liability and the apportionment of damages as between

employer and union on a flexible basis with regard to the

comparative equities, see James, swpra, 559 F.2d at 353-54;

Guerra v. Manchester Terminal Corp., 5 Cir., 1974, 498 F.2d

641, 655-56; Johnson v. Goodyear Tire & Rubber Co., 5 Cir.,

1974, 491 F.2d 1364, 1381-82, and we do not mean to fore-

close the District Court’s discretion in this regard.

On remand, the District Court must of course be sen-

sitive to the changes wrought in Title VII law—both

with respect to liability and to the scope of relief—in the

four years since this case was last before it. We particularly

direct attention, in addition to our decision on appeal, to

Teamsters, supra; Franks v. Bowman Transp. Co., 1976, 424

U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444; Pettway, supra; and

James, supra. But in the midst of jurisprudential change

and complexity, the Court should not lose sight of its

primary obligation, which is to ensure that the victims of

illegal racial discrimination receive the full measure of re-

lief to which the law entitles them.

The petition for rehearing is DENIED and no member of

this panel nor Judge in regular active service having re-

quested that the Court be polled on rehearing en banc,

(Rule 35 Federal Rules of Appellate Procedure ; Local Fifth

Cireuit Rule 12) the petition for rehearing en banc is

DENIED.

52a

APPENDIX E

Supreme Cowt of the United States

No. A-657

Loca 13000, Unrrep STeELWORKERS OF AMERICA,

AFL-CIO, CLC,

Petitioner,

Harris Parson AnD Kaiser ALUMINUM & CHEMICAL CorP.

ORDER EXTENDING TIME TO FILE PETITION

FOR WRIT OF CERTIORARI

Upon Consiperation of the application of counsel for

petitioner.

Ir Is Orperep that the time for filing a petition for writ of

certiorari in the above-entitled cause be, and the same is

hereby, extended to and including March 31, 1979.

/s/ Lewis F’. Powe 1, Jr.

Associate Justice of the Supreme

Court of the United States

Dated this 22 day of January, 1979.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.