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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 441 U.S. 968

## Text

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= Supreme Court of the Un .
oes October Term, 1978
pes ane
S

Loca 13000, Unrrep STeEeELWorKERS OF AMERICA,
AFL-CIO-CLC,
Petitioner,

v.

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%

i

TABLE OF CONTENTS

Page
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QUESTIONS PHERBENTED ...3...0..c-csccvcccsccecscsessscssecsesecsesenses 2
STATUTORY PROVISIONS INVOLVED ....................00 3
SPR NEE GT OME GURNEE oon. ccnscccccceccccnscscecsecsescovsccsssseee 4

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et a iaiaa nies datdah Rerediaalesnsintnasbneninsinneee epieetouéaerananerese 3D
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

ii

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,

v.

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.

9

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-

3

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;
or

(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:
(c) It shall be an unlawful employment practice for

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. ...

4

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
_——

5

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-

6

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

7

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.’’

8

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-

9

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:

10

‘«.. [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.

11

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

12

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.

14

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.

15

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.

16

‘‘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).

17

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.

18

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

la

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

3

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

Qa

‘‘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.

4

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’’).

5.

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.

6.

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-

3a

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.’

8.

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.

9.

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.

4a

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-

da

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

6a

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

7a

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

Sa

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.

21

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-

9a

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.

(c) Otherwise generally discriminating against plain-
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

3

This Court has jurisdiction of this action pursuant to 28
USC § 1345 and 42 USC § 2000e-5(f) (3).

2.
The individual plaintiffs, Parson and Williams, are
authorized to institute this action under 42 USC § 2000e,
et seq., and 42 USC § 1981.

3

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.

4.

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).

5.

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).

6.

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

7

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).

8.

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.

9.

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,
v.

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.

I.

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.

te

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2741%3A1. Public record. Not legal advice.