Appendix — New Orleans Steamship Ass'n v. Williams

Supreme Court brief1983

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IN THE

Supreme Court of the Unite

OCTOBER TERM, 1982

INTERNATIONAL LONGSHOREMEN’S

ASSOCIATION, et al.,

Petitioners

versus

GEORGE WILLIAMS, et al.,

Respondents

APPENDICES

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

SEYMOUR M. WALDMAN

Vladeck, Waldman, Elias & Engelhard, P.C

Counsellors at Law

1501 Broadway

New York, N.Y. 10036

Telephone: (212) 354-8330

DENNIS M. ANGELICO

Hess & Washofsky

A Professional Corporation

1411 Decatur Street

New Orleans, LA 70116

Telephone: (504) 949-2742

ATTORNEYS FOR THE INTERNATIONAL LONG-

SHOREMEN'S ASSOCIATION (I1.L.A.), GENERAL

LONGSHORE WORKERS, LOCAL UNION NO. 3000,

I.L.A.. SACKSEWERS, SWEEPERS, WATERBOYS

AND COOPERS UNION, LOCAL UNION NO. 1683-

1802, 1.L.A.

HAUSER PRINTING COMPANY, INC., 623 DISTRIBUTORS ROW, HARAHAN, LA. 70123

APPENDIX A

United States District Court

Eastern District of Louisiana

WILLIAMS, ET AL

VERSUS

NEW ORLEANS

STEAMSHIP ASSOCIATION, ET AL

CIVIL ACTION

NO. 71-873

SECTION “B”

February 14, 1979

HEEBE, Chief Judge:

Plaintiffs, George James Williams, Duralph S.

Hayes and Ernest W. Turner, Jr., individually and on

behalf of all others similarly situated, filed this suit

against the New Orleans Steamship Association

(NOSA) and twenty-nine of its member corporations,

shipping, stevedoring and freight-handling companies

operating in the Port of New Orleans, along with the

International Longshorement Association, Locals

1418 and 1419 General Longshore Workers, I.L.A., and

Locals 1802 and 1683, Sacksewers, Sweepers, Water-

boys and Coopers, I.L.A. Subsequently, Matthew D.

Richard and John T. Aaron were permitted to inter-

vene as plaintiffs, and three additional defendants,

Louisiana Stevedores, Inc., Mid-Gulf Stevedores, Inc.,

and J. Young & Company, were joined. Plaintiffs al-

leged that the member companies of NOSA discrimi-

nated against them and members of the class they

represent on the basis of race in violation of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e—2(a).

The allegations against the defendant Locals 1418 and

1419 of the General Longshore Workers, I.L.A., is

that they are segregated by race, Local 1418 being

virtually all white and Local 1419 all black. The same

is allegedly true with respect to locals 1802 and 1683,

the former being all white and the latter all black. It

was specifically alleged that plaintiffs are affected by

this segregation of the local unions because it provides

one method by which preference in job assignment is

given to white employees. The plaintiffs further al-

leged that the segregated locals had negotiated with

NOSA for labor contract provisions which were inher-

ently racially discriminatory. Plaintiffs seek a per-

manent injunction prohibiting NOSA and its member

companies from violating 42 U.S.C. § 2000e—2. They

also seek the issuance of a permanent injunction re-

quiring defendant International Longshoremen As-

sociation and defendant locals to merge Locals 1683

and 1802 into one local and, also, Locals 1418 and 1419

into one local, with no further classification and segre-

gation of membership on the basis of race.

An investigation, which resulted in a Report and

Findings of the Department of Labor, dated July 1964,

was conducted by the U.S. Department of Labor into

the areas of manpower utilization and job security in

the longshore industry in the Port of New Orleans.

This study did not focus on the question of race. The

study did reveal that historically employment in the

longshore industry was on a casual and irregular basis.

This was produced by a large surplus of labor in the

longshore industry in New Orleans which, in turn,

resulted in a total lack of job security in the Port. The

figures which the study arrived at indicated that gen-

eral cargo tonnage in the port of New Orleans, during

the preceding seven-year period, ranged from a high of

approximately 5.3 million tons in 1957 to a low of

approximately 3.9 million tons in 1959. However, it

was determined that the total number of hours worked

annually by longshore employees during that seven-

year period declined steadily. In the year 1962-63,

total hours of employment had decreased by 27% below

the 1956-57 work year. During that period, between

11,500 and 15,500 men were employed annually as

longshore workers. However, the number of men hired

on a weekly basis most frequently ranged between

6,000 and 6,200 employees, with a rare week providing

work for 7,000 men. The obvious conclusion was that

the total number of men in the workforce was almost

double the number of jobs available in a normal work-

week in the Port. There was no doubt that there existed

an urgent need for the parties in New Orleans to devel-

op a more stabilized workforce. The Report also noted

that there was no seniority system in the Port of New

Orleans and no formal attachment of men to companies

that employed them. The only attachment was of men

to the foreman who hired them into a gang and, there-

fore, they worked for their foreman and not for the

company. (NOSA Exhibit # 13, “Report and Findings

of the Department of Labor, dated July 1964.”) Due in

large part to this Department of Labor study, a regis-

tration system was instituted which progressively

stabilized employment in the Port.

The present nature and description of the result-

ing employment situation in the Port, which encom-

passes decasualization and institution of an employee

registration system, is one agreed upon by all the

parties, as evidenced by their Pre-trial Order. (Record,

Document # 171.) Waterfront workers now employed

in the Port of New Orleans are separated into various

crafts and work under the jurisdiction of separate

I.L.A. local unions. As stated above, this suit involves

two of these crafts which are worked by waterfront

workers: general longshoremen, working under the

jurisdiction of Locals 1418 and 1419; sacksewers,

sweepers, waterboys and coopers, working under the

jurisdiction of Locals 1802 and 1683. At present, both

of the above workforces are divided into categories

consisting of: “eligible employees,” those who are eli-

gible to participate in a “Guaranteed Annual Income”

Plan (set out in Article XXVIII of NOSA’s contract

with the Locals) and who have first priority for em-

ployment as Category 1 employees and are issued cards

known as “G Cards”; next, “G—O” men, Category 2,

who are not covered by the “Guaranteed Annual In-

come” Plan but who have the same priority for em-

ployment as Category 1 men and are issued “G—O

Cards”; third, “SG” men, who have a secondary prior-

ity for employment below the first two, are issued “SG

Cards” and constitute Category 3; finally, casuals,

made up of a constantly changing group of individuals,

the great majority of whom apply for longshore work

sporadically and who have no longshore identification

cards. The first three categories described make up the

“registered workforce,” casuals not being among those

registered. The foregoing is the classification system

for longshoremen. The sacksewers, sweepers, water-

boys and coopers are similarly classified in their work-

force, the difference in terminology being of no impor-

tance as there exists the same types of categories with

the same types of priority.

Locals 1418 and 1419, together, and Locals 1683

and 1802, together, each enter into a single collective

bargaining contract with NOSA, which represents

most of the employers of waterfront labor in the Port of

New Orleans. Local 1418 has an active membership of

approximately 750, 744 of whom are white. Local 1419

has an active membership of approximately 3,608, of

whom all are black. Local 1802 has an active member-

ship of approximately 117, all of whom are white, and

Local 1683 has an active membership of approximately

91, all of whom are black.

General longshore workers load and unload ships,

among other duties. Hiring of all longshoremen by the

various stevedores takes place now, and did in the past,

in one central hall, the Waterfront Employment Cen-

ter owned by NOSA. Longshoremen are organized into

“gangs” for ship loading and unloading work, each

gang being supervised by a foreman. The size of a gang

depends on the type of cargo to be worked, with the

minimum gang size being specified in NOSA’s Agree-

ment with Locals 1418 and 1419. Under the current

Agreement, general cargo gangs must be at least 16

men; grain gangs which work bulk grain need a mini-

mum of 8 men; other specialized gangs range in size

from 6—with bulk ore—to 18—on LASH ship work;

carpentry gangs are of no specified size. All pay rates

for longshoremen are set out in the Deep Sea Agree-

ment between NOSA and Locals 1418 and 1419 and

vary under certain contractually designated circum-

stances. Longshore work is performed on a day-by-day

basis, 7 days a week, with hiring done by the stevedor-

ing companies at “shape ups” conducted twice a day at

the Center, once in the morning and once in the after-

noon. Some stevedoring companies use “regular”

gangs to which they give preference on available work

over non-regular gangs that may work for them from

time to time. The company supervisor picks the fore-

men he wants to work for him, and the foremen hire

their gangs. In a regular gang, the foreman is obliged

to hire available regular members of his gang for re-

quired available work before anyone else. If a company

has more work than can be done on a particular day by

its regular gangs, it may then hire non-regular gangs,

which may be a gang that is regular with another

company which has no work for it at that time. It may

also be a gang which is assembled by a longshoreman

who also works as a foremen when such work is avail-

able. The foremen and longshore gangs are assigned to

ships by a company supervisor and then to individual

hatches on the ship by a ship superintendent, also an

employee of the company who is in overall charge of the

work being done on the vessel for the company. With

respect to the other unions, the waterboys are those

workers who provide drinking water for a gang, some

waterboys being regular with a company and attached

to its regular gangs and others non-regular, the latter

being generally hired in the same manner as non-regu-

lar longshoremen. Not every gang carries a single

waterboy, as frequently two waterboys will service

three gangs working a single ship. The hiring super-

visor normally designates which foreman will be al-

lowed to hire a waterboy.

In addition to the individual claims made by plain-

tiffs and plaintiffs-intervenors, the following are the

“class claims,” many of which purportedly encompass

claims made by the individuals: (1) racial discrimina-

tion in employment of foremen in that various compa-

nies discriminate against black longshoremen in hir-

ing regular foremen, in the hiring of non-regular fore-

men and in allotting less work to regular and/or non-

regular black foremen than to white foremen; (2) racial

discrimination against black longshoremen in the

Waterboy-Sacksewer craft in the hiring of regular

waterboys by major company-defendants and in allot-

ting less work to them than to white waterboys; (3)

racial discrimination in job assignment with general

cargo gangs in that major company-defendants dis-

criminate against black longshoremen by assigning a

disproportionate number of them to hold work, while a

disproportionate number of white longshoremen are

assigned to non-hold work; (4) racial discrimination in

that various companies employ a disproportionately

small number of black longshoremen for grain gangs;

(5) racial discrimination against black longshoremen

by employing a disproportionately small number of

them in carpentry gangs; (6) racial discrimination in

that various companies assigned a disproportionate

amount of the most arduous and unpleasant work to

all-black general cargo gangs; (7) racial discrimina-

tion in overall allotment of work to black longshore-

men in that various companies assign a disproportion-

ately small amount of their work to black longshore-

men; (8) racial discrimination in that various com-

panies exclude black longshoremen from employment

as superintendents; (9) racial discrimination in em-

ployment on LASH gangs against black longshoremen

by assigning to them a disproportionately small

amount of such work. Of course, the final allegation of

discrimination is against the I.L.A. and the defendant

Locals as to black longshoremen, as a class, by main-

taining dual, segregated locals.

The question first posed to this Court has been

defined by plaintiffs as being not whether improve-

ments have occurred in the Port of New Orleans for

black longshoremen or whether some blacks have ad-

vanced, but whether vestiges and traditions of racial

discrimination, which existed in years past, continue

to taint waterfront employment practices. Plaintiffs no

longer assert all of the separate claims of racial dis-

crimination which they asserted in their Pre-trial

Order and at trial. This is most true with respect to

discrimination by defendant companies against blacks

in longshore and craft 2 work. We think they could

hardly assert that such discrimination was proved at

trial. The racial composition of the “G” workforce as of

June 10, 1974, was 2,078 black and 682 white, i.e.,

75.3% black and 24.7% white. All parties agree that

there has been a long-standing three-fourths majority

of blacks among longshoremen. In the contract year

1969/70, there were more workers and blacks consti-

tuted slightly less than three fourths of the work-

force—2,854 black longshoremen were registered un-

der the NOSA/ILA Deep Sea Agreement and 994

white, for a percentage of 74.16 black and 25.83 white.

In addition to the increase in the percentage of black

longshoremen between 1969/70 and 1974, the distri-

bution of longshore hours worked by black “G” long-

shoremen in the contract year of 1972/73 was 76.1% for

blacks and 23.9% for whites. This translates into aver-

age annual income as follows:

COMPARISON OF HIGHEST EARNING

“G" LONGSHOREMEN BY RACE

Contract Year 1972/73

(from NOSA Exs. # 46-50)

Race/ Average/ Average/ Average/

Hours Earnings Rate

100 Highest Black 2,474.46 $19,369.48 $7.50

White 2,318.03 17,140.10 $7.51

200 Highest Black 2,298.46 17,117.55 7.28

White 2,097.41 15,051.64 7.24

300 Highest Black 2,193.71 15,935.24 7.15

White 1,939.58 13,687.52 7.11

400 Highest Black 2,123.70 15,154.17 7.05

White 1,815.90 12,654.09 7.01

500 Highest Black 2,062.98 14,561.67 6.99

White 1,700.76 11,722.21 6.90

600 Highest Black 1,968.67 13,672.46 6.90

White 1,357.10 9,299.09 6.48

In considering the above chart, it should be kept in

mind that there is a direct correlation between earn-

ings and absenteeism, some individuals with a greater

percentage of availability for work have earned slight-

ly less than some employees with somewhat less hours

worked, apparently due to the hourly rate for the type

of work performed. The plaintiffs have now narrowed

their allegations of racial discrimination by the de-

fendant-companies to the following: (1) racial discrim-

ination in preferred work assignments, i.e., long:

shoremen assigned to grain cargo, waterboys for grain

cargo crews, carpentry work and assignments to LASH

vessels and deck jobs in “integrated” general cargo

crews; (2) racial discrimination in the selection and

assignment of supervisors, i.e., superintendents and

foremen (regular, extra, and grain). Plaintiffs attrib-

ute virtually all of the overall wage, hour and rate

differences which they allege is suffered by biacks in

the workforce to discrimination in the allocation of

grain cargo work. These are, of course, in addition to

the charges of illegal maintenance of racial segrega-

tion of local unions and discrimination agaiast indi-

vidual plaintiffs and plaintiff-intervenors.

In addition to the described narrowing of the area

of alleged discrimination to class discrimination in

grain and other premium work, plaintiffs have reduced

the original twenty-seven defendant-stevedoring

companies on the New Orleans waterfront to the fol-

lowing fifteen, which allegedly discriminate against

blacks in the defined manner: (1) Atlantic and Gulf

Stevedores, Inc.; (2) Cooper Stevedoring of Louisiana,

Inc.; (3) Dixie Stevedores, I(nc.; (4) J.P. Florio & Com-

pany, Inc.; (5) Gulf Stevedore Corporation; (6) Louisi-

ana Stevedores, Inc.; (7) Lykes Bros. Steamship Co.,

Inc.; (8) Mid-Gulf Stevedores, Inc.; (9) New Orleans

Stevedoring Company; (10) Rogers Terminal and

Shipping Corporation; (11) Ryan Stevedoring Com-

pany, Inc.; (12) T. Smith & Son, Inc.; (13) Strachan

Shipping Company; (14) J. Young & Company, Inc.;

(15) Southern Stevedoring Company. In order to prove

their case, plaintiffs have undertaken the task of show-

ing that each of these defendants discriminate in some

particular though not necessarily identical way and

that this individual discrimination then relates back

to overall discrimination in the industry. This is

somewhat of a departure from the position which

plaintiffs took much earlier in the development of this

suit when this Court was persuaded by them that all of

the companies that were members of NOSA should be

treated as “integral parts of a conglomerate employ-

er.” Twelve of the named defendants filed a motion to

dismiss for lack of jurisdiction on the basis that Title

VII of the Civil Rights Act, 42 U.S.C. § 2000e—2(a),

was inapplicable to them as § 2000e defined employer

as one with 25 or more employees for each working day.

(Record, Documents Nos. 17 and 26 [p.2].) They had

filed affidavits to the effect that they employed less

than that number. In defining NOSA as an integrated

enterprise the plaintiffs pointed out that for employ-

ment purposes, the members of NOSA operated as one

large employer which controlled employment on the

waterfront and established uniform employment

practices applicable to all member companies. They

further made the observation that NOSA was the col-

lective bargaining agent for all of these companies

operating in the Port of New Orleans and, as such,

established uniform employment policies applicable to

all member companies which delegated this broad

authority to it. In view of this position, the Court will

consider whether its agreement with plaintiffs’ earlier

position on the issue of membership-employer identity

should also apply to its determination of the issue of

discrimination. The Court also points out, as did plain-

tiffs, that its findings and conclusions at this stage deal

only with issues of liability and do not attempt to con-

sider any possible remedies that may be necessitated

by its decision herein.

Racial Discrimination as to Individual Plaintiffs

Plaintiff, George Williams, filed a charge of racial

discrimination in employment against all defendants

with the EEOC and, subsequently, received a notifica-

tion of his right to institute suit in view of the inability

of the EEOC to resolve the issue. This suit was filed on

March 30, 1971. Williams filed a second charge with

the EEOC against the defendants alleging retaliation

against him on account of the filing of suit. The Com-

mission authorized him to sue on this charge on Febru-

ary 7, 1973. Williams is a black longshoreman who

started work in the Port of New Orleans in 1956 as a

longshoreman in general cargo gangs. He became a

member of Local 1419 in that same year, i.e., 1956. In

June of 1965, Williams organized a general longshore

gang and began attempting to get work as a foreman.

He was never a regular foreman with any stevedoring

company between the time he organized the gang in

1965 and the date he retired from the riverfront on

November 30, 1971. In November of 1971, Williams

developed an ulcer which rendered him physically un-

able to do longshore work and he retired on a pension.

The Court does not feel that Williams carried his bur-

den of proving that he did not become a regular fore-

man because of racial discrimination or that he re-

ceived less work than whites as an “extra” foreman

because of his race. There is no question in the Court’s

mind that Williams “hustled” as much as possible for

foreman work, according to his own testimony and also

by the fact that he did receive more than a modicum of

such work. However, this Court concludes that the

weight of the credible evidence indicates that Wil-

liams’ failure to become a regular foreman was at-

tributable to his poor or inadequate performance,

based on a productivity and accident record which were

consistently unacceptable to the defendant employers.

There is evidence in the record that quite a few of

the defendant companies gave Williams a chance to

work as a foreman. Strachan Shipping hired Williams

approximately ten times as a foreman in 1969, and

about four times in 1970. In 1969, he was warned of

poor production on the job, and it was concluded that

there was no improvement in 1970. At his request, he

was given one other chance to work as a foreman in ©

that year. This time he refused to follow advice given

by the superintendent at Strachan, his work was found

lacking and he ceased working for the company in

1970.

This problem of poor performance proved to be the

same reason Williams did not receive more work from

other defendant companies. He worked as a foreman off

and on from 1969 to 1971 for Louisiana Stevedores, but

the evidence indicates that he was inept and uncon-

scientious about supervising his men. After one bad

experience, Louisiana refused to hire him again. Wil-

liams also worked for United States Stevedores be-

tween 1965 and 1971 as a non-regular foreman. The

criticism of him by this company was specific with

respect to the fact that he was often not around and his

gang often worked without adequate supervision be-

cause of his absence. In addition, he was not considered

a good foreman there because of lack of control over his

gang. Williams also worked sporadically for Lykes

Brothers prior to February of 1970. At this time, Wil-

liams’ gang experienced an accident while working one

of Lykes’ vessels. The accident was the result of im-

proper rigging. There is much disputing evidence as to

who was at fault for the dangerous manner of rigging.

The daily work report for the day in question does

indicate that Williams’ gang rigged the hatch where

the accident took place. Regardless of whu was actually

at fault, there is no question but that the company

believed that a foreman of a gang was responsible for

the rigging of a hatch and that Williams was respon-

sible for the accident. As a result, instructions were

given that he and his gang were not to be hired again

after completion of work in that hatch, as contractually

required. With respect to the six companies that Wil-

liams accused of not hiring him on racial grounds, the

Court finds that all of them either by first-hand ex-

perience or by reputation were of the opinion that Wil-

liams’ work showed poor performance.

We turn to plaintiff Duralph S. Hayes, a black

waterfront worker and member of Local 1683, who

filed a charge of racial discrimination against defen-

dants T. Smith & Son, Inc., and Local 1802 on Novem-

ber 25, 1968, and received his “right to sue” letter from

the EEOC on March 1, 1971. Hayes started work in the

Port as a waterboy in July 1960 and became a member

of Local 1683 shortly thereafter. Hayes has alleged

that from the early part of 1968, he was one of defen-

dant T. Smith’s four regular waterboys on the night

shift. However, at the time of trial, Hayes was a cooper,

one who repairs damaged cargo and does other work on

the wharf, at United Brands. At the time in question,

Hayes and three white waterboys were the regular

night help. The three agreed among themselves to di-

vide the work up so that all would get an equal amount

of it as all four would not be sent out at the same time.

There is some conflict, but the Court is of the opinion

that this arrangement ended when one white waterboy

refused to continue to participate in it. Hayes alleges

that after this, The (sic) T. Smith superintendent

showed preference for a white waterboy, one Hingle,

and this constituted the racial discrimination. How-

ever, the evidence shows that for the second, third and

fourth quarters of 1968, Hayes earned more or slightly

less than Hingle in each period. Plaintiff Hayes has not

carried his burden of proving discriminatory practices

on the part of T. Smith. The Court can only conclude

that he left T. Smith to begin working for United

Brands as a cooper.

The third plaintiff, Ernest Turner, filed a charge of

racial discrimination against defendant NOSA and all

of its member companies on March 19, 1968, and re-

ceived a “right to sue” letter from the EEOC on March

17, 1971. His chief reason for filing a charge against

his “employer” was based on discrimination in hiring

of black waterboys, most of whom were hired as extras.

He correlates this discrimination to the method of hir-

ing waterboys which denies him an equal amount of

time, i.e., the waterboys are hired by a foreman and

black foremen are given less opportunity to hire their

waterboys. The issue of discrimination appears to re-

volve around Turner’s contenion that he was a regular

waterboy. Turner filed his charge against New Or-

leans Stevedores with whom it is alleged by him, he

started working regularly as a waterboy in June or

July of 1968. The evidence predominates that Turner,

contrary to his belief, was not a regular waterboy for

New Orleans Stevedores. At the time complained of,

New Orleans had only four regular waterboys, two

black and two white, and Turner was not one of them.

One Charlie Roy, a black foreman with New Orleans

did carry Turner as a waterboy but, as he testified, only

as an extra. He further stated that most of the time

when he needed Turner he could not find him. Turner

subsequently told him that he was working as a regu-

lar waterboy for T. Smith. This appears to be the situa-

tion as it existed, and there are, therefore, no real

grounds against New Orleans Stevedores which, at

least, have been proven by Turner.

The plaintiff-intervenors are Matthew D. Richard

and John T. Aaron, black longshoremen on the New

Orleans waterfront who are members of Local 1419. On

July 14, 1971, Richard filed a charge of racial dis-

crimination against Gulf Stevedore corporation and

later received a “right to sue” letter from the EEOC on

April 27, 1973. From 1951 until 1970, Richard was a

regular foreman of a regular general cargo gang at

Gulf Stevedores. In 1951, Richard was in an all-black

gang with a black foreman and at that time was asked

to take over the foreman’s job because the former fore-

man left. Richard alleged that initially he was treated

well, but when the former vice president of the com-

pany left, the new vice president and hiring superin-

tendent began to discriminate against him and his

gang in work assignments as follows: (1) Richard and

his gang got less work; (2) Richard and his gang got

more than their share of work in the # 1 hold of ships,

the hold where it is more difficult to move cargo, and in

a similar but less difficult # 5 hold; (3) Richard and his

gang were assigned to load and unload the most un-

pleasant hand-movable cargo. For reasons that are in

dispute, Richard started losing gang members and his

accident rate and lost man hours increased. Subse-

quently, in May 1971, he was discharged as a foreman

by Gulf’s vice president. Richard alleges that it was

racial discrimination against his gang in work as-

signments that led to his discharge. Defendants assert

that Richard’s termination was caused by his exces-

sively high accident rate which was the highest of any

of Gulf’s foremen in terms of cost per man-hour work.

This Court finds that it was, in fact, three times higher

than the Gulf foreman with the next highest accident

rate and was the result of thirteen accidents in his

gang during the contract year 1969-70. There followed

five more accidents between October 1970 and March

1971. It was the opinion of his superiors that this acci-

dent record was attributable to Richard’s failure to

personally hire his gang at the Center or to stay with

them throughout the day. We are not convinced by

plaintiff's theory that the type of cargo the gang work-

ed was related to or the cause of the number of acci-

dents. Neither do we agree with plaintiffs that one

cannot correlate the amount of earnings of Richard asa

foreman with the amount of work his men received

because Richard was on a guarantee. Richard’s earn-

ings for 1969 and 1970 are higher than the average

earnings of all regular foremen at Gulf Stevedores, and

if all the other foremen were also on a guarantee, then

Richard’s gang would have received their fair share of

Gulf work during these two years prior to his termina-

tion. We conclude that the reason for Richard’s termi-

nation was his unacceptable safety record and that he

has not carried his burden of proving otherwise, i.e.,

that it was the result of racial descrimination.

John T. Aaron, the other plaintiff-intervenor, a

black longshoreman who had worked as a regular on

general cargo gangs, worked for Atlantic and Gulf in

1969 and 1970, and for Mid-Gulf Stevedores in 1970,

1971 and part of 1972. In November 1972, Aaron was

discharged from the gang by its foreman. Regular

gangs at Mid-Gulf were composed of a core of ten men

who would always work if the gang was working, an

additional three men who would work when a specific

type of barge work was available and, lastly, five more

men who were “regulars” on the gang only when the

gang was at its full complement of eighteen men. This

occurred when the general cargo gangs worked LASH

vessels (which refers to lighter aboard ship and means

there is no heavy physical labor associated with LASH

work), which Mid-Gulf serviced exclusively, in addi-

tion to other kinds of work that went along with it.

Aaron was a regular on the eighteen-man gang only.

Therfore, when Aaron was not working on a LASH

ship, the only type which he was obligated to work, he

would seek longshore work with another foreman.

However, Aaron also worked for a construction com-

pany. After he was terminated, Aaron filed an EEOC

charge in which he alleged that he “was fired from a

regular grain crew in which [he] had been employed for

over a year, because of [his] race.” (Plaintiffs’ Exhibit

# 44.) Contrary to this allegation, this Court is con-

vinced from the evidence that Aaron was discharged

from the gang because of excessive absenteeism. In

fact, the evidence indicates that Aaron’s foreman com-

plained to Mid-Gulf’s general manager about the fact

that he had not been available on a regular basis over a

long period of time. On investigation, the general

manager agreed with Aaron’s foreman that Aaron

should be dropped from the gang. On November 6,

1972, Aaron was replaced with a black longshoreman.

On investigation of the matter by the vice president of

Local 1419, it was determined that Aaron had been

absent over 50% of the time he worked for Mid-Gulf. In

fact, from April 1972 through October 1972 Aaron

worked a total of 775 hours as an iron worker under the

jurisdiction of the local Iron Workers Unions. The

Court concludes that Aaron’s termination was not

motivated by racial discrimination and, further, that

no other longshoreman in the same gang as Aaron had

an absentee record as bad or worse than Aaron’s during

the critical seven-month period which was considered

by those in authority in the decision to terminate

Aaron. On the evidence, we are convinced that Aaron

failed to prove that his discharge was the result of

racial discrimination.

Class Action

This suit was filed by plaintiffs on behalf of them-

selves and “...all other persons similarly situated,

pursuant to Rule 23 of the Federal Rules of Civil Pro-

cedure.” Plaintiffs then set out, in Paragraph II of their

Complaint, requirements of numerosity, the existence

of issues of law and fact common to the class, fair and

adequate representation by plaintiffs, claims and de-

fenses of defendants typical of those of the class and a

situation where defendants have refused to act on cer-

tain grounds applicable to plaintiffs and the class. By

Minute Entry of January 18, 1972, this Court denied a

motion to dismiss the class action filed by NOSA and

the defendant employers. Subsequently, defendants

filed a motion to dismiss the class action on certain

issues, which the Court deferred ruling on until after

the trial of the merits of the case, by Minute Entry

dated July 18, 1974. Even if we had not done this, as

stated in Wright & Miller, Federal Practice and Pro-

cedure: Civil § 1785, p. 137: “The court’s initial deci-

sion under Rule 23(c)(1) that an action is maintainable

on aclass basis in fact may be the final resolution of the

question, although it is not irreversible and may be

altered or amended at a later date.” Of course, the fact

that we have held that the named plaintiffs have not

proved their own Title VII claim does not mean that the

class of employees they seek to represent are deprived

of a remedy if it is appropriate. Johnson v. Georgia

Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974);

Brown v. Gaston County Dyeing Machine Company,

457 F.2d 1377, 1380 (4th Cir. 1972). However, we are

convinced at this point that plaintiffs have not proved

that they are entitled to maintain a class action under

Rule 23(a) and (b)(2) in that the class lacks the requi-

site numerosity and, even if that were not the case,

plaintiffs have not proved employment discrimination

in the specific areas they have delineated which is

applicable to a specific group of employees similarly

situated and generally acted upon by the defendants

with respect to an applicable class.

Numerosity. In 1968, fifteen waterfront workers

filed charges of racial discrimination with the EEOC

against NOSA and some of its members, including

fourteen of the remaining fifteen defendant stevedore

companies in this suit. These charges attacked a broad

range of employment practices alleged to be racially

discriminatory. The EEOC consolidated the charges

and undertook a year-and-a-half investigation which

effectuated conciliation efforts that resulted in a for-

mal Settlement Agreement (NOSA Exhibit # 7), on

March 2, 1971. This Agreement obtained general as

well as specific commitments from all defendant em-

ployers on the issues of nondiscriminatory practices

and policies, covering many of the complaints involved

in this case. Most differences involve the relief sought

and not the substance of the charge. See, Minute Entry

of January 18, 1972 (Record, Document # 39, p. 6). In

addition, it established a reporting and monitoring

procedure by the EEOC which would insure future

compliance with the Agreement. The Settlement

Agreement was ratified and signed by all of the river-

front companies charged with discrimination and by

eleven of the charging parties, with the exception of

the three plaintiffs in this suit, Williams, Turner and

Hayes, and was also approved and executed by the

EEOC. This Court is aware that in its Minute Entry of

January 18, 1972, supra, it held that the Settlement

Agreement could have no effect on the right of the

individual plaintiffs to bring suit and also that the fact

that the signatories to the Agreement constituted the

majority of the charging parties did not mean that they

were more representative of the class than the instant

plaintiffs. However, having heard all of the evidence

and having listened to plaintiffs’ witnesses, the Court

cannot now disregard the fact that eleven out of four-

teen complainants were satisfied with their settlement

with the defendant companies and plaintiffs have

given no proof of any other group sufficiently large to

warrant class action. Additionally, although we have

not been presented with an actual petition disclaiming

class representation by the individual black members

of Local 1419, we are aware that the majority of the

members of Local 1419 do not wish to be represented as

a class in the plaintiffs’ efforts to integrate the dual

unions. We conclude, as did the trial court in Bailey v.

Ryan Stevedoring Co., Inc., 528 F.2d 551, 553 (W.D. La.

1976), which involved similar issues in the Port of

Baton Rouge, that “ [t]he facts of this case clearly

establish that the claims of [the plaintiffs] are individ-

ual in nature and the issues raised by them are not

issues common to any definable class too numerous to

sue individually ...’” under Rule 23, F.R.Civ.P.

Therefore, since our decision does not have any class

application, any other rulings in this decision will

have res judicata effect only as to the individual plain-

tiffs. Roman v. ESB, Inc., 550 F.2d 1343, 1355 (4th Cir.

1976).

Employment Discrimination—Segregated Locals

Plaintiffs assert now, and previously on their

motion for separate judgment on the issue of the main-

tenance of segregated local unions, that the mainte-

nance of a substantially all white union and an all

black union has an adverse effect on the employment

opportunities of black longshoremen based, of course,

on the fact that they outnumber white longshoremen

by three to one and are not so treated. Plaintiffs further

assert that even if the Court does not find employment

discrimination, that the maintenance of segregated

locals is a per se violation of Title VII of the Civil Rights

Act.

As stated earlier in the Opinion, the areas of racial

discrimination have been broken down by plaintiffs

into two categories, with subdivisions under each. The

first is racial discrimination in preferred work assign-

ments and includes: (1) grain cargo gangs; (2) carpen-

try work; (3) LASH vessels— Mid-Gulf; (4) assignment

of preferred deck jobs. The second is in the selection

and assignment of supervisors: (1) general and ship

superintendents; (2) foremen, regular and extra and

grain foremen. Before discussing these specific areas,

there are two assumptions plaintiffs have made with

which this Court is not in agreement. The first has

been touched upon, i.e., that each defendant employer

is responsible for its own employment practices. If this

had always been the plaintiffs’ position, the Court

would never have considered the members of NOSA an

integral unit. However, we did so on the basis that they

all followed the same employment practices dictated

by NOSA. It is not certain, but in view of our ultimate

decision in this area it may not be necessary to resolve

this matter. However, if we have to, we think that our

view of the industry, as will be set forth, precludes now

an attempted showing of employment discrimination

by scrutinizing the disparities in black and white em-

ployment by fifteen separate employers who purport-

edly discriminate in a variety of individual ways. The

second point is that, with respect to some of plaintiffs’

statistics, the figures are based solely on integrated

gangs, without regard to gangs which are all black.

Since plaintiffs argue that, even when the focus is

expanded to include all gangs, the results are not

changed significantly, we see no reason not to operate

on an analysis of all regular gangs.

I. Racial Discrimination in Preferred Work Assign-

ments

(1) Grain Cargo Gangs—Longshoremen

Apparently work in grain cargo is easier and bet-

ter paying than other general longshore work, there

being a 20 cent per hour premium for such work. Up to

and during some of the trial of this suit, the Deep Sea

Agreement between NOSA and Unions provided that:

“So far as is practical, work is to be divided between

members of ILA Locals 1418 and 1419 in grain trim-

ming machine gangs, and/or hand trimming gangs.” In

practice, this meant that grain crews were to be half

white and half black, assuming that sufficient long-

shoremen of both races were available, even though

the active black local membership was more than three

times greater than that of the white. Plaintiffs argue

that the clause was originally agreed to by the black

union because of its concern that its members would

receive even less than half of the grain cargo work asa

resuit of discrimination by white foremen. However,

according to our reading of the testimony of the Presi-

dent of Local 1419 at that time, Wilfred Daliet, whose

testimony plaintiffs rely on, it was his understanding

that the foremen, the majority of whom were white, did

hire as equal a number of black and white for grain

gangs as they could. But it was the former president of

1419 who insisted that tne clause be inserted in the

Deep Sea Agreement to protect his men and to see to it

that they would get a “fair shake.” The clause was

continued in one form or another down to the current

contract year of 1971-1974. However, on the expiration

of that contract on September 30, 1974, it was deter-

mined that it would not be necessary to continue the

grain clause into the next contract because of the

strides made by blacks with respect to grain cargo

work, including the addition of three black foremen in

the grain industry in 1974. (Transcript, pp. 1572-77,

Wilfred Dailet.) This is not to say that we disagree with

plaintiffs’ position that the division of grain cargo

work was discriminatory and that it was accomplished

through a segregated union system. We also cannot

disagree with plaintiffs, on the ‘acts, that the removal

of the contract language was a tactic of this litigation

and in response to the dictates of Title VII. We are not

prepared, at this point, to say that this suit was not the

catalyst for the removal of the clause.

(2) Grain Cargo Crews—Waterboys

In narrowing its areas of discrimination, the

plaintiffs next look at the allocation of grain waterboy

work, as opposed to blacks employed as regular water-

boys. They first point out that there is nothing in the

waterboy contract concerning the allocation of grain

waterboy work between members of the white and

black locals as existed in the Deep Sea Agreement as to

grain cargo crews. In spite of this, it seems to the Court

that there must have been some impact from the 50-50

grain work division since, as previously described,

there is not one waterboy for each gang. In addition, we

think that this subdivision is just too insignificant in

terms of the entire waterfront workforce to give much

weight to plaintiffs’ case. We prefer to look at the over-

all picture of waterboys at defendant companies. The

evidence indicates the following for individual com-

pany defendants, the basis on which plaintiffs want to

operate: during 1973, Cooper Stevedoring had two

regular waterboys, one black earning $17,517 and one

white earning $8,997; for the same period, Strachan

Shipping had four regular waterboys, two blacks, one

earning $19,614 and one $11,870, and two whites, one

earning $8,915 and one earning $8,654; for the same

year, J. Young & Company employed three waterboys,

one black and two white, the black man earning more

than either of the two whites; for the year, J.P. Florio

employed three waterboys, one black who earned

$10,641, one white who earned $7,841 and one white

who earned $4,794; finally, for that year, Gulf Steve-

dores, employed two regular waterboys, on white who

earned $4,949 and one black who earned $5,897.

In addition to what the foregoing could indicate, that

less blacks are working more hours than whites as

regular waterboys, NOSA Exhibit # 24 shows that the

regular waterboys used by defendant companies has

been declining over the past years. In 1972 there were

29 black and 48 white, and in 1973 there were 27 black

and 38 white, which indicates a substantially greater

decrease of whites over the small decrease of blacks.

Moreover, on an average basis during 1972 and 1973,

earnings of regular waterboys were approximately the

same for blacks and whites.

(3) Carpentry Work

Plaintiffs next focus on what they allege to be a pat-

tern or practice of racial discrimination in the hiring of

longshoremen to work in carpentry gangs. Carpentry

work is used in connection with loading and unloading

older ships in which supporting walls are constructed to

hold cargo and also in the securing and lashing of cargo

aboard vessels. It is uncontested that the use of carpenters

has diminished in recent years and that in the past, de-

fendant companies had traditionally assigned most car-

pentry work to whites. As a corollary, men working as

members of the few remaining carpentry gangs all have

very long employment records, many of which predate the

effective date of the Civil Rights Act of 1964. Further-

more, there have been few additional openings in regular

gangs due to the foregoing. The combination of seniority

of long standing coupled with a decrease in the type of

work does not lend itself to a finding of discrimination in

hiring of black carpenters.

(4) LASH Vessels

The nature of LASH vessel work has previously

been described. Defendants have shown that 83.7% of

all LASH/seabee and container gangs employed by de-

fendant employers is black, hardly indicative of racial

discrimination. Plaintiffs, however, have focused sole-

ly on defendant Mid-Gulf which, as earlier pointed out,

exclusively services L.ASH vessels. Plaintiffs assert

that there was an agreement between the two locals

and Mid-Gulf as to the division of LASH work between

the two locals. However, as the court appreciates the

evidence, Mid-Gulf was instructed by Local 1418 and

Local 1419 to divide the work up on a 40-60 basis,

respectively, between the two and Mid-Gulf complied

with these instructions for about a year and a half,

starting in 1968. The underlying reason for this was

that both unions went on strike over the number of

whites and blacks who would work LASH gangs, as it

was obvious that LASH vessels would not require as

many longshoremen as the previous types of vessels. In

1971, Mid-Gulf advised the two unions that it would no

longer apply this requested ratio and, at the time of

trial, according to the testimony of the general man-

ager of Mid-Gulf, the ratio of their gangs was about

72-28 or 75-25. The evidence further indicates that

among five of the major defendant companies, Lykes

Brothers, Mid-Gulf, J. Young, Atlantic & Gulf, T.

Smith & Son, in the year 1972, the racial composition

of LASH, seabee and container gangs was a total of 326

blacks and 61 whites for a percentage of 84.23 black

and 15.76 white. In 1973, it was 405 blacks and 81

whites, a percentage of 83.7 black and 16.3 white. This

also does not present a picture of racial discrimination

in our view.

(5) Deck Jobs in General Cargo Crews

A general cargo crew is made up of sixteen mem-

bers, of which eight men work in the ship’s hold and the

balance work on deck—at jobs such as derricksmen,

pilemen, hook-on men, driver and winchmen. Deck

jobs pay no higher than those in the hold, but they are

considered preferable to the hold jobs in that they are

less physically demanding. Plaintiffs contend that the

twelve defendant companies that employ regular gen-

eral cargo gangs discriminate against blacks in con-

nection with assignment to preferred deck jobs. Once

again, plaintiffs talk in terms of the number of blacks

on the waterfront rather than the percentage of blacks

holding these “preferred” jobs. The following is their

statistical analysis:

Proportion of White and Black Members of All General Cargo Gangs

Assigned to Deck Jobs, December 1973

Number in all Regular Number in

General Cargo Gangs Deck Jobs % in Deck Jobs

White 188 162 86.2%

Black 1,242 542 43.6%

However, if one looks at the overall picture presented by

the major defendant companies during a five-year period,

the view is not as bleak:

Number of Regular Gang Members by Race

In Deck and Wharf Jobs in Regular Company Gangs

Company Gang Postion March 1965 March 1970

Winchmen, Derricksmen, White Black White Black

Hook-on Men Lift

Operators, Pile Men

Atlantic & Gulf ” 31 57 53 106

Gulf od 21 19 9 39

Louisiana Stevedores ” 21 27 24 44

N.O. Stevedoring ” 109 59 76 92

Florio ” 32 40 30 32

Lykes Bros. ” 64 61 39 72

Strachan Shipping ” 27 53 20 60

T. Smith & Son ” 84 189 52 214

Ryan Stevedoring ” 66 46 17 37

This table indicates a definite trend of a steady

movement of black longshoremen into “preferred work” of

deck and wharf jobs and, as the evidence shows, on the

basis of gang longevity and individual ability to perform

the work.

II. Racial Discrimination in the Selection and

Assignment of Supervisors

Superintendents and Foremen

The superintendents constitute the level of super-

vision above foremen and their gangs. They hire the

necessary foremen and their gangs each day and assign

them to a particular ship. They are regular salaried

company employees. The plaintiffs minimize the situa-

tion when they state that some overly industrious

longshoremen and foremen make more money than

superintendents, but that the latter’s job has the ad-

vantages of regularity of income, status and authority.

Plaintiffs assert that ten of the defendant companies

discriminate in the hiring of superintendents in that

none of the companies has ever hired more than one

black superintendent and only three had a black super-

intendent at the time of trial. There was evidence that

a number of black foremen have been offered and re-

fused jobs as superintendents since 1968. However, a

comparison of 1973 average earnings of men who be-

came superintendents since 1968 to the 1973 average

of these black foremen indicates an average of $14,

544.48 for superintendents to an average of $23,178.56

for foremen. Apparently, there is a greater desire to

work for a larger amount of money than regularity of

income, status and authority. Plaintiffs presented no

evidence to rebut this conclusion.

With respect to foremen, plaintiffs contend that

defendants Atlantic & Gulf, Dixie, J.P. Florio, Louisi-

ana Stevedores, Lykes, Mid-Gulf, T. Smith and J.

Young discriminate in the hiring of regular foremen.

This is based on the fact that although the pool of

longshoremen from which the regular foremen are se-

lected is over 75% black, as of July 1974 blacks consti-

tuted 50% or less of the regular foremen of these com-

panies. First, we reiterate that we are more interested

in the trend in hiring of regular foremen in the entire

industry as indicating whether there is a continuing

pattern or practice of discrimination. The evidence in-

dicates that the number of regular foremen by race of

defendant companies in 1972 was 50 black and 93

white, in 1973 there were 68 black and 88 white. This

indicates a constant increase in black foremen and a

decrease in white. Earnings have also improved with

black foremen earning an average of $11,575.44 in

1972 as compared to a white average earning in that

same year of $12,225.27. In 1973, the evidence indi-

cates that black foremen earned an average of $14,-

975.25 to a white average earnings of $13,527.61.

(NOSA Exhibits 84 and 85.) Additionally, as of June

1974, 50 blacks and 42 whites had become regular

foremen with their companies since 1968. (NOSA Ex-

hibit # 89.) Once again, this indicates a discernable

improvement for blacks and, from raw data, it is im-

possible to gauge the effect of seniority on this situa-

tion. The most encouraging thing is that blacks have

been steadily increasing their proportionate share of

regular foreman positions.

Plaintiffs also point to a number of companies that

discriminate in the hiring of extra or non-regular

foremen. These men are hired by a company when

there is more work than can be done by the company’s

regular foremen and gangs. The list of these companies

includes seven of the eight charged with discrimina-

tion in the hiring of regular foremen, with Dixie not

being included, but adds three other companies to the

list that discriminate in hiring non-regular foremen.

Gulf, New Orleans Stevedores and Ryan. We agree

with the defendants that there is no logic to the conten-

tion that some companies do not discriminate in the

hiring of regular foremen, the more desirable job, but

do discriminate in the hiring of non-regular foremen.

And, furthermore, in most cases this discrimination is

done by the same stevedore superintendent. We reject

this aspect of plaintiffs’ case out of hand.

The Court is aware of the fact that it is “...well

established that courts must...examine statistics,

patterns, practices and general policies to ascertain

whether racial discrimination exists” in a particular

industry under court scrutiny. Brown v. Gaston County

Dyeing Machine Company, 457 F.2d 1377, 1382 (4th

Cir. 1972), citing United States v. Jacksonville Termi-

nal Co., 451 F.2d 418, 442 (5th Cir. 1971). However,

when relying on statistics to make out a prima facie

case for the plaintiffs, courts look for a large statistical

imbalance plus a strong factual background of dis-

crimination. Roman v. ESB, Inc., 550 F.2d 1343, 1353

(4th Cir. 1976). We do not think that the disparities in

the statistical analysis presented by the plaintiffs is

sufficient to serve as the basis for a conclusion that

racial discrimination is being practiced. We think that

there are too many variables in the longshore industry

as constituted in the Port of New Orleans which are not

encompassed by statistics. These have been pointed

out by the unions as including (1) the nature of the

work, in that individual employees are nut compelled

to work every day and many can earn a decent living by

working premium hours only when they want to; (2)

even those who do work regularly can achieve maxi-

mum earnings and work hours by a willingness to work

additional hours to earn premium pay; (3) a certain

amount of skill at working certain cargoes or perform:

ing certain tasks is subjectively taken into account by

superintendents when hiring foremen and their gangs;

(4) it is difficult to calculate the effect of the large

number of casuals who drift into and out of work on the

waterfront on racial distribution of work. It appears to

the Court that NOSA and its member companies are

willing and actively working at complying with Title

VII, as indicated by the terms of the Settlement

Agreement entered into, and also that there is a trend

in job improvement of blacks in the longshore industry.

At this point, we can find no broad pattern or practice

of racial discrimination. See Bailey v. Ryan Stevedor-

ing Co., Inc. 528 F.2d 551 (5th Cir. 1976).

III. Segregated Locals

In spite of all that we have just said, the Court does

not intend to give the impression that there is no more

room for improvement of the black longshoreman’s

position in the Port or to minimize the effect of this suit

or its importance. If nothing else, as we have previous-

ly indicated, it may well have been responsible for a

change in the allocation of grain work and the elimina-

tion of the 50-50 practice previously in practice. More

importantly, it has brought to issue the question of

whether two separate unions, one predominately for

black longshoremen and one for white longshoremen,

should exist in the Port of New Orleans. Section 703

(c)(2) of the 1964 Civil Rights Act states: “It shall be an

. unlawful employment practice for a labor organiza-

tion... .to limit, segregate, or classify its membership

or applicants for meinbership...in any way which

would deprive or tend to deprive any individual of

employment opportunities .. .because of such individ-

ual’s race, color, religion, sex, or national

origin...” 42 U.S.C. § 2000e—2(c)(2).

Locals 1418 and 1419 are jointly certified by the

National Labor Relations Board as the collective bar-

gaining representatives of longshoremen on the New

Orleans waterfront. They represent two locals with

identical jurisdiction which appear to have no other

purpose for existence than the segregation of the black

and white races. The segregated locals are chartered

by defendant I.L.A. Locals 1802 and 1683 also are

jointly certified by the National Labor Relations Board

as the collective bargaining representative of sack-

sewers, sweepers, waterboys and coopers on the New

Orleans waterfront. Here, too, there are two locals

with the same jurisdiction, once again the only differ-

ence being that the locals are segregated on the basis of

race. These two locals are also chartered by defendant

I.L.A. As pointed out by the plaintiffs, the Internation-

al Longshoremen’s Association is the only major union

in the United States that has not voluntarily under-

taken to disestablish racially segregated unions with-

in its jurisdiction. The relevant cases where this con-

dition has been remedied by the courts are United

States v. International Longshoremen’s Association,

460 F.2d 497 (4th Cir. 1972), the Port of Baltimore;

EEOC uv. International Longshoremen’s Association,

511 F.2d 273 (5th Cir. 1975), the Port of Texas; Bailey v.

Ryan Stevedoring Co., supra, the Port of Baton Rouge.

In the face of strong oppositin from both locals to

merger and also to this Court’s finding that plaintiffs

have not proved present discrimination, we are now

faced with the problem of deciding at this stage of the

proceedings whether Locals 1418 and 1419 should be

required to merge and whether locals 1802 and 1683

should also be required to merge. The Court is of the

opinion that it should so require the merger, either

because these racially segregated unions are in viola-

tion of 42 U.S.C. § 2000e—2(c)(2) in that they “tend” to

deprive individuals of employment opportunities or

because segregated locals are a per se violation of the

Act under the language quoted above. Even though the

grain clause has been deleted from the current Deep

Sea Agreement, we think that it is just one of several

examples presented by this case as to how the existence

of two segregated unions can tend to deprive individ-

uals of work because of the tendency of this situation to

fragmentize the industry on the waterfront. As long as

to the two separate unions exist in each case, another

situation can arise where it is felt desirable to “keep

things even,” half for one union and half for the other.

Even the 75%—25% ratio which appears to have

emerged has the effect of dividing work according to

race because the unions are segregated. When two

unions share work there is ordinarily no problem.

However, when the unions are substantially segregat-

ed, any allocation of work between them necessarily

involves a division of work according to race—because

race forms the basis for membership in the union. The

division of the LASH work is yet another example of

how these two unions are a ready-made division for

splitting work, even though the division is not done on

a per-employee basis and, therefore, not necessarily

equitable as far as the individual workers are concern-

ed. A third situation exists. The Deep Sea Agreement

establishes three management-labor committees to

administer the contract. Under its Article XIV, deal-

ing with “Working Regulations,” it establishes a

Methods Committee which has the authority to ap-

prove changes in the working procedures on the water-

front as established by the contract. Article XVII,

which prohibits strikes and mandates arbitration of

disputes, establishes a permanent Disputes Commit-

tee which constitutes the second step of the procedure

for the resolution of all disputes involving the inter-

pretation or application of the Agreement. Article

XXIII establishes a management-lahor committee to

police abuses of the Guaranteed Annual Income Plan.

By the terms of this contract, each of these committees

is made up of four members, two from the Association

and one from each local. Here is yet another example

where each union is treated as being equal. Defendants

argue that none of the committees have either met or

taken any action which could have had any effect on

either union. We find this immaterial, as we do the fact

that the grain clause has been deleted and that mid-

Gulf no longer enforces the requested LASH/vessel

work quota. In the Bailey case, the court pointed out,

supra at 556, that the hiring of longshoremen of the

segregated locals on the basis of a50%—50% rule was a

practice which had “discriminatory potential.” Even

though the district court had found that for the last

nine years the membership of the two locals had been

quite comparable, Bailey v. Ryan Stevedoring Co., 7

EPD { 9424 at p. 7869 (M.D.La. 1974), the Fifth Circuit

found that the 50%—50% hiring practice represented a

threat of employment discrimination that violated 42

U.S.C. § 2000e—2(c)(2). We think that our situation is

analogous to the Bailey case since the tendency exists

for discrimination in both cases based on past situa-

tions, even though under the present situation in both

cases no real harm is presently experienced.

However, there is one difference between the pres-

ent case and Bailey. In Bailey, the Fifth Circuit Court

of Appeals found that the 50%—50% division was a

practice which was discriminatory. There is no prac-

tice still in effect which has been demonstrated to this

Court to be discriminatory at this time. However, even

if we are incorrect in concluding that some former

discriminatory practices, involving the division of

work between the unions which were in effect until

recently, still have the tendency to create a potential

for discrimination, then we find that maintenance of

Locals 1418 and 1419 and inaintenance of Locals 1802

and 1683 are per se violations of Title VII.

Before going into the question of the uncertainty of

the law in the Fifth Circuit, we note that two other

circuits have held that segregated locals are per se

unlawful. See, United States v. International Long-

shoremen’s Association, supra; Evans v. Sheraton Park

Hotel, 164 U.S.App.D.C. 86, 503 F.2d 177 (1974). There

is no such direct holding from the Fifth Circuit, al-

though there is no contrary holding. In United States v.

Jacksonville Terminal Company, supra, the court,

after determining that plaintiffs had proven that the

defendants had committed specific acts and practices

of racial discrimination in employment since the July

2, 1965, effective date of the Civil Rights Act, turned

its attention to the fact that two segregated locals ex-

isted as separate entities with respect to Terminal

work. The court concluded that, in view of the racial

discrimination which had been proved in light of the

total employment picture, “[t]he record clearly dis-

closes that the existence of ‘separate but equal’ locals

has had, and may continue to have post-Act deleterious

effects on blacks.” Consequently, the court found a

direct violation of 42 U.S.C. § 2000e—2(c). Subsequent

to the Jacksonville Terminal case, the Fifth Circuit

again faced the question of the legality of maintaining

segregated black and white unions. EEOC V. Inter-

national Long. Ass’n, 511 F.2d 273 (5th cir. 1975). In

this case, the main holding appears to be that since it

was shown that the segregated locals had had actual

discriminatory effect on employment opportunities,

merger of them was mandatory. (451 F.2d at 457.)

although one of the judges of the three-judge court,

Judge Goldberg, attempted to find a per se violation,

Judges Thornberry and Godbold did not feel the need to

and in their concurring opinion stated at P. 280: “If a

case ever comes to us with a finding by the district

court that no actual employment discrimination arose

from segregated locals, we may then properly consider

the necessity for a rule of per se illegality.” It is this

language which gives us pause and brings us into a

consideration of the issue of per se illegality. We view

our case as one where employment discriminatioa

arose once and could, in the future, arise from segre-

gated locals but it has not been demonstrated that it

presently exists. After the International Longshore-

men’s Association case, the Fifth Circuit decided Local

No. 293, etc. v. Local No. 293—A, 526 F.2d 316, 317 (5th

Cir. 1976). The plaintiffs in this case alleged that the

defendant local had discriminated against them on the

grounds of race, for which relief was .ought, and, in

addition to this, plaintiffs raised the issue of the merg-

er of segregated unions. The district court, without an

evidentiary hearing and on the sole basis of the record,

ordered merger of the two unions, reserving ruling on

the damage claim until after a trial on the merits. The

case was appealed to the Fifth Circuit on the issue of

whether Title VII was applicable to the defendant

local. The Fifth Circuit reversed on the basis that the

district court was in error in denying the motion of

defendant to dismiss for lack of jurisdiction. After this

conclusion, the court in Local 293 v. Local 293—A,

supra at 319, stated as dictum in a footnote that al-

though the district court found no actual discrimina-

tory effect on employment opportunity, “[sJhould ju-

risdiction subseyuentiy be found . . .the plaintiffs must

demonstrate such discriminatory effects.” Although

this language is stated to refer to the fact that the court

pretermitted a decision on the validity of the lower

court’s grant of partial summary judgment on this

issue of segregated unions, we are not convinced that

the footnote statement resolves the issue at hand. In

the later case of Bailey v. Ryan Stevedoring Co., Inc.,

supra, as noted by plaintiffs, the Court of Appeals cited

the Local 293 decision, but stated, as previously refer-

red to, that the per se issue had not been decided by the

court yet. Furthermore, following the three-judge

court decision in Bailey, a poll of the entire court was

taken on the ILA’s petition for rehearing en banc. This

petition was denied, Bailey v. Ryan Stevedoring Com-

pany, Inc., 533 F.2d 976 (5th Cir. 1976), by a vote of 13

to 1. Judge Clark, as the lone dissenter, argued that, in

light of the district court’s uncontradicted finding that

there had been no discriminatory effects, the panel’s

reliance on “future contingencies” was wrong. He

“{construed] the panel opinion to override the vital

associational rights involved in the case on the basis of

legal deductions that are contrary to the facts and to

valid prior precedent in this circuit.” (Emphasis add-

ed.) Supra at 976. We agree with plaintiffs that it

appears that Judge Clark, himself, concluded that the

panel’s reliance on “future contingencies” amounted to

a rule of per'se illegality.

Judge Clark also stated in the panel consideration

of Bailey, supra at 977, that the appellate court had

mandated the district judge “to grant Bailey’s motion

to force the merger of two independent union locals

who do not want to merge.” The two locals in our case

also do not want to merge. Nor did the locals wish to

merge in United States v. Jacksonville Terminal Com-

pany, supra, or in EEOC v. International Long. Ass’n,

supra. In the opinion of the lower court in the latter

case, United States v. International Longshoremen’s

Ass’n, 334 F.Supp. 976, 978 (S.D.Tex.1971), the dis-

trict court pointed out that black union officials urged

the court not to order merger, insisting that “...the

negroes, hy having their own unions and their own

union officials, have been able to better themselves by

being able to hold high positions in their locals, and

have been recognized in the community as a separate,

powerful voice for the Negro communities, and has

attained for them and the Negro people of the Com-

munity, a standing which they could not have other-

wise attained.” The Defendant Local 1419 argues,

along the same lines in the instant case, that it is

larger, wealthier and better manned than Local 1418,

better services its members’ needs than Local 1418,

provides substantial benefits which the latter does not

and cannot provide and is free from substantial debt,

unlike 1418. In the words of Local 1419’s attorneys:

Over the years, Local 1419 has regarded itself, and

has been regarded by others, as a special spokes-

man and leader of the black community both on the

waterfront and in economic, social and political

affairs generally. It has used its resources and the

energies of its officers and members to promote a

wide variety of black educational, social and polit-

ical programs in an effort to improve the lot of the

black community. Local 1419 is a potent force on

behalf of blacks in New Orleans and Louisiana.

By our decision, we do not mean to imply that the

foregoing attitude is not a noble endeavor, but we

doubt that it is one which ought to be pursued under

the direct auspices of a labor union. Other courts have

recognized the validity of the anti-merger position but

have rejected this argument against merger. In United

States v. International Longshoremen’s Ass’n, supra at

978, the district court countered that “. . .the ultimate

issue before the Court is whether this pattern or prac-

tice of having segregated locals is keeping longshore-

men, be they Black or White, from equal working op-

portunities on account of a longshoremen’s race or na-

tional origin.” And the Fifth Circuit countered in the

Jacksonville Terminal case, supra at 457 that:

Contrary to the allegations made by the Unions,

we find that their locals are not mere “social

clubs,” having no influence in national union

policy or practice. We conclude that the District

Court erred in refusing to hold that the failure to

consolidate the locals violates section 703(c) of the

Act, 42 U.S.C.A. § 2000e—2(c).

The effect of dual unions is described by both Judge

Goldberg, in Bailey, 451 f.2d at 457, and by the Fourth

Circuit in United States v. International Longshore-

men’s Association, supra at 500, to the effect that rep-

resentatives of separate unions charged with only

serving that union cannot be realistically expected to

act strongly on behalf of the other union and, conse-

quently, both conclude that agreements between labor

and management emerging from bargaining by one

union on behalf of all longshoremen rather than one

charged with serving white employees and the other

with serving black employees will better the employ-

ment status of all employees. For this reason, this

Court concludes that each of the two locals should be

merged. .

The foregoing represents this Court’s findings of

fact and conclusions of law in this case. Let judgment

be entered accordingly.

APPENDIX B

United States District Court

Eastern District of Louisiana

WILLIAMS, ET AL

VERSUS

NEW ORLEANS

STEAMSHIP ASSOCIATION, ET AL

CIVIL ACTION

NO. 71-873

SECTION “B”

MINUTE ENTRY ON MOTION

FOR RECONSIDERATION

June 30, 1980

Subsequent to the Court’s decision in this case,

reported as Williams v. new Orleans Steamship Associ-

ation, 466 F.Supp. 662 (E.D.La.1979), plaintiffs filed a

motion for reconsideration of the grain cargo issue.

Plaintiffs seek two things: (1) to have the Court certify

a class, pursuant to Rule 23(b)(2), F R.Civ.P., com-

posed of members of ILA Local 1419 who, subsequent to

May 29, 1967, worked or sought work on the New Or-

leans waterfront and who were not regulars in grain

cargo gangs; (2) to find liability on the part of the

defendants to the class with respect to the allocation of

grain cargo work. Plaintiffs, in their supporting

memorandum, state that they have limited the motion

under submission to the grain cargo issue because in

this “one instance the Court appears to have accepted

plaintiffs’ contention that the challenged practice was

racially discriminatory.” It is their position that the

allocation of work under the terms of the grain clause

was racially discriminatory and that, under the au-

thorities, it is clear that defendants are liable for back

pay for the earnings lost as a result of this violation.

The question of the racially discriminatory effect

of the grain cargo clause raises two issues. The first has

to do with the existence of two racially segregated

unions. In our previous decision, we made a clear find-

ing that the grain clause was inserted in the Deep Sea

Agreement between the unions and NOSA at the in-

sistence of the officers of the black union in order to

protect the members of that union. Although we noted,

at p. 673, that the division of grain work on a 50-50

basis was discriminatory under the circumstances, we

noted that the evil in the situation was that it was

accomplished through a segregated union system.

1We stated, at p. 673, that the division of grain cargo work under the grain

clause was discriminatory. In the context of our opinion this obviously referred

to discriminatory potential. On the record of this case this Court could not have

found that the individual plaintiffs had carried their burden of proving either

their individual claims or class claims. In fact, at p. 672, we found that “plain-

tiffs have not proved employment discrimination in the specific areas they have

delineated which is applicable to a specific group of employees similarly situated

and generally acted upon by the defc ndants with respect to an applicable class.”

And, at p. 667, we specifically designated as a specific area “racial discrimi-

nation in preferred work assignments, i.e., longshoremen assigned to grain

The Court never found that the existence of the clause

was a violation of Title VII. We condemned the clause,

at p. 678, as establishing “a practice which had ‘dis-

criminatory potential.’ ” At this point, we were specifi-

cally concerned with the maintenance of segregated

local unions. Our specific holding was that the exis-

tence of segregated unions, because they constituted a

built-in threat for employment discrimination, was in

violation of Title VII, 42 U.S.C. § 2000e-2(c)(2). It was

for this reason that we enjoined the practice of main-

taining separate segregated locals and ordered that

they be merged.

In our decision, we cited and heavily relied on the

case of Bailey v. Ryan Stevedoring Co., inc., 528 F.2d

551 (5th Cir. 1976), in which the Fifth Circuit held that

defendant’s practice of dividing longshore work on a

50-50 basis between the two segregated local longshore

unions represented “a possible future threat of dis-

crimination.” However, the Fifth Circuit upheld the

trial judge in denying relief on the individual or class

action claims. On appeal from the district court’s dis-

position on remand, the Fifth Circuit again reconsid-

ered the merger issue in Bailey. It held that the failure

of plaintiffs to prove their individual claims did not

deny them standing to challenge the segregated union

system on the basis of the “threat of employment dis-

crimination.” Bailey v. Ryan Stevedoring Co., Inc., 613

F.2d 588, 590 (5th Cir. 1980). It was in this manner

that we, also, treated the segregated local unions,

using the grain clause as evidence of the threat of

discriminatory treatment.

The second issue is the impact of the grain cargo

clause on black longshoremen. We believe that our

decision adequately discussed the issue of class certifi-

cation with respect to grain cargo work and subsequent

liability for the alleged discriminatory allocation of it.

(The issue was raised at p. 667 and decided by the Court

in its decision at pp. 676-677.) However, on reexami-

nation of the issue we reach the same result.

As proof of the asserted discriminatory effect

caused by the 50-50 allocation of grain work, plaintiffs

point out that in the contract years of 1970-71, 1971-72

and 1972-73, there was almost $8 million worth of

grain cargo work performed on the New Orleans water-

front and that black longshoremen received only 49.9%

of it. They, therefore, conclude that because premiums

of up to 40 cents an hour are paid for grain cargo work

[In our decision, see p. 673, we found a 20 cent per hour

premium for such work.], this clearly establishes eco-

nomic loss to blacks as a result of the allocation on

racial lines, regardless of the availability of longshore

work at regular rates. However, this ignores the fact

that there are premium rates for other types of work

besides that for grain cargo. This includes special

kinds of work, such as, meal time, night work, week-

ends, damaged cargo, explosives, etc. And, as pointed

out by the defendants, by not including them in the

statistical picture, the possiblility of an inaccurate dis-

tortion exists. We agree with defendants that plaintiffs

were unable to show that the overall work allocation in

the longshore industry was disproportionate or in-

equitable and we think that such a showing is crucial

to prove racial discrimination. No longshoremen

works exclusively at one type of work. Since he may

work various types of cargo at different hours in any

given week, the important thing is how he fares over-

all. We demonstrated this in our decision, at p. 667,

with the reproduction of the chart comparing earnings

for black and white longshoremen for the contract year

1972-73. This chart showed blacks holding their own.

There is no indication that the grain clause and the 20

cent differential created an overall discriminatory

effect on the amount of money earned by black long-

shoremen. We think that the evidence as a whole es-

tablished that blacks in the longshore industry receive

their proportionate share of work and pay according to

their numbers.

Accordingly,

IT IS THE ORDER OF THE COURT that the

motion of plaintiffs to have the Court certify a class

composed of members of ILA Local 1419 who, subse-

quent to May 29, 1967, worked or sought work on the

New Orleans waterfront and who were not regulars in

grain cargo gangs, and to find liability on the part of

the defendants to such a class with respect to the allo-

cation of grain cargo work is hereby DENIED.

Frederick J.R. Heebe

UNITED STATES DISTRICT JUDGE

APPENDIX C

United States District Court

Eastern District of Louisiana

WILLIAMS, ET AL

VERSUS

NEW ORLEANS

STEAMSHIP ASSOCIATION, ET AL

CIVIL ACTION

NO. 71-873

SECTION “B”

September 5, 1979

JUDGMENT

On the basis of this Court’s Findings of Fact and

Conclusions of Law, entered February 14, 1979, and on

the basis of this Court’s Minute Entry and Order, en-

tered August 23, 1979, Judgment is hereby entered, as

follows:

IT IS ORDERED THAT defendant ILA General

Longshore Locals 1418 and 1419 and defendant ILA

Sacksewers, Sweepers, Waterboys and Coopers Locals

1802 and 1683 be merged, each pair, into one inte-

grated local by October 31, 1979.

IT IS FURTHER ORDERED THAT on or before

November 30, 1979, counsel for the defendant local

unions shall file with the court, and serve on opposing

counsel, a statement describing the implementation of

this Judgment.

This Judgment applies only to the issue of the

merger of local unions raised in this action. Issues as to

the entitlement of plaintiffs to attorneys’ fees and

costs, pursuant to 42 U.S.C. § 2000e—5(k), as to this

issue are deferred until after entry of judgment on the

remaining issues in this case.

Done this 4th day of September, 1979, in New

Orleans, Louisiana.

Frederick J.R. Heebe

UNITED STATES DISTRICT JUDGE

APPENDIX D

United States District Court

Eastern District of Louisiana

WILLIAMS, ET AL

VERSUS

NEW ORLEANS

STEAMSHIP ASSOCIATION, ET AL

CIVIL ACTION

NO. 71-873

SECTION “B”

October 1, 1980

JUDGMENT

This action came on for trial before the Court, and

the issues having been duly tried, a decision having

been duly rendered, and plaintiffs’ motion for recon-

sideration having been denied.

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that, except as stated herein and except as

stated in this Court’s Judgment in this action entered

September 5, 1979, the plaintiffs take nothing from the

New Orleans Steamship Association and/or its mem-

ber companies and the action be dismissed on the mer-

its as to these defendants. Defendant New Orleans

Steamship Association and its member defendants

shall bear their own costs. The Court will entertain an

application by plaintiff, filed on or before October 31,

1980, for an award of costs, including attorneys’ fees,

against the union defendants, pursuant to 42 U.S.C. §

2000e—5(k), reserving to the union defendants any

and all defenses they may have to the request by plain-

tiffs for attorneys’ fees.

Dated: October 1, 1980

Frederick J.R. Heebe

UNITED STATES DISTRICT JUDGE

APPENDIX E

George James WILLIAMS, et al

Plaintiffs-Appellants

Vv.

NEW ORLEANS STEAMSHIP

ASSOCIATION, et al., Defendants-Appellees

No. 80-3886

United States Court of Appeals

Fifth Circuit

April 9, 1982

Appeal from the United States District Court for

the Eastern District of Louisiana.

Before THORNBERRY, TATE and WILLIAMS,

Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Plaintiffs George Williams, Duralph Hayes, and

Ernest Turner, Jr. and intervenors Matthew Richard

and John Aaron sued New Orleans Steamship Associa-

tion (NOSA), sixteen! of its member stevedoring com-

panies, Locals 1418 and 1419 General Longshore

Workers, International Longshoremen Association

(ILA), and Locals 1802 and 1863 Sacksewers, Sweep-

ers, Waterboys, and Coopers, ILA, alleging individual

and class-wide employment discrimination in the Port

of New Orleans in violation of Title VII of the Civil

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

U.S.C. § 1981.2’ After an eighteen day trial, the court

ordered the merger of the previously segregated Locals

1418 and 1419 and Locals 1802 and 1863 but dismissed

the remainder of plaintiffs’ claims and refused to certi-

fy a class pursuant to Fed.R.Civ.P. 23. In this appeal,

plaintiffs contest the court’s dismissal of their claims

of discrimination in the allocation of grain work and in

the assignment of preferred positions in general cargo

gangs as well as the court’s refusal to certify a plaintiff

class. We hold that the court erred in denying plain-

tiffs’ claim concerning the allocation of grain work and

in refusing to certify a class with respect to that claim.

We affirm the dismissal of the discriminatory assign-

ment claim and the court’s refusal to certify a class in

that instance.

1. NOSA is composed of 62 stevedoring and shipping companies. Originally,

thirty-two companies were named as defendants, but plaintiffs voluntarily

dismissed char,es against sixteen companies prior to trial.

2. Although there are differences between Title VII and § 1981 actions, i.e.

statute of limitations and remedies available, those differences are not present

in the issues considered in this appeal. Therefore. when we refer to either

statute, our reasoning encompasses the otheras well, unless we specify other-

wise.

I. FACTS

The district court’s opinion amply describes the

factual background of this eleven year old case. See

Williams v. New Orleans Steamship Association, 466

F.Supp. 662 (E.D.La.1979). Because this appeal con-

cerns the employment practices in particular areas of

the stevedoring industry, it is necessary to describe

briefly the operations of the industry in the Port of New

Orleans.

Originally, employment on the waterfront was

casual and unsystematic. After a 1974 Department of

Labor study, a registration system was instituted. To-

day, waterfront workers are categorized by craft and

registered accordingly. Each craft is under the juris-

diction of a different ILA local.

This appeal involves alleged discrimination

against Craft I workers. Craft I is comprised of general

longshoremen previously under the jurisdiction of

Locals 1418 (white) and 1419 (black),3 now under the

jurisdiction of the merged Local 3000. Within each

craft, workers are classified according to their priority

for employment opportunities based upon their length

of service with a particular company. The highest

ranking categories are considered “registered” (as op-

posed to “casual”) and comprise the majority of long-

shoremen. Throughout the relevant time period,4 ap-

proximately 75% of all registered longshoremen were

black. Thus membership in Local 1419 was three times

3. At the time of trial, Local 1418 was more than 99% white and Local 1419 was

all black. The district court found the maintenance of segregated locals vio-

lated Title VII because of the potential for discrimination created by dual

unions. The court ordered their merger. 466 F.Supp. 662, 680 (E.D.La.1979).

Merger was accomplished in 1980.

4. The relevant time period for the Title VII claim began in September, 1967,

180 days before the first charge was filed by plaintiffs with the E.E.0.C. See

McWilliams v. Escambia County School Board, 658 F.2d 326 (5th Cir. 1981). it

began on March 30, 1970 for the § 1981 claim. Pegues v. Morehouse Parish

School Board, 632 F.2d 1279, 1281 (5th Cir. 1980), cert. denied, 451 U.S. 96-,

101 S.Ct. 2322, 68 L.Ed.2d 844 (1981) (§ 1981 claim of employment discrimi-

nation is subject to Louisiana's one year statute of limitations. La.Civ. Code

Art. 3653).

as great as that of Local 1418.5

Longshoremen load and unload ships. The work is

performed on a day-to-day basis, seven days a week.

Stevetoring companies hire longshoremen daily

throu,xh the Waterfront Employment Center owned

and operated by NOSA. The workers are organized into

“gangs” of varying size, depending on the type of cargo

to be loaded or unloaded. Typically, grain gangs em-

ploy eight men and general cargo gangs sixteen. Pay

rates for the various jobs are set out in the Deep Sea

Agreement negotiated between NOSA and the Locals.

Hiring is done twice daily at “shape-ups.” Each

stevedore chooses a foreman for each gang needed that

day and the foreman then hires the necessary gang

members. Many companies have “regular” gangs com-

prised of registered longshoremen who frequently

work for that company and are given preference on

available work. If a company has more work than can

be handled by its regular gangs, it employs “non-regu-

lars” who are either regulars with other companies or

“casuals” not associated with any particular company.

This results in all longshoremen working for virtually

all the stevedores at one time or another. Although

many workers become associated with a particular

company from time to time, none works exclusively for

one company.

Despite the registration system, employment is

still largely casual. The work performed by a long-

shoreman varies from day to day depending on a vari-

ety of factors including the work available as well as

personal choice. Longshoremen are not required to

work any particular days or hours. If they want to

work, they simply come to a shape-up. The rates of pay

vary for different jobs and different shifts. For ex-

ample, in 1973, grain work paid a 20¢ per hour pre-

mium. Work performed during mealtimes, weekends,

and holidays also pays a premium. A longshoreman

may choose to shape-up only when there is a certain

6. At the time of trial, Local 1418 had 760 members, 744 of whom were white.

local 1419 had 3608 members all of whom were black.

type of work available or only during certain hours.

Thus the longshoreman’s job and wages are deter-

mined in part by personal factors.

The employment relationship ultimately is con-

trolled by the Deep Sea Agreement which specifies the

terms and conditions of employment and the varying

wages for each job. In this appeal, plaintiffs contest the

employment practices concerning the allocation of

grain work and the job assignments in general cargo

gangs. Before 1974, the Agreement required that so far

as practicable, grain work should be divided evenly

between Locals 1418 and 1419, notwithstanding their

disproportionate memberships.6 There was no corre-

sponding provision respecting assignments in general

cargo gangs; plaintiffs contest an alleged practice by

white foremen of assigning white longshoremen to the

more preferable jobs.

II, ALLOCATION OF GRAIN WORK

A. Separate Claim of Racial Discrimination in

Grain Work.

Grain work comprises approximately 8% of all

longshore work and involves the loading and unload-

ing of ships carrying grain. It is physically less de-

manding than other types of work because the cargo is

pumped rather than carried onto and off of vessels.

Grain workers often become covered from head to toe in

grain and inhale particles, however, and because of

this unpleasantness, a premium is paid for grain work.

Pursuant to the Deep Sea Agreement, grain work

was allocated equally between the members of the

black and white locals. Plaintiffs contend that this

practice violated Title VII and § 1981.

The district court’s original order in this case,

dated February 14, 1979, 466 F.Supp. 662, was five

years after the trial. In that order, the court found that

the 50-50 allocation of grain work was discriminatory,

6. This clause was eliminated by agreement of NOSA and the Locals in 1974,

yet it did not find a violation of Title VII. Upon plain-

tiffs’ motion for reconsideration of the issue, the court

clarified by saying its earlier holding meant that the

contract clause requiring 50-50 allocation was not dis-

criminatory but that it was evidence of the discrimina-

tory potential inherent in a system that maintained

segregated local unions.

The court then reconsidered plaintiffs’ allegation

that the practice of 50-50 allocation was discrimina-

tory in and of itself. Again, the court did not find a

violation of Title VII. This time its conclusion was

based upon its finding that, because longshoremen per-

form more than one type of work, evidence focusing on

only one of these jobs, i.e., grain work, would distort the

analysis. “The important thing is how [the black long-

shoremen] fares overall.” The court then considered

the overall welfare of black longshoremen and con-

cluded that in the Port of New Orleans, they received

their proportionate share of work and pay. Thus the

court found no discrimination.

[1,2] An appellate court must accept a trial court's

findings of subsidiary facts unless clearly erroneous;

however, the court’s ultimate finding on the issue of

discrimination is subject to review free of the clearly

erroneous standard. Wright v. Western Electric Co.,

664 F.2d 959, 963 (5th cir. 1981). Furthermore, this

Court is not bound to any degree by the district court’s

conclusions as to the law, Parson v. Kaiser Aluminum

& Chemical Corp., 575 F.2d 1374, 1382 (5th cir. 1978),

cert, denied, 441 U.S. 968, 99 S.Ct. 2417, 60 L.Ed.2d

1073 (1979), nor are we bound by findings of fact based

upon erroneous applications of law, Johnson v. Uncle

Ben’s, Inc., 628 F.2d 419, 422 (5th Cir. 1980), vacated

on other grounds, 451 U.S. 902, 101 S.Ct. 1967, 68

L.Ed.2d 290 (1981). We find that the district court's

opinion was based upon an erroneous legal conclusion

as to the viability of plaintiffs’ grain claim. Thus our

review of the court’s findings of fact is not bound by the

clearly erroneous standard of Fed.R.Civ.P. 52(a).

[3] In concluding that the plaintiffs failed to prove

discrimination, the district court misconstrued plain-

tiffs’ allegation. By comparing the overall economic

picture of blacks and whites, the court transformed

plaintiffs’ claim of diecrimination in the allocation of

grain work into a claim of discrimination in the entire

industry.? The court erroneously concluded that plain-

tiffs’ segmented claim was not cognizable under Title

VII and § 1981.

[4] Claims alleging discrimination in only one

segment of an employer’s workforce are cognizable un-

der Title VII and § 1981. The Supreme Court recog-

nized this principle in one of the landmark Title VII

cases, International Brotherhood of Teamsters v.

United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d

396 (1977). There, the United States brought suit on

behalf of blacks and Spanish-surnamed persons

against a large trucking company and the union which

represented its employees claiming that the company

engaged in a pattern or practice of discrimination in

the hiring of line drivers. Minorities who were hired

allegedly were relegated to the lower paying, less de-

sirable positions and met with insurmountable diffi-

culties in trying to gain promotions and transfers.

The government’s case consisted of powerful sta-

tistical evidence showing a gross disp« rity between the

percentage of minorities in the company’s workforce as

a whole and those in line driver positions. Those sta-

tistics, coupled with the testimony of individuals who

recounted over forty specific instances of discrimina-

tion, established the government’s prima facie case.

The company was unable to rebut this evidence, and

7. We aleo note that the district court's statistical analysis concluding that

black overall fared as well as whites is flawed. The chart showing these figures

is derived from defendant NOSA's exhibits and contains a comparison between

earnings of the 702 highest paid blacks and whites which reveals higher

earnings for blacks. See 466 F.Supp. at 667. Actually, the court states that the

comparison is based upon the 600, rather than 702, highest earners of each

race, As both parties point out, the data in fact encompasses the 702 top

earners of each race, During the period reflected in the chart, there were 702

white and over 2100 black longshoremen. Thus, this chart ignores the earn-

ings of approximately 1500 blacks. All the chart shows is that man for man

from the top down, 702 of 2100 blacks fared at least as well as all whites. A

better comparison would have been between the average earnings of all black

and all white longshoremen.

the government prevailed on the issue.

Line drivers only comprised approximately one-

fourth of the truck driver positions, yet the Court rec-

ognized the validity of the departmentalized claim.

The Court did not look to the overall picture of minori-

ties within the company’s employ to determine the

validity of the claim. Minorities may have fared over-

all as well as their white counterparts, yet the Court

did not consider this factor in evaluating the evidence.

The government was permitted to charge discrimina-

tion in one job classification only and to prove its case

by offering statistical evidence relevant only to that

job.

In determining whethe: a particular claim of dis-

crimination in only a segment of an employer’s work

force is cognizable the operative factor must be the

distinctiveness of the segment. In Teamsters, supra,

the duties and compensation of line drivers differed

from those of other driver positions and thus line

drivers constituted a distinct job classification.

A similar distinction exists between grain work

and other types of longshoring jobs in New Orleans.

The tasks performed by grain workers differ from those

performed by other longshoremen because of the

nature of the cargo involved. Furthermore, the Locals

and NOSA traditionally have treated grain work sepa-

rately from other types of longshore work, as evidenced

by the Deep Sea Agreement. The hourly wage paid for

grain work is negotiated separately from other types of

work.8 The mode of allocating jobs evenly between the

black and white Locals was also unique to grain work.

Thus, while longshoremen can and do perform a vari-

ety of jobs, the distinctiveness of grain work makes

plaintiffs’ claim of discrimination in this one area of

employment viable under Title VII and § 1981.

In fact, the court below recognized the validity of

segmented claims within the industry in New Orleans.

8. The fact that the wage is the same as that paid for some other job situations

does not change our conclusion that the grain wage is a separately bargained-

for part of the Agreement. Grain work has traditionally carried a premium of

at least 20¢ per hour over the basic longshoring rate.

Although it refused to consider plaintiffs’ claims of

discrimination in the allocation of grain work, it per-

mitted similar segmented claims with respect to other

sectors of the industry. A clear example is the court’s

consideration of plaintiffs’ allegation of discrimina-

tion in job assignments in general cargo gangs. Al-

though the court ultimately rejected plaintiffs’ claim

on the merits, it recognized the segmented claim and

considered statistics relevant only to general cargo

gangs, not the entire industry.

Furthermore, both logic and the policies under-

lying Title VII dictate the conclusion that a segmented

claim is cognizable. Title VII proscribes racial dis-

crimination of any kind in virtually all aspects of em-

ployment. There is nothing in the Act to indicate that a

claim for discrimination in one distinct category of

employment within a plant, industry or office, or even

in one job, is not cognizable.

Were we to accept defendants’ contentions, we

would be ruling in effect that an employer may dis-

criminate with impunity as long as it confines such

action to some units or departments within the work-

force while maintaining an overall facade of equality.

An employer guilty of plant or industry-wide discrimi-

nation may be a worse offender of Title VII than one

who discriminates in only a single department. The

remedies awarded to the former’s employees as well as

the penalties assessed against it may be greater than

those imposed upon the latter. As to liability, however,

both are equally subject to the prohibitions of Title VII.

The cases relied upon by defendants in support of

the judgment below are unpersuasive. None of these

cases involved the question of whether a segmented

claim may be brought against an employer. In Swint v.

Pullman-Standard, 539 F.2d 77 (5th Cir. 1976), cert.

granted (after an earlier remand), 451 U.S. 906, 101

S.Ct. 1972, 68 L.Ed.2d 293 (1981), plaintiffs alleged

that the defendant engaged in a pattern or practice of

racial discrimination in departmental assignments

within its production plant. To prove their claim,

plaintiffs offered statistical evidence of racial dispar-

ity in nine of the twenty-eight departments. We dis-

carded the proffered analysis because it focused on

only nine of twenty-eight departments. 539 F.2d at

94-95. Instead, we held the proper statistical focus

should have encompassed the entire plant and thus

plaintiffs’ evidence of racial imbalances in a segment of

the plant was insufficient to establish a prima facie

case of plant-wide discrimination.

In E.E.0.C, v. Datapoint Corp., 570 F.2d 1264 (5th

Cir. 1978), plaintiffs raised a claim of racial discrimi-

nation in hiring and job assignments. They introduced

statistical evidence showing gross imbalances in some

job categories, but no evidence as to the employer’s

workforce as a whole. The district court rejected this as

proof of a prima facie case. We upheld its decision

stating that while “plaintiffs’ statistical evidence

alone might be sufficient to infer discrimination in

these job categories ...[to prove] a prima facie case of

racial discrimination, such statistics must be relevant,

material and meaningful...” 570 F.2d at 1269. Be-

cause plaintiffs’ claim was one of employer-wide dis-

crimination, the segmented, isolated statistics offered

were misleading and therefore meaningless.

Contrary to defendants’ contention, these two

cases do not stand for the proposition that plaintiffs’

claim of discrimination in grain work is not cognizable.

In both cases, plaintiffs charged the employer with

plant-wide discrimination but offered statistical evi-

dence which was limited to smali segments of the

plant. In denying plaintiffs’ claims, we held that the

proffered limited statistics were insufficient to prove

the broad claims asserted.

Here, plaintiffs alleged discrimination in one

separate job category within the industry. Naturally,

then, their statistics focused on the subject area. Un-

like the Swint and Datapoint plaintiffs, they did not

offer a segmented statistical analysis as a means of

trying to prove industry-wide discrimination. Indeed,

that was not their claim. The district court, neverthe-

less, treated their offer of proof as one for industry-

wide discrimination. As such, plaintiffs’ statistics

certainly would not prove a prima facie case, for the

reasons cited in Swint and Datapoint. The court re-

fused to consider plaintiffs’ proof in the context in

which it was offered, and we find this to be reversible

error.

Lee v. City of Richmond, 456 F.Supp. 756 (E.D.

Va.1978) and Croker v. Boeing Co., 437 F.Supp. 1138

(E.D.Pa.1977), affd, 662 F.2d 975 (3d Cir. 1981), also

relied upon by defendants, are equally unsupportive.

Both cases, as do our decisions set out above, stand only

for the proposition that segmented statistical evidence

of racial imbalances within a few departments cannot

prove a prima facie case of employer-wide discrimina-

tion. Neither of these cases addresses the validity of a

claim of segmented, departmentalized discrimination

such as the one posed by plaintiffs herein. Therefore,

they do not support defendants’ position in this appeal.

We hold that the district court erred in refusing to

recognize plaintiffs’ claim and in transforming it into

one of industy-wide discrimination 9 Plaintiffs pre-

sented ‘a cognizable claim under Titie VII and § 1981.

We now turn to the merits of that claim.

9. The district court’s opinion could be interpreted as recognizing plaintiffs’

depatmentalized claim but rejecting the proffered statistics as non-probative

because of the statistical “population” chosen by plaintiffs. We reject such an

interpretation, however. Statistical analyses are easily manipulated by choos-

ing as a comparative population a pre-selected group which will reflect the

desired outcome. Therefore, a fundamental principal in the use of statistics in

Title VII cases is that the population chosen for comparison be meaningful,

relevant, and probative to the claims asserted. A population appropriate in one

case might be inappropriate in another. In Teamsters, supra, plaintiffs com-

pared the percentage of black line drivers to the percentage of blacks in the

general population of various cities. 431 U.S. at 337 n.17, 97 S.Ct. at 1855 n.17.

The same population was rejected by the Court in Hazelwood School District v.

United States, 433 U.S. 299, 308, 97 S.Ct. 2736, 2741, 53 L.Ed.2d 768 (1977).

There, plaintiffs alleged racial discrimination in teacher hiring in a public

school district. Their statistical evidence included a comparison of the per-

centage of black teachers hired by the district with the percentage of blacks in

the geographical area. The Court held that the proper population encompassed

only those blacks qualified as teachers and that plaintiffs’ suggested popula-

tion had little probative value in the context of the claim asserted.

The court below did not reject plaintiffs’ selection of the meaningful popu-

lation; rather, it rejected the sample. Both the parties and the district court

agreed that the relevant population was the registered longshore workforce in

B. The Prima Facie Case

Having found plaintiffs’ claim for discrimination

in the allocation of grain work to be cognizable under

Title VII and § 1981, we turn now to plaintiffs’ evidence

to determine whether a prima facie case was made. We

note at the outset that the contract clause requiring

the 50-50 allocation of grain work was eliminated in

1974. Because the clause formed a significant part of

plaintiffs’ evidence, our discussion in this section per-

tains only to the time period in which the objectionable

clause was in effect.

Plaintiffs’ claim is one of class-wide disparate

treatment. Thus, the inquiry must be whether defen-

dant treated members of the plaintiff class differently

from their white counterparts, and if so, whether that

difference was the result of discriminatory intent. In

some cases, proof of the latter can be inferred from

strong statistical evidence of the former. Teamsters,

431 U.S. at 335 n.15, 97 S.Ct. at 1854 n.15; Pouncy v.

Prudential Insurance Company of America, 668 F.2d

795 at 802 (5th Cir. 1982); Wilkins v. University of

Houston, 654 F.2d 388, 395 (5th cir. 1981).10 Plaintiffs

introduced statistical evidence which they contend

proved a significant disparity between blacks and

whites in the allocation of grain work.

New Orleans. Neither the court nor the defendants were willing to accept

plaintiffs’ choice of black grain workers as the appropriate sample, however.

Their designation of this sample as irrelevant is the equivalent of finding the

claim uncognizable under Title VII. Plaintiffs did not allege industry-wide

discrimination; therefore, an analysis showing their overall welfare was not

probative. Nevertheless, the court insisted on using blacks in the whole in-

dustry as the sample, thereby ignoring plaintiffs’ claim and creating one of its

own. We believe this action constitutes a rejection of plaintiffs’ claim, not their

statistical analysis.

10. Such an inference differs from the proof required by the plaintiff in a case

alleging individual discrimination. There, a plaintiff must prove (1) that he

belongs to a racial minority; (2) that he applied and was qualified for a job for

which the employer was seeking applicants; (3) that, despite his qualifica-

tions, he was rejected; and (4) that the position. re..ained open and the

employer continued to seek applicants. McDonnell Douglas Corp. v. Green,

411 U.S, 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Wright, 664

F.2d at 962.

[5] Statistics have become an important and useful

tool in civil rights litigation. In many cases, they are

the only evidence available to plaintiffs. Pragmatical-

ly, too, statistics assist in the evaluation of employer

practices because “absent explanation, it is ordinarily

to be expected that nondiscriminatory . . .practices will

in time result in a work force more or less representa-

tive of the racial and ethnic composition of the popula-

tion ...from which employees are hired.” Teamsters,

431 U.S. at 339 n.20, 97 S.Ct. at 1856 n.20.11 Thus,

“{wjhere gross statistical disparities can be shown,

they alone may in a proper case constitute prima facie

proof...” Hazelwood, 433 U.S. at 307-08, 97 S.Ct. at

2741. Wilkins, 654 F.2d at 395.

Plaintiffs introduced statistical evidence showing

the allocation of grain work in ten of the NOSA com-

panies12 for the years 1971-73. In 1971, there were six

grain gangs composed of 31 whites and 32 blacks; in

1972, there were 19 gangs composed of 72 whites and

76 blacks; and in 1973 there were 18 gangs composed of

67 whites and 71 blacks. Thus while blacks comprised

75% of the registered workforce, they held only 51.3%

of the grain positions. A calculation of the binomial

distribution, see Castaneda v. Partida, 430 U.S 482, 97

S.Ct. 1272, 51 L.Ed.2d 498 (1977), reveals that the

actual number of black grain workers deviated from

11. In this case, all parties agree that the appropriate population is the regis-

tered workforce in the Port of New Orleans.

12. Not all of the defendant companies use grain gangs and some do so only in

certain years. Thus, from 1971-73, only ten companies used grain gangs.

the expected number by 10.24 standard deviations.13

This is well sufficient to prove a prima facie case of

discrimination. Jd. at 496 n.17, 97 S.Ct. at 1281 n.17.

In addition to this strong statistical data, plain-

tiffs introduced into evidence the contract between the

Craft I unions and NOSA which specifically compelled

the allocation of grain work according to race. It pro-

vided that “so far as is practical, work is to be divided

between members of ILA Locals 1418 and 1419 in grain

trimming machine gangs, and/or hand trimming

gangs.” Williams v. NOSA, 466 F.Supp. at 673. In prac-

tice, this meant that grain gangs were half black and

half white. Id.

The contract clause and the statistics are powerful

evidence of purposeful discrimination. The statistics

alone show that it is quite unlikely that random, im-

partial hiring practices would have produced such dis-

parities. And, in light of the contract’s compelled dis-

crimination, any doubts as to purposefulness must be

resolved in plaintiffs favor. We hold that plaintiffs

established a prima facie case of purposeful discrimi-

nation in the allocation of grain work.

C. Defendants’ Rebuttal

Once plaintiffs have proved a prima facie case of

13. The calculation is as follows:

Number of 8/D = O—NP

—/NP (1—P)

where

S/D = Standard deviations

O- = Actual number of black grain workers during 1971-73

N~ =Total number of grain workers during 1971-73

P_ = Probability of black person working in grain gang

8/D = 179 — (349 X .75 = 10.24

(349 X .75 (.25)

The standard deviation represents the variance between the number of

blacks expected to be grain workers in a random selection system and the

number of blacks actually receiving grain work. A deviation greater than

three times the standard deviation is prima facie proof that the selection

system is not random. Castaneda, 430 U.S. at 496 n.17, 97 S.Ct. at 1281 n.17.

purposeful discrimination, defendants must rebut

plaintiffs’ case by discrediting plaintiffs’ evidence or

providing a “nondiscriminatory explanation for the

apparently discriminatory result.” Teamsters, 431

U.S. at 360 n.46, 97 S.Ct. at 1876 n.46. If the defen-

dants fail to rebut the prima facie case, plaintiffs pre-

vail on the issue. 14

At no point in this eleven year proceeding have

defendants disputed the validity of plaintiffs’ statistics

relating to the allocation of grain work. In fact, the

statistical data was derived from the defendant com-

panies’ Answers to plaintiffs’ Interrogatories. Defen-

dants challenged the designation of black grain work-

ers as the sample and argued that the analysis should

have focused upon all black longshoremen. We re-

sponded to this contention in Part I, supra and need not

reiterate our holding.

Instead, defendants offered explanations for the

statistical disparity which they contend satisfied their

rebuttal burden. First, they contend that because the

offensive clause was included at the insistence of black

Local 1419, in following its mandate they were only

following the wishes of those who now claim to have

been discriminated against. This appears to be factual-

ly correct; nevertheless, it does not excuse discrimina-

tion on the part of the union or the employer. “The

rights assured by Title VII cannot be bargained

away—either by a union, by an employer, or by both

acting in concert.” United States v. St. louis—San

Francisco Railway Co., 464 F.2d 301, 309 (8th Cir.

1972) (en banc), cert. denied, 409 U.S. 1116, 93 S.Ct.

913, 34 L.Ed.2d 700 (1973). We have held “(t]he fact

that a contract required this limitation [of employ-

ment opportunities] is not a justification if it is dis-

criminating.” United States v. Hayes International

Corp., 456 F.2d 112, 117 (5th Cir. 1972). Clearly, then,

neither the existence of the contract nor its origin can

14. This is more onerous than the rebuttal burden required of defendants in

individual Title VII claims under Texas Department of Community Affairs v,

Burdine, 450 U.S. 248, 254—256, 101 S.Ct. 1089, 1094—95, 67 L.Ed.2d 207

(1981). Cf. Castaneda v. Pickard, 648 F.2d 989, 994 (5th Cir. 1981).

exonerate defendants’ discriminatory practices.

[8] Second, defendants claimed that because

blacks in the longshore industry fared overall as well

as or better than whites, any misallocation of grain

work is irrelevant. As we stated above, this type of

analysis transforms plaintiffs’ claim into one of indus-

try-wide discrimination. Whether blacks as a whole

suffered economically has no bearing on the issue of

discrimination in the allocation of grain work. Swint,

539 F.2d at 92. Plaintiffs readily admit that industry-

wide earnings of blacks may be relevant on the issue of

backpay. This evidence has no place in the liability

phase, however. Jd. Defendants also argue that grain

work was no more desirable than any other type of

work. Although it paid a 20¢ per hour premium, it was

unpleasant. The desirability of grain work is irrele-

vant as well. Title VII provides for equal opportunities

in all jobs whether better or worse than others. Team-

sters, 431 U.S. at 338 n.18, 97 S.Ct. at 1855 n.18; Hayes

International Corp., 456 F.2d at 118.

Finally, defendants argued that the casual nature

of the longshore industry precludes a finding of dis-

crimination. We have already described the shape-up

process and the many variables that determine a long-

shoreman’s position and earnings. The unpredictabil-

ity of available work coupled with the personal choices

inherent in the system normally would complicate our

inquiry. Because so many of the factors determining

work patterns are not within the employer’s control,

and in fact are determined by the employees, it is more

difficult to attribute statistical imbalances to a dis-

criminatory motive on the part of the employers. Here,

however, we need not speculete as to the reasons for

the imbalance because the contract shows that such an

allocation was required. Whether the casual nature of

the industry could or would have produced similar dis-

parities is irrelevant in the face of the explicit lan-

guage of the Deep Sea Agreement.

We hold that defendants failed to rebut plaintiffs’

prima facie case of purposeful discrimination in the

allocation of grain work during the existence and ap-

plication of the 50-50 clause. The statistical data in-

troduced by plaintiffs pertains only to the period dur-

ing which the discriminatory contract was in force.

Because our conclusions are based upon evidence rela-

tive to this period only, our finding of discrimination is

limited accordingly. Plaintiffs contend that even after

the deletion of the 50-50 clause, the practice of dis-

criminatory allocation continued. We turn now to that

claim.

D. Discrimination in the Allocation of Grain Work

After the Deletion of the 50/50 Clause

Thus far we have held that there was purposeful

discrimination in the allocation of grain work during

the pendency of the grain clause. Plaintiffs contend

that the discriminatory practice continued after the

deletion of the clause and that the court below erred in

refusing to consider the issue. Defendants argue that

plaintiffs waived the issue of post-clause discrimina-

tion because they failed to request its consideration by

the court.

It is plaintiffs’ assertion that the clause was elimi-

nated after the close of the record; defendants contend

the opposite. We find plaintiffs’ assertion ironic. If the

clause were eliminated after trial, the record would

have closed, and thus the only evidence plaintiffs could

have produced would have concerned the practices ex-

isting during the application of the clause. Because a

court’s consideration need not extend to claims for

which plaintiffs produce no evidence, Rivera v. City of

Wichita Falls, 665 F.2d 531, 536 n.6 (5th Cir. 1982), the

district court would have been justified in refusing to

consider the claim of post-clause discrimination. Thus,

if plaintiffs are correct in their assertion as to when the

clause was eliminated, the only way they could be en-

titled to a finding on post-clause discrimination would

be by petitioning the court to reopen the case, which

they have not done.

On the other hand, if the clause were eliminated

during the trial, plaintiffs’ failure to request a ruling

would not constitute a waiver of the claim. Plaintiffs

claimed that defendants were guilty of allocating

grain work in a descriminatory manner. The contract

clause was offered as evidence of that practice. While

plaintiffs certainly objected to the clause, the subject of

their claim was the practice of discriminatory alloca-

tion, whatever its source, and the court’s inquiry

should have focused on the practice. By bringing such a

claim, plaintiffs requested consideration of the issue of

post-clause discrimination. An additional request

would not have been necessary.

We believe both parties are partially correct in

their statements as to when the clause was deleted.

The trial took place from July 22 to September 20,

1974, during the time that the Deep Sea Agreement

was being renegotiated. The Agreement was to expire

on September 30, 1974. By mid-September, it must

have become painfully apparent that the grain clause

was doomed, and as “a tactic of this litigation,” Wil-

liams v. NOSA, 466 F.Supp. at 673, NOSA and Locals

1418 and 1419 decided to eliminate the clause from the

new contract. But the new contract was not actually

effective until October 1, 1974. So although it was

agreed during the trial that the clause would be de-

leted, the action was not officially taken until after the

trial ended.

Because the trial court was aware of the imminent

elimination of the clause, we find that the issue was

before it and should have been considered. At the close

of the trial, however, plaintiffs had produced no evi-

dence on the issue. In subsequent affidavits submitted

on a summary judgment motion, plaintiffs offered evi-

dence showing that the discriminatory practice con-

tinued notwithstanding the elimination of the clause.

Defendants responded with counter-affidavits. When

plaintiffs moved for reconsideration of the grain issue

in 1979, their supporting memorandum noted the con-

flicting affidavits and insisted that the issue could not

be resolved without an evidentiary hearing.

The trial court granted plaintiffs’ motion for re-

consideration of the grain issue. But, without another

hearing and relying only upon the evidence adduced at

trial five years earlier, the court reiterated its former

holding that the proper comparison was between

blacks and whites in the entire industry. This conclu-

sion foreclosed a decision on post-clause discrimina-

tion in grain work. The grain work issue was not men-

tioned despite the fact that plaintiffs brought to the

court’s attention the conflicting affidavits. The court,

however, would coasider only the industry-wide claim.

Plaintiffs are entitled to a hearing on the issue of

post-clause discrimination. We remand this issue to

the district court so that all parties may present evi-

dence as to whether or not discrimination continued

after the 50-50 clause was deleted.

III. DECK AND WHARF JOBS

A. The Prima Facie Case

Next, plaintiffs claim that the court below erred in

refusing to find discrimination in the assignment to

deck and wharf positions in integrated general cargo

gangs. General cargo gangs are comprised of sixteen

members, eight of whom work in the hold of the ship

while the other eight work on the deck or wharf. Deck

and wharf jobs are regarded by all as more desirable

than hold positions because the work is less physically

demanding and permits the longshoreman to be out in

the fresh air rather than confined to the bowels of the

ship.

Job assignments are made by gang foremen. Dur-

ing the relevant time period, gangs were either all

black or integrated. Black gangs had either black or

white foremen, while integrated gangs always had

white foremen. Plaintiffs alleged discrimination by

white foremen in the assignment of the preferred posi-

tions in integrated gangs. They offered statistical

proof of this and argue that they met their prima facie

burden of proof and that defendants’ rebuttal evidence

was insufficient.

Again, we are faced with a dispute over the proper

statistical analysis. Plaintiffs contend that the only

relevant statistics are those reflecting assignments

within integrated gangs, all of which were overseen by

white foreme:.. Defendants argue that such an analy-

sis ignores 40-45% of all general cargo workers and in

doing so penalizes those companies which have pro-

moted blacks to foreman positions or have given all

their general cargo work to black longshoremen. The

district court agreed with defendants and examined

the situation of all genral cargo workers in making its

findings.

We find plaintiffs’ focus to be the proper one. Al-

though it excluded over 40% of the general cargo work-

ers, many of whom were black, it did so because those

statistics were irrelevant to the issue. Plaintiffs al-

leged racially discriminatory assignments. Unless a

gang was integrated, racial discrimination within the

gang was impossible. Therefore, the proper analysis

includes only integrated gangs. And, because inte-

grated gangs always had white foremen, the analysis

must exclude gangs with black foremen.

Plaintiffs produced statistics showing that in 1972

and 1973, whites in integrated gangs were twice as

any blacks to be assigned to deck and wharf

jobs.49 In 1972, blacks made up 82% of the integrated

15, Statistics for 12 NOSA Companies, 1972-73

A272; MUWUITE. BLACK TOTAL

Number in integrated geneval cargo gangs 104 484 1078

in integrated general cargo gangs Tae Lyuy tor

Number in deck and wharf jobs 162 340 602

% in deck and wharf jobs 32% 68% 100%

Number of 8/D » 340 — (602) (,82) « 8.33

A502) (2) 018)

1973; WHITE BLACK TOTAL

Number in integrated genera! cargo gangs 220 885 1105

1973; _WHITE BLACK TOTAL,

% in integrated general cargo gangs 20% 80% 100%

Number in deck and wharf jobs 196 341 637

Number of 8/D ~ 347 — (537) (80) = -8.9

A657) (80) (20)

general cargo gang population but held only 68% of the

deck and wharf jobs producing a variance of 8.3 stan-

dard deviations. In 1973, blacks comprised 80% of the

population but held only 63% of the preferred aad

producing a variance of 8.9 standard deviations. |

Plaintiffs’ statistics revealed gross disparities

giving rise to an inference of purposeful discrimina-

tion. Hazelwood, 433 U.S. at 307—08, 97 S.Ct. at 2741.

The burden then fell to defendants to rebut this evi-

dence.

B. The Defendants’ Rebuttal

Defendants contend that assignments to deck and

wharf jobs were made on the basis of gang longevity

and individual skill without regard to race. The dis-

trict court accepted this contention and based its find-

ing of nondiscrimination on those factors. Plaintiffs

argue that the court erred in making this finding and

that its conclusion was actually based upon its belief

that there was a “trend of a steady movement of black

longshoremen into ‘preferred’ work...” Williams v.

NOSA, 466 F.Supp. at 675—76.

We must disagree with plaintiffs on both asser-

tions. First, we interpret the courts’ language concern-

ing the “trend” to mean that despite pre-Title VII dis-

crimination,!7 defendants’ assignment system per-

mitted blacks to make great strides in general cargo

gangs. The court ruled against plaintiffs because de-

fendants’ assignment system was legitimate and rea-

sonable explanation for the disparities as well as the

catalyst for the upward movement apparent in the

statistics, and not because the strides negated any ex-

16, Even if we accept defendants’ contention that al/ general cargo gangs must

be included in the analysis, the figures still favor plaintiffs. For example, in

1973, blacks comprised 87.6% of the general cargo gang population but held

only 673 of the 869 deck and wharf jobs, producing a variance of 8.3 standard

deviations,

17. At trial, it was established that prior to the enactment of Title VI, blacks

automatically were relegated to hold positions and whites to the deck and

wharf,

isting discrimination.

Plaintiffs contest the district court's reliance on

the seniority-based assignment system not because

such a system violates Title VII or § 1981,18 but be-

cause defendants allegedly failed to prove its exis-

tence. Again, we disagree.

At trial, both sides presented evidence concerning

the assignment system. Several witnesses, including

class representative Richard, testified that there was a

custom or practice19 of filling openings in the pre-

ferred deck and wharf jobs with the most senior mem-

ber in the hold, provided he had the requisite skills.

There was testimony by defense witnesses recounting

various incidents where this custom was enforced, and

contradictory testimony by some plaintiffs’ witnesses

concerning promotions without regard to gang tenure.

The district court was justified in concluding that

there was a custom or practice of making assignments

on the basis of seniority. In fact, plaintiffs’ witness so

18, 42 U.S.C. § 2000e—2(h) provides as follows:

Notwithstanding any other provisions of this subchapter, it shall not be

an unlawful employment practice for an employer to apply different stan-

dards of compensation, or different terms, conditions, or privileges of em-

ployment pursuant to a bona fide seniority .. .syatem, .. .provided that auch

differences are not the result of an intention to discriminate because of

Prior to the enactment of Title VII, there was discrimination in work assign-

ments. Although Title VII prohibits the continuation of auch a practice, this

provision has been interpreted to permit assignments based upon an other-

wise fair seniority system even if that system perpetuates the effects of

pre-Title VII discrimination, Teamsters, 431 U.S. at 345-356, 97 S.Ct. at

1859-1865. A bona fide seniority system is also a defense to § 1981 claim,

Terrell v. United States Pipe & Foundry Co,, 644 F.2d 1112, 1118 (5th Cir,

1981); Pettway v. American Caat Iron Pipe Co,, 576 F.2d 1157 (6th Cir, 1978),

cert. denied, 439 U.S, 1115, 99 8.Ct, 1020, 59 1. Bd.2d 74 (1979),

19. In most cases, the terms of a seniority system are contained in the contract

negotiated between the employer and the union, e.g., Teamsters, supra; how-

ever, there is nothing in Title VII, its legislative history, nor the Teamaters

case to indicate that a system unilaterally adopted by the employer can not be

bona fide. £.£.0.C. v. Bl. du Pont de Nemowre & Co., 445 F.Supp. 223, 248

(D.Del, 1978). The same is true of a system whi is not embodied in a written

document. That the terms of the system are not in writing may go to the force

of the proof necessary to establish its existence, but that fact does not render

the system automatically invalid, In the instant case, defendants succeeded

in proving the existence and bona fides of the syetem through the testimony of

witnesses, including one of the plaintiffs, despite the fact that there was no

written evidence of the system.

testified. The fact that the system occasionally was

disregarded does not render it invalid. Because plain-

tiffs alleged a pattern or practice of discriminatory

assignments, they had to “prove more than the mere

occurrence of isolated or ‘accidental’ or sporadic dis-

criminatory acts.” Teamsters, 431 U.S. at 336, 97 S.Ct.

at 1855.

Defendants rebutted plaintiffs’ prima facie case

with more than mere “affirmations of good faith,”

Alexander v. Louisiana, 405 U.S. 625, 632, 92 S.Ct.

1221, 1226, 31 L.Ed.2d 536 (1972). They produced evi-

dence, including evidence from one of plaintiffs’ own

witnesses, proving that assignments were made ac-

cording to gang longevity and individual skill.

The record amply supports the district court’s con-

clusion that job assignments within general cargo

gangs were made on the basis of seniority and skill.

Prior to Title VII's enactment, virtually no blacks were

in the preferred positions. Since then, however, the

figures indicate that blacks have been moving rapidly

into deck and wharf jobs. Plaintiffs’ exhibits showing

that as of 1973, 63% of all deck and wharf jobs were

performed by blacks illustrate the effectiveness of the

system. If this trend continues, by the time this appeal

is resolved, blacks may have overcome completely the

final vestiges of pre-Title VII discrimination even

though seniority is applicable.

Although we disagree with some of the court's sta-

tistical analysis, we affirm its finding on the ultimate

issue of discriminatory assignments.

IV.CLASS CERTIFICATION

Plaintiffs brought this suit as a class . ction pur-

suant to Fed.R.Civ.P. 23. The district court denied a

pre-trial motion by defendants to dismiss the class

claims and allowed the case to proceed as a class action.

Ultimately, class certification was denied on the

ground that the proposed class lacked the requisite

numerosity, and in the alternative, that plaintiffs fail-

ed to prove discrimination against any group of em-

ployees similarly situated.20

We find that the court erred in refusing to certify a

class with respect to the grain claim but properly re-

fused certification for the deck and wharf claim.

A. The Grain Claim

In pressing this claim, plaintiffs sought to repre-

sent all blacks who were denied opportunities to work

in grain gangs because of defendants’ discriminatory

practices. This would include all those who actually

sought grain work but were refused the opportunity,

those who had been deterred from trying to get grain

work because of knowledge of the discriminatory

policy, and those who would become subject to this

practice in the future. Phillips v. Joint Legislative

Committee on Performance & Expenditure Review, 637

F.2d 1014, 1022 (5th Cir. 1981). During the relevant

time period, there were hundreds of blacks working in

the Port of New Orleans any or all of whom might have

been affected by the discrimination.

In determining whether a proposed class is suffi-

cienctly numerous, the court’s inquiry must focus upon

the practicability of joining all aggrieved parties.

Here, an accurate count of all those aggrieved is virtu-

ally impossible, much less an identification of the ac-

tual persons. In these circumstances, joinder is cer-

tainly impossible, id. at 1022; Jack v. American Linen

Supply Co., 498 F.2d 122, 124 (5th Cir. 1974), and

because of this impossibility, the numerosity require-

ment is met.

The court relied upon Bailey v. Ryan Stevedoring

Co., 528 F.2d 551 (5th Cir. 1976), cert. denied, 429 U.S.

20. Defendants also argue that the named plaintiffs may not represent the class

because none testified that he sought work in a grain gang or was denied a

deck or wharf position, The Pre-Trial Order, however, refutes this conten-

tion. At least one of the named plaintiffs claimed to be a victim of each type of

discrimination alleged in this appeal. That they did not prevail on their

individual claims does not render them inappropriate representatives, Joha-

son v. Georgia Highway Express, Inc,, 417 F.2d 1122 (5th Cir, 1969),

1052, 97 S.Ct. 767, 50 L.Ed.2d 769 (1977), in conclud-

ing that most of the black longshoremen plaintiffs

sought to represent did not want to be included in the

class. This case is distinguishable from Bailey, how-

ever. There we denied certification because a majority

of the members of the proposed class petitioned the

court to be excluded from the class. In this case, there

was no such action by black longshoremen. The court

referred to its awareness of the black Local’s resistence

to and resentment of the merger of the segregated

locals. Whether members of the black Local were in

favor of or opposed to union merger is irrelevant be-

cause our concern in this appeal is with the issues of

discrimination in grain work allocation. Furthermore,

the resistence relied upon by the court is a far cry from

the unequivocal message contained in the Bailey class

members’ petition.

The court held, in the alternative, that certifica-

tion was inappropriate because discrimination had aot

been proved. Because we have found discrimination in

the allocation of grain work, this basis for the court’s

denial of certification is no longer valid.21

B. Deck and Wharf Claims

For the reasons just stated, we find that plaintiffs

met the numerosity requirement. We affirm the court’s

denial of certification, however, on the alternative

ground that no discrimination was proved, as set out

above.

21. Defendants interpret the court's alternative ground as meaning that certifi-

cation was denied because there was no similarly situated group of employees

who could have been discriminated against. They argue that the casual

employment relationship between the stevedores and their employees cou-

pled with the manifold personal factors involved in the determination of

positions renders the proposed class too differentiated. We disagree with this

interpretation. Our understanding of the court’s opinion is that certification

was denied because plaintiffs lost on the merits, not because a finding of

discrimination was impossible by virtue of the nature of the industry. Frr-

thermore, even if we accepted defendants’ interpretation, we would reject its

rationale. As we have already held, the nature of the industry does not shield

it from charges of discrimination.

V. CONCLUSION

Plaintiffs proved that defendants engaged in pur-

poseful discrimination against black longshoremen in

the allocation of grain work through July of 1974. We

certify the plaintiff class to consist of all registered

black longshoremen who were eligible for grain work

during the relevant time period. This includes all those

who sought grain work but were refused as well as

those who were deterred from seeking grain work be-

cause of the discriminatory allocation. This class is

certified for purposes of this claim, and we remand the

cause to the district court to determine the appropriate

relief for discrimination through July of 1974 as well

as the defendants’ liability, if any, for post-July, 1974

discrimination. We affirm the district court’s finding

that there was no racial discrimination in assignments

within general cargo gangs, and its denial of class

certification with respect to this class.

AFFIRMED in part, REVERSED in part and

REMANDED.

APPENDIX F

George James WILLIAMS, et al

Plaintiffs-Appellants

Vv.

NEW ORLEANS STEAMSHIP

ASSOCIATION, et al., Defendants-Appellees

No. 80-3886

United States Court of Appeals

Fifth Circuit

October 8, 1982

Appeal from the United States District Court for

the Eastern District of Louisiana.

ON PETITIONS FOR REHEARING AND

SUGGESTIONS FOR REHEARING

EN BANC

(Opinion April 9, 5th Cir., 1982, 673 F.2d 742)

Before THORNBERRY, TATE and WILLIAMS,

Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge.

The petitions for rehearing are DENIED and no

member of this panel nor judge in regular active ser-

vice on the court having requested that the court be

polled on rehearing en banc, (Rule 35 Fed. R. App.;

Local Fifth Circuit Rule 16) the suggestions for rehear-

ing en banc are DENIED.

I.Segmented Claim a Question of Law

In denying the motions for rehearing and the sug-

gestions for rehearing en banc, the Court believes that

there is value in commenting upon the issues urged

upon the Court by the parties filing the petitions and

the suggestions. This is particularly so with respect to

the matter constituting the major emphasis of the as-

sertions made. After the decision of the Court in this

case, 673 F.2d 742 (5th Cir. 1982), the Supreme Court

decided the case of Pullman-Standard v. Swint, — U.S.

—, 102S.Ct. 1781, 72 L.Ed.2d 66 (1982). Swint was an

employment discrimination action brought under

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

2000e et seq. The Supreme Court reversed our deci-

sion, Swint v. Pullman-Standard, 539 F.2d 77 (5th cir.

1976), holding that a Court of Appeals is bound by the

“clearly erroneous” rule of Fed. R. Civ. Proc. 52(a) in

reviewing a district court’s finding of fact whether or

not the finding of fact is classified as an “ultimate

fact.” The Court made #t ctear, however, that in apply-

ing the clearly erroneous standard to the review of all

findings of fact, it was not changing the standard with

respect to the review of conclusions of law. The opinion

of the Court said “The Court of Appeals, therefore, was

quite right in saying that if a district court’s findings

rest on an erroneous view of the law, they may be set

aside on that basis.” This is precisely the situation

involved in the case sub judice.

We held that our review of the district court’s find-

ing that there had not been racial discrimination was

not bound by the clearly erroneous standard because it

was based upon an erroneous view of the law concern-

ing the legal validity of segmented claims. When the

plaintiffs presented their grain work claim to the

court, they argued that there was discrimination with

respect to grain work which was distinct from other

discrimination allegedly existing in the industry. The

court refused to accept the claim, however, and instead

converted the claim into one of industry-wide dis-

crimination. The district court never addres: °4 the

issue of whether grain work was factually a distinct

and separate category. The only statement made by the

court in which its reason for rejecting the segmented

claim is shown was in the minute entry of June 30,

1980, which stated, “Since he (the longshoreman) may

work various types of cargo at different hours in any

given week, the important thing is how he fares over-

all.” This statement was unequivocally a statement of

the law of the case and not of particular facts found.

The manner in which the district court handled

plaintiffs’ segmented claim was the equivalent of a

dismissal pursuant to Fed. R. Civ. P. 12(b)\6). Rather

than dismiss the claim altogether, however, the court

allowed the plaintiffs to try the broader claim that

black longshoremen in the entire industry suffered

economically as a result of alleged discrimination in

this one job category. This change in the nature of the

plaintiffs’ claim was based entirely on the decision of

the district judge that the law required that the issue of

discrimination in grain work not be separately cog-

nizable. We found this to be an error in law which is not

limited to the clearly erroneous standard of review.

The Swint case is not implicated by this Court’s

opinion. We did not distinguish between ultimate and

subsidiary facts, we did not even make mention of such

a distinction; we did not review mixed questions of law

and fact; and we did not suggest that ultimate findings

might be synonymous with legal conclusions and

therefore reviewable free of the clearly erroneous

standard.

Our holding that the court operated under an er-

roneous view of the law raises the question of whether

our conclusion that the question is one of law is correct.

Petitioners contend that the inquiry into whether a job

category constitutes an entity with distinct and sepa-

rate characteristics is a question of fact. We are in full

agreement with this assertion. Had the district court

found that grain work was factually indistinguishable

from other jobs we would be bound by that conclusion

unless clearly erroneous. The district court did not

make this finding, however. It presumed that even if

grain work was distinct and different from other work,

a claim alleging discrimination in that area only would

not be cognizable. This was clearly a legal conclusion.

Thus, Swint does not in any way trench upon our hold-

ings in this case.

II. Grain Work as a Separate Job Category

Petitioners also again challenge our conclusion

that the grain work is a separate job category. As to the

unique aspects of grain work, little can be added to our

opinion. The petitioners obviously focus upon the fact

that most longshoremen perform a variety of longshor-

ing jobs and that grain work is simply one of those jobs.

If the problem, however, is approached from the stand-

point of the job rather than those who fill it, the distinc-

tive nature of grain work is readily apparent. The par-

ties recognized this themselves when they made a

separate contract overtly setting a racial quota for

grain work. Grain work is recognized as different in

other ways. For example, the contract provided for an

independently negotiated rate for grain work which

was 20¢ per hour higher than the general hourly rate.

If we were not to view grain work as separable, we

would be allowing a union and employer association

openly to discriminate by contract on the basis of race

so long as the industry-wide effects from other jobs

tended to equalize or cancel out the discrimination.

There is no authority whatsoever in the law to justify

such open and blatant racial discrimination in a job

which the parties themselves treat as separate from

others.

The cases which the parties urge do not alter this

conclusion. The leading case of International Brother-

hood of Teamsters v. United States, 431 U.S. 324, 97

S.Ct. 1843, 52 L.Ed.2d 396 (1977), involved two sepa-

rate classifications of drivers, line drivers and city

drivers. Each employee was either a line driver or a

city driver, but not both. We stress that we did not rely

upon T'eamsters on the issue of separability. In fact the

Supreme Court itself in that case did not even mention

the problem of separability. It just assumed that the

employer work force was separable. We cited the case

only as proof of the fact that separability is valid with-

in an employer’s cadre of employees or an industry, and

also as an example of a successful segmented suit. It is

obvious that the operation of the trucking industry

renders it more susceptible to segmented claims than

does the operation of the longshoring industry. It does

not undermine the basic principle, however, that an

employer is forbidden to discriminate in one or more

jobs in the company regardless of the overall facade of

non-discrimination.

Both Swint v. Pullman-Standard, 539 F.2d 77 (5th

Cir. 1976), and EEOC v. Datapoint Corp., 570 F.2d

1264 (5th Cir. 1978), are cases in which the plaintiffs

complained of discrimination throughout a particular

plant or a particuiar workforce. In both of the cases the

plaintiffs offered statistical evidence showing racial

imbalances in small segments of the employers’ work-

force. We only concluded that the segmented evidence

was meaningless and inadequate because the plain-

tiffs had lodged employer-wide claims. Those two cases

are close to being the opposites of this case.

We must, therefore, reaffirm our conclusion that a

separate claim of racial discrimination with respect to

the grain work was legally authorized under Title VII

and 42 U.S.C. § 1981 and that the district court in not

allowing the separate claim made an error in law.

III. Class Representation

Petitioners also challenge the adequacy of class

representation. As stated in footnote 20 of our opinion,

there was at least the allegation that one of the named

individuals had been a grain worker or had sought

grain work. The district court’s opinion, 466 F.Supp.

662, 671 (E.D. La. 1979), refers to John Aaron’s posi-

tion as a grain worker. The district court refused to

certify a plaintiff class because of lack of numerosity

and failure to prove discrimination overall. The court

did not find that named plaintiffs were in any way

inadequate to represent a class of grain workers.

The petitioners complaint is that none of the indi-

viduals actually testified at trial that they had per-

sonally suffered from discrimination in the allocation

of grain work. This, it is argued, leads to the conclusion

that they were inadequate representatives. In the first

place it must be remembered that the case was tried on

the basis of proving overall discrimination, not dis-

crimination in grain work. Second, plaintiffs intro-

duced statistical evidence showing the effects of grain

work discrimination on themselves and the class.

It must be concluded that, in a major sense, the

district court by its rulings cut off the development of

specific testimony to isolate particular people as hav-

ing engaged in grain work. The record is quite clear, by

implication however, and indeed by the very argument

which the plaintiffs make in trying to say that grain

work is not separable, that many of the longshoremen

at the New Orleans port have worked in grain gangs,

and can serve as adequate class representatives of a

class limited to challenging discrimination in grain

work.

IV. Finding of Racial Discrimination in Grain Work

Petitioners also challenge the propriety of decid-

ing the merits of the grain work claim rather than

remanding it once we found the separate claim valid.

Swint holds that “where findings are infirm because of

an erroneous view of law, a remand is the proper course

unless the record permits only one resolution of the

factual issue.” 102 S.Ct. at 1792 (emphasis added).

This is simply a reaffirmation of a long standing rule of

which we were well aware in reaching our decision. A

review of the record, particularly the statistics and the

overtly discriminatory contract provision, convinced

us that there was only one possible resolution of the

issue. The evidence shows unmistakably that defen-

dants discriminated purposefully and with a precise

quota system on the basis of race in the allocation of

grain work. A remand on that issue would be a waste of

time.

The conclusion does not mean that there are auto-

matically high awards of back pay available. Proof of

discrimination in a class action establishes a presump-

tion that each class member has experienced discrimi-

nation, but it does not mean that each member is en-

titled to back pay. To obtain a back pay award, each

claimant must show (I) he or she is a member of the

class; (II) that he or she was a “potential” victim of the

discrimination (that he or she sought and was refused

grain work or would have sought grain work but for the

discriminatory practice); and (III) the factual basis for

computing the back pay award. See C. Sullivan, M.

Zimmer, & R. Richards, Federal Statutory Law of Em-

ployment Discrimination Section 9.1, pp. 516-519

(1980). The burden will be on each longshoreman to

prove the particular economic loss. The record contains

employment records from most of the stevedores, but

the longshoremen will have to prove that he or she lost

wages because of being kept out of grain work, and

prove the amount of wages lost. A district court has

broad discretion in conducting the so-called “Stage II”

proceeding, and it is the province of the district court to

formulate the remedies.

V. Continuing Discrimination in Grain Work

Finally, petitioners question the propriety of our

reaching the issue of discrimination in grain work af-

ter the clause was deleted from the contract. The dele-

tion in the contract took place about two months after

the trial was concluded on September 20, 1974. It is not

argued that the alleged post-clause discrimination was

as matter of time beyond the scope of the claim, only

that it was substantively different. However, plaintiffs

original complaint was directed at the practice of dis-

criminatory allocation of grain work whatever its

source. The fact that the clause compelling discrimina-

tion had been deleted, standing alone, did not auto-

matically dissolve the claim. The date that the trial

was concluded is not the signi“icant date with respect

to these claims. It was nearly five years after the trial

before the court issued its first opinion in the case.

During those five years, motions, briefs, and evidence

were submitted to the court. After the court rendered

its initial opinion in 1979, it reopened the grain issue

and accepted more evidence and memoranda. Plain-

tiffs continued to submit evidence showing that dis-

crimination still existed in spite of the deletion of the

clause, and they asked for a hearing on the issue.

Until the trial court issued its final order in 1979,

it retained jurisdiction over the case and obviously was

entitled to order a remedy which would solve the prob-

lem once and for all. The court could have ordered

post-clause relief in its original order in 1979. But in

any event it was entitled to do so in 1980 when it

reopened the grain issue. At that time, the plaintiffs

submitted evidence showing that the elimination of

the clause had not cured the discrimination. The issue

was squarely before the court. The court refused the

make post-clause findings, however, because it still

was in error in finding that a segmented claim was not

authorized by law.

Petitioners’ further assertion that the post-clause

discrimination was not properly before the court be-

cause it was not subject to an EEOC charge cannot be

accepted. Plaintiffs’ original EEOC charge concerned

the practice of racial discrimination in grain work, not

just the existence of the grain clause. The EEOC

charge, therefore, covered any racial discrimination in

grain work, regardless of its source, occurring from 180

days before the charge was filed until the discrimina-

tion ended. Petitioners’ reliance on Sanchez v. Stan-

dard Brands, Inc., 431 F.2d 455 (5th Cir. 1970), is not

persuasive. In that case the EEOC complaint involved

charged only sex discrimination. We held that such a

charge could not serve as the basis of a Title VII claim

charging racial and national origin discrimination.

Finally, on this point, we remind petitioners that

plaintiffs also alleged violation of 42 U.S.C. § 1981.

Even if the lack of an EEOC charge were relevant, and

we find it is not, the plaintiffs still would be entitled to

relief under § 1981 if they can establish individual

claims.

Petitions for rehearing DENIED and suggestions

for rehearing en banc DENIED.

42 § 2000e-2. Unlawful Employment Practices

(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 respect to his compensation, terms,

conditions, or priviliges 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.

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

employment agency to fail or refuse to refer for em-

ployment, or otherwise to discriminate against, any

individual because of his race, color, religion, sex, or

national origin, or to classify or refer for employment

any individual on the basis of his race, color, religion,

sex, or national origin.

labor organization —

(1) to exclude or to expel from its membership, or

otherwise to discriminate against, any individual be-

cause of his race, color, religion, sex, or national origin;

(2) to limit, segregate, or classify its membership

or applicants for membership, or to classify or fail or

refuse to refer for employment any individual, in any

way which would deprive or tend to deprive any indi-

vidual of employment opportunities, or would limit

such employment opportunities or otherwise adversely

affect his status as an employee or as an applicant for

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

religion, sex, or national origin; or

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

discriminate against an individual in violation of this

section.

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

employer, labor organization, or joint labor-manage-

ment committee controlling apprenticeship or other

training or retraining, including on-the-job training

programs to discriminate against any individual be-

cause of his race, color, religion, sex, or national origin

in admission to, or employment in, any program estab-

lished to provide apprenticeship or other training.

(e) Notwithstanding any other provision of this sub-

chapter, (1) it shall not be an unlawful employment

practice for an employer to hire and employ employees,

for an employment agency to classify, or refer for em-

ployment any individual, for a labor organization to

classify its membership or to classify or refer for em-

ployment any individual, or for an employer, labor

organization, or joint labor-management committee

controlling apprenticeship or other training or re-

training programs to admit or employ any individual

in any such program, on the basis of his religion, sex, or

national origin in those certain instances where re-

ligion, sex, or national origin is a bona fide occupa-

tional qualification reasonably necessary to the nor-

mal operation of that particular business or enterprise,

and (2) it shall not be an unlawful employment practice

for a school, college, university, or other educational

institution or institution of learning to hire and em-

ploy employees of a particular religion if such school,

college, university, or other educational institution or

institution of learning is, in whole or in substantial

part, owned, supported, controlled, or managed by a

particular religion or by a particular religious corpora-

tion, association, or society, or if the curriculum of such

school, college, university, or other educational insti-

tution or institution of learning is directed toward the

propagation of a particular religion.

(f) As used in this subchapter, the phrase “unlawful

employment practice” shall not be deemed to include

any action or measure taken by an employer, labor

organization, joint labor-management committee, or

employment agency with respect to an individual who

is a member of the Communist Party of the United

States or of any other organization required to register

as a Communist-action or Communist-front organiza-

tion by final order of the Subversive Activities Control

Board pursuant to the Subversive Activities Control

Act of 1950.

(g) Notwithstanding any other provision of this sub-

chapter, shall not be an unlawful employment practice

for an employer to fail or refuse to hire and employ any

individual for any position, for an employer to dis-

charge any individual from any position, or for an em-

ployment agency to fail or refuse to refer any individ-

ual for employment in any position, or for a labor or-

ganization to fail or refuse to refer any individual for

employment in any position, if —

(1) the occupancy of such position, or access to the

premises in or upon which any part of the duties of such

position is performed or is to be performed, is subject to

any requirement imposed in the interest of the nation-

al security of the United States under any security

program in effect pursuant to or administered under

any statute of the United States or any Executive order

of the President; and

(2) such individual has not fulfilled or has ceased

to fulfill that requirement.

(h) Notwithstanding any other provision of this sub-

chapter, it shall not be an unlawful employment prac-

tice for an employer to apply different standards of

compensation, or different terms, conditions, or privi-

leges 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

differences are not the result of an intention to dis-

criminate because of race, color, religion, sex, or na-

tional origin, nor shall it be an unlawful employment

practice for an employer to give and to act upon the

results of any professionally developed 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 employ-

ment practice under this subchapter for any employer

to differentiate upon the basis of sex in determining

the amount of the wages or compensation paid or to be

paid to employees of such employer if such differentia-

tion is authorized by the provisions of section 206 (d) of

Title 29.

(i) Nothing contained in this subchapter shall apply to

any business or enterprise on or near an Indian reser-

vation with respect to. any publicly announced em-

ployment practice of such business or enterprise under

which a preferential treatment is given to any individ-

ual because he is an Indian living on or near a reserva-

tion.

(j) Nothing contained in this subchapter shall be in-

terpreted to require any employer, employment

agency, labor organization, or joint labor-management

committee subject to this subchapter to grant prefer-

ential treatment to any individual or to any group

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

origin of such individual or group on account of an

imbalance which may exist with respect to the total

number or percentage of persons of any race, color,

religion, sex, or national origin employed by any em-

ployer, referred or classified for employment by any

employment agency or labor organization, admitted to

membership or classified by any labor organization, or

admitted to, or employed in, any apprenticeship or

other training program, in comparison with the total

number or percentage of persons of such race, color,

religion, sex, or national origin in any community,

State, section, or other area, or in the available work

force in any community, State, section, or other area.

42 § 1981. Equal Rights Under The Law

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 security of

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