Appendix — Goodman v. Lukens Steel Co.
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Supreme Court, U.S.
86 2019.” FILED
Jun © 1906
No. — Pe
IN THE
Supreme Cot of the Yuited States
OCTOBER TERM, 1985
UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC;
UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC,
LocAL UNION 1165; and UNITED STEELWORKERS OF
AMERICA, AFL-CIO-CLC, LOCAL UNION 2295,
Petitioners,
Vv.
CHARLES GOODMAN, RAMON L. MIDDLETON, ROMULUS C.
JONES, JR., LYMAS L. WINFIELD, DoCK MEEKS, DAVID
DANTZLER, JR., and JOHN R. Hicks III, INDIVIDUALLY
AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
and UNITED POLITICAL ACTION COMMITTEE,
Respondents.
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
BERNARD KLEIMAN MICHAEL H. GOTTESMAN
One East Wacker Drive (Counsel of Record)
Chicago, Illinois 60601 ROBERT M. WEINBERG
~ Bive Gateway Center BREDHOFF & KAISER
Pittabureh, PA 15222 1000 Connecticut Ave., N.W.
Suite 1300
Washington, D.C. 20036
(202) 833-9340
DAVID SILBERMAN
815 16th Street, N.W.
Washington, D.C. 20006
Attorneys for Petitioners
WILSON - Eras Printing Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001
o> ~
a 3 wo
I.
J.
. Opinion of the Court of Appeals
TABLE OF CONTENTS
. Opinion of the District Court as to Liability —........
Memorandum and Order of the District Court, Au-
gust 2, 1984 ‘*
Order of the District Court, August 2, 1984 _..........
Order of the District Court, August 2, 1984 _....._..
Judgment of the Court of Appeals
Order of the Court of Appeals on Petition for Panel
. Order of the Court of Appeals on Petition for Re-
hearing
Order of the Court of Appeals, January 9, 1986 ......
Order of the Court of Appeals, February 3, 1986 ....
K. Order Extending Time to File Petition for Writ of
Certiorari, March 18, 1986 ...........----.0
Page
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APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 84-1478 & 84-1509
CHARLES GOODMAN, RAMON L. MIDDLETON, ROMULUS C.
JONES, JR., and LyMAS L. WINFIELD, on their own
behalf and on behalf of others similarly situated,
and
UNITED POLITICAL ACTION COMMITTEE, an unincorpo-
rated association, Dock MEEKS, DAvID DANTZLER,
JOHN Hicks, III, individually and on behalf of all
others similarly situated
v.
LUKENS STEEL COMPANY, and INTERNATIONAL STEEL-
WORKERS OF AMERICA (AFL-CIO), and LOcAL 1165,
UNITED STEELWORKERS OF AMERICA (AFL-CIO), and
LocaL 2295, UNITED STEELWORKERS OF AMERICA
(AFL-CIO)
United Steelworkers of America,
AFL-CIO-CLC, and its Local Unions 1165 and
2295, Appellants in 84-1478
Lukens Steel Company, Appellant in 84-1509
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 73-1328)
2a
Argued June 11, 1985
Before: WEIS, GARTH, and STAPLETON,
Circuit Judges
Filed November 13, 1985,
as amended November 22, 1985
Julia Penny Clark, Esq. (ARGUED)
Robert M. Weinberg, Esq.
David M. Silberman, Esq.
Bredhoff & Kaiser
1000 Connecticut Ave., N.W.
Washington, D.C. 20036
Bernard Kleiman, Esq.
One East Wacker Drive
Chicago, Illinois 60601-1980
Carl Frankel, Esq.
Five Gateway Center
Pittsburgh, PA 15222
Attorneys for Appellants United Steelworkers of
America, AFL-CIO-CLC, and LOCAL UNIONS 1165
and 2295
Jerome A. Hoffman, Esq. (ARGUED)
Mark A. Klugheit, Esq.
Steven B. Feirson, Esq.
Dechert Price & Rhoads
8400 Centre Square West
1500 Market Street
Philadelphia, PA 19102
Attorneys for Appellant Lukens Steel Company
3a
William H. Ewing, Esa. (ARGUED)
Arnold P. Borish, Esq.
Daniel Segal, Esq.
Leslie A. Hayes, Esq.
Hangley Connolly Epstein Chicco Foxman & Ewing
1429 Walnut Street, 14th Floor
Philadelphia, PA 19102
Attorneys for Appellees Charles Goodman, et al.
OPINION OF THE COURT
WEIS, Circuit Judge.
This appeal is from the grant of injunctive relief and
liability findings in a wide-ranging employment discrim-
ination class action. We conclude that: (1) the same
period of limitations applies in § 1981 claims as in those
under § 1983; (2) class representatives who were not
discriminated against in initial work assignments may
not represent those who were; (3) on remand, considera-
tion should be given to appointment of an appropriate
representative and possible reinstatement of findings;
(4) the unions violated Title VII and Ԥ 1981 by failing
to assert racial bias as grievances; (5) the limitations
period for a Title VII charge against a union begins
only after it is named in an EEOC proceeding and not
on the date that a charge is brought against the em-
ployer alone in a state proceeding; (6) a finding of dis-
crimination in denying incentive pay was clearly errone-
ous where the evidence demonstrates the action was
taken solely on economic grounds; and (7) other findings
of discrimination by the district court were not clearly
erroneous. Accordingly, we affirm, reverse, and remand
in part.
After a lengthy bench trial, the district judge found
for plaintiffs on several counts alleging discrimination
4a
in employment, and therefore entered a remedial order,
reserving assessment of damages for future proceedings.
On the other counts, the court concluded that the evi-
dence was inadequate to support the plaintiffs’ claims
and entered judgment for defendants. Defendants ap-
peal the orders adverse to them.*
In 1978, class action plaintiffs filed this massive suit
on behalf of current and past employees of the Lukens
Steel Company, alleging violations of 42 U.S.C. § 1981
and Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seg. Plaintiffs sought both injunctive relief
and damages.
Defendant Lukens is an independent steel producing
company with its principal facility in Coatesville, Penn-
sylvania. Since 1966, its work force has ranged between
approximately 4200 and 5300 employees; of these the
hourly employees numbered between 2600 and 3900.
From 1967 to 1978, the percentage of black employees in
the hourly work force varied between 21.8 and 24.1.
Lukens’ hourly employees had been represented by Lo-
cals 1165 and 2295 of the United Steelworkers of Amer-
ica, and the unions are listed as defendants together
with the company.
The district court observed that work at Lukens re-
quires skills which are unique to its specialized products.
With a few limited exceptions, the “majority of the
Lukens hourly work force start from scratch, and are
trained on the job.” Partially as a consequence of the
need for highly specific skills, the company has a gen-
eral policy of promoting from within its workforce. The
district court found that to some extent current dispar-
aties between white and black employees are a reflection
of historical discrimination existing well before the stat-
utory limitations period applicable in this lawsuit.
1 The district court opinion is reported at Goodman v. Lukens
Steel Co., 580 F. Supp. 1114 (E.D. Pa. 1984).
ba
Plaintiffs developed their case by a combination of
statistical and anecdotal evidence. After the compilation
of an extensive record, the court found evidence of dis-
criminatory practices by the company in the following
categories:
1,
Initial job assignments to higher paying craft
jobs were skewed in favor of whites. Blacks also
were assigned in higher percentages than whites
to “pool” positions, which had seniority provi-
sions inferior to those in the “subdivisions.”
Evidence focusing on transfers to more desirable
craft positions demonstrated that whites were
favored over blacks by a substantial margin.
Incentive pay was denied to workers in the pre-
dominantly black crews in the Pit Subdivision,
although it. was given to other specialized crews
composed mainly of whites.
Lukens discriminated agains: black workers by
discharging a higher percentage of black em-
ployees during their probationary period.
The company discriminated against blacks in de-
nying them promotion to salaried positions in
management.
Lukens tolerated harassment of black employees
by whites and failed to take appropriate steps to
curb such behavior, thereby encouraging work-
ers to believe such conduct would go unpunished.
The district court also determined that the unions were
guilty of discriminatory practices in:
1.
Failing to challenge discriminatory discharges of
probationary employees.
Failing and refusing to assert instances of racial
discrimination as grievances.
6a
8. Tolerating and tacitly encouraging racial harass-
ment.
The court further found that plaintiffs had failed to
present adequate proof of discrimination in the following
areas:
1. The seniority system.
2. Manning of the new Strand-cast facility (with
the exception of class representative Ramon L.
Middleton).
8. Shift assignments, including Sundays and holi-
day work, as well as overtime pay.
4. Discipline (excluding discrimination in discharge
of probationary employees).
5. Awards for employee suggestions for improve-
ment in plant operation.
6. Processing grievances by the unions insofar as
the complaints centered on the number of griev-
ances which the locals presented initially and
pursued through arbitration. In addition, the
lower rate of successful outcomes for black em-
ployees’ grievances did not show racial discrimi-
nation.
The court also directed individual relief for class rep-
resentatives Goodman, Winfield, Jones, Middleton, and
Dantzler, but denied the individual claims of Dock L.
Meeks, and John R. Hicks III.
The court issued orders against the company and the
unions enjoining racial discrimination in the specific
areas in which violations of Title VII and § 1981 had
been found and directing certain remedial measures.
Notice to class members was ordered, and a tentative
trial date was set for the individual claims.
Both the company and the unions have appealed the
various findings against them, challenging both legal and
Ta
factual determinations made by the district court. Plain-
tiffs have not appealed the rulings on which they or the
- Class were unsuccessful.
1,
THE STATUTE OF LIMITATIONS FOR
SECTION 1981 CLAIMS
Because there is no specified federal statute of limita-
tions applicable to § 1981 cases, the district court was
required to use the state limitations period most analo-
gous to the civil rights cause of action. Johnson v. Rail-
way Express Agency, 421 U.S. 454 (1975). In a Memo-
randum Opinion issued on June 16, 1975, the district
court concluded that the appropriate period was the six
years set forth in Pa. Stat. Ann. tit. 12, § 31, rather
than the two year period “for injury wrongfully done to
the person” as set out in Pa. Stat. Ann. tit. 12, § 34.
In this determination, the district judge anticipated
our decision some two years later in Meyers v. Penny-
pack Woods Home Ownership Ass’n., 559 F.2d 894 (3d
Cir. 1977), where we applied the six year general statute
of limitations in a housing discrimination case brought
under sections 1981 and 1982. See also Davis v. United
States Steel Supply, 581 F.2d 3385 (3d Cir. 1978) (six
year statute of limitations applicable to § 1981 employ-
ment discrimination claim).
_ Although the district judge was correct in forecasting
that we would adopt a six year limitation period in an
employment case, his prescience, like ours, was limited.
Neither he, nor this court, foresaw the Supreme Court’s
ruling that all § 1983 cases should be governed by a
uniform statute of limitations—that provided by the states
for personal injury. Wilson v. Garcia, 53 U.S.L.W.
4481 (Apr. 17, 1985). That ruling requires us to re
examine our earlier decisions on the appropriate statute
of limitations in Civil Rights cases.
8a
In Polite v. Diehl, 507 F.2d 119 (3d Cir. 1974) (in
banc), we discarded the notion of applying a single limi-
tations period to all § 1983 cases and chose instead to
look to the relief sought and the particular injury al-
leged. A claim alleging bodily injury was governed by
the two year Pennsylvania statute but one which was
more akin to a contract action came under the six year
limitation. Hence, under Polite v. Diehl differing stat-
utes of limitations would be applied to a variety of
claims in one suit.
Although the court discussed only the § 1983 claims, it
noted that plaintiff did formulate causes of action under
§ 1981. 507 F.2d at 121, n.2. In any event, the Polite
rationale of looking to the facts in each case and then
searching out for the most analogous state statute was
followed in § 1981 cases, as well as those brought under
§ 1983. See Davis v. United States Steel, 581 F.2d at
338, 341 n.8; Meyers v. Pennypack Words Home Owner-
ship Ass’n., 559 F.2d at 903 n.27.
We later determined that the six year statute of limi-
tations applied in § 1983 claims of (1) sex discrimina-
tion in employment, Knoll v. Springfield Township School
Dist., 699 F.2d 187 (3d Cir. 1983), vacated and re-
manded 53 U.S.L.W. 4488 (Apr. 17, 1985), on remand
763 F.2d 584 (3d Cir. 1985); (2) termination of em-
ployment without due process, Perri v. Aytch, 724 F.2d
362 (3d Cir. 1983); (3) discharge from employment in
violation of the First Amendment, Fitzgerald v. Larson,
741 F.2d 32 (3d Cir. 1984); and (4) termination of
employment contract for exercise of First. Amendment
rights, Skehan v. Trustees of Bloomsburg State College,
590 F.2d 470 (3d Cir. 1978).
Wilson v. Garcia completely undermined the rationale
we employed in Polite as we were quick to recognize.
Smith v. City of Pittsburgh, 764 F.2d 188 (3d Cir. 1985),
reviewed our earlier decisions in light of Wilson and ap-
9a
plied Pennsylvania’s two year statute of limitations for
personal injuries to a § 1983 claim of employment termi-
nation without due process. In view of the previous un-
settled law in this and other circuits, in Smith we also
determined that Wilson v. Garcia should be applied retro-
actively.
Had the case at hand been brought under § 1983
rather than § 1981, the statute of limitations question
would be answered by Wilson. This case, however, in-
volves discrimination in private employment to which
§ 1983 does not apply, and therefore the issue is whether
the same statute of limitations used under § 1983 should
also apply to § 1981. .
The Wilson v. Garcia analysis begins with a reference
to 42 U.S.C. § 1988, which determines the “rules of deci-
sion applicable to Civil Rights claims.” Because no fed-
eral statute of limitations has been provided for such
claims, § 1988 approves the use of state law to provide
the appropriate rule. The reference to state law, how-
ever, occurs only after analysis of the claim using fed-
eral standards. J. characterizing § 1983 claims for stat-
ute of limitations purposes, the court must consider the
elements of the cause of action and Congress’ purpose in
providing it. Wilson, 53 U.S.L.W. at 4483.
In deciding the issue presented here, we find it most
significant that § 1988 applies not only to § 1983 but to
§ 1981 and the other reconstruction Civil Rights Acts as
well. Section 1988 by its terms applies to “the jurisdic-
tion in civil and criminal matters conferred on the dis-
trict courts by the provisions of this Title, and of Title
‘Civil Rights,’ and of Title ‘Crimes,’ for the protection of
all persons in the United States in their civil rights.”
In this context, we do not consider relevant that § 1981
was originally enacted in 1866, reenacted in 1870, and
later included in the 1874 codification, while § 1983 was
the subject of separate legislation in 1871. See Runyon v.
10a
McCrary, 427 U.S. 160, 168 n.8 (1976) ; Mahone v. Wad-
dle, 564 F.2d 1018, 1030-31 (3d Cir. 1977). Both sec-
tions are to be analyzed under the broad provision of
§ 1988, which is “a directive to select, in each state, the
one most appropriate statute of limitations.” Wilson, 53
U.S.L.W. at 4485. In this choice, we should be guided by
“federal interests in uniformity, certainty, and the mini-
mization of unnecessary litigation” over the limitations
period as well as by the nature of the federal Civil
Rights remedy, and the prevention of potential state dis-
crimination against it.
In concluding that state statutes for personal injury
were the most appropriate for use in § 1983 cases, the
Supreme Court believed that the enacting Congress
viewed civil rights actions as analogous to state tort
claims. In this connection, one might argue, as does the
dissent, that since § 1981 on “its face relates primarily
to racial discrimination in the making and enforcement
of contracts,” Johnson v, Railway Express Agency, Inc.,
421 U.S. 454, 459 (1975), the state statute of limitations
applying to suits for breach of contract is the most ap-
propriate one. See Wilson v. Sharon Steel Corp., 549
F.2d 276, 280 (3d Cir. 1977).
We are not persuaded by that argument because it
does not recognize the broad sweep of § 1981, see Mahone
v. Waddle, nor is it consistent with the fundamental
reasons underlying Wilson v. Garcia. There, the Court
emphasized § 1983’s derivation from the Fourteenth
Amendment, which recognizes the “equal status of every
person ;” that all persons shall be accorded the full privi-
leges of citizenship; and that no person should be de-
prived of life, liberty or property “without due process.”
Wilson, 53 U.S.L.W. at 4485. As the Court said, “[a]
violation of that command is an injury to the individual
rights of the person.” Id.
Those concepts apply equally to actions under § 1981.
Present day § 1981’s predecessor was founded on the
lla
Thirteenth Amendment that allows “neither slavery nor
involuntary servitude” to exist any longer. It is difficult
to imagine a more fundamental injury to the individual
rights of tne person than the evil that comes within the
scope of that amendment. Also of significance is that in
Runyon v. McCrary, the Supreme Court accepted the use
of a state’s personal injury statute of limitations in a
§ 1981 case. 427 U.S. at 180-82.
Moreover, in its reenactment of § 1981 in 1870, Con-
gress looked to constitutional authority embodied in the
Fourteenth, as well as in the Thirteenth Amendment.
Croker v. Boeing Company, 662 F.2d 975, 987 (3d Cir.
1981) (in banc); see also General Building Contractors
Ass’n., Inc. v. Pennsylvania, 458 U.S. 375 (1982). Con-
sequently, much of the body of law developed under the
Fourteenth Amendment is helpful in the interpretation
of § 1981.
A substantial overlap exists in the types of claims
brought under sections 1981 and 1983. A plaintiff may
press an allegation of intentional] racial discrimination
under either section when state action is present. A
§ 1983 case of intentional racial discrimination in em-
ployment filed in Pennsylvanis against a state agency is
governed by the two year personal injury statute. See
Knoll v. Springfield Township School Dist., 763 F.2d 584
(3d Cir. 1985). Application of Pennsylvania’s six year
statute of limitations where the same claim is brought
under § 1981 would lead to a bizarre result.
Our first opinion in Knoll, 699 F.2d 187, 144, expressed
our doubt that Congress would have intended a differing
limitations period depending on whether the defendant
was a state official sued under § 1983 or a private in-
dividual in a § 1981 action. The same conclusion is ap-
propriated where the identical claim may be brought
under either of these Reconstruction Civil Rights Acts.
See Jackson v. City of Bloomfield, 731 F.2d 652 (10th
12a
Cir. 1984). Therefore, because employment discrimina-
tion cases under § 1983, regardless of their affinity to
contractual actions, are now governed by the personal in-
jury statute of limitations, and because the same con-
siderations which led to that judgment are also present
in § 1981 cases, we conclude that the same limitations
period applies.?
In taking this position, we are in agreement with
Supreme Court in Wilson that the personal injury limi-
tation period is unlikely to be fixed in such a way as to
discriminate against federal Civil Rights claims. In ad-
dition, the factors characterized as “practical considera-
tions” by Justice O’Connor's dissent in Wilson—which in-
clude the desirability of uniformity, certainty, and mini-
mization of litigation prior to reaching the merits—are
best served by applying the same statute of limitations
to all of the Reconstruction Civil Rights cases.*
As we noted earlier, the reasoning employed by the
Supreme Court in Wilson is inconsistent with the Polite
approach as used in Davis and Pennypack Woods. This
court has consistently held that one panel may not over-
rule an earlier panel’s decision. See Third Circuit In-
ternal Operating Procedure VIII C. However, we have
recognized that this principle must yield when a panel
2 We note that in 1978 and 1982 Pennsylvania’s statute of limita-
tions scheme was substantially revised. Claims for injury to eco-
nomic rights, as well as for personal injuries, are currently subject
to a two year limitation. 42 Pa. Cons. Stat. Ann. § 5524.
* The plaintiffs argue that under the rule we adopt in this opinion
a statute meant to cover only cases involving bodily injury will be
applied to actions in which no such injury is alleged. See Meyers
v. Pennypack Woods, 559 F.2d at 902. The Supreme Court clearly
foresaw the possibility that uniform characterization of all civil
rights claims might lead to some seemingly anomalous results
under a particular state statutory scheme. See Wilson v. Garcia, 58
U.S.L.W. at 4484. That state law interpretations are not fully con-
sistent is an acceptable result when considered in light of the
overriding federal interest in uniformity.
13a
opinion is in conflict with an intervening Supreme Court
precedent. “Where, however, a holding of this Court is
overruled or rejected by the Supreme Court, IOP 8c does
not require in banc consideration to align this court’s
jurisprudence with Supreme Court teaching.” Rubin v.
Buckman, 727 F.2d 71, 74 (3d Cir. 1984) (Garth, J. con-
curring). See also West v. Keve, 721 F.2d 91, 93 (3d
Cir. 1983); Geraghty v. United States Parole Commis-
sion, 719 F.2d 1199, 1209 (3d Cir. 1983). The rationale
used in Davis cannot co-exist with Wilson, and accord-
ingly does not bind us here.
We hold, therefore, that the personal injury statute of
limitations of the forum state supplies the most analo-
gous statute of limitations for actions brought under
§ 1981. For the reasons set forth in Smith v. City of
Pittsburgh, we also conclude that our decision should be
given the customary retroactive effect. See Fitzgerald v.
Larson, 769 F.2d 160 (3d Cir. 1985).
Our holding affects some but not all of the findings
made by the district court. Plaintiffs contend that the
two year statute of limitations would not change the
district court’s decree because it was based on violations
of Title VII as well as § 1981. However, because the
court did not consider the facts separately under § 1981
and Title VII, we conclude this lack of discrete analysis
requires a partial remand.
As noted in Croker v. Boeing, 662 F.2d 975 (3d Cir.
1981), § 1981 liability is not co-extensive with that un-
der Title VII, and the remedies provided under the two
statutes are “separate, distinct, and independent.” See
* The district court determined that as to the claims against the
company, the Title VII limitations period began on May 6, 1970,
and that finding has not been challenged on appeal. Evidence of
disparate treatment under Title VII provides the elements of inten-
tional discrimination under §1981. See Lewis v. University of
Pittsburgh, 725 F.2d 910, 915 n.5 (3d Cir. 1983).
l4a
Johnson v. Railway Express Agency. In the absence of a
specific finding fixing liability under each statute, we are
unable to say whether application of the two year statute
of limitations would result in a difference in the court’s
decree on two of its liability determinations. It is con-
ceivable, for example, that events within the six year
statute of limitations used for the § 1981 claims might
have been considered by the court in finding liability
under Title VII beyond its limitations period.
In finding discrimination in transfers to salaried posi-
tions, the district court relied heavily on the low percent-
age of blacks promoted to foreman jobs in the years 1969
and 1970—between three and four years before the suit
was filed. The court found that the evidence “overwhelm-
ingly establishes that Lukens discriminated in the selec-
tion of foremen until at least 1971.” 580 F.Supp. at
1145. For the years 1971 through 1978, however, ap-
proximately 26% of the foreman promotions were given
to blacks—not substantially different from their 29%
representation in the work force during those years.
The record contains other anecdotal and statistical evi-
dence on this point which should be evaluated by the
district judge in the first instance. We are mindful that
a finding of class-wide violation is supported only when
the evidence shows that discrimination was the com-
pany’s standard operating procedure, rather than some-
thing which occurred only in a few isolated incidents.
See International Bhd. of Teamsters v. United States,
431 U.S. 324 (1977). In such a situation, the trial
judge’s appraisal is particularly important.
Similarly, the district court’s finding that the company
tolerated racial harassment within the work force must
be reevaluated on remand. The court stated that it had
considered more than 100 incidents or practices, many of
which “predated the limitation period” and about 35 of
which “occurred within the limitations period or shortly
l5a
before—e.g. ‘in the late 1960s’ or ‘between 1965 and
1970’.” 580 F. Supp. at 1147. The court recognized the
critical inquiry as “assessing the conditions which pre-
vailed during the limitations period.” Id.
Some of the instances described in detail by the dis-
trict judge occurred before 1971 and some thereafter.
We are unable to determine from the record what effect
the application of the two year statute of limitations for
the § 1981 claims would have on the district court’s con-
clusion with respect to the harassment charge. Conse-
quently, it too will require reexamination by the trial
court.
We have surveyed the findings on the other issues and
conclude that they would not be affected by the two year
limitations period. Naturally, in the portion of the case
remaining to be tried for assessment of individual dam-
ages, the two year statute would apply.
IT.
CLASS CERTIFICATION AND
CLASS REPRESENTATIVES
A.
A second major issue presented in this case is that of
class representation. In this area, too, subsequent deci-
sional law requires review of the district court’s ruling
in a somewhat different light than that which prevailed
at the time the court acted.
In a Memorandum of June 16, 1975, the district court
certified a class of “all black persons employed by the
defendant Lukens Steel Company at any time on or
after June 14, 1967.” This class includes persuns whose
employment was within the six year statute of limita-
tions for § 1981 applied by the district court. To that
extent, the class definition must be narrowed.
l6a
A review of the class allegations in the complaint and
the court’s certification order shows that the suit was
conceived as a broad, “across the board” attack on
racial discrimination at Lukens. As class representa-
tives, the court approved Charles Goodman, Ramon L.
Middleton, Romulus C. Jones, Jr., Lymas L. Winfield,
Dock Meeks, David Dantzler, and John R. Hicks, III.
Each of these plaintiffs asserted specific claims of dis-
crimination practiced against them by the company and,
in several instances, by the unions as well.
Because of the nature of the claims, the court con-
cluded that any ruling on the appropriateness of dam-
ages was premature, and therefore certified the class
under Fed. R. Civ. P. 23(b) (2). See Kyriazi v. Western
Electric Co., 647 F.2d 388 (3d Cir. 1981). Possible defi-
nition of a class under Rule 23(b) (3) for assessment of
damages was reserved. After making its liability deter-
minations, the court directed counsel to prepare a pro-
posed form of notice to class members.
On appeal, defendants contend that the district court
erred in allowing the individual plaintiffs who asserted
injury from specific discriminatory practices to repre-
sent a broad class alleging violations beyond those of
the named individuals.
Initially, we observe that contrary to the defendants’
contentions, the issue here is one of compliance with the
provisions of Rule 23, not one of Article III standing.
Each of the named plaintiffs has presented claims of
injury to himself and has alleged facts which present a
case or controversy under the Constitution. Cf. O’Shea
v. Littleton, 414 U.S. 488, 494 (1974) (“If none of the
named pluintiffs purporting to represent a class estab-
lishes the requisite of a case or controversy with the de-
fendants, none may seek relief on behalf of himself or
any other member of the class.’’).
The thrust of the defendants’ challenge is that the
injuries to the named plaintiffs are in many instances
17a
not the same as those advanced on behalf of the class.
In essence, defendants contend that the allegations of
the named plaintiffs do not present “questions of law or
fact common to the class” and that their “claims...
are [not] typical of the claims . . . of the class” as
required by Rule 23(a) (2) and (3). For this reason, we
need only consider whether the named plaintiffs meet
the requirements of Rule 23.
The expansive “across the board” class action attack
on employment discrimination gained currency in a
series of cases typified by Johnson v. Georgia Highway
Exp. Inc., 417 F.2d 1122 (5th Cir. 1969), and Payne v.
Travenol Lab., Inc., 565 F.2d 895 (5th Cir. 1978). See
also Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 239 (3d
Cir. 1975) ; Mack v. General Elec. Co., 329 F. Supp. 72
(E.D. Pa. 1971); Rutherglen, Title VII Class Actions,
47 U. Chi. L. Rev. 688 (1980). In General Telephone
Co. of the Southwest v. Falcon, 457 U.S. 147 (1982),
however, the Supreme Court pulled in the reins by in-
sisting on actual, not presumed, compliance with the
typicality and commonality provisions of Rule 23.
The Supreme Court pointed out that a named plain-
tiff’s proof of his personal claim would not necessarily
establish that the discriminatory practice was pervasive
or was reflected in other employment activities. As the
Court said, “[i]f one allegation of specific discrimina-
tory treatment were sufficient to support an across-the-
board attack, every Title VII case would be a potential
companywide class action. We find nothing in the stat-
ute to indicate that Congress intended to authorize such
a wholesale expansion of class-action litigation.” Jd. at
159.
In Falcon, the named plaintiff alleged that he had
been denied a promotion because he was a Mexican-
American. The Court determined that he could not rep-
resent a class of Mexican-Americans attacking discrim-
18a
ination in hiring. The Court cited East Texas Motor
Freight System, Inc. v. Rodriguez, 481 U.S. 395 (1977),
in which named plaintiffs who were not qualified as over-
the-road drivers could not represent a class of qualified
drivers who complained of discrimination. Because the
named plaintiffs “could have suffered no injury as a
result of the alleged discriminatory practices, . . . they
were, therefore, simply not eligible to represent a class
of persons who did allegedly suffer injury.” 431 U.S. at
403-04.
Scott v. University of Delaware, 601 F.2d 76 (3d Cir. —
1979), presented a similar problem. There, a former
faculty member whose contract was not renewed alleged
that he was a victim of racial discrimination and sued
under sections 1981 and 1983 as well as Title VII. He
sought to represent a subclass of applicants seeking in-
itial faculty appointments who were also allegedly vic-
timized by racial considerations. The district court en-
tered judgment on the merits for the defendant on both
the individual and class claims.
We determined that the plaintiff could not represent a
class contesting the university’s hiring procedures.
Clearly, he had suffered no harm from discrimination in
hiring practices since he had initially obtained a posi-
tion. In that situation, absent class members might be
harmed by the preclusive effect of the district court’s
judgment. Therefore, we concluded that the court had
a duty to “consider carefully the requirement of fair and
adequate protection” to the absent class members, despite
the lack of a cross appeal of the class certification ruling
by the defendant. Scott, 601 F.2d at 83.°
As is clear from Scott, assessment of the adequacy of
representation initially must focus on any potential con-
flicts of interest between the named individuals and the
5 The defendant in Scott did challenge the propriety of the class
certification in both the district court and on appeal.
19a
class. On this record, we find no divergence that would
impair the incentive of the named plaintiffs in vigorously
prosecuting all aspects of the claims that are otherwise
found to be adequately represented. Scott v. University
of Delaware, 601 F.2d at 85. See Rutherglen, Notice,
Scope, and Preclusion in Title VII Class Actions, 69 Va.
L. Rev. 11 (1983).* The defendants have raised addi-
tional allegations of error in class certification, however,
which must also be addressed.
The class representatives alleged a variety of instances
of discrimination by the company and the unions in vari-
ous employment practices, covering most of the claims
presented by the class. Included were promotion (Middle-
ton, Winfield, Jones), incentive pay (Meeks), discharge
(Goodman, Hicks, Dantzler), harassment (Meeks), in-
adequate union representation (Middleton, Dantzler,
Meeks), testing (Meeks), seniority system (Meeks), dis-
cipline (Dantzler), and manning of the new Strand-Cast
facility (Middleton).
Defendants contend that in a number of areas the class
representatives’ specific allegations are distinct from
those of the class as a whole. For example, none of the
named plaintiffs were discharged during the probationary
period. Nonetheless, some do allege that racial bias re-
sulted in their discharge. Even though the alleged dis-
crimination occurred after their probationary period had
passed, we conclude that the typicality of their claims
makes them adequate representatives under Rule 23.
The defendants’ contentions are not completely without
merit however. Even under an expansive view of repre-
sentation, discrete areas of alleged bias exist in which the
¢ The fact that some of the named plaintiffs did not prevail on
their individual claims does not make them inadequate class repre-
sentatives. See East Texas Motor Freight v. Rodriguez, 431 U.S.
at 406 n.12 (1977); International Woodworkers of America v.
Chesapeake Bay Plywood Corp., 659 F.2d 1259 (4th Cir. 1981).
20a
record does not demonstrate the required commonality and
typicality of the class complaints with those of the in-
dividual representatives. A footnote in Falcon suggests
that “[s]ignificant proof that an employer operated under
a general policy of discrimination conceivably could jus-
tify” a broad class if the bias manifested itself “in the
same general fashion, such as through entirely subjective
decisionmaking processes.” 457 U.S. at 159 n.15. We do
not regard the case at hand as meeting those require-
ments. The findings of the district court, which rejected
some of the plaintiffs’ claims, belie the existence of a
“general policy” of discrimination and plaintiffs did not
produce “significant proof” of such a scheme.
The district court found discrimination in the initial
assignment of Lukens’ newly-hired employees. To be ac-
tionable, the discriminatory practice must exist during
the applicable limitations period. All of the named plain-
tiffs, however, were originally hired outside the limita-
tions period, and therefore, none have a viable complaint
about discrimination in initial assignment. Thus, no rep-
resentative adequately represents the class in this partic-
ular claim. See Hill v. AT&T Technologies, Inc., 731 F.2d
175 (4th Cir. 1984)."
Because in this instance a qualified class representatives
is lacking, the findings applicable to it must be vacated.
Economical use of judicial resources, however, requires
that some thought be given to whether the work of dis-
trict court and counsel with respect to this claim may yet
be salvaged.
B.
We begin by acknowledging the realities of class suits,
a sometimes neglected approach in this field. In a mas-
7 Nor do we find appropriate class representatives for one claim
resolved in defendants’ favor—that in which discrimination in the
awards for suggestions made to the company was alleged. That
point has not been raised by defendants or plaintiffs, and we leave
it for further exploration, if desired, in the district court.
2la
sive class action such as the one at hand, it is counsel
for the class who has the laboring oar. The class repre-
sentatives furnish the factual basis to invoke the juris-
diction of the court and provide the outline of the con-
troversy, but the lawyers shape the claims for adjudica-
tion by the compliation of factual and expert testimony
and the presentation of statistical and documentary evi-
dence.
That work was performed in this case by thoroughly
competent counsel as to the claims in which the court
found for plaintiffs as well as those where it ruled for
defendants. We do not prejudge the issue but merely
note the distinct possibility that the evidence presented
would not have varied one iota had a qualified representa-
tive for each claim been present from the inception of
the suit. If that possibility is indeed the fact, then an-
other suit filed on such a claim by a newly qualified class
representative would produce a trial that would simply
repeat the previous one. That result would vield no dis-
cernable benefit to anyone but would generate substan-
tial loss in time for court, counsel, and parties.*®
To obviate such unnecessary duplication, on remand
the district court should explore the possibility of inter-
vention by qualified class representatives, followed by a
proceeding to determine if the findings previously
reached may be reinstated. That solution was suggested
by the Court of Appeals for the Fourth Circuit in Hill
v. Western Elec. Co., Inc., 672 F.2d 381 (4th Cir. 1982).
See Note, Reinstating Vacated Findings in Employment
Discrimination Class Actions: Reconciling General Tele-
phone Co. v. Falcon with Hill v. Western Electric Co.,
1983 Duke L.J. 821.
8 Such a suit would be timely since the commencement of the
class action tolled the statute of limitations as to members of
the class. See Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S.
845 (1983); Edwards v. Boeing Vertol Co., 717 F.2d 761 (3d Cir.
1983).
22a
Intervention is still permissible even at this stage, see
United Airlines, Inc. v. McDonald, 432 U.S. 385 (1977),
and a class action determination in some instances may
be made even after appeal. McLaughlin v. Wohlgemuth,
535 F.2d 251, 252 n.2 (3d Cir. 1976).
As the Hill court observed, practical fairness should
guide the district court in evaluating the propriety of
intervention. For example, a witness who testified about
a particular practice and who otherwise meets the neces-
sary test may be a likely representative. See Lilly v.
Harris-Teeter Supermarket, 720 F.2d 326 (4th Cir.
1983). If, however, no proper class representative is
available, then that claim must be dismissed as to the
class. See Scott v. City of Anniston, Alabama, 682 F.2d
1353 (11th Cir. 1982); Carpenter v. Stephen F. Austin
State University, 706 F.2d 608 (5th Cir. 1983). Cf.
Vuyanich v. Republic Nat'l Bank of Dallas, 723 F.2d
1195 (5th Cir. 1984). .
Assuming that a proper class representative is ap-
pointed, the next step would be to determine whether
the findings from the origina] trial may be reinstated.
In reaching a decision on this question, the district court
must consider whether either side will be prejudiced.
This will require determination of whether those findings
would have been different had the new class representa-
tive been on board at that time. An intervenor or new
class representative seeking to salvage the original find-
ings has the burden of proving that the prior defect in
class representation did not affect those determinations.
In the event of such proof, the previous findings may be
reinstated.
On remand, the district court has the benefit of hind-
sight. As the court of appeals said in the Hill case, “[t]o
the extent inadequacy is based solely upon lack of suffi-
cient identity of interest, any presumed adverse effect on
the merits stemming from this may in fact be utterly
belied by the outcome.” 672 F.2d at 389. See also Scott
23a
v. University of Delaware, 601 F.2d at 87 n.22. If the
results of the original trial were favorable to the class,
then there may be no reason to assume that reinstate-
ment would be prejudicial to the class.
The district court also has the responsibility of deter-
mining whether it would be unfair to defendants to re-
instate the findings. That the net effect is to revive an
adverse result is not in itself a sufficient showing of prej-
udice. Rather, the court should consider whether the de-
fendants’ preparation and tactics would have been differ-
ent had other class representatives been in place at the
earlier trial. In other words, the question is would de-
fendants have conducted the litigation differently in some
material way absent the defect in representation in the
prior proceeding. See Dickerson v. United States Steel
Corp., 582 F.2d 827 (3d Cir. 1978). Cf. Mullaney v.
Anderson, 342 U.S. 415, 417 (1952) (Joinder of new par-
ties permissible where their earlier presence would not
“have in any way affected the course of the litigation”).
We do not limit the district court in its inquiry but
only point to a few of the considerations that should be
examined.
C.
Plaintiffs contend that the United Political Action Com-
mittee—an unincorporated association composed predomi-
nantly of black citizens in the vicinity of the Lukens
plant, some of whom are employed by the company—
should be permitted to act as a class representative. The
record in this case does not contain adequate factual ma-
terial to justify the committee’s capacity to act as a
class representative. See General Telephone Co. of the
Southwest v. Falcon.
Accordingly, we conclude that on this record no named
plaintiff could adequately represent the class in the claim
of racial discrimination in initial work assignments. On
remand, the district court may consider the intervention
24a
and appointment of appropriate class representatives as
well as possible reinstatement of the original findings.
Il.
CLAIMS AGAINST THE UNIONS
The district court concluded that the evidence did not
support the plaintiffs’ claims about racial discrimination
in the general handling of grievances by the unions, in
cluding references to arbitration. The delay in processing
grievances and the decision to abandon those of a less se-
rious nature were, in the court’s view, practices legiti-
mately complained of by both black and white workers.
However, the court did find that the unions discriminated
against the plaintiff class in violation of both § 1981 and
Title VII.
Collective bargaining agreements beginning in 1965 had
prohibited the company from discriminating against any
employee, probationary or permanent, on racial grounds.
Nevertheless, although they knew that blacks were being
discharged at a disproportionate rate during the proba-
tionary period, the locals failed to file grievances chal-
lenging that practice, pursuant to a union policy of not
grieving complaints of probationary employees.°®
The unions were reluctant to assert racial bias as a
basis for a grievance even when they believed that ele-
ment was implicated. The court found this policy to per-
petuate the discriminatory environment and “render the
non-discrimination clause in the collective bargaining
agreement a dead letter.” 580 F. Supp. at 1160.
The unions argued before the district court that simple
inactivity could not make them liable under Title VII or
§ 1981. The district court rejected that contention, but
went on to hold that “the evidence in this case proves far
* We reject the unions’ contention that the district court’s find-
ings were clearly erroneous as to this matter.
25a
more than mere passivity on the part of the unions.” The
court further commented that “[a] union which inten-
tionally avoids asserting discrimination claims, either so
as not to antagonize the employer and thus improve its
chances of success on other issues, or in deference to the
perceived desires of its white membership, is liable under
both Title [VII] and § 1981 regardless of” its leader-
ship’s favorable disposition towards blacks. Id. at 1160.
On appeal, the unions repeat their argument that mere
passivity should not subject them to liability because such
inaction is not within the scope of § 703(c) of Title VII
addressing union responsibility. That section of the Act
provides in pertinent part that it is an unlawful employ-
ment practice for a union:
“(1) to exclude or to expel from its membership, or
otherwise to discriminate against, any individ-
ual because of his race, color, religion, sex, or
national origin;
(3) to cause or attempt to cause an employer
to discriminate against an individual in viola-
tion of this section.”
42 U.S.C. § 2000e-2(c).
The union argues that passivity does not “cause” the
employer to discriminate and faults Macklin v. Spector
Freight Systems, Inc., 478 F.2d 979 (D.C. Cir. 1973),
for holding a union liable without any reference to the
text of the statute. Although the Macklin case has been
criticized, see Larson, Employment Discrimination,
§ 44.50, other cases have echoed its premise that there
is an affirmative duty on the part of the unions to combat
discrimination in the workplace. See, e.g., Bonilla v.
Oakland Scavenger Co., 697 F.2d 1297 (9th Cir. 1982) ;
Farmer v. ARA Services, Inc., 660 F.2d 1096 (6th Cir.
1981); Romero v. Union Pacific R.R., 615 F.2d 1303
26a
(10th Cir. 1980); Donnell v. General Motors Corp., 576
F.2d 1292 (8th Cir. 1978) ; Carey v. Greyhound Bus Co.,
Inc., 500 F.2d 1872 (5th Cir. 1974).
In McDonald v. Santa Fe Trail Transp. Co., 427 U.S.
273 (1976), the plaintiffs contended that disproportion-
ate discipline had been imposed on them because of their
race. They alleged that the union “had acquiesced and/or
joined in” the employer’s discrimination. The Court did
not accept the union’s defense that in representing a
number of employees it is sometimes necessary to com-
promise the grievance of one.
“We reject the argument. The same reasons which
prohibit an employer from discriminating on the
basis of race among the culpable employees apply
equally to the union; and whatever factors the mech-
anisms of compromise may legitimately take into ac-
couut in mitigating discipline of some employees,
under Title VII race may not be among them.”
427 U.S. at 2865.
The case against the unions here is stronger than one
of mere acquiescence. The district court found that the
unions intentionally avoided asserting claims of discrim-
ination. In so doing, the unions violated the duty of fair
representation owed to their members. See Vaca v. Sipes,
386 U.S. 171 (1967); Steele v. Louisville & Nashville
R.R. Co., 8323 U.S. 192 (1944); see also, Note, Union
Liability for Employer Discrimination, 93 Harv. L. Rev.
702 (1980).
By shirking their responsibility for presenting griev-
ances based on discrimination, the unions also violated
the duty to enforce the collective bargaining agreement.
See Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81
(3d Cir. 1982). The deliberate choice not to process
grievances also violated § 703(c)(1) of Title VII be-
cause it discriminated against the victims who were en-
titled to representation. The district court’s finding of
27a
intentional discrimination properly supports the claims
under § 1981 as well. We therefore find no error in the
district court’s assessment.of liability against the unions.
IV.
STATUTE OF LIMITATIONS AS TO THE TITLE VII
CLAIMS AGAINST THE UNIONS
Plaintiff Hicks filed charges against Lukens before
the Pennsylvania Human Rights Commission on De-
cember 2, 1971. The unions were not named in that com-
plaint. On January 28, 1972, however, Hicks along with
named plaintiffs Goodman, Meeks, and Middleton filed
broad charges of discrimination against Lukens, the In-
ternational Union, and Local 1165 with the EEOC. The
Commission deferred these charges to the Pennsylvania
Human Relations Commission on February 16, 1972, and
filed them on May 7, 1972. Local 2295 was first named
in an amended charge filed by plaintiff Meeks on June
13, 1972.
Because the statute allows the state agency sixty days
to dispose of a claim, 42 U.S.C. § 2000e-5(c), the earliest
that Hicks’ original charge could be considered filed with
the EEOC was January 31, 1972. Based on that date,
the district court found that the limitation period for
Title VII claims against tix unions began on April 6,
1971. That determination is correct only if the initial
filing in the state Commission against Lukens is con-
strued to include claims against the unions as well.
In Ostapowicz v. Johnson Bronze Co., 541 F.2d 394
(3d Cir. 1976), we held that the scope of a Title VII
action is defined by the limits of the EEOC investigation
which can reasonably be expected to grow out of the
charge of discrimination. That case, however, involved
only one defendant, and we did not hold that the scope
of the investigation could include unnamed parties.
28a
Glus v. G. C. Murphy Co., 629 F.2d 248 (8d Cir.
1980), held that charges against an unnamed interna-
tional union could be adjudicated because the original
complaint before the EEOC had named a local union
whose interests were the same and the international had
received notice. Neither of those two conditions apply
here. The charge filed by Hicks was not against a union,
but against the employer. We do not find the common-
ality of interest and actual notice which would make
Glus applicable. Therefore, no charges were cognizable
against the unions until the January 28, 1972 filing with
the EEOC.
In Mohasco Corp. v. Silver, 447 U.S. 807, 814 n.16
(1980), the Court held that “a complainant in a deferral
State [as is Pennsylvania] . . . need only file his charge
within 240 days of the alleged discriminatory employ-
ment practice in order to insure that his federal rights
will be preserved.” Plaintiffs ask that they be given the
benefit of this 240 day rule. That would produce a limi-
tations period commencing June 2,*1971, somewhat longer
than that advocated by the unions. Although we can
foresee another case in which a plaintiff :night be en-
titled to a longer period, in light of the plaintiffs’ con-
cession here, we conclude that the June 2 starting date
is appropriate.
We do not find a different limitation period applicable
to Local 2295. The identity of interest and notice provi-
sions of Glus are applicable in this situation; therefore,
Local 2295 will be governed by the same effective limita-
tions date, June 2, 1971.
The correction of the limitations date for Title VII
claims against the unions will not affect the injunctive
relief directed by the district court. It might, however,
make a difference in the assessment of damages, and ac-
cordingly we feel obligated to make a ruling on the
point.
29a
V.
INCENTIVE PAY FOR THE PIT CREWS
The district court found that the company’s policy
of denying incentive pay to workers in the open hearth
pits while making it available to other workers amounted
to discrimination. The open hearth pit crews were pre-
dominantly black. Their assignment was to prepare
molds to receive molten metal, pour the metal, and re-
move the molds after the metal had hardened. At a
higher physical elevation in the plant, workers on the
melting “floor” placed the raw materials into the fur-
naces for melting and supervised that process. These pre-
dominantly white crews received incentive pay, as did
other workers in the Lukens facility.
The court reasoned that “[gliven the fact that the
company paid incentive bonuses to the ‘floor’ personnel,
. . . [its] refusal to accord the same benefit to the pit
personnel had no legitimate justification. I find that this
was a clear instance of racial discrimination.” 589 F.
Supp. at 1138.
In reviewing factual findings made by a district court,
we apply the clearly erroneous standard set out in Fed.
R. Civ. P. 52(a). As the Supreme Court stated in An-
derson v. City of Bessemer City, 53 U.S.L.W. 4314
(March 19, 1985), this standard is used “even when the
district court’s findings do not rest on credibility deter-
minations, but are based instead on physical or docu-
mentary evidence or inferences from other facts.” Id.
at 4317. The Rule clearly requires deference to the find-
ings of the trial judge, but it does not relieve the court
of appeals from its responsibility to correct findings of
fact when it is left “with a definite and firm conviction
that a mistake has been committed.” United States v.
United States Gypsum Co., 333 U.S. 364, 395 (1948).
As an appellate court, we have an advantage over the
trial judge in that the parties have had ample oppor-
30a
tunity after trial to review the record in detail and
point out specific references to support their position.
Moreover, sthe attention of the litigants is restricted to a
narrow area in which they hope the challenge may be
successful. That process differs from the broad gauge
approach which is followed in the district court, where
the requests for findings are being compiled in the first
instance from voluminous testimony and exhibits and
without any indication of the trial] court’s ultimate rul-
ings. This is particularly true in a case as massive as
this one.
After a painstaking review of every record reference
to which the parties have cited us, we have come to the
conclusion that in this instance, a mistake was made.
It is undisputed that the incentive pay issue was one
long standing which began before the limitations period.
Both testimony and documents disclose that the union
on a number of occasions had asked the company to
grant incentive pay to the pit crew. The employer’s re-
sponse was consistent—it would include the pit crew in
the incentive plan only if the company was given the
opportunity to reduce the size of the crew. On each
occasion, and there were Several, when the employer sub-
mitted this proposition to the members of the pit crew,
they rejected it. Not only did the pit crew turn down
the company’s proposal, but the crane crews in the pit—
another seniority subdivision—did SO as well.
One union official who discussed the company’s proposal
with the workers recalled that about equal numbers of
black and white workers were present at a meeting to
vote on the proposal. Although plaintiffs Suggest that
other groups receiving incentive pay also had agreements
on crew size, testimony reveals that these arrangements
were not comparable to those with the pit and crane crews.
Another union witness described the particularly close
relationship among the workers in the pit crew. The men
a
8la
consistently presented a united front to the company and
were most solicitous of each member’s safety and well
being. When one reads the testimony against this back-
ground, it is understandable why the pit crew would not
sacrifice the jobs of its members in exchange for higher
pay for those who would retain their positions.
The evidence is equally clear why the employer insisted
on the trade-off. Company officials testified that the pit
crews were overmanned and that the facilities of the
plant were limited. Any increase in efficiency had to come
from a reduction in crew size. In these circumstances,
incentive pay would not be economically advantageous to
the company because the capacity of the facility had al-
ready been reached and increased efficiency by the already
overabundant manpower could not result in greater pro-
duction.
The testimony does not support any inference that de-
nial of incentive pay was racially inspired. The company’s
position on a trade-off was consistently maintained and
was unrelated to race. That conclusion finds reinforce-
ment in the company’s experience with the die shop work-
ers. Early collective bargaining agreements showed that
both the pit crew and die shop group were not included
in the incentive pay plan. However, when the die shop
employees agreed that the company would be under no
restriction as to crew size, they did receive incentive pay.
The record citations to which plaintiffs have referred
us do not furnish any basis for concluding that the com-
pany’s reason for denying incentive pay was pretextual.
Indeed, the weakness on this point in the otherwise
vigorous and well-documented plaintiffs’ brief is eloquent
in itself.
After our review, we conclude that the finding on in-
centive pay to the pit crews is clearly erroneous, and on
this claim, the judgment of the district court must be
reversed.
32a
VI.
LUKENS OTHER CONTENTIONS
In addition to the matters which have been discussed
above, Lukens has raised other claims of error. It con-
tends that the trial judge erred by impermissibly shift-
ing the burden of proof to the defendant. We find no
merit to this argument. In the introduction to his opin-
ion, the trial judge reviewed the leading cases of Texas
Dept. of Community Affairs v. Burdine, 450 US. 248
(1981), and McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). He stated clearly that the burden of proof
was on plaintiffs. We are not persuaded that the casual
references in the opinion to which Luken points should be
interpreted as contradicting the earlier unambiguous
allocation of the burden of proof.
The court’s opinion similarly displayed a thorough un-
derstanding of the difference between disparate impact
and disparate treatment cases and of the relevant evi-
dence under each theory. The defendant takes exception
to the district judge’s comment that
“One must be careful not to over-categorize in this
context. The analytical distinctions . . . are of only
limited utility. The ultimate questions to be an-
swered are essentially the same in all employment
discrimination cases: Has the defendant caused a
given employee or group of employees to be discrimi-
nated against? . . . Is the action or conduct com-
plained of justifiable .. .?”
580 F. Supp. at 1121.
We find no fault with these observations. In Dillon v.
Coles, 746 F.2d 998 (3d Cir. 1984), we similarly com-
mented on excessive preoccupation with the various
formulae used in an employment discrimination case and
observed that they are simply tools designed to aid in
the analysis of evidence. The ultimate question remains
83a
whether the defendant has discriminated. The presump-
tions and shifting burdens are merely an aid—not ends
in themselves. When direct evidence is available, prob-
lems of proof are no different than in other civil cases.
See Trans World Airlines, Inc. v. Thurston, —— US.
——, 105 S.Ct. 613, 622 (1985); United States Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983) ;
Furnco Constr. Corp. v. Waters, 488 U.S. 567, 577
(1978). If judges lose sight of the ultimate question, the
analysis intended to aid in the process will instead have
become a hinderance.
Lukens also argues that the district court misapplied
evidence by failing to recognize that a statistical varia-
tion in itself does not establish discrimination unless the
record also shows the requisite availability of positions
and the qualification of the claimants. We do not so read
the district court’s opinion. In considering the statistical
data presented as part of the plaintiffs’ case, the court
demonstrated its recognition of the limits of such evidence
and the caution with which it must be viewed. The court
noted that to prevail the class was required to prove that
“disparate treatment exists and is the defendant’s regular
and standard operating procedure.” 580 F. Supp. at 1120.
In another part of the opinion, the court made clear that
it had considered Lukens’ “attempts to show that [the
plaintiffs’] comparisons are faulty because of factual
dissimilarities.” Id.
We repeat once again that the clearly erroneous rule
applies to our review of factual findings, including those
based in part on statistical data. Statistical proof in Title
VII cases must be evaluated in light of the “surrounding
facts and circumstances.” International Bhd. of Team-
sters v. United States, 431 U.S. 324, 340 (1977). In
Dothard v. Rawlinson, 433 U.S. 321, 338 (1977), Justice
Rehnquist in his concurring opinion wrote, “[i]t is for
the District Court, in the first instance, to determine
34a
whether these statistics appear sufficiently probative of
the ultimate fact in issue. . . . In making this determina-
tion, such statistics are to be considered in light of all
other relevant facts and circumstances.” See also Holsey
v. Armour & Co., 743 F.2d 199, 215 (4th Cir. 1984).
We have reviewed Lukens’ remaining contentions using
this standard. We cannot say that the findings made by
the district court are clearly erroneous, nor do we find
error in the legal guidelines used by the court in reaching
these remaining findings. Therefore, the judgment of the
district court with respect to the instances of discrimi-
nation not previously discussed will be affirmed.
VIL.
SUMMARY
1. The district court’s findings that Lukens discrimi-
nated in transfers to salary positions and toleration of
racial harassment will be vacated and the matters re-
manded for further consideration in light of our ruling
on the appropriate statute of limitations for the § 1981
claims. -
2. The district court’s finding in favor of the class
with respect to initial assignments will be vacated and
remanded for reconsideration in light of our ruling on
class representation.
3. The-limitations period pertaining to the Title VII
claims against the unions shall be adjusted in accordance
with the views expressed above.
4. The finding of discrimination in the denial of in-
centive pay for the pit crews is reversed and judgment
shall be entered for the defendant on that claim.
5. In all other respects, the judgment of the district
court will be affirmed.
85a
GARTH, Circuit Judge, dissenting:
I agree with the majority’s analysis and disposition of
all the issues presented in this appeal except for one. I
respectfully dissent from the majority’s holding that the
statute of limitations for a cause of action under 42
U.S.C. § 1981 is limited in Pennsylvania to two years
rather than the six year period applied by the district
court.
The court today relies on Wilson v. Garcia, 105 S.Ct.
1938 (1985), in which the Supreme Court held that all
claims under § 1983 should be subject to a state’s corre-
sponding personal injury statute of limitations. Although
Wilson does not address § 1981 claims, the court con-
cludes that Wilson’s reasoning compels identical limita-
tions treatment for all reconstruction Civil Rights claims.
This conclusion is inconsistent with history, precedent,
and logic, and in any event is not required by Wilson.
While the majority’s holding may not bar the civil
rights claims asserted in this case, since violations of
$ 1981 may be found to have occurred within the shorter
limitation period, the majority’s discussion and holding
necessarily will have ramifications far beyond the appeal
which we decide today. I therefore write separately to
record my disagreement with the majority’s analysis.
I.
Prior to Wilson v. Garcia, this court applied a case-by-
case analysis in determining which statute of limitations
was most appropriate for a particular civil rights cause
of action. Polite v. Diehl, 507 F.2d 119 (3d Cir. 1974)
(in banc). Under this analysis, we have generally held
that claims under § 1981 are governed in Pennsylvania
by that state’s six-year statute of limitations. See, e.g.,
Davis v. United States Steel Supply, 581 F.2d 335, 341
(3d Cir. 1978), cert. denied, 460 U.S. 1014 (1983) ;
86a
Meyers v. Pennypack Woods Home Ownership Ass’n, 559
F.2d 894, 902-03 (3d Cir. 1977).
In Davis, we held that a § 1981 claim of racial dis-
crimination in employment, the gravamen of which was
interference with economic rights and interests rather
than personal injury, should be governed by Pennsyl-
vania’s six-year limitations period. 42 Pa. Cons. Stat.
Ann. § 5527 (Purdon 1982). Unless it has been overruled
by Wilson, Davis would appear to control the present
case, where the gist of the cause of action is economic
rather than bodily injury caused by interference with
the employment rights of black workers.
Wiison holds that “the federal interests in uniformity,
certainty, and the minimization of unnecessary litigation”
requires that all § 1983 claims be governed by the state
statute of limitations in a given state: that state’s per-
sonal injury statute. 105 S.Ct. at 1947. Because Wilson
looks to § 1988 for its authority to apply state limitations
periods in civil rights actions, and § 1988 by its terms
covers all of the Reconstruction sections, the majority
today concludes that Wilson mandates that all civil rights
actions be governed by a state’s personal injury limita-
tion period. This conclusion is at best an arguable ex-
tension of Wilson’s analysis; it is by no means the holding
of Wilson or an inexorable outgrowth of the case. In the
absence of a square holding which overrules Third Circuit
precedent, however, we remain bound by Davis to apply
the six-year limitation period. It is not enough if Wilson
merely undermines or raises questions a out our prior
analysis. Until the Supreme Court actually decides the
limitation period for a § 1981 claim, or unless Wilson
would admit of no other reasonable reading, only an in
bane decision of this court can overrule Davis. See Third
Cireuit Internal Operating Procedures VIII C2
* Compare Rubin v. Buckman, 727 F.2d 71, 73-74 (3d Cir. 1984)
(Garth, J., concurring) (in banc hearing not necessary to overrule
prior panel when earlier case violated “consistent and explicit” rule
and was “obviously in conflict with Supreme Court precedent.” ).
87a
A close reading of Wilson reveals that the majority’s
view is neither an inevitable nor even the most plausible
reading of the case. Wilson’s holding that all § 1983
claims should be decided in a given state under the same
statute of limitations follows from the Supreme Court’s
view that § 1983 claims are best analogized to state tort
actions for personal injuries. Jd. at 1947. Having made
this analogy as a matter of federal law, the Court adopted
New Mexico’s three-year personal injury statute of limita-
tions out of deference to the state’s judgment regarding
“the proper balance between policies of repose and the
substantive policies of enforcement embodied in the state
cause of action.” Jd. at 1945.
Nothing in Wilson addresses § 1981, which has a ‘iif-
ferent history and purpose. See Section II infra. If
Wilson has any effect on this case, therefore, it is merely
to suggest that a single, uniform statute of limitations
should be applied in each state to all cases under § 1981
instead of the case-by-case approach of Polite. Whether
that would be the two-year personal injury period now
applied in Pennsylvania for § 1983 claims, Smith v. City
of Pittsburgh, 764 F.2d 188 (8d Cir. 1985), or some
other limitation period dictated by the nature of § 1981,
is a question beyond the scope of Wilson. Even if Wilson
does require us to select a Single statute of limitations for
all § 1981 claims, it does not necessarily erase the dis-
tinctions between § 1981 and § 1983 recognized in Davis
and Meyer.* These cases would therefore weigh heavily
toward our selection of six years as the most appropriate
uniform period of limitations for § 1981 claims. In short,
? While Smith v. City of Pittsburgh, 764 F.2d 188 (3d Cir. 1985),
discusses Davis v. United States Steel Supply, 581 F.2d 335 (3d
Cir. 1978), cert. denied, 460 U.S. 1014 (19838), in following Wilson
v. Garcia, 105 S. Ct. 1988 (1985), Smith was a $1983 case. The
Smith court erroneously cited Davis as a § 1983 case decided under
the discredited case-by-case approach of Polite, 1764 F.2d at 193.
In fact, Davis was a § 1981 case, and as such, is not controlled
either by Smith or Wilson.
38a
not only does Wilson not require today’s result, but it
can plausibly be read as support for a uniform six-year
statute of limitations for § 1981 claims in Pennsylvania.
II.
An examination of the history, purpose, and applica-
tion of § 1981 in contrast to the history, purpose and
application of § 1988, supports the conclusion that Penn-
sylvania’s six-year statute of limitations for contract and
trespass actions is the most appropriate one to apply to
the § 1981 claim before us. While it is true, as the
majority notes, that both § 1981 and § 1983 are concerned
broadly with protecting the equal legal status of every
person before the law, and that there is substantial over-
lap in the cases that may properly be brought under the
two sections, there are still] significant differences be-
tween the two. In short, § 1983 was conceived, and has
been generally applied, as a personal injury statute. Sec-
tion 1981, however, is more fundamentally concerned with
injury to the contractual or economic rights of minorities,
and as such should appropriately be governed by the
longer contract statute of limitations.
A.
42 U.S.C. § 1981 was originally enacted as section
one of the Civil Rights Act of 1866, was re-enacted as
Section 16 of the 1870 Act, and was later included in
the 1874 recodification. Runyon v. McCrary, 427 U.S.
160, 169 n.8 (1976). In its present form it provides:
$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 ben-
efit of all laws and proceedings for the security of
persons and property as is enjoyed by white citizens,
89a
and shall be subject to like punishment, pains, penal-
ties, taxes, licenses, and exactions of every kind, and
to no other.
While the “full and equal benefit” and “penalties”
clauses give § 1981 broad applicability beyond the mere
right to contract. Mahone v. Waddle, 564 F.2d 1018,
1028 (3d Cir. 1977), cert. denied sub. nom., City of
Pittsburgh v. Mahone, 488 U.S. 904 ( 1978), speeches
and testimony at the time of § 1981’s enactment, demon-
strate the predominantly economic focus of Section 1 of
the 1866 Act.
Concerned with removing the badges and incidents of
slavery, the legislators of 1866 believed that if economic
freedom was protected, social freedom and equality would
follow. Senator Trumbull, who introduced the 1866 Act,
specified certain “great fundamental rights” denied to
freedmen by former slave states:
the right to acquire property, the right to come and
go at pleasure, the right to enforce rights in the
courts, to make contracts, and to inherit and dis-
pose of property.
Cong. Globe, 39th Cong., 1st Sess. 475 (1866), quoted
in Jones v. Alfred E. Mayer Co., 392 US. 409, 432
(1968).
The bills’ supporters believed that freedom would be
valueless to men not assured an equal opportunity to
bargain for their labors. Illustrative of this economic
concern are the words of Rep. Lawrence of Ohio de-
livered in a detailed speech to the House:
It is idle to say a citizen shall have the right to
life, yet deny him the right to labor, whereby he
alone can live. It is a mockery to Say a citizen may
have a right to live, and yet deny him the right to
make a contract to secure the privilege and the re-
wards of labor.
40a
Every citizen, therefore, has the absolute right to
life, the right to personal security, personal liberty,
and the right to acquire and enjoy property. These
are rights of citizenship. As necessary incidents of
these absolute rights, there are others, as the right
to make and enforce contracts, to purchase, hold, and
enjoy property, and to share the benefit of laws for
the security of person and property.
Cong. Globe, 39th Cong., 1st Sess. 1832.
On March 2, Rep. Windom of Minnesota stated his un-
derstanding of the scope of the bill:
Its object is to secure to a poor weak class of
laborers the right to make contracts for their labor,
the power to enforce the payment of their wages,
and the means of holding and enjoying the proceeds
of their toil.
Id. at 1159.
In 1865, the President commissioned Brigadier General
Carl Schurz to tour the five most war-ravaged states to
report on conditions there and suggest measures to over-
come post war problems. In Report of C. Schurz, S.
Exec. Doc. No. 2, 39th Cong., Ist Sess. at 21 (1865),
Schurz concluded:
It is, indeed, not probable that a general attempt
will be made to restore slavery in its old form, on
account of the barriers which such an attempt will
find in its way; but there are systems intermediate
between slavery as it formerly existed in the south,
and free labor as it exists in the north, but more
nearly related to the former than to the latter, the
introduction of which will be attempted.
This intermediate state between slavery and free labor
referred to by General Schurz was created in large part
by the Black Codes enacted by Southern states. While
specifying that blacks had the right to buy, sell, own and
4la
bequeath real and personal property, the right to con-
tract, to sue and be sued, and to testify in court, these
rights only related to blacks’ relationship with other
blacks. The Codes authorized unequal punishment for
freedmen’s offenses, restricted travel and residence, and
established an etiquette of deference to whites. In ad-
dition, the Codes severely limited economic rights. Blacks
were forbidden the pursuit of certain occupations. They
were subject to various master-servant statutes, vagrancy
and pauper provisions that incorporated enforced labor,
apprenticeship regulations, and elaborate labor contract
statutes, especially pertaining to farm labor. Hyman &
Wiecek, Equal Justice Under the Law 319-320 (1982).
It was within this historical context that the Act of
1866 and the vetoed Freedmen’s Bureau Amendment
were proposed. The perception of Civil Rights in the
19th century, while encompassing personal safety, was
cast largely in economic terms by the definition of legal
relationships, responsibilities, and remedies. It is evident,
therefore, that § 1981 derived from an Act that was de-
signed to ensure predominantly economic rights for
newly freed blacks.
Moreover, 42 U.S.C. § 1982, which is recognized as a
companion to § 1981, is by its plain language solely
addressed to economic concerns. It reads:
All citizens of the United States shall have the same
right, in every State and Territory, as is enjoyed by
white citizens thereof to inherit, purchase, lease, sell,
hold, and convey real and personal property.
Reading the two sections in conjunction, the 1866 Con-
gress intended to end all discrimination and guarantee
all citizens the opportunity to participate in the free
market economy. Citizens were now free to make and
enforce contracts for personal services and real and
personal property. From their wording and identical
legislative history, the two sections have been construed
42a
similarly. Both § 1981 and § 1982 reach private conduct.
Runyan, 427 U.S. at 170. See Johnson v. Railway Ex-
press, 421 U.S. 454, 460 ( 1975) ; Tillman v. Wheaton-
Haven Recreation Assoc., 410 U.S. 431, 439-440 (1972).
Both § 1981 and § 1982 are directed at the same kind of
discrimination: racial animus. Jones, 392 U.S. at 426.
Both sections share a similar purpose, ensuring pre-
dominantly economic rights, and have been given similar
construction. See Meyers v,. Pennypack Home Owners
Assoc., 559 F.2d 894 (3d Cir. 1979). Therefore, both
sections most appropriately belong under a state statute
of limitations governing economic and contract actions.
B.
Section 1983, in contrast, reveals a very different legis-
lative history, purpose, and application from § 198] and
$ 1982. Section 1983 was enacted by Congress pursuant
to § 5 of the fourteenth amendment in order to enforce
that amendment. Monroe v. Pape, 365 US. 167, 171
(1961).
42 U.S.C. § 1983 in its revised form reads:
Every person who, under color of any statute, or-
dinance, regulation, custom, or usage, of any State
or Territory, subjects, or causes to be subjected, any
citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Con-
stitution and laws, shall be liable to the party in-
jured in an action at law, suit in equity, or other
property proceeding for redress.
Section 1983 was enacted as section 1 of the Civil Rights
Act of 1871. Adicks v, Kress, 398 U.S. 144, 162 (1969).
It arose from and was designed to respond to an entirely
different set of circumstances than those which led to the
original enactment of what became § 1981. As I have
previously observed in discussing § 1981, the 1866 Con-
43a
gress was concerned with granting freedom and equality
through economic guarantees which had long been denied
the now newly freed blacks. It was economic freedom
which enabled a man to be free. The focus was to iden-
tify those rights, previously denied, that would enable a
person to sustain himself and his family once the mecha-
nism of the master-slave society was dismantled. These
concerns stand in sharp contrast to concerns about vio-
lence, physical injury and lawlessness that motivated the
Congress of 1871.
After the passage of the thirteenth amendment and
the 1866 Act, Southern resistance to Reconstruction
mounted. Ku Klux Klan activity and atrocities increased.
White vigilantes were described as having whipped,
robbed, and murdered blacks. On March 8, 1871, Presi-
dent Grant, declaring that anarchy reigned in the South
and that the states were powerless to control widespread
violence, requested emergency legislation. In order to
suppress the Klan and provide civil rights protection
against official inaction and toleration of private lawless-
ness, Congress passed the Ku Klux Klan Act, which be-
came known as the Civil Rights Act of 1871. See Brisco
v. LaHue, 460 U.S. 325, 340 (1983).
In characterizing all § 19838 claims as personal injury
actions for limitations purposes, the Supreme Court
looked to “the historical catalyst for the 1871 Act, the
campaign of violence and deception in the south fomented
by the Ku Klux Klan.” Wilson v. Garcia, 105 S. Ct.
1938, 1947 (1985). “The atrocities that concerned Con-
gress in 1871 plainly sounded in tort... .” Id. at 1948.
In characterizing claims under § 1981, we should follow
the Supreme Court’s analysis and look to the very differ-
ent underlying purpose and _ historical catalyst for the
Act of 1866. |
C.
In addition to their contrasting histories and purposes,
§ 1981 and § 1983 have been applied differently. Section
44a
1983 encompasses a broad range of actions sounding in
tort, including injuries under color of state law to a per-
son or his property and infringements of inciividual liber-
ties. Id. at 1948. Cases under § 1983 “often involve ele-
ments that are similar to state causes of action for per-
sonal injury.” Jones v. United Gas Improvement Corp.,
383 F. Supp. 420, 481 (E.D. Pa. 1974). See also Harris
v. Commonwealth, 419 F. Supp. 10, 14 (M.D. Pa. 1976).
By contrast, the vast majority of cases brought under
§ 1981 arise out of some economic relationship consisting
of more patterned sorts of behavior, frequently involving
documentary proof in the form of employment records.
Dudley v. Textron, Inc., 386 F. Supp. 602, 606 (W.D.
Pa. 1974). Indeed, the plain language of § 1981 sup-
ports the Supreme Court’s own characterization of the
statute: “[Section 1981] on its face relates primarily to
racial discrimination in the making and enforcement of
contracts.” Johnson v. Railway Express, 421 U.S. 454,
459 (1975).
In addition, a review of the elements of causes of ac-
tion brought under § 1981 and § 1983 further suggests
that the two acts should be construed separately. Seec-
tion 1983 requires, by its language and purpose, state
action, while § 1981 can extend to acts of private dis-
crimination. Mahone v. Waddle, 564 F.2d at 1031;
Jones v. Mayer Co., 392 U.S. at 4387 ; Johnson v. Railway
need not be an element in a $1983 cause of action, nor
is there a requirement of intentional conduct or any
other particular state of mind as a prerequisite to re-
covery. Parrat v. Taylor, 451 U.S. 527, 534-585 (1980).
45a
ITI.
The majority concludes that unless claims under § 1981
are governed by the same statute of limitations as those
under § 1983, the federal interest in uniformity and cer-
tainty in litigation as expressed in Wilson v. Garcia, 105
S. Ct. 1938 (1985), will be frustrated. The majority
further concludes that, since the same facts could in
some cases suppdrt a claim under either § 1981 or § 1983,
applying different statutes of limitation would lead to a
“bizarre result.” Typescript at 12. While admittedly an
overlap of 1981 and 1988 causes of action exists, that
is no reason to ignore the significant differences in his-
tory, purpose, and application between the two causes
of action outlined above. But just as some similarities
between § 1981 and § 1983 may be recognized, so too are
there differences in dimension between these two actions.
These differences reflect traditional distinctions between
tort and contract law which have legitimate, practical
purposes under both state law and the federal Civil
Rights statutes. In that context, I suggest that the ma-
jority’s concerns about uniformity are misplaced and
given greater weight than that to which they are en-
titled. Therefore, in addition to precedent and history,
logic militates against today’s holding.
The majority bases its uniformity argument largely
on 42 U.S.C. § 1988, which provides that state law is to
be consulted in setting the period of limitation for all
civil rights claims. Wilson, 105 S. Ct. at 1943. Finding
it “most significant” that § 1988 applies to both § 1981
and § 1983, typescript at 10, the majority concludes that
the federal interest in uniformity in the enforcement of
the civil rights statutes requires a common period of
iimitation.
Nothing in § 1988, however, requires that result. The
statute only mandates that in cases where the laws of
the United States “are not adapted to the object” of
enforcing civil rights,
46a
the common law, as modified and changed by the
constitution and statutes of the State wherein the
court having jurisdiction of such civil or criminal
cause is held, so far as the same is not inconsistent
with the Constitution and laws of the United States,
shall be extended to and govern the said courts in the
trial and disposition of the cause... .
If anything, this language supports a measure of def-
erence to state law distinctions between tort and con-
tract actions, so long as these distinctions are reflected
in differences between and among the civil rights sections,
and are therefore consistent with Federal law.
In fact, these tort-contract distinctions are real and
substantial. First of all, as this court noted in Meyers
v. Pennypack Home Owners Assoc., 559 F.2d 894, 903
(3d Cir. 1979) :
“(T]he passage of time is less likely to impede the
proof of facts” in a section 1981 and section 1982
action than in a state law physical injury action or
a federal action under 42 U.S.C. $ 1983, for ex-
ample, and a longer statute of limitations may be
appropriate.
(quoting Dudley v. Textron, Inc., 386 F. Supp. 602 (E.D.
Pa. 1979) ).
Second, a longer statute of limitation for § 1981 claims
relating to economic discrimination might actually reduce
federal litigation, as a plaintiff before proceeding in fed-
eral court could afford to wait until the disposition of
an administrative action—for example, an action brought
under the Fair Housing Act or Title VII—which would
be more likely to overlap with a § 1981 action than with
a § 1983 action.
That state legislatures have good reasons for distin-
guishing between contract and personal injury actions
was noted by Justice O’Connor:
cians
47a
[T]he legislative judgment to which this Court
has traditionally deferred is not some purely arbi-
trary imposition of-a conveniently uniform time
limit. For example, a legislature’s selection of dif-
fering limitations periods for a claim sounding in
defamation and one based on a written contract is
grounded in its evaluation of the characteristics of
those claims relevant to the realistic life-expectancy
of the evidence and the adversary’s reasonable ex-
pectations of repose.
Wilson, 105 S. Ct. at 1950 (O’Connor, J., dissenting) .
Similarly, there is good reason for treating § 1981
claims, which focus on economic discrimination often in-
volving contracts and longer periods of patterned be-
havior, differently from § 1983 claims, which, by and
large, more closely resemble torts for personal injury
which result from discrete and more sharply identified
events. The federal interest in uniformity and predict-
ability is adequately served by treating alike all claims
under a given section; it does not require that all claims
under separate and distinct statutes be treated iden-
tically.
Furthermore, the majority’s sought-after “uniformity”
is illusory. Even among § 1983 claims, Wilson does not
require identical treatment throughout the country, since
different states may have different personal injury limi-
tations periods. In fact, in Wilson, a three-year period
was applied, rather than the two year period adopted
by today’s decision. 105 S. Ct. at 1949, or the one year
period found appropriated for Mississippi by the Fifth
Circuit in Gates v. Spinks, No. 84-4605, slip op. at 7018
(5th Cir. September 26, 1985). Thus, Wilson defers to
state judgment on the appropriate balance of interests in
setting the limitation period, even though it results in
different periods being applied in § 1983 cases in New
Mexico, Pennsylvania, Mississippi, and elsewhere through-
out these United States. There is no reason not to defer
48a
similarly to state judgments that actions sounding in
contract should be governed by a longer limitation period.
The majority’s concern that apply'ng a longer limita-
tion period for § 1981 would lead to a “bizarre result”
is unfounded. It is true that the same nucleus of opera-
tive fact sometimes could be characterized as either a
§ 1981 and or § 1983 claim and thereby receive different
limitations treatment if the six-year statute was applied
under § 1981. Such variations, however, are common-
place in the law. In a run-of-the-mill automobile acci-
dent case, for example, identical facts could give rise to
warranty claims sounding in contract and strict liability
claims sounding in tort—each to be governed by a differ-
ent statute of limitations. This is not thought to be a
“bizarre result,” and the possibility that the same or
similar facts could support causes of action under dif-
ferent Civil Rights statutes is no more “bizarre.”
Moreover, facts that could support either a § 1981 or
a § 1983 claim could frequently also support a claim
under Title VII, which has a 300 day limitation period
in a deferral state like Pennsylvania. 42 U.S.C. § 2000e-
5(e). This disparity is tolerated, however, because Title
VII is distinguishable from other Civil Rights pro-
visions, just as § 1981 is distinguishable from § 1983.
Title VII covers a narrower range of situations than
does § 1981, but is not limited to racial animus and does
not require intentional discrimination. “The choice [ be-
tween Title VII and § 1981] is a valuable one. Under
some circumstances the administrative route may be
highly preferrable over the litigatory.” Johnson v. Rail-
way Express, 421 U.S. 454, 461 (1975). Moreover, “the
remedies available under Title VII and under section
1981, although directed to most of the same ends, are
separate, distinct, and independent.” Jd. Different stat-
utes with different purposes may logically be governed
by different statutes of limitation. Total uniformity in
limitations periods for civil rights claims is therefore
neither possible nor necessarily desirable.
a.
49a
In Johnson, 421 U.S. at 463-64, the Supreme Court
stated:
Although any statute of limitations is necessarily
arbitrary, the length or period allowed for institut-
ing suit inevitably reflects a value judgment con-
cerning the point at which the interests in favor of
protecting valid claims are outweighed by the in-
terests in prohibiting prosecution of stale ones... .
The legislatures of Pennsylvania, New Jersey, Delaware
and the Virgin Islands have made such value judgments
in distinguishing for limitations purposes between actions
brought for contract and personal injury.* There is no
reason why this court should not respect the recognition
by the state legislatures that distinctions should be made,
for limitations purposes, between actions for contract and
personal injury, and conclude that such distinctions are
properly reflected in the application of the civil rights
statutes. Indeed, this court has so held. See Davis v.
United States Steel Supply, 581 F.2d 335, 339 (8d Cir.
1978), cert. denied, 460 U.S. 1014 (1983) ; Meyers. Since
Wilson does not compel a different result, we should stand
by our sound prior analysis. For the foregoing reasons,
I respectfully dissent.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
* Pennsylvania, New Jersey and the Virgin Islands apply a
six-year statute of limitations for contract actions. 42 Pa. Cons.
Stat. § 5527 (1981) ; N.J. Stat. Ann. 2A:14-1 (West Supp. 1984) ;
V.I. Code Ann. tit. 5 § 31(3) (A) (1967). Delaware provides for
three years. Del. Code Ann. tit. 10 § 8106 (1975). Pennsylvania,
New Jersey, Delaware and the Virgin Islands all apply the shorter
two year limitation for actions brought for personal injury, 42 Pa.
Cons. Stat. § 5524 (1981); N.J. Stat. Ann. 2A:14-2 (West 1952) ;
Del. Code Ann. tit. 10 $8119 (1975); V.I. Code Ann. tit. 5
§ 31(5) (A) (1984 Supp.).
50a
APPENDixX B
UNITED STATES DISTRICT COURT
E.D. PENNSYLVANIA
Civ. A. No. 73-1328
CHARLES GOODMAN, et al.
V.
LUKENS STEEL COMPANY, et al.
Feb. 13, 1984
OPINION AND ORDER
FULLAM, District Judge.
INTRODUCTION
Page
Review of Legal Principles
i: Tome rr i 1119
me. Ry TD ii 1121
Findings of Fact and Discussion
WE deci ee 1123
II. Jurisdiction and Procedural Matters... sis 1123
III. Background Information Concerning the Organ-
ization of the Work Force at Lukens... 1124
III-A. Introduction to Findings on the Merits ..._—s__| 1126
IV. The Bona Fide Nature of the Seniority System.. 1128
Racial Disparities Attributable to Impacts of the
Seniority System, and Therefore Not Action-
able ..... seceded aa 1129
5la
VI. Initial Job Assignments During the Limitations
RPO enshacesailinenia lt 1129
VII. Access to Salaried Positions... 1144
VIII. Racial Harassment at Lukens... 1147
IX. Miscellaneous Matters 1151
X. Plaintiffs’ Claims Against the Union Defend-
OI iret etantnsecnstctietecsteewstssinereiccitcnsedensien cnet 1157
XI. Individual Claims 200 1160
REET RS ee 1163
INTRODUCTION
Plaintiffs in this class action alleging racial discrimi-
nation in employment seek equitable ard monetary relief
against both the defendant employer, Lukens Steel Com-
pany, and the defendant labor unions, the International
and two local unions of the United Steelworkers of
America. This Opinion addresses liability issues.
REVIEW OF LEGAL PRINCIPLES
A. Title VII and § 1981
Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq., is “a broad remedial measure, designed ‘to
assure equality of employment opportunities.’” Pullman-
Standard v. Swint, 456 U.S. 278, 102 S.Ct. 1781, 1783-84,
72 L.Ed.2d 66 (1982) ( quoting McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 1823, 36 L.Ed.
2d 668 (1973)). The Act bars not only overt employ-
ment discrimination—discrimination by disparate treat-
ment—but also policies that are superficially neutral but
discriminatory in operation—discrimination by disparate
impact. Griggs v. Duke Power Co., 401 U.S. 424, 431,
91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). Both types of
discrimination are here alleged both by the individual
plaintiffs and by the plaintiff class.
52a
As the Supreme Court has noted, disparate treatment
is the most easily understood type of discrimination.
The employer simply treats some people less favor-
ably than others because of their race, color, sex, or
national origin. Proof of discriminatory motive is
critical, although it can in some situations be inferred
from the mere fact of differences in treatment.
International Brotherhood of Teamsters v. U.S., 481 U.S.
324, 335 n. 15, 97 S.Ct. 1848, 1854 n. 15, 52 L.Ed.2d 396
(1977).
The plaintiffs must show “not only ‘the existence of
disparate treatment but also that such treatment was
caused by purposeful or intentional discrimination.’ ”
Smithers v. Baular, 629 F.2d 892, 895 (8d Cir.1980)
(citations omitted).
The standard method of proving disparate treatment
entails three steps. First, plaintiffs must establish a
prima facie case. Next, the employer must articulate a
legitimate business justification for its actions. If the
employer does so, plaintiffs must then demonstrate that
the proffered justification is merely a pretext for inten-
tional discrimination. McDonnell Douglas, 411 U.S. at
804, 93 S.Ct. at 1825. Although the burden of production
thus shifts from the plaintiff to the defendant and back
again, the burden of persuasion remains with the plain-
tiffs throughout. See Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.
Ed.2d 207 (1981). In the Title VII context, the term
“prima facie case” refers to the “establishment of a
legally mandatory, rebuttable presumption” rather than
the presentation of “enough evidence to permit the trier
of fact to infer the fact at issue.” Jd. at 254 n. 7, 101
S.Ct. at 1094 n. 7 (1981).
The McDonnell Douglas plaintiffs alleged only discrimi-
nation in hiring; the particular elements of the prima
facie case there identified have been modified to cover
a] eae eee
53a
discrimination in other contexts. See B. Schleir & P.
Grossman, Employment Discrimination Law (2d _ ed.
1983) 1318-13821 nn. 82-90 (collecting and discussing
cases on discharge, discipline, promotion, transfer, layoff,
training, and job assignment).
Although an individual alleging disparate treatment
is free to introduce direct evidence of a discriminatory
intent, as a practical matter plaintiffs typically must rely
on indirect evidence from which an inference of such
intent can be drawn. Frequently, plaintiffs argue that
the employer applied various policies differently to black
and white employees; in response, the employer attempts
to show that those comparisons are faulty because of
factual dissimilarities. As trier of fact, the trial court
must resolve these competing claims. See, e.9., Worthy v.
U.S. Steel Corp., 616 F.2d 698, 702-03 (8d Cir.1980).
At least in theory, the McDonnell Douglas analysis is
also applicable to class actions alleging a “pattern or
practice” of classwide disparate treatment. Teamsters,
431 U.S. at 355, 97 S.Ct. at 1854. The class plaintiffs
must initially demonstrate, by a preponderance of the
evidence, that a pattern of disparate treatment exists and
is the defendant’s regular and standard operating pro-
cedure. Id. Such evidence frequently takes the form of
Statistical data. See Hazelwood School District v. U.S.,
433 U.S. 299, 307-08, 97 S.Ct. 2736, 2741, 53 L.Ed.2d 768
(1977) ; Wilmore v. City of Wilmington, 699 F.2d 667
(3d Cir.1983). Once plaintiffs have produced such data,
the defendant may rebut by showing flaws in the data or
the statistical analysis. Absent a persuasive rebuttal, the
court will infer that all class members were discriminated
against in the fashion alleged.
The second, and more prevalent, theory of liability un-
der Title VII allows plaintiffs to challenge employment
policies which, though neutral on their face, are discrimi-
natory in operation. These “disparate impact” cases do
iia
54a
not require proof of discriminatory motive. Griggs, 401
U.S. at 482, 91 S.Ct. at 854. In Griggs and its progeny,
especially Albemarle Paper Co. v. Moody, 422 U.S. 405,
95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), the Supreme Court
has articulated the procedure for proving such claims.
The plaintiffs must first establish a prima facie case that
the challenged procedure does in fact have a substantial
adverse impact. Plaintiffs must also demonstrate “a
causal connection between the challenged policy or regula-
tion and a racially unequal result.” EEOC v. Greyhound,
635 F.2d 188, 193 (8d Cir.1980). The defendants can
then attempt to demonstrate that those statistics are
deficient and thus insufficient to make out a prima facie
case. Dothord v. Tawlindson, 483 U.S. 321, 331, 97 S.Ct.
2720, 2727, 53 L.Ed.2d 786 (1977).
If plaintiffs succeed in establishing a prima facie case,
defendant must justify the challenged policy as job-related
or otherwise a business necessity. Albemarle, 422 U.S.
at 425, 95 S.Ct. at 2375. The burden of persuasion, how-
ever, remains with the plaintiffs; defendant’s rebuttal
burden is simply to “come forward with evidence to meet
the inference of discrimination raised by the prima facie
case.” Croker v. Boeing Co., 662 F.2d 975, 991 (3d Cir.
1981) (en banc)). If the defendant does so, plaintiffs
must then show that “a feasible yet less onerous alterna-
tive exists.” Jd. (citations omitted). It has long been
established that properly validated job-related tests are
permissible even if they have a disparate impact. Griggs,
401 U.S. at 433-36, 91 S.Ct. at 854-856. Similarly, a bona
fide seniority system—one which was not adopted with
intent to discriminate—does not violate Title VII even
though it has a discriminatory effect. Teamsters, 431 U.S.
at 348-55, 97 S.Ct. at 1861-1864.
a
Section 1981
Section 1981 prohibits intentional racial discrimina-
tion in making and enforcing contracts and in securing
‘ieee
55a
“equal benefit of all laws and proceedings.” 42 U.S.C.
§ 1981. Proof of discriminatory intent is crucial; the
provision “does not extend: to facially neutral conduct
having the consequences of burdening one race more than
the other.” Croker, 662 F.2d at 989. Although disparate
impact thus is not itself actionable under § 1981, evidence
of such impact “may be an important factor in proving
racially discriminatory intent.” Id.
Variations on the McDonnell Douglas formula for mak-
ing out a prima facie case have also been applied in § 1981
cases. See, e.g., Baldwin v. Birmingham Board of Educa-
tion, 648 F.2d 950, 955 (5th Cir.1981) ; Tagupa v. Board
of Directors, 633 F.2d 1309, 1312 (9th Cir.1980). As
under Title VII, once the plaintiffs have made a prima
facie case, defendant must show a legitimate reason for
its actions; thereafter, plaintiffs must show defendant’s
proffered reason is merely a pretext. Baldwin, 648 F.2d
at 956.
To summarize, “disparate treatment” means simply
that on a given occasion, one or more employees were
treated less favorably because of their race; “pattern or
practice” means simply a generalized version of this
phenomenon; and “disparate impact” means simply that
facially neutral policies or decisions have had a different,
and adverse, impact on employees of a particular race.
One must be careful not to over-categorize in this con-
text. The analytical distinctions outlined above are of
only limited utility. The ultimate questions to be an-
swered are essentially the same in all employment dis-
crimination cases: Has the defendant caused a given
employee or group of employees to be discriminated
against? Because of race? - Because of something that
occurred within the limitations period? If the answers
to all of these questions are in the affirmative, is the
action or conduct complained of justifiable, by reason of
business necessity, a bona fide seniority system, or other
56a
legitimate factor? Both statistical and anecdotal evidence
may be looked to in attempting to answer these questions
(with, obviously, varying degrees of relevance and pro-
bative force).
Finally, a word about “intentional discrimination” or
“discriminatory animus.” The aim of the law is equality
of treatment and equality of opportunity for all races.
Attainment of that lofty goal can be expected, in the
long run, to ameliorate subjective racial attitudes, but
such attitudes are not directly implicated in the enforce-
ment scheme. An employer who hates Jews or Negroes,
but who suppresses those feelings and treats all races and
creeds evenhandedly, is not in violation of either Title
VII or § 1981. On the other hand, an employer who ad-
mires and respects all races equally, but who knowingly
excludes qualified blacks from consideration for promo-
tion because they are black, is guilty of intentional dis-
crimination. An employer may inadvertently discrimi-
nate (as, for example, if the employer is unaware of the
racial identity of the affected employee, or is unaware of
the adverse treatment) ; there is no liability for such in-
advertent consequences because, without more, an in-
ference of an intent to discriminate on racial grounds
would not be supportable. But an employer who persists
in implementing racially neutral policies or practices with
actual awareness that they adversely affect blacks in com-
parison to similarly situated whites, is, in the absence of
some overriding justification (such as adherence to a bona
fide seniority system, or business necessity /job-related-
ness) in violation of Title VII.
B. Limitations Period
This action was instituted on July 14, 1978. The ap-
propriate limitations period for claims arising under 42
U.S.C. § 1981 is six years (derived from the then-
pertinent Pennsylvania statute, 12 P.S. § 31. Davis v.
U.S. Steel Supply, 581 F.2d 335 (3d Cir.1978).
57a
The applicable limitations period for claims arising
under Title VII of the Civil Rights Act is set forth in
§ 706(e) of that statute, -42 U.S.C. § 2000e-5(e), as
amended in 1972. The 1972 amendments apply to all
cases in which charges were then pending before the
EEOC. In the present case the plaintiffs Dantzler, Hicks,
Goorman, Meeks and Middleton had charges pending be-
fore the EEOC when the 1972 amendments became effec-
tive. In these circumstances, the limitations period is
measured from the original filing date in each case, not
merely from the effective date of the 1972 amendments.
See Wood v. Southwestern Bell Telephone Co., 580 F.2d
339 (8th Cir.1978); Inda v. United Airlines, 565 F.2d
554, 560-61 (9th Cir.1977), cert. denied, 435 U.S. 1007,
98 S.Ct. 1877, 56 L.Ed.2d 388 (1978); Dickerson v.
United States Steel Corp., 439 F.Supp. 55, 69, n. 11 (E.D.
Pa.1977), vacated on other grounds, sub. nom. Worthy v.
United States Steel Corp., 616 F.2d 698 (8d Cir. 1980).
It is clear that, with respect to the claims of the plain-
tiff class, all class members are entitled to the benefit of
the earliest filing date of the named plaintiffs. Wetzel v.
Liberty Mutual Ins. Co., 508 F.2d 239, 246 (8d Cir.
1975), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44
L.Ed.2d 679 (1975). Indeed, there is authority for the
proposition that all class members are entitled to the
benefit of the earliest filing by any member of the class,
whether or not named as a plaintiff. Webb v. Westing-
house Electric Corp., 78 F.R.D. 645, 653 n. 3 (E.D.Pa.
1978).
The plaintiff Dantzler first filed charges before the
EEOC on December 7, 1970, followed by a related filing
with the Pennsylvania Human Relations Commission on
December 31, 1970. This action was filed within 90 days
after Dantzler received his right-to-sue letter, and he was
a member of the class. His bar-date, for all claims fairly
encompassed within the charges filed, is May 4, 1970
(300 days before March 1, 1971, the date 60 days follow-
(re
58a
ing his initial filing with the Pennsylvania Human Rela-
tions Commission). In his original charges, Dantzler
asserted a pattern of racial harassment, and discrimina-
tion in disciplinary decisions; his original charges named
only Lukens as culpable. On August 10, 1972, Dantzler
amended his charges to include the unions, and was
thereafter permitted to intervene as a named plaintiff in
this action.
The net effect of these circumstances, in my view, is
that the entire class is permitted to assert Title VII
claims against Lukens for the alleged pattern of racial
harassment, and for discriminatory treatment in the ad-
ministration of discipline, from and after May 4, 1970.
The named plaintiffs Goodman, Meeks, Hicks and Mid-
dleton filed broadscale charges against both Lukens and
the union, before the EEOC, on January 28, 1972. This
produces a starting date of April 6, 1971, for (a) all
claims against the union defendants, and (b) all claims
against Lukens not encompassed within the original filing
by the plaintiff Dantzler.
To summarize, the following claims are cognizable in
this litigation: (1) all claims for intentional discrimina-
tion, in violation of 42 U.S.C. § 1981, arising after July
14, 1967; (2) claims for Title VII violations by the de-
fendant Lukens, in the form of racial harassment and
discriminatory discipline, arising after May 4, 1970; (3)
all other claims for class-wide discrimination, against
both Lukens and the union defendants, arising after April
6, 1971; and (4) irrespective of the class issues, the
individual claims of disparate treatment asserted by those
individual plaintiffs who have been issued right-to-sue
letters by the EEOC.
Thus, nothing which occurred before July 14, 1967
can support the grant of any relief in this litigation.
Evidence concerning pre-1967 events is relevant only to
the extent it sheds light upon events which occurred
59a
during the limitations period. And nothing which oc-
curred before May 4, 1970, can support the grant of any
relief in this litigation absent proof of discriminatory
animus.
FINDINGS OF FACT, AND DISCUSSION
[. THE PARTIES
1. Named plaintiffs Charles Goodman, David Dantzler,
Jr., Ramon Middleton, John R. Hicks, ITI, Dock L. Meeks,
Lymans Winfield and Romulus Jones are black employees
or former employees of the defendant Lukens Steel Com-
pany. Dantzler, Middleton, Hicks, Meeks and Goodman
are or were hourly employees; Winfield has worked in
both hourly and salaried positions; and Jones is a salaried
employee. The named plaintiffs represent a class consist-
ing of all black persons who are, or who at any time on
or after June 14, 1967 have been, or who in the future
may be, employed by Lukens.
2. Plaintiff United Political Action Committee
(“UPAC”) is an unincorporated association formed to
combat race discrimination in Chester County. In 1973,
32 of its members were past or present employees of
Lukens (and were black). UPAC had received many
complaints of racial discrimination at Lukens before this
suit was filed.
8. Defendant Lukens is the oldest independent steel
company in continuous production in the United States,
and produces a variety of specialty plate steel products.
Lukens’ major production facility is located in Coatesville.
Pennsylvania, and Lukens is the largest empioyer in
Chester County. Until the mid-1950s, Lukens actually
consisted of three separate corporations: Lukens Steel
Company, By-Products Steel Company and Lukenweld,
Ine. During the period of time directly involved in this
litigation, all had been merged into a single corporation,
Lukens Steel Company.
,
60a
4. The total Lukens work force since 1967 has varied
between approximately 4,200 and 5,300 employees. The
total number of hourly employees at Lukens since 1967
has ranged between approximately 2600 and 3900.
5. Between 1967 and 1978, the percentage of black
employees in the hourly work force at Lukens ranged
from 21.8% to 24.1%.
6. The defendant United Steelworkers of America
(“the International Union”) and its local unions, the
defendant Unions 1165 and 2295 (“the Local Unions”) ;
are labor unions, and are the certified collective bargain- )
ing agents of Lukens’ hourly employees.
A predecessor of the International Union, the Steel-
workers Organizing Committee (“SWOC”) became the
certified collective bargaining agent of Lukens’ hourly
employees in 1937. At or about the same time, Local 1165
began to represent hourly employees of Lukens and By-
Products Steel Company, and Local 2295 began to repre-
sent Lukenweld employees.
II. JURISDICTION AND PROCEDURAL MATTERS
7. On December 7, 1970, named plaintiff David Dantz-
ler, Jr. filed a charge of employment discrimination
against Lukens with the Equal Employment Opportunity
Commission (“EEOC”), alleging that he had been wrong-
fully terminated from employment on December 4, 1970,
because of race. On December 31, 1970, Dantzler filed
the same charge against Lukens with the Pennsylvania
Human Relations Commission (“PHRC”). On August
10, 1972, Dantzler filed an amended charge of discrimina-
tion with the EEOC against both Lukens and Local 1165,
alleging that, for reasons of race, Local 1165 had failed
to represent him adequately in his disputes with Lukens.
8. On March 9, 1971, named plaintiff Ramon Middleton
filed a charge of employment discrimination against
Lukens with the Pennsylvania Human Relations Com-
6la
mission, alleging racial discrimination in the staffing of
the (then new) Strand Casting Subdivision, on or about
March 1, 1971.
9. On January 28, 1972, named plaintiffs Middleton,
Goodman, Meeks and Hicks filed with the EEOC broad
charges of pervasive racial discrimination by Lukens and
the International Union. Middleton, Meeks and Hicks
also named Local 1165 in these charges. At a later date,
Hicks deleted the unions from his charges, and Meeks
amended his charges by adding Local 2295.
10. In due course, the EEOC found no probable cause
to believe Title VII violations had occurred with respect
to the various individual charges, and issued “right-to-
sue” letters as follows: to Goodman on March 14, 1973;
to Dantzler on March 30, 1973; to Middleton on April
13, 1973; to Hicks on June 6, 1973; and to Meeks on
December 12, 1973. Although finding no probable cause
to support the individual complaints, the EEOC did
make a finding to the effect that Lukens under-utilized
black employees on a plant-wide basis, and “has ex-
cluded blacks as a class from its supervisory and cleri-
cal positions ... .” Because these findings relate to
matters not encompassed within the specific charges then
pending before the EEOC, they have no probative weight
in the present case. They represent merely an adverse
finding on issues which the company had never been
called upon to defend. Their (marginal at best) rele
vance to this case is that they were communicated to
Lukens and the unions, and therefore arguably should
have alerted them to potential problems which should be
addressed.
11. Plaintiffs Goodman, Middleton, Jones, Winfield and
UPAC filed this suit on June 14, 1973. On June 16, 1975,
the court granted plaintiffs Hicks, Dantzler and Meeks
leave to intervene as parties plaintiff, and certified the
case as a class action.
12. A hearing on plaintiffs’ request for a preliminary
injunction was held on October 2, 3, and 4, 1979. At
62a
the conclusion of the hearing, the court rendered certain
oral findings of fact and conclusions of law, and granted
partial relief in a written order dated October 9, 1979.
13. The trial encompassed 32 days of testimony, over
the period from February through June 1980.
14. After the testimony was transcribed, the parties )
submitted voluminous requests for findings of fact and |
conclusions of law, comments upon their adversaries’ re- )
quests, post-trial briefs, ete. Plaintiffs’ requests for find-
ings of fact number 693 (many with numerous subpara-
graphs), covering 345 pages. The defendant Lukens filed
a 595-paragraph, 265-page “response,” and also filed its
own request for findings of fact, numbering 550, set
forth in 290 pages. The unions’ “comments” cover 260
pages plus 2 appendices; and the unions submitted 427
separate findings of fact, covering 353 pages. In all,
these materials aggregate 1,773 pages.
In addition, plaintiff submitted a 78-page post-trial
brief; defendant Lukens’ brief runs to 114 pages; the
unions filed an 89-page brief with a 58-page appendix;
and plaintiffs’ reply brief totals 139 pages. Thus, the
court was faced with some 478 pages of briefing. In
addition, counsel have favored the court with a steady
stream of letter-briefs clarifying, refining, and updating
their respective positions.
III. BACKGROUND INFORMATION CONCERNING
THE ORGANIZATION OF THE WORK FORCE
AT LUKENS
A. Hourly Work Force
15. The relationship between Lukens’ hourly employees
and the company has been governed by collective bar-
gaining agreements entered into every several years since
1937. Since 1957, these agreements have required hourly
employees to hold union membership and pay union dues.
a
63a
16. Lukens and the unions have regularly included in
the Lukens’ collective bargaining agreements the same
terms and conditions adopted by the International Union
and the largest nine or ten steel companies. This is
known as “pattern bargaining.”
17. Each hourly job at Lukens is assigned a job class
rating, ranging from job class 1 to job class 27, which
determines the average hourly wage rate for the job.
For example, under the August 1, 1974 collective bar-
gaining agreement, employees in job class 1 received a
base wage rate of $4,305 per hour, while those holding
job class 27 jobs received $6.805 per hour.
18. In accordance with the collective bargaining agree-
ments, jobs rated at job class 5 and above, and one-third
of the jobs rated in job class 4, are formally divided into
job groups known as seniority subdivisions. As of July
14, 1973, there were 68 seniority subdivisions at Lukens.
19. All jobs rated at job classes 1, 2 and 3, and two-
thirds of the jobs rated at job class 4, are not included
within any seniority subdivision, but are part of one
large job group known as the “pool”. Since 1965, the
pool jobs have been divided among seven “area pools,”
each of which relates to a group of seniority subdivisions.
There are, however, some seniority subdivisions which
have no related “area pool’.
20. Lukens’ hourly employees accumulate two kinds of
seniority. “Company seniority” is based upon length of
service as an employee of Lukens; “subdivision seniority”
is measured by the duration of employment within a par-
ticular subdivision. Employees holding “pool” jobs do
not accumulate any subdivisional seniority.
21. If an employee leaves a subdivision (for example,
by way of layoff or voluntary transfer) and begins work
in another subdivision, he continues to maintain the sub-
divisional seniority he had accumulated in his former
unit. From the date he begins working in his new unit,
64a
however, he begins to accumulate subdivisional seniority
only in that unit. Thus, an employee cannot accumulate
subdivisional seniority in more than one subdivision at
a time.
22. When a job vacancy occurs within a seniority sub-
divison, qualified employees actually holding jobs within
that unit have the first preference to fill the vacancy, in
order of their respective subdivisional seniority. The
company is not required to provide formal notice of a job
vacancy to employees within the unit where the vacancy
occurs, and the practice of providing such notice differs
from unit-to-unit, but in fact such notice is usually pro-
vided, in one form or another.
23. If no employee actually working in a seniority
subdivision seeks to fill a job vacancy occurring in that
unit, employees who have previously been laid off from
that subdivision are recalled on the basis of subdivisional
seniority. Thus, employees retain “recall rights” to jobs
in units from which they have been laid off or have
transferred, but they may only exercise such rights if no
employee actually working in that unit desires to fill the
vacancy.
24. If a job vacancy cannot be filled from among em-
ployees actually working in the unit, or from employees
exercising recall rights to the unit, employees working
anywhere in the plant may transfer to the vacant posi-
tion; assuming ability and physical fitness are relatively
equal, company seniority governs the selection.
25. Before August 1, 1971, there was no plant-wide
posting or any other formal notice of job vacancies not
filled from within the unit or by the exercise of recall
rights. Employees interested in transferring to a dif-
ferent subdivision were permitted to file with the Em-
ployment Department forms, known as “request for trans-
fer” forms, on which they designated their job prefer-
ence. Vacancies which could not be filled from within
65a
the unit or through recall rights were supposed to be
filled by the employment office by selecting the qualified
employee with the most company seniority who had a re-
quest for transfer form to that unit on file.
26. Since August 1971, the collective bargaining agree-
ments have required that notices of job vacancies which
could not be filled from within the unit or through recall
rights were to be posted at the various clock stations
throughout the plant. Employees desiring to apply for the
vacancy sign their names on a list maintained by the
Employment Department. If they sign the list within
the time period specified in the notice, they are entitled
to consideration on the basis of their company seniority.
If they sign up after the deadline (below the “red line”) ,
they are eligible for consideration on the basis of their
company seniority, but only if the vacancy cannot be
filled from among those whose applications were timely.
27. Under the various collective bargaining agree-
ments, seniority (whether company or subdivisional) is
the deciding factor in determining who receives a vacant
job only when ability and physical fitness are relatively
equal. Both before and after June 14, 1967, the company
has used a variety of tests to determine eligibility for
various hourly jobs, and has also based eligilibity on an
employee’s disciplinary record with the company, and his
supervisory evaluations.
28. Layoffs within a seniority subdivision are gov-
erned by subdivisional seniorit , the least senior em-
ployee being laid off first. If an employee is laid off from
one seniority subdivision but has previously worked in
another subdivision, he may “bump” any employee in the
other subdivision who has less subdivisional seniority in
that unit. If an employee laid off from a subdivision is
unable to “bump” into another subdivision, he may re
place any employee holding a pool job who has less com-
pany seniority.
66a
29. The foregoing procedures concerning transfers,
promotions and layoffs have been in effect since the early
1940s, except that the rules governing “pool” jobs were
instituted in 1962, and the rules governing plant-wide
posting of job vacancies were instituted in August 1971.
B. Salaried Work Force
30. The salaried employees at Lukens range from op-
erating management and professional personnel to plant
guards and janitors.
31. Managerial positions are arranged in the following
hierarchy of jobs, from the highest level to the lowest:
Officers (approximately 11 to 13)
Managers (approximately 28 to 26)
Superintendents (approximately 30)
Supervisors (approximately 40)
General foremen (approximately 60)
Foremen (approximately 300)
32. The first step in filling a salaried vacancy is the
issuance of a requisition by supervisory personnel in the
area where the vacancy exists. This requisition must
then be approved by the Lukens’ Salary Committee. If
approved, the requisition is next sent to Employment De-
partment personnel, who attempt to find a candidate to
fill the vacancy, although the supervisory employees in
the area where the vacancy exists may suggest a candi-
date or candidates. No formal notice of salaried job
vacancies is given to Lukens’ employees.
33. The Employment Department has used a variety
of tests in selecting eligible candidates for salaried jobs,
and also considers such matters as work experience, skill
and knowledge, education, personality, temperament, and
company service. There are no written guidelines. In
67a
all instances, the ultimate selection of a candidate to fill
the vacancy rests within the discretion of supervisory
personnel in the area where the vacancy occurs. The
process of filling salaried vacancies has remained essen-
tially the same since at least 1954.
III-A. INTRODUCTION TO FINDINGS ON THE
MERITS
It is of particular importance in this case, in assessing
the implications of the statistical] and other “pattern or
practice” evidence, to bear in mind the particular charac-
teristics of the Lukens operation. The specialty steel in-
dustry involves the application of skills which are unique
to the specialized manufacturing process in question.
This is not a situation in which trade or craft skills
found in the general work force, or acquired in other
types of industry, are readily adaptable to Lukens’ needs
(with certain limited exceptions, such as welding, truck-
driving, and some rough carpentry). The vast majority
of the Lukens hourly work force start from scratch, and
are trained on the job. Indeed, Lukens has always prided
itself upon its general policy of promoting from within.
By the same token, since most hourly employees com-
mence their service with the company at the bottom of
a career ladder, as laborers of some kind, there are no
threshold educational or experiential requirements: physi-
cal health and amenability to training are the essential
qualifications.
As an abstract proposition, therefore, it would be per-
missible to conclude that, if there is not and never has
been racial discrimination at Lukens, there should be no
substantial disparity between black and white employees
in terms of job classifications, base wages, earnings and
working conditions. That is, while the abilities, interests
and motivations of individual employees undoubtedly
-
68a
differ, there is no reason to assume that such differences
significantly favor either racial group.
There are, however, very substantial disparities be-
tween black and white employees of Lukens, in each of
the various matters mentioned above. Moreover, it is
abundantly clear that, in the past, blacks at Lukens (as,
unfortunately, in many other industrial establishments)
were discriminated against. They were permitted to work
only in certain operating units (performing the least de-
sirable kinds of work, generally speaking); had fewer
opportunities for advancement, and therefore tended to
be clustered in the lower job classifications; and were
more likely to suffer disciplinary sanctions. In addition,
they were exposed to a wide range of racial harassments.
Locker rooms and rest rooms were segregated; racial
animosity was openly expressed, orally, in writing, and
by deed; and they were in general treated as second-
class citizens. Throughout the 1930s, ’40s and ’50s and
beyond, the personnel records maintained by Lukens for
each employee contained a space for “nationality”; white
employees were listed as “American,” black employees
were listed as “colored” or “Negro”. In 1969, responsible
Lukens officials issued orders for the correction of all
personnel records by eliminating the offensive “national-
ity” designations; in a great many instances, this was
accomplished merely by writing out the words “colored”
or “Negro” with the result that, whereas white employees
are listed as “American,” many black employees are not
accorded that designation.
In short, it is obvious from the evidence that, through-
out the limitations period, any statistical racial analysis
of the Lukens work force would be skewed because of
earlier discrimination. That fact has placed each of the
parties in a somewhat anomalous position. On the issue
of intentional discrimination under § 1981, and on the
bona fides of the seniority system under Title VII, it is
to plaintiffs’ advantage to emphasize the pre-limitations
69a
discrimination, both for the purpose of showing that dis-
criminatory animus tainted the establishment of the
seniority system, and for the purpose of showing that
discriminatory animus carried over into the limitations
period. But that same evidence renders plaintiffs’ statisti-
cal proofs applicable to the limitations periods much more
difficult, since it tends to provide a non-actionable ex-
to say, Lukens’ problem is the mirror-image of plaintiffs’:
explaining present-day disparities as attributable to past
discriminatory practices tends to undermine the com-
pany’s § 1981 and Seniority defenses. The union defend-
70a
IV. THE BONA FIDE NATURE OF THE
SENIORITY SYSTEM
84. The seniority system embodied in the series of col-
lective bargaining agreements governing the relationships
between Lukens and its employees since 1937 have had,
and continue to have, the inevitable effect of perpetuating
disparities and disadvantages associated with race.
35. When the seniority system was established, blacks
at Lukens were being, and had been for many years,
discriminated against. In comparison to white employees,
blacks occupied the lowest-paying jobs, were segregated
into specific units, did not have equal access to promo-
tional and transfer opportunities, etc.
36. Both the unions and the company were fully aware
of the discriminatory practices and disparate status based
on race. And both the unions and the company were
aware that the seniority provisions of the initial and
subsequent collective bargaining agreements would tend
to stabilize and perpetuate the existing racial disparities.
37. In instituting the seniority system, however,
neither the unions nor the company was motivated by
racial considerations. The system of unit-seniority was
adopted because it represented standard practice through-
out the steel industry, and was assumed to be best suited
to operating efficiency. From the standpoint of the unions,
the crucial first step and transcendent goal was to or-
ganize the workers and achieve recognition, and it was
important to establish that this goal could be achieved
with minimal alteration of the status quo. The company,
too, sought to minimize change.
38. The 1962 modification of the seniority system
through the establishment of the “pool” arrangement was
not racially motivated. Moreover, the change did not dis-
advantage black employees; and blacks actively partici-
pated in the negotiations which led to the modification.
7la
39. Pursuant to a 1974 Consent Decree in litigation
brought by the Justice Department to remedy perceived
racial discrimination in the steel industry, the major
steel producers were required to, and did, implement
plant-wide seniority. Although the labor negotiations of
these major steel producers have been, and are, gen-
erally relied upon as establishing the pattern for the
entire industry, no such change was implemented at
Lukens. The International Union, while it announced the
contents and ramifications of the Consent Decree in union
publications available to the membership at large, made
no concerted effort to discuss the Decree with the leaders
of the local unions at Lukens, nor did it urge that plant-
wide seniority should be adopted at Lukens pursuant to
“pattern-bargaining”. The company was not a defendant
in the government litigation, and, so far as the record
discloses, more or less ignored the implications of the
Consent Decree.
It would be permissible to draw the inference that
neither the company nor the loc! unions at Lukens were
sympathetic to the Consent Decree or to the ‘governmental
interference’ which produced it. But whether the bar-
gainers at Lukens be deemed enlightened or benighted,
the evidence as a whole makes it clear beyond dispute
(a) that a shift to company-wide or plant-wide seniority
would be as likely to disadvantage blacks as to improve
their lot; (b) among all Lukens employees, black and
white alike, there is and has always been an overwhelm-
ing preference for the present seniority system, over a
plant-wide system; (c) blacks participated actively in the
negotiations leading to each of the pertinent collective
bargaining agreements, and - never Suggested any such
change in the seniority system; and (d) among the 50
or so witnesses who testified for the plaintiffs in this
case, not one expressed any complaint about the seniority
system.
72a
40. Even if the seniority system at Lukens had been
established for the express purpose of perpetuating racial
disparities (which, as noted above, is not the case), a
shift to plant-wide or some other seniority system would
be unlikely to provide any net benefit to black employees,
now or in the future.
V. RACIAL DISPARITIES ATTRIBUTABLE TO IM-
PACTS OF THE SENIORITY SYSTEM, AND
THEREFORE NOT ACTIONABLE
41. The evidence establishes the following facts, but,
because attributable to the impacts of a bona fide senior-
ity system, these facts provide no basis for relief in this
case, and the evidence in support of these facts has little
or no probative value in this case:
(a) that white employees as a group receive higher
hourly adjusted base wages than comparable black em-
ployees ;
(b) that white employees receive higher overall annual
earnings than comparable black employees;
(c) that white employees are in higher job classes than
black employees of equal company service (both treating
the hourly work force as a whole, and also treating craft
and non-craft employees as Separate groups) ;
(d) that white employees hold a disproportionately high
percentage of craft jobs, compared to their representation
in the non-craft hourly work force.
Plaintiffs have presented other evidence pertaining to
racial disparities, unrelated to seniority and not shown to
have been affected by the seniority system, which must
now be considered.
73a
VI. INITIAL JOB ASSIGNMENTS DURING THE
LIMITATIONS PERIOD
A. The Job-Class of Initial Positions
42. White employees hired between January 1, 1972
and February 7, 1977, into non-craft jobs were initially
assigned to positions with an average job class of 4.9.
During the same period, blacks hired into non-craft jobs
were initially assigned to positions with an average job
class of 4.42. This difference of almost one-half a job
class is statistically significant at the .01 level (more
than five standard deviations from the result which would
be expected in the absence of racial impact).
43. Hiring at Lukens is conducted on a weekly basis,
and the choice of initial assignment necessarily reflects
the particular openings available in a given week.
44. During the same January 1, 1972 to February 2,
1977 period, treating each week’s hires separately, it
appears that the median job class in most weeks was
class 5. Indeed, during the entire period, more than half
of white non-pool hires, and almost 70% of black non-pool
hires, were assigned to positions in job class 5. The like-
lihood of a black new hire achieving initial placement
above job class 5 was much less than the likelihood of a
white hire obtaining such a placement (more than six
standard deviations less likely, a difference which is
statistically significant to a high degree). (Lukens’ table
L-27.)
45. Another study, covering the years 1973-77 estab-
lishes that the initial placements of non-craft new hires
into job classes, on average, was 5.0 for white males, 4.8
for white females, 4.7 for black males, and 4.2 for black
females.
46. Reverting to table L-27, covering the period Janu-
ary 1, 1972 through February 2, 1977, it appears that
there were 25 weeks in which the median job class of
74a
new hires was higher than class 5. More whites than
blacks were hired in 18 of those weeks (72%).
B. Initial Assignments to the Pool Versus Initial As-
signments to Seniority Subdivisions
47. There are three potential advantages which tend
to make initial assignment to a seniority subdivision pref-
erable to initial assignment to the pool:
(a) First, an employee initially assigned to a seniority
subdivision begins to accumulate seniority in that sub-
division, as well as company seniority. So long as he
remains in that subdivision, he will always have rights
to jobs in that subdivision which will be superior to the
rights of other persons hired the same day but initially
assigned to the pool. If he later transfers out of that
subdivision, his accumulated seniority may enable him
to bump back into that subdivision in the event of a
layoff in his second subdivision. Thus, an employee in-
itially assigned to a seniority subdivision gains added
protection against layoffs.
(b) Second, in the event of layoff, a pool employee’s
job rights are subordinate to those of every hourly em-
ployee with an earlier company service date. The job-
rights of an employee in a seniority subdivision, how-
ever, are junior only to persons having more seniority
in that subdivision. Thus, if a layoff does not hit that
particular subdivision, the subdivision employees will con-
tinue to work even though other employees with greater
company seniority are being laid off.
(ec) Third, an employee in a seniority subdivision en-
joys greater stability and certainty in work-assignment.
Pool employees, on the other hand, are subject to being
transferred from job to job on a daily, or even hourly,
basis.
48. During the period January 1, 1972 through Feb-
ruary 2, 1977, of persons described as “new hires” in
75a
Lukens’ transaction reports, black employees had a 23.5%
greater likelihood than whites of being assigned initially
to the pool. 31.8% of black new hires were assigned to
pool positions, compared to 24.2% of white new hires.
This disparity is statistically significant to a high degree
(at the .01 level).
Apparently, Lukens’ records list as “new hires” many
persons who were employed at Lukens previously, and are
being re-hired; and Lukens contends that it is reasonable
to assume that a person being re-hired is likely to be
assigned to the same type of job previously held. I have
some difficulty appreciating the significance of this argu-
ment, at least in the absence of a showing that such
transactions affecting blacks were recorded or labeled dif-
ferently from similar transactions involving whites; or
that blacks are more likely to be re-hired than are whites.
Moreover, there is reason to doubt the initial premise,
namely, that jobs assignment on re-hire is likely to be
similar to the job assignment on initial hire. A study by
plaintiffs’ statistical expert demonstrates that there is no
correlation between the job assignment on initial hiring
and the job assignment on most recent re-hire. (N.T.
31.86-87 ; U-461.)
Be that as it may, elimination of all “new hire” trans-
actions which Lukens contends are repetitious (approxi-
mately 27% of the total “new hire” transactions reflected
in Lukens’ records) merely reduces the disparity between
races, but does not neutralize it.
49. Considering only the “new hires” asserted by
Lukens to be genuine “new hires,” 26.3% of blacks were
assigned to pool jobs, as compared with 21.6% of whites.
This disparity is statistically significant (at the .02
level).
50. Analyzing repeat-hires separately produces the
following: Of “second” hires, 44.3% of blacks and
30.3% of whites were assigned to pool positions. Of all
76a
repeat hires, 46.8% of blacks and 31.1% of whites were
assigned to pool positions.
On their face, these percentages show statistically sig-
nificant disparities to a high degree (at the .01 level).
As independent evidence of discrimination, however, the
importance of these “re-hire” figures is relatively slight.
Employees in pool jobs are more likely to be laid off than
employees in seniority units, hence (probably) more
likely to experience repeated hirings. Blacks have always
been over-represented in the pool. The “pool” jobs are
those at the lowest end of the ladder. Abstenteeism, vol-
untary quits, and adverse disciplinary actions—all of
which tend to burden blacks more than whites, as will
be discussed later—may contribute to the “re-hire” as-
signment disparities.
51. There is no statistically significant racial dis-
parity in pool versus non-pool assiguments among “new
hires” for the 1969-1970 period (Lukens’ table L-75).
When all “new hires” regarded by Lukens as genuinely
“new” hires, for the entire period from 1969 through
1977 are studied (i.e., combining the data in Lukens’
table L-75 with the data in Lukens’ table L-76), it ap-
pears that 30.9% of blacks were assigned to pool posi-
tions (200 of a total of 646) while only 26% of whites
were assigned to pool positions (355 of a total of 1,336).
These disparities are statistically significant (below the
.05 level).
52. Lukens contends, inter alia, that the foregoing
statistics are irrelevant, and that the only relevant
statistics are those which analyze the hiring process week-
by-week. It is true that, in weeks during which both
blacks and whites were hired, and one or more new hires
were assigned to the pool, there was no significant racial
disparity in pool assignment. I find this argument un-
persuasive.
While Lukens does hire on a weekly cycle, and the
initial job assignments reflect the kinds of openings avail-
ee ee
77a
able in a particular week, I am persuaded that the
overall statistics provide a more reliable racial comparison
than do the weekly statistics. Just which positions will
be filled, and when, is entirely within the control of the
company. Although theoretically job applications are kept
on file in the employment office in chronological order so
that applicants can be interviewed in chronological order
for available openings, this is not a rigid rule, and is
commonly departed from. The entire process, of deciding
when various positions are to be filled, and who will fill
them, involves many subjective judgments by managerial
personnel.
Analysis of the overall statistics shows that blacks, to
a statistically significant degree, are more likely than
whites to be newly hired and initially placed in weeks
in which large numbers are assigned to pool openings.
The probability of this occurring by chance are about
3 in 10,000, more than 3 standard deviations (P-1390;
N.T. 30.98-100).
There are, to be sure, data tending to negative dis-
crimination in initial job assignments. Defendants prop-
erly point out that, in weeks in which no pool jobs were
filled, a higher percentage of blacks than whites were
hired; and that in weeks where no blacks were hired, a
greater percentage of pool positions were filled than in
weeks in which blacks were hired. (Lukens’ Exhibits L-
1901B and 1902A.) In my view, however, the overall
Statistics carry greater weight. Analysis of each hiring
week separately is suspect because of the smaller num-
bers involved; such minute analyses may often be mean-
ingless. Moreover, plaintiffs are not required to prove
that discrimination occurred every week, or that the em-
ployer invariably discriminated.
53. Lukens has also attempted to refute the foregoing
Statistics on the theory that gender differences (not ac-
tionable here) rather than racial] differences, are reflected
78a
in the data. Lukens personnel involved in the hiring
process testified that, based on their observations, women
seeking employment at Lukens tend to prefer pool as-
signments, because such jobs are less demanding, tend to
fit in better with the flexible schedules desired by house-
wives with families to care for, and are better suited to
the needs of persons whose primary careers are in the
home.
One such witness was George P. Kissell, Jr. However,
during the time he was in charge of the placement of
hourly employees ( February 1974 through July 1976) a
higher percentage of male applicants were assigned to
pool positions (19.1% of male new hires) than female
(18.7% of female new hires) ( L-25, 26). No detailed
statistics were presented covering the period when Trinka
Fleming, the other witness who noted the alleged prefer-
ence of females for pool assignments, was in charge of
the process. During the entire period of Kissell’s and
Fleming’s tenure, only 43 females were newly hired to
non-craft positions.
During the period from J uly 19, 1973 through February
23, 1974, according to an internal report prepared by
Lukens’ record administrator, Car] Welsh, among female
“new hires” 48% of the blacks were assigned to pool
positions, as compared with only 27% of the whites.
At trial, Lukens presented other statistics (allegedly
reflecting elimination of repeat hires), showing that,
among female new hires, 39% of the blacks were assigned
to pool positions, as compared with 24% of the whites.
Even assuming ( contrary to the plain implications of
Lukens’ record) that the alleged preference among women
for pool assignments did exist, it does not explain the
racial disparities, either in the aggregate, or among male
new hires, or among female new hires. That is, there is
no suggestion that the alleged preference for pool jobs
79a
was more prevalent among black females than white
females,
C. Access to Better-Paying Hourly (Craft) Positions
54. As noted above, blacks are significantly under-
represented in craft jobs at Lukens. But since this is, in
substantial part at least, attributable to pre-limitations
activity and the impact of the bona fide seniority system,
the gross statistics ( percentages in various categories,
wage and earnings levels, ete.) are not particularly help-
ful. There is, however, other evidence which bears di-
rectiy on the issue of whether or not, during the limita-
tions period, blacks were discriminated against in respect
of the accessibility of craft jobs.
55. Of the employees first hired at Lukens, into non-
craft positions, between January 1, 1972 and February 2,
1977, 4.8% of the black hires had been promoted into
craft positions by February 2, 1977, whereas 14.9% of
the white new hires had been promoted to craft positions
within that period. Thus, whites employed during that
period were more than three times as likely as blacks to
be promoted into craft positions.
56. During the same period, 34.4% of all “new hires”
were black, whereas only 14.5% of those new hires who
were promoted to craft positions were black (this repre-
sents about 6.62 standard deviations from the random).
57. The foregoing findings are applicable, whether
“craft positions” are defined pursuant to the pre-1971
“industry” definition, or the post-1971 “EEO” definition.
58. As demonstrated in P-501, p. 2, P-502, table 3,
and as testified (N.T. 4.12-14), although company senior-
ity has a bearing on eligibility for promotion to craft
positions, seniority does not account for the disparities
mentioned above. A comparison of al] hourly employees
actively employed at Lukens as of February 2, 1977, by
year of hire, shows that, in 33 of the 34 years studied,
80a
blacks hired during that year were, to a statistically sig-
nificant degree, less likely to have achieved craft status
by February 2, 1977 than their white counterparts. In-
deed, the defendants concede that the racial disparities
in craft positions are not accounted for by seniority.
59. Since 1962, the collective bargaining agreements
have mandated that, where ability and physical fitness
are substantially equal, transfers to better jobs are gov-
erned entirely by company seniority. However, the “re-
quest for transfer” system which was in operation until
August 1971, and, to a lesser extent, the “posting” sys-
tem which has pertained since that date, were susceptible
to abuse on racial grounds. As noted previously, until
the 1971 job-posting program was instituted, the existence
of openings in craft positions was likely to become known
only to a few persons, who could then selectively impart
that information to their friends and relatives. While
precise statistical or documentary evidence is not avail-
able on this subject, the evidence as a whole leaves little
doubt that, before August 1971, blacks were much less
likely to learn of the availability of craft openings than
their white counterparts.
Moreover, actual approval of job-transfer requests in-
volved a great many subjective judgments on the part of
supervisors. Until 1971, the supervisor of the subdivision
into which transfer was sought had absolute and un-
fettered discretion to approve or reject a transfer appli-
cation. Until August 1971, a transfer request could, and
usually was, “voided” in the employment office (i.¢., was
not even submitted to the supervisor of the subdivision in
question) if the employee seeking transfer had not main-
tained a “clean” disciplinary record for the previous
three years. Abstenteeism, as such, was disregarded, un-
less the employee had been disciplined for absenteeism.
As discussed below, blacks were much more likely to be
disciplined for absenteeism (and in general) than their
white counterparts.
8la
60. At least during the pre-limitations period, there
were numerous instances in which transfer requests were
denied expressly because of racial considerations. There
is no evidence of any specific instances of overt racial
discrimination in the transfer process during the Title
VII limitations period, and only a few such instances
during the § 1981 limitations period were testified to
(these will be considered in connection with the indi-
vidual claims of named or intervening plaintiffs).
On the other hand, some of the same individuals who
had been guilty of overt discrimination during the pre-
limitations period continued to have and exercise decision-
making authority during the limitations period. That
fact, coupled with Lukens’ unremitting contention that
there has never been any racial discrimination at Lukens,
lends some support to the inference that the job-transfer
system may have been manipulated, during the limitations
period, to achieve racial discrimination in access to craft
positions,
D. Manning New Facilities; Strand-Casting
61. In 1969, Lukens decided to construct a Strand-
Cast facility. Strand-casting was then a relatively new
process, in which molten metal is poured directly into a
cast slab (rather than into molded ingots which are
thereafter converted into slabs). It was contemplated
that this new process would largely replace the work
then being performed in the open hearth pits, hot top,
and conditioning steel yard subdivisions.
62. The applicable collective bargaining agreements
provided that employees displaced from “any facility
being replaced” by a new facility were to be given pref-
erence for entry into the new facility, in the order of
their company seniority (union Exhibit U-481A).
63. The subdivisions most directly and drastically af-
fected by the introduction of the strand-casting process
82a
were the pits, hot top, and conditioning steel yards.
Seventy-percent of the hourly employees in those sub-
divisions were black. Plaintiffs contend that employees
in those units should have been given precedence in man-
ning the new facility and that, if this course had been
followed, the new strand-casting seniority unit should
have been approximately 70% black.
The company, however, determined that several other
seniority subdivisions would have their manpower re-
quirements reduced as a result of the new facility. These
included the melting floor, cranes, 140/206 heating, 206
rolling, 206 floor and stock yard units; membership in
most of these units was predominately white. Accord-
ingly, the company interpreted the collective bargaining
agreement as requiring it to accord priority to employees
in all of the units mentioned above, in the staffing of the
new Strand-Casting Unit.
There were 720 employees potentially eligible for as-
signment to the new Strand-Cast Unit, as determined
pursuant to the company’s interpretation of the collective
bargaining agreement. Of these, 106 completed the ap-
plication process. Thirty-one were ultimately selected; of
these, 14 (47%) were black. Eight of the 14 blacks
selected (60%) came from units other than pits, hot top
and steel yards (Lukens Exhs. L-955, L-956).
64. While there is much force to plaintiffs’ argument
that, since the disproportionately black units were most
drastically and directly affected by the implementation of
the new manufacturing process, employees in those units
were entitled to the lion’s share of the new jobs in Strand-
Casting, the company’s interpretation of the collective bar-
gaining agreement is not manifestly unreasonable.
Because of the newness of the strand-casting method,
the high cost of the equipment used in that process, and
the potentially disastrous effects of employee error in con-
ducting the operations, Lukens was understandably inter-
|
83a
ested, to an unusual degree, in assigning the best-qualified
persons to the new unit. While I recognize the distinct
possibility that the decision-makers may have been in-
fluenced by racial stereotyping, unconsciously or other-
wise, in deciding to open the application process to units
less directly affected by the new facility, and while that
possibility is obviously a disturbing one, I am unable to
conclude that the evidence preponderates in favor of a
finding of racial animus in this situation. That a genuine
business judgment was made cannot be doubted; and,
while this business judgment may have been clouded by
racial preconceptions, I cannot find, from the evidence,
that this is more likely true than not. It must be remem-
bered that 47% of the persons assigned to the new unit
were black, and that more than half of those blacks came
from units which, according to plaintiffs’ argument, were’
improperly included in the opportunity because predomi-
nately white.
65. Persons assigned to the Strand-Cast Unit were
selected on the basis of company seniority and their rat-
ings by supervisors, on a form known as the Personnel
Description Check List (“PDCL”). The PDCL ratings
were entirely subjective; most of the raters were white;
and, when studied later (in 1972), the PDCL proved to
have had a statistically significant adverse impact upon
blacks.
66. Named plaintiff Ramon Middleton was initially re-
jected for the Strand-Cast Unit, solely because of his
PDCL rating, which had been performed by a supervisor
named Matthews. According to Matthews, who is white,
only two persons evaluated by him were given unsatis-
factory ratings on the PDCL: they were Middleton, who
is black, and George Eachus, who is white. This testi-
mony lends significant Support to plaintiffs’ contention
that Middleton was discriminated against. The employ-
ment records of the two men show that Middleton’s dis-
ciplinary record, over a 14-year period, consisted of 2
84a
warnings, the most recent of which occurred in 1967.
Eachus, on the other hand, had been twice suspended and
had received four warnings, all between December 1969
and April 1971 (Exh. P-1421).
67. Four of the selected employees began training for
the Strand-Cast Unit on July 20, 1970, 12 more began
training on August 3, 1970, and eight more were added
to the training program as of January 4, 1971. Middle-
ton was less senior than the selectees in the first two
groups, but the group which began training in January
1971 included two employees who had less company sen-
iority than Middleton. It was then that Middleton
learned, for the first time, that he had been rejected.
As a result of Middleton’s protest, the union filed a
grievance on behalf of Middleton and other rejected ap-
plicants, challenging the procedures for selection, including
specifically the PDCL. Eventually the company and the
union, with the approval of the affected employees, worked
out a compromise solution pursuant to which specified
employees, including Middleton, were to be given “special
consideration” for assignment to the Strand-Cast Unit.
This arrangement was agreed upon as of February 3,
1971. On March 9, 1971, with the cooperation of the
union representative, Middleton filed a complaint against
the company with the Pennsylvania Human Relations
Commission.
On April 5, 1971, eight additional employees were
added to the Strand-Cast Unit, Middleton among them.
The net result of this series of events is that Ramon
Middleton, by virtue of a foreman’s evaluation which
probably was tainted by racial bias, was not assigned to
the Strand-Cast Unit as early as he should have been.
He is, I believe, entitled to adjustment of his seniority
in that unit.
68. The most important job in the Strand-Cast Unit
—jndeed, it is the highest hourly job in the entire plant—
85a
is that of “No. 1 operator”. The company decided that
persons to be trained for the “No. 1 operator” position
should, as a prerequisite, have at least two years “hot
metal” experience, and specified the various jobs through-
out the plant which, in the company’s view, provided
such experience. The “hot metal” requirement, as thus
limited, excluded a disproportionately high number of
blacks from consideration for the No. 1 operator job.
In retrospect, it seems quite probable that experience
in several other jobs, in addition to those specified by
Lukens, would have rendered an employee fully as well
qualified for the No..1 operator job as the experience
mandated by Lukens, but that is not a judgment for this
court, or the plaintiffs, to make. There can be no doubt
that, in establishing these criteria, Lukens’ officials were
making honest business judgments. I am satisfied that
racial considerations did not enter into the selection of
these criteria.
At any rate, it is conceded that, if the “hot metals”
experience requirement had been deleted, and the selec-
tions based entirely upon seniority, the four positions
would have gone to whites anyway.
By the time of trial, one of the four top jobs in the
Strand-Cast Subdivision was held by a black, and other
blacks were being trained for the position. Viewed in its
entirety, the evidence does not establish that there was
racial discrimination in promotions to the “No. 1 opera-
tor” positions.
E. Lukens’ Explanation and Refutation; Superior Qual-
ifications and personal choice
69. As noted above, most craft positions at Lukens in-
volve skills which must be learned during employment at
Lukens. With limited exceptions, the principal require-
ments for promotion to a craft job are: physical ability
to handle the job, amenability to instruction, and a de-
86a
sire to attain that position. Given those pre-requisites,
company seniority is determinative.
70. Lukens challenges the probative force the statis-
tical disparities discussed above on the ground that the
statistical evidence does not address two important fac-
tors: personal choice, and relative qualifications.
71. While there may be, and undoubtedly are, isolated
instances in which an eligible employee chooses to reject
an offered promotion, or chooses not to apply for a better
job, for personal ieasons, there is no evidence, and I am
unwilling to assume, that blacks are less interested in
advancement than their white counterparts. It is, I be-
lieve, a safe generalization that most persons are inter-
ested in advancing their own economic welfare whenever
the opportunity presents itself. I therefore reject the
suggestion that personal choice contributes significantly
to an explanation of the racial disparities disclosed by
the statistical evidence. Moreover, it should be noted
that if one were to conclude that a significantly greater
percentage of blacks than whites choose not to improve
their lot and that this phenomenon occurred on a suffi-
cient scale to affect the interpretation of the statistical
evidence, one might well then be faced with addressing
the possible causes of such a phenomenon. If, for exam-
ple, blacks tended to refuse promotion because of a sense,
derived from the atmosphere of the work place, that they
would not be welcome in the new position, or would be
expected to “prove themselves” and overcome skepticism,
or would thus become vulnerable to additional forms of
discrimination, the alleged personal choice phenomenon
would scarcely constitute a valid explanation of the sta-
tistical evidence.
72. There is no evidence that, among persons initially
hired at Lukens, blacks as a group were less qualified
than whites for advancement to craft positions or to sal-
aried positions.
87a
73. To the extent that Lukens relies upon evidence
concerning the under-representation of blacks among
skilled craftsmen in the local outside labor mar
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