Appendix — International Molders & Allied Workers Union v. Howard

Supreme Court brief1986

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4 SEPH F. SPANIOL, JR.

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INTERNATIONAL MOLDERS AND ALLIED WORKERS

UNION, AFL-CIO, AND LOCAL 100 OF THE

INTERNATIONAL MOLDERS AND ALLIED

WORKERS UNION, AFL-CIO-CLC,

Petitioners,

JAMES HOWARD and ROBERT BATES, individually and on

behalf of all others similarly situated, and WILLIE L.

McCoy, JIMMIE L. RODGERS, HAROLD Woop, FRANKLIN

Woop, JAMES KNOX, FAYTE JONES, ROBERT MATHEWS,

JR., WILLIE MCGINNIS, JAMES H. PATTERSON, J. G.

ROBINSON, MACK FRITZ, WILBERT HOGAN, CHARLES

JUDKINS, LouIs J. Moore, Joe L. STEELE, JAMES

CROOM, JOHNNIE TOLBERT, ADOLPH HILLARY, III, Ros-

ERT G. HARRIS, RICHARD S. BARNES, ARTHUR BERRY,

WILBUR WILSON, JR., JONATHAN JONES, WILLIE A.

NEELEY, LARRY WARE, and LARRY ROBINSON,

Respondents.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Of Counsel: THOMAS F. PHALEN, JR.

JULIA PENNY CLARK 125 East Court Street

1000 Connecticut Ave., N.W. Cincinnati, Ohio 45202

Washington, D.C. 20036 GEORGE LONGSHORE

708 Brown-Marx Building

Birmingham, Alabama 32503

DAVID SILBERMAN

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20006

(202) 637-5390

Attorneys for Petitioner

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TABLE OF CONTENTS

Page

Opinion of the Court of Appeals -.........020.202202202... la

Opinion of the District Court as to Liability .......... 16a

Order of the District Court, June 21, 1983 _............ 6la

Report of the Special Master .......0...20.00000eeeeee ee. 63a

Opinion of the District Court as to Damages .......... 76a

UII CN gcc pean ard enaeaa daaeseteabiacm licens 78a

Opinion of the District Court Amending its

See A ARBONNE BAER R DN 8 i APE AOI MY EN 79a

Order of the Court of Appeals on Petition for

MIE i scedcconasenodegn torcmuhaniumaia sda 80a

APPENDIX A

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

No. 85-7008

JAMES HOWARD and ROBERT BATES, individually and on

behalf of all others similarly situated,

Plaintiffs-Appellants,

Cross-A ppellees,

WILLIE L. McCoy, et al.,

Intervening Plaintiffs-A ppellants,

Cross-A ppellees,

INTERNATIONAL MOLDERS AND ALLIED WORKERS UNION,

AFL-CIO-CLC, LocAL +100 OF THE INTERNATIONAL

MOLDERS and ALLIED WORKERS UNION, AFL-CIO-CLC,

Defendants-A ppellees,

Cross-A ppellants.

Jan. 14, 1986

Appeals from the United States District Court

for the Northern District of Alabama

Before GODBOLD, Chief Judge, JOHNSON, Circuit

Judge, and TUTTLE, Senior Circuit Judge.

TUTTLE, Senior Circuit Judge:

This is an appeal from a judgment dismissing a com-

plaint filed by a class of employees against the Clow

Corporation and defendant Union on charges of racial

discrimination in employment practices.

I. STATEMENT OF THE CASE

Early in the proceedings, a consent decree was en-

tered between the Clow Corporation, the employer, and

the class of plaintiffs. However, the suit continued as

against the labor organization under the provisions of

42 U.S.C. $ 2000e-2(c) (3).1 Plaintiffs also proceeded

under the provisions of 42 U.S.C. § 1981.

At the trial, plaintiffs laid great stress upon the dis-

criminatory effect on blacks of the departmental system

under which most blacks were employed in the lowest

paying department and under which there was only de-

partmental seniority for promotion. They also stressed

the fact that as to certain jobs, an unvalidated test was

required by the employer and that the labor organization

failed adequately to oppose the unvalidated testing re-

quirement.

The trial court held that the seniority policy of the

employer was carried out in good faith and held that

plaintiffs had failed to establish any discriminatory prac-

tice thereabouts. With respect to the unvalidated test-

ing, however, the court adopted what it called the “Ter-

rell” standard as measuring the duty of the Union under

its obligation of fair representation. This standard was

established in Terrell v. United States Pipe & Foundry

Co., 644 F.2d 1112, 1120 (5th Cir., Unit B, 1981):

We begin with established principles of law, Sec-

tion 703(c) (3) of Title VIJ makes it unlawful for

1 Section 42 U.S.C. 2000e-2(c) (3) provides:

It shall be an unlawful employment practice for a labor

organization...

(3) To cause or attempt to cause an employer to discriminate

against an individual in violation of this section.

a union to “cause or attempt to cause an employer

to discriminate.” . . . 42 U.S.C. § 2000e-2(e) (3).

We have recognized that under the Act: [1] abor

organizations, as well as employers, have an affirm-

ative duty to take corrective steps to prevent the

perpetuation of past discrimination. Myers v. Gil-

man Paper Co., 544 F.2d 837, 850 (5th Cir.), mod-

ified in other respects on rehearing, 556 F.2d 758,

cert. dismissed, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.

2d 59 (1977). (citation omitted).

Recognizing the effect of the Terrell decision, the trial]

court made the following findings of fact and conclusions

of law:

Plaintiffs allege that defendants violated 42 U.S.C.

§ 2000e-2(e) (3) ad 42 U.S.C. § 1981 by acquiescing

in the administration by the employer of facially

neutral tests that had an adverse impact on plain-

tiffs. To prevail on this claim, plaintiffs must estab-

lish first that the mechanical comprehension test

used by the company violated Title VII, and second,

that defendants failed to comply with the Terrell

“every reasonable step” standard.”

The Supreme Court ruled in Griggs v. Duke Power

Co., 401 U.S. 424, 431 [91 S.Ct. 849, 853, 28 L.Ed.

2d 158] (1971), that Title VII “proscribes not only

overt discrimination but also practices that are fair

in form, but discriminatory in operation. The touch-

stone is business necessity. If an employment prac-

tice which operates to exclude Negroes cannot be

shown to be related to job performance, the practice

is prohibited.” A plaintiff makes out a prima facie

17 Although the Fifth Circuit in Terrell and Walker applied

this standard to situations involving seniority systems, this

court assumes that the Fifth Circuit would always apply this

standard to a labor organization’s conduct that is chalienged

under 42 U.S.C. § 2000e-2(c) (3).

case of discrimination by showing “that the tests in

question select applicants for hire or promotion in

a racial pattern significantly different from that of

the pool of applicants.” Albemarle Paper Co. v.

Moody, 422 U.S. 405, 425 [95 S.Ct. 2362, 2375, 45

L.Ed.2d 280] (1975). The employer then has the

burden to establish that the test is job related. Id.

Clow Corporation used the mechanical comprehen-

sion test as a condition to promotion from 1965 (the

effective date of Title VII) until 1977 (when this

suit was filed). During those years, 56% (103 of

184) of the white employees who took the test passed

it; only 12.5% (10 of 80) of the black employees who

took the test passed it. The court concludes that

plaintiffs established their prima facie case of dis-

parate impact discrimination. Defendants did not

rebut this presumption with any proof that the test

was job related. Accordingly, the court concludes that

plaintiffs established that the company’s mechanical

comprehension test, although neutral in form, had a

discriminatory impact and violated Title VII.

Next the court must determine whether the union

defendants satisfied the Terrell standard. Union rep-

resentative Robert Hollman criticized the company’s

use of the test on January 19, 1970. White members

of the union committee demanded that the company

cease using the tests on August 11, 1975. The court

has pointed out that the union members never de-

manded that the union attempt to persuade the com-

pany to stop using the tests through the grievance

procedure in 1970. There was no evidence that the

union committee ever demanded during the 1972,

1974, or 1977 negotiations that the company cease

using the tests. Defendants did not establish that

the company would have refused to stop using the

tests."* The company’s abandonment of the tests

when this suit was filed illustrates that the company

would have considered agreeing to halt the use of

the tests. Accordingly, the court concludes that the

local union violated 42 U.S.C. § 2000e-2(c) (3) be-

cause it did not satisfy the Terrell standard of tak-

ing every reasonable step to ensure that the employer

complies with Title VII. Additionally, the court con-

cludes that the local union violated 42 U.S.C. § 1981

because its conduct evidenced an intent to discrimi-

nate.’®

‘An international union can be held liable for a dis-

criminatory practice if it has a “sufficient connection”

with the discriminatory practice. Myers v. Gilman

Paper Corp., 544 F.2d 837, 851 (5th Cir.), cert. dis-

missed, 434 U.S. 801 [98 S.Ct. 28 54 L.Ed.2a 59]

(1977). The Fifth Circuit in Myers adopted the hold-

ing of the Fourth Circuit in Patterson v. American

Tobacco Co., 585 F.2d 257, 270-71 (4th Cir.), cert.

denied, 429 U.S. 920 [97 S.Ct. 314, 50 L.Ed.2d 286]

(1976): “The Fourth Circuit recently held that a

sufficient connection exists where, as here, the in-

ternational union provided ‘an advisor’ to the local

in its negotiations and the international approved the

resultant collective bargaining agreement.” M yers v.

Gilman Paper Corp., 544 F.2d at 852. The court has

found above that Hildridge Dockery, the Interna-

tional Molders representative for the Local Union,

18 This situation is to be compared to the seniority system

situation: there this court found that “the company had no

intention of making any further concessions regarding the

seniority system.” See p. 36 supra.

19 Labor organizations violate 42 U.S.C. § 2000e-2(c) (3) if

they “cause or attempt to cause an employer to discrimi-

nate ....” (emphasis added). The court is of the opinion that

this language indicates that conduct which Violates the section

(2000e-2(c) (3)) constitutes intentional discrimination.

worked closely with the bargaining committee for an

advisor from 1972 until 1980. The court concludes

that Dockery’s activities provide a sufficient connec-

tion of the International to the Local Union’s viola-

tion of Title VII and § 1981. Accordingly, pursuant

to Myers v. Gilman Paper Corp., the court concludes

that the International also violated 42 U.S.C. § 2000e-

2)ce) (3) and 42 U.S.C. § 1981 for its conduct regard-

ing the company’s mechanical comprehension test.

Thereafter, on the 21st day of June, 1983, the court

entered the following order:

In conformity with the findings of fact and con-

clusions of law entered herein on June 1, 1983, the

court finds in favor of the plaintiffs and against the

defendants for their violation of 42 U.S.C. § 2000e-

2-(c) (3) and 42 U.S.C. § 1981, for its conduct re-

garding the use of the mechanical comprehension

test. The court denies all other claims made by the

plaintiffs.

Within forty-five (45) days from the date of this

order is entered, the parties will attempt to arrive

at an amount of monetary remedy for the plaintiffs

to compensate them for the defendants’ discrimina-

tory conduct with respect to the mechanical compre-

hension test. If the parties are unable to arrive, in

good faith, at a monetary remedy, then the court

will enter such further orders or decrees as are nec-

essary to enable the parties to produce for the court

their own procedures and formulas for the calcula-

tion of the monetary remedy due the plaintiffs. The

court notes that the parties may reach such an ac-

cord as to amounts, etc., while reserving the right to

appeal or seek other post-trial relief.’

1 The court has considered the objection of defendants to

plaintiffs’ proposed judgment and considers them most appro-

priate for post-judgment consideration.

The court then submitted to the magistrate acting as

special master, the task of determining the damages that

would be due to the class based upon the court’s order.

The special master, finding that 52 percent of the va-

cancies that occurred during the statutory period had

been filled by blacks, and only 48 percent by whites, de-

cided that there was no justification for the award of

any damages to the plaintiff class. The finding and con-

clusion to this effect follows:

In conclusion, the magistrate finds that 25 vacan-

cies requiring passage of the test existed during the

time in question. Of the total employees tested dur-

ing the pertinent time period, 35.6% (or, using tue

figures of plaintiff’s counsel, 39.5%) were black. Of

the 25 job vacancies, 52% of them were filled by

black employee bidders.

Conclusion of Law

Applying the assumptions specified by the Court to

the above findings, black employees filled job vacan-

cies to a greater extent than the proportion of black

employees who were tested. If it is assumed that

black employees should have passed the tests and

subsequently filled the vacancies in proportion to

the number of black employees who took the tests,

then only 35.6% (or 39.5%, using plaintiffs’ fig-

ures) of the black employees should have filled the

vacancies. In fact, black employees filled the vacan-

cies to the extent of 52%.

Finding that black employees filled vacancies to a

greater extent than the proportion of black employ-

ees who were tested, the magistrate concludes that,

applying the formula specified by the Court, the sub-

class of plaintiffs is not entitled to any back pay and

that no damages should be required to be paid by

the defendants.

By order of November 29, 1984, the trial court adopted

the special inaster’s report by the following order: ”

This cause came on to be heard after the court

had referred this action to a Magistrate as Special

Master for a hearing with regard to damages after

the court had found the defendant unions liable un-

der Title VII for failing to take every reasonable

step te insure that the employer complied with Title

VII by abandoning the tests which had a discrimina-

tory impact on black employees.’

1 This court was likely incorrect stating that same failure

resulted in a finding of intentional discrimination under 42

U.S.C. § 1981. The court did not and does not make the finding

that there was otherwise direct or circumstantial proof of

intentional discrimination.

The plaintiffs have objected to the report of the

Special Master and the court has conducted a hear-

ing thereon. The court finds and concludes that the

report of the Special Master is factually accurate

and the court accepts and adopts the same.’

2 The court, in effect, replicates the Magistrate’s findings.

The court, sua sponte, asked the parties to address

whether Connecticut v. Teal, 457 U.S. 450 [440, 102

S.Ct. 2525, 73 L.Ed.2d 130] (1982) had application

to the case. After receiving briefs from the parties,

the court has determined that it does not. The court

had already determined that the defendant unions

were liable. The remaining issue was whether the

class had suffered damages during the designated

period. The court followed the procedures specified

in United States v. U.S. Steel, 520 F.2d 1043 (5th

Cir.1975) and Pettway v. ACIPCO, 681 F.2d 1249

[1259] (11th Cir.1982). This procedure resulted in

It is necessary to quote the severa] orders of the trial court,

because in at least two of them, earlier orders are modified.

a determination that the class suffered no injury or

damages for the designated period. The plaintiffs

have not proved, for the appropriate period, an ac-

tual wage loss as the result of discrimination. The

class not having suffered any injury as the result

of the failure of the unions to take action, the plain-

tiffs are not entitled to recovery of back pay from

these defendants.

On December 3, 1984, the court filed the following

memorandum opinion.

A court hereby amends it Memorandum Opinion

filed on November 29, 1984 to add the following

sentence.

It may well be that, since there is no indication

of any disparate impact, during the relevant period,

the court should conclude that not only have plain-

tiffs failed to prove any damages for the relevant

period, but that the court’s finding and conclusion of

liability should be vacated. The court also cites In-

gram v. Madison Square Garden, 709 F.2d 807 (2nd

Cir.1983).

A timely appeal was filed by the plaintiffs from the

final judgment of November 29. A cross-appeal was filed

by the unions from the determination by the trial court

that they were “liable” to the plaintiffs. By doing so,

they apparently did not consider the December 3 order as

having withdrawn the trial court’s earlier judgment. Be-

cause of the ambiguous manner in which the court dealt

with this matter—“it may be that the court’s finding and

conclusion of liability should be vacated,” we cannot de-

termine whether the finding of liability was actually with-

drawn. The defendant-cross-appellant unions appeal from

this finding, so they apparently assume that it still rep-

resents the judgment of the trial court. Since we conclude

that the plaintiffs had established liability without regard

to the finding of no damages, we need not resolve this

10a

issue. The plaintiffs filed a motion for an interim award

of attorney’s fees which the trial court denied under the

following order on January 4, 1985: “Motion denied

pending appeal. Leave granted to refile if judgment re-

versed.”

II. ISSUES

The issues before this Court are:

1. Did the trial court err in finding that the de

fendant unions were not liable for the operation

of the seniority system as it existed at Clow?

2. Did the district court correctly decide that the

unions were liable to the plaintiff class on account

of their failure adequately to insist on the elimi-

nation of the unvalidated testing?

3. Did the trial court err in finding that no dam-

ages were due to the plaintiff class because the

“bottom line” showed that a disproportionately

high number of class members were employed

during the relevant statutory period in spite of

the existence of the non-validated tests?

4. Did the trial court err in not granting interim

attorney’s fees?

III. DISCUSSION

The trial court requested the parties to brief the ques-

tion whether Connecticut v. Teal, 457 U.S. 440, 102 S.Ct.

2525, 73 L.Ed.2d 130 (1982) was applicable to the court’s

decision in this case. Following the filing of briefs, the

court held, as noted above, that it was not applicable,

because the court had already held the defendants liable.

However, the court failed to consider that in its Decem-

ber 2, 1983 order, after it had decided that no damages

were due, it stated that it had been wrong in finding

liability. As we read Teal, however, it was expressly in

a case in which the “bottom line”, so-called, showed no

lla

damages due to the class that the court’s reasoning in

Teal becomes important. In that case, four black plain-

tiffs were holding temporary positions of a supervisory

nature. In order to obtain permanent appointments to

these positions they were required, as was everyone else,

to pass a written test which had not been validated. By

the time the case came to trial, it was apparent that the

State of Connecticut had actually promoted two of the

plaintiffs which resulted in a “bottom line” reflecting that

the members of the class had received the promotions they

would have received if they had passed the test in a

higher proportion than the percentage they bore to the

percentage in the workforce. The Court, holding that

Title VII was designed to guarantee to every minority

person an equal “opportunity” for employment and pro-

motion, said:

Petitioners’ examination, which barred promotion

and had a discriminatory impact on black employees,

clearly falls within the literal language of § 703 (a) (2),

as interpreted by Griggs. The statute speaks, not in

terms of jobs and promotions, but in terms of limita-

tions and classifications that would deprive any in-

dividual of employment opportunities. A disparate-

impact claim reflects the language of § 703(a) (2)

and Congress’ basic objectives in enacting that stat-

ute: “to achieve equality of employment opportuni-

ties and remove barriers that have operated in the

past to favor an identifiable group of white employees

over other employees.” 401 U.S. at 429-430 [91 S.Ct.

at 853. ‘emphasis added). When an employer uses

a non-job-related barrier in order to deny a minority

or woman applicant employment or promotion, and

that barrier has a significant adverse effect on minor-

ities or women, then the applicant has been deprived

of an employment opportunity “because of .. . race,

color, religion, sex, or national origin.” In other

words, § 703(a) (2) prohibits discriminatory “artifi-

12a

cial arbitrary, and unnecessary barriers to employ-

ment,” 401 U.S. at 431 [91 S.Ct. at 853], that “limit

. or classify .. . applicants for employment... .

in any way which would deprive or tend to deprive

any individual of employment opportunities.” (Em-

phasis added.)

Relying on § 793(a) (2), Griggs explicitly focused

on employment “practices, procedures, or tests,” 401

U.S. at 430, [91 S.Ct. at 853], that deny equal em-

ployment “opportunity,” 7d. at 481 [91 S.Ct. at 853].

We conclude that Title VII prohibits “procedures or

testing mechanisms that operate as ‘built-in head-

winds’ for minority groups.” Jd. at 482 [91 S.Ct. at

854]. We found that Congress’ primary purpose was

the prophylactic one of achieving equality of employ-

ment “opportunities” and removing “barriers” to

such equality. Jd. at 429-430 [91 S.Ct. at 852-853].

See Albemarle Paper Co. v. Moody, 422 U.S. at 417

[95 S.Ct. at 2371]. The examination given to re-

spondents in this case surely constituted such a prac-

tice and created such a barrier.

457 U.S. at 448, 102 S.Ct. at 2331 (footnote omitted.)

(Emphasis in original.)

In the context of this case, it seems clear that this

means that even though a slight majority of minority

employees actually filled the vacancies after having

passed the test, this did not ameliorate the condition of

the remaining members of the class who failed to pass it

and who should have had an “opportunity” to fill the

vacancies without facing the headwinds of the unvali-

dated test.

The trial court called on the parties to submit proposed

methods of determining the damages that should be

awarded to the class in light of its determination that the

defendants were liable to the plaintiffs on account of the

unvalidated test. Although the petitioners submitted a

l3a

plan, the special master determined that it was not nec-

essary to consider the potential damages to the non-suc-

cessful members of the class, because of the “‘bottom line”

success of the class as a whole. This, it seems clear un-

der Teal, was error. Once the trial court found that the

mechanical aptitude test had, during its entire period of

operation, had a disparate impact on the minority class,

it follows that it was the duty of the defendant unions

under the Terrell standard to make every reasonable ef-

fort to see that these tests were brought to an end. This,

the trial court found, they had failed to do. As we read

Teal, every member of the class who failed to pass the

test, was injured by the requirement that he do so before

he could achieve the desired promotion. The special mas-

ter should have made an effort to measure the damages

suffered by such individuals. This he failed to do be-

cause he concluded that since the class as a whole had

shown up better than expected in spite of the require-

ment that its members pass the unvalidated test, no

damages were due the class for the injury they suffered.

So far as appears from the record before us, if the

failure of the other members of the class had not pre-

vented them from being considered for advancement,

every one of the vacancies might have been filled by one

of them. Any one of them might have had qualities of

excellence that would have recommended them to their

employer for filling one of the vacancies. Again, we

quote from Connecticut v. Teal:

In short, the District Court’s dismissal of respond-

ents’ claim cannot be supported on the basis that.

respondents failed to establish a prima facie case of

employment discrimination under the terms of § 703

(a) (2). The suggestions that disparate impact

should be measured only at the bottom line ignores

the fact that Title VII guarantees these individual

respondents the opportunity to compete equally with

white workers on the basis of job-related criteria.

14a

Title VII strives to achieve equality of opportunity

by rooting out “artificial, arbitrary, and unnecessary”

employer-created barriers to professional develop-

ment that have a discriminary impact upon individ-

uals. Therefore, respondents’ rights under § 703 (a)

(2) have been violated, unless petitioners can dem-

onstrate that the examination given was not an ar-

tificial, arbitrary, or unnecessary barrier, because it

measured skills related to effective performance in

the role of Welfare Eligibility Supervisor.

Id. at 451, 102 S.Ct. at 2532 (emphasis in original.)

It is, therefore, clear that the unions in this case are

liable, because they did not use all reasonable effort to

cause the employer to put an end to the use of the non-

validated tests for promotion.

Since the special master, and thus, the trial court,

made no effort to determine whether damages could be

proven with respect to the members of the class who had

failed the test, the case will have to be remanded to the

trial court for this determination. In the event that the

plaintiffs are unable to make adequate proof of such

damages, they would be entitled to nominal damages in

any event:

Nominal damages are presumed to follow from the

violation of any valuable legal right, even if no

actual damages are involved. Basista v. Weir, 340

F.2d 74, 87 (8rd Cir.1965); Magnett v. Pelletier,

360 F.Supp. 902, 907 (D.Mass.1973). “The term

nominal damages means a trivial sum—usually one

cent or one dollar—awarded to a plaintiff whose

legal right has been technically violated but who

has proved no real damage.” Chesapeake & Potomac

Tel. Co. v. Clay, 90 U.S.App. (D.C. 206), 194 F.2d

888, 890 (1952).

Tatum v. Morton, 386 F.Supp. 1308 (1974).

15a

In the Basista case cited in the above quotation, the

Court held as a matter of federal common law: “It is

not necessary to allege nominal damages and nominal

damages are proved by proof of deprivation of a right

to which the plaintiff was entitled.” Basista v. Weir, 340

F.2d at 87.

Dealing with the appellant’s contention that the trial

court erred in finding that the defendant unions were

not liable for the operation of the seniority system as

it existed at Clow, we note that this decision by the trial

court was largely a finding based on disputed facts.

While the fact-finder might have decided differently on

this question, we are unable to conclude that the trial

court’s decision on the seniority issue was clearly er-

roneous. Finally, appellants complain of the failure of

the trial court to award interim attorneys’ fees. We con-

clude that the trial court did not abuse its discretion

in postponing this issue until this appeal was perfected.

Upon remand, this issue, of course, will be open for the

trial court’s consideration at the time it issues its final

judgment.

IV. CONCLUSION

The judgment is REVERSED and the case is RE-

MANDED to the district court for further proceedings

not inconsistent with this opinion.

16a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

Civil Action No. CV77-PT-1235-S

JAMES HOWARD, et ul.,

Plaintiffs,

INTERNATIONAL MOLDERS AND ALLIED WORKERS

UNION, et al.,

Defendants.

[Filed June 1, 1983]

FINDINGS OF FACT

The plaintiff, James Howard, was employed at Clow

Corporation’s Tarrant City, Alabama plant beginning in

1939 and remained employed until his retirement in 1980.

Howard was a member of Local Union 100, International

Molders and Allied Workers Union and the International

and served as Vice-President of the Local for several

terms both before and after 1965. He also served on

committees which negotiated collective bargaining agree-

ments before and after 1965, including the 1971-1972

negotiations. Howard served on the negotiating commit-

tee and signed the 1972 Contract, the 1974 Contract and

the 1978 Contract.

Robert Bates was employed by Clow Corporation in

1962 where he remained employed until his retirement

17a

in 1980. Bates was a member of Local #100 and the

International and was subject to the terms of the collec-

tive bargaining agreement.

Clow Corporation is an employer as defined in Title

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

(b).

On November 5, 1975, Howard filed an EEOC charge

No. TBIG-0833 naming as respondent the “International

Molders and Foundry Workers Local 100,” “1409 Pinson

Street, Tarrant City, Alabama 35217.” The charge stated

that “I believe that the above named labor organization

continues to discriminate against me because of my race

(Negro) by refusing to represent me fairly and by

acquiescing with Clow Corporation in their unlawful em-

ployment practices.” An affidavit attached to the charge

signed by Bates and Howard included, “We have tried

repeatedly to get representation from the Union but to

no avail. We also feel that the Jnternational is comply-

ing with the Local and Clow Corporation in their unlaw-

ful employment practices.” (Emphasis added.) Bates filed

an EEOC charge the same day making the same allega-

tions and naming Local 100 as the party who discrimi-

nated against him.

Local 100, International Molders and Allied Workers

is the successor to Local 100, International Molders and

Foundry Workers. Local 100 is a labor organization

within the meaning of 42 U.S.C.A. § 2000e(d) and (e).

Local 100 has represented employees in the production

and maintenance departments of Clow Corporation’s Tar-

rant City, Alabama plant since about 1936.

On May 26, 1977, the named plaintiffs made a request

of the EEOC for a right-to-sue letter. On June 16, 1977,

the EEOC sent right-to-sue notices to Bates and Howard

which referenced Local 100, International Molders and

Allied Workers Union, but not the International.

18a

A complaint was filed on September 13, 1977, by

Howard and Bates, individually, and on behalf of them-

selves and others similarly situated against Clow Corpo-

ration, the International Molders and Allied Workers

Union and Local 100, International Molders and Allied

Workers Union. The complaint alleged jurisdiction under

42 U.S.C.A. $ 2000e and 42 U.S.C.A. § 1981. The court

has jurisdiction of the International Union and of the

Local Union under 42 U.S.C.A. § 2000e and 42 U.S.C.A.

$1981. The liability of the unions begins at the earliest

on May 5, 1975. The potential liability of both parties

ends at the latest on June 27, 1980, at which time the

plant permanently closed.

This court finds that this case is appropriate for class

treatment under Rule 23(a) and (b) (2) of the Federal

Rules of Civil Procedure and defines the class as follows:

All black employees who were members of the de-

fendant unions at any time between May 7, 1975

and June 27, 1980.

On March 31, 1982, the court issued its Judgment ap-

proving a proposed consent decree providing monetary

relief to the class agreed to by the company and the

plaintiffs. Because the company resolved and settled all

of the remaining objections, the court directed entry of a

final judgment but retained jurisdiction for the purposes

of further proceedings against the non-settling union

defendants.

Clow Corporation engaged in the manufacture of pipe

and fittings at its Tarrant City, Alabama plant since

early in the century until it closed in June 1980. The

earliest record of union representation was in the 1930’s

when the International Molders and Allied Workers Locai

100 or its predecessor union became the exclusive bar-

gaining representative for the production and mainte-

nance employees.

19a

The initial phase of the manufacturing process at Clow,

for both pipe and fittings, consisted of the conversion of

raw materials from a solid state into a molten or liquid

state. In this initial or “melting” phase of production,

raw materials, in the proper proportions, were charged

into one of the two 108” cupolas for melting. The molten

metal was then tapped from the cupolas and fed into a

holding ladle for transfer to either the “pipe casting” or

“fittings casting” areas of the plant. The melting opera-

tion was a unit for seniority purposes and consisted of

15 jobs that were required to perform such work. In

1972, as a result of the new progression program, all

the jobs in departments 50 and 51 were placed in a single

line of progression from labor grade 1 up to 8. By con-

tract, vacancies were filed by seniority with appropriate

consideration of skill, efficient service and physical fitness.

Notice of the vacancy, except for select jobs and craft

jobs, was required to be posted on the bulletin board for

bid.

During the “casting” phase of pipe production, the

molten metal was moved by transfer ladles into machine

ladles that serviced centrifugal pipe casting machines,

which were capable of making ductile iron pipe in 18

foot lengths ranging from 3 to 24 inches in diameter.

After solidifying, the hot pipe was extracted from the

casting machines. The pipe then began the “finishing”

phase of production in which it was fed into annealing

ovens that gave it the proper physical structure and hard-

ness. After exiting the annealing oven, the pipe moved

through several work stations where it was cleaned,

rounded, weighed, hydrostatically tested, and approved by

quality control personnel. From “finishing,” 98 percent

of the pipe produced by Clow moved by Tram cars to

the “cement lining” phase of production. In this phase,

a thin coat of cement was applied to the inside diameter

of the pipe. Other operations conducted during this stage

of pipe production included painting, application of the

20a

Clow logo and other data, and the labeling of the pipe

with the appropriate weight and thickness. After appli-

cation of the cement lining, the pipe was transferred to

curing runs where it remained for eight (8) hours while

the cement cured. After curing, the pipe was moved to

storage runs and the shipping area of the plant where it

was either placed in stock or loaded for shipment to Clow’s

customers.

Until 1972, the shops where the casting functions and

the related functions of annealing, weighing, testing, and

clearing took place were divided into four separate de-

partments, some of which were “dead end” departments.

The highest paid jobs were only job classes 4 and 5 (of

a rarge of 1 to 15) and transfer out of these depart-

ments resulted in the forfeiture of accumulated seniority.

During the 1972 negotiations, the parties agreed to a new

job progression system that grouped four formerly sepa-

rate departments into the “pipe ship progression.” Thus,

employees could move laterally from the dead end depart-

ments to this line of progression which would lead to a

higher paying job. For example, in department 9, the

Core Room department, the highest job was that of core

worker, job class 5. After the progression schedule was

implemented, the core worker in department 9 could move

laterally to a class 6 job as trough cleaner in depart-

ment 10, and the employee would be in line for promo-

tion to the highest paid job in the progression, the ma-

chine operator’s job at class 11.

For fittings production, molten metal received from the

“melting” phase of production was poured into an arc

furnace in order to acquire the proper temperature for

“fittings casting.” In the “casting” phase of fittings

production, the molten metal was poured into sand molds.

The “casting” stage of fittings production also involved

the production of urea sand cores that formed the open-

ings in the fittings. In addition, “fittings casting” re-

quired the construction of wooden or plastic patterns

21a

which were used to form the cavity of the fitting in the

sand mold. During “casting” operations for fittings pro-

duction, Clow personnel prepared molds, set cores into

the molds, closed and clamped the molds, and poured iron

into each mold. After cooling, the castings were removed

from the mold and cleaned.

The “cleaning” phase of fittings production included

shot blasting the fittings to remove excess sand, and gen-

eral finishing of the fittings with hand-held, air operated

chipping hammers and grinders. A portion of Clow’s

fittings were flange-type fittings. To produce flange-type

fittings, Clow personnel machined the fittings and drilled

bolt holes. Depending upon the type of fitting required

by Clow’s customers, the fittings may have been air

tested, tar coated, and/or cement lined. Once they were

cleaned, inspected and machined and/or cement lined as

necessary, the fittings were placed into containers and

either stored in inventory or shipped to Clow’s customers.

Prior to 1972 the jobs related to the production of

fittings and other related functions were divided into

seven separate departments, some of which were “dead

end” departments with little or no opportunity for pro-

gression. By merging these seven departments, the com-

pany formed the “sand foundry progression,” which pro-

vided the employees, for the first time, with the right to

make lateral transfers to better paying more desirable

jobs. For example, the cement lining operator in depart-

ment 40 was formerly limited to a job class 4, but as a

result of the progression, he could move up laterally to

fill a vacancy in either department 20 or department 30

at a job class 7, from which point he could progress to

the highest rated job in the progression.

In addition to the production departments described

above, there were also several service and support depart-

ments at Clow. Among these departments were the

Maintenance Department, Mold and Pipe Machine Main-

22a

tenance Department, Pattern Shop, Carpenter Shop and

Maintenance Machine Shop, Grove Department, Material

Handling and Shipping. The maintenance department at

Clow installed new equipment, performed general equip-

ment and machine repair, and conducted preventive main-

tenance throughout the plant. The hourly positions within

this department were classified as craft jobs and included

millwrights, mechanics, electricians, and welders.

The Mold and Pipe Machine Maintenance Department

repaired and maintained the pipe casting machines and

pipe molds. Among the hourly craft jobs in this depart-

ment were Mold Welder and Mold Machinist.

Pattern Shop personnel at Clow built wooden or plastic

patterns that were used to form the cavity of the fittings

during casting. Among the hourly craft positions within

this department were Pattern Makers, Pattern Riggers

and Pattern Changers.

The Carpenter Shop (Department) at Clow built boxes

for shipment, maintained the plant buildings and per-

formed general maintenance duties requiring carpentry

skills throughout the plant. The craft jobs of Carpenter

“A” and Carpenter “B” were within this department.

The Maintenance Machine Shop (Department) per-

formed all non-product machining at the plant. This de-

partment fabricated and repaired the parts required to

maintain the machinery and equipment used in the manu-

facturing process. The hourly craft positions within this

department were Machinists.

Based on the testimony and the stipulations the court

- finds that the seniority unit structure at Clow was func-

tionally and rationally related to the necessities and re-

quirements of a large manufacturing facility producing

pipes and fittings and was in conformance with industry

practice. The departments represented the company’s at-

tempt to organize the work and to utilize the worker’s

—

23a

skills in the most efficient manner. The departments all

performed separate work requiring separate skills and

the court is unable to say that a seniority system that

conforms to the functional needs of production is not

rational. The craft jobs (carpenter, electrician, etc.)

were genuinely craft jobs that required the traditional

skills associated with such jobs.

In addition to the organization of Clow employees into

departments that corresponded to their functional rela-

tionship to the manufacturing process, the jobs within

each department were organized into lines of progression.

The lines of progression established the order by which

employees progressed to better paying jobs as they ac-

quired knowledge, skill, efficiency, and experience within

the department. The progression schedules and rules of

progression allowed employees to qualify for advancement

to positions of greater responsibility and higher pay.

Movement by an employee from a lower paying job to

one with higher pay and greaier responsibility within a

line of progression was governed by the provisions of

the collective bargaining agreement and the progression

rules and depended upon an evaluation of the employee’s

qualifications with regard to the following factors:

seniority, skill, efficient service, and physical fitness.

The earliest minutes in the record of a meeting between

the management of National Cast Iron Pipe Company !

(hereinafter “NCIP”) and the committee representing

its employees are dated November 6, 1936 ( Plaintiffs’

Exhibit 60). A D. I. Miller representing the company

proposed to the committee representing the employees that

they arrange a ballot within the plant by departments to

elect the committee representing the employees. Robert

Hollman testified that such a ballot was never circulated

through the plant.

1Clow Corporation bought National Cast Iron Pipe Company

between 1951 and 1957. For purposes of these findings their names

may be interchanged.

24a

In 1937 there were seven departments in the plant:

Maintenance and Electrical Department, DeLavaud Shop,

Specials Foundry, Specials Foundry Cleaning Shed, Sand

Cart Shop, Shipping Department, and DeLavaud Runs.

The July 8, 1937 minutes (Plaintiffs’ Exhibit 62) reflect

that six white persons were selected as committemen from

six of the departments. The committeeman from the

DeLavaud Runs was to be “named”’ later.

The committee representing its employees negotiated a

collective bargaining agreement on November 6, 1936.

This agreement (Plaintiffs’ Exhibit 60) expresses at

paragraph three of the agreement, the manner in which

seniority will effect promotion, lay-offs, reductions in

forces, as follows:

“Promotions and lay-offs shall be governed by senior-

ity, individual skill and efficient service. It is the

intention of the Company to give the utmost con-

sideration to seniority in any questions involving lay-

offs, reduction in force or promotions.”

Before the Molders Union started representing the em-

ployees, the black employees worked all over the plant.

Blacks, however, were prohibited from holding certain

skilled and semi-skilled jobs.

On March 26, 1937, Shelley Walden, the seventh vice

president of the International Molders Union of North

America, negotiated an increase in pay for the employees

at NCIP that the Molders Union represented. A common

laborer’s pay increased by four cents to forty-two cents

per hour, and the minimum wage of a semi-skilled laborer

increased by six cents per hour. The common laborer jobs

were held by blacks only (Plaintiffs’ Exhibit 61).

Plaintiff’s Exhibit 63 indicates that sometime prior to

August 2, 1937, a departmental seniority system was

put into effect. As of August 2, 1937, it is undisputed

that the defendant International Molders Union of North

25a

America, later to be called the International Molders

and Allied Workers Union, was the exclusive representa-

tive of the employees. Claude Holiday, who was president

of Local 100 at one time, stated that seniority was based

on departments rather than age with the company

(Plaintiffs’ Exhibit 63). Charles Abney, chairman of the

regular committee that represented the employees as of

August 2, 1937, was present at this meeting when Claude

Holiday said that seniority was based on departments

rather than age with the company.

The International Molders Union of North America,

later to be called the International Molders and Allied

Workers Union, was the exclusive bargaining agent for

the employees at NCIP and later Clow Corporation from

1936 until the pipe manufacturing operation shut down

in 1980. For a brief period of time the Machinists Union

represented machinists at NCIP, but the court finds that

the brief period of time within which the Machinists

Union represented machinists was too short to have any

bearing upon the liability or non-liability of the defend-

ants.

The Internationai Molders Union of North America

and thereafter the International Molders and Allied

Workers Union participated in contract negotiations with

local union officers and the employer at various times,

including the time period in 1936 and 1937 when the

departmenta! seniority system was created, and through

the 1970’s.

The International Molders and Allied Workers Union

was sufficiently named in the charge of discrimination

filed by the 1aamed plaintiffs Bates and Howard in their

affidavit, which is a part of said charge.

Plaintiffs’ Exhibit 64 indicates that on or about Decem-

ber 14, 1937, Marion Miller, a black employee, was op-

erating the test press job that was formerly run by Sam

Self, a white employee. Abney, chairman of Local 100,

26a

brought up the fact that Marion Miller was not getting

paid more for running the test press job than he re-

ceived on his prior job. The company’s response was

that Mr. Self had been given more work to do than

Miller and Miller had been hired on as a helper at a

regular helper’s rate and therefore not entitled to more

money. Robert Hollman testified that the press job was

a job that Marion Miller had operated in the old Sand

Foundry before the new DeLavaud operation started and

that he was familiar somewhat with the test press op-

eration. The test press job was not a common laborer

job.

The collective bargaining agreements in the 1930’s

were all one-year contracts. During the collective bar-

gaining discussions on February 25, 1938 (Plaintiff's

Exhibit 65), the International Association of Machinists

and the International Molders Union proposed the fol-

lowing with respect to seniority: ‘Seniority should pre-

vail in each department.”

On March 1, 1938, the company’s proposal for seniority

was as follows:

“Promotions and lay-offs shall be governed by senior-

ity, individual skill and efficient service. It is the

intention of the Company to give the utmost con-

sideration to seniority in any questions involving

lay-offs, reduction in force or promotions.”

This proposal, which contained the above seniority provi-

sion, was rejected by the Molders and Machinists.

Walden, the vice president of the International Molders

Union of North America, finally agreed to the contract

proposal made by the company which contained the provi-

sion for seniority as follows:

“Promotions and lay-offs shall be governed by se-

niority, individual skill and efficient service. It is

the intention of the Company to give the utmost

27a

consideration to seniority in any questions involving

lay-offs, reduction in force or promotions.”

The company created a Crane Department on or about

June 1, 1938 and allowed crane runners who had seniority

in an operating department to retain the seniority in

such operating department. Crane runners who had no

seniority in any operating department were governed by

Rule 3 of the collective bargaining agreement in the

Crane Department only, and had no seniority in any other

department other than the Crane Department. (Plaintiff’s

Exhibits 68 and 69.) Ail of the crane runners at this

time were white. Blacks were then excluded from crane

jobs and from the Crane Department. Until 1970, when

Eddie Taylor and Ernest Coppins got “Millwright T”

jobs, blacks were excluded from jobs other than common

laborer jobs. In meetings between NCIP and the com-

inittee representing its employees, black representatives

were segregated from white representatives. There is

no evidence that this resulted from any union involve-

ment.

There is substantial evidence that on the newly created

DeLavaud Run, white employees were afforded oppor-

tunities to learn various jobs on the DeLavaud Run to

the exclusion of blacks.

The contract negotiations on February 7, 1940 pos-

sibly indicated that, at the time, the employee commit-

tee’s position on seniority was that the clause should say

only that seniority shall prevail in each department. The

company’s position on the seniority clause was that the

clause should state as follows:

“Promotions and lay-offs shall be governed by senior-

ity, individual skill and efficient service. It is the

intention of the Company to give the utmost con-

sideration to seniority in any questions involving lay-

offs, reductions in force or promotions. Seniority as

herein used, means length of continuous service in

28a

the department to which the employee is permanently

assigned.”

(Plaintiffs’ Exhibit 72). Mr. Holiday of Local 100

stated it could mean that an unskilled man in the event

of a lay-off, provided he had seniority. There is no evi-

dence that, during this time, black employees were trained

for skilled positions.

The company and the unions, with Mr. Shelley Walden

present for the International Molders Union of North

America, agreed that the company would work up a list

of the seniority of each man in each department showing

his seniority in that department and, after the list was

agreed upon, any men to be transferred and others in-

terested would be given notice of the seniority list of

employees in each department (Plaintiffs’ Exhibit 74).

On February 29, 1940, the company made a proposal

covering seniority which was as follows:

“Promotions and lay-offs shall be governed by se-

niority, individual skill and efficient service. It is

the intention of the Company to give the utmost con-

sideration to seniority in any questions involving lay-

offs, reductions in force or promotions. Seniority as

herein used, means the length of continuous service

in the department to which the employee is perma-

nently assigned. Transfers of employees from one

department to another which may be made at the

discretion of the management, with the consent of

the employee concerned, should not become permanent

and cause the employee to lose seniority in the de-

partment from which he is transferred until the

expiration of sixty days, during which period the

transfer may be annulled at the request of the em-

ployee or the discretion of the management. If at

the end of sixty days the employee is permanently

assigned to the department to which he has been

transferred, his seniority dates from the day first

29a

transferred. Loans of employees from one depart-

ment to another shall not give seniority in the new

department nor cause loss of seniority in the old.

”

This particular ciause was to routinely become embodied

in subsequent collective bargaining agreements (Piain-

tiffs’ Exhibit 75).

The company made a distinction based on race with

respect to the initial hire of employees. Whites were

hired into the Carpentry Department and blacks were

hired into the Yards Department. Employees hired into

the Yards Department often earned less per hour than

employees hired into the Carpentry Department (Plain-

tiffs’ Exhibit 54).

The company conducted its operations during periods

when racial discrimination in our society was standard

operating procedure. No segment of our society was un-

affected including Union Hall and NCIP. See plaintiffs’

Exihibit 3 (the October 25, 1951 minutes). The Ku

Klux Klan’s influence at the plant was questioned by

Draper Doyle, the International representative for the

International Molders and Allied Workers Union. Mr.

Doyle apparently thought the Klan was present in the

plant and told company representative Mr. G. W. Whit-

ney of this fact at the October 25th meeting. Fred Hines,

a black Local 100 representative, had brought the subiect

up of the Ku Klux Klan. Prior to this time black repre-

sentatives had spoken little, if any, at company-union

meetings. Robert Hollman testified that when he was

cleaning up at Union Hall one evening he noticed the

Klan conducting a meeting there.

-At a March 14, 1956 meeting, which included union

leaders, it was made clear that blacks were not expected

to be involved in skilled positions or “handle tools.” This

impeded their ability to obtain skills which could result

in even intra-department promotions.

30a

In Plaintiffs’ Exhibit 5, Local 100 President Jones

stated that the proposal for bidding jobs by “colored”

employees was rejected by the union. The company,

through Mr. Warren Whitley, had said that it would be

willing to bid “colored” jobs. The company maintained

separate seniority lists with the acquiescence by Local

100 (Plaintiffs’ Exhibit 5). Jones, the President of Local

100, wanted to increase job rates in other departments

so that they would be higher than those in the Yards

Department ( Plaintiffs’ Exhibit 5).

There is little question that, as late as 1958, both the

company and Local 100 recognized that jobs were and

should be categorized based on race (Plaintiffs’ Exhibit

6). It is questionable, in some early stages after a bid

system was established, whether black employees could bid

or had their bids honored on jobs designated for “colored.”

On June 4, 1957, John Martin, a black employee, en-

tered a bid for the Machine Shop job as a laborer and

was told he was ineligible to bid. Blacks were excluded

from jobs in the Machine Shop, either by testing or by

outright exclusion because of race. After the bidding sys-

tem for “colored jobs” was established in September of

1957, by agreement of the company and the employee com-

mittee, a number of “colored jobs” became open for bid.

These were a job in the Special Foundry Finishing De-

partment, a job in the Shipping Department on October

23, 1957, two jobs in the Specials Foundry on November

7, 1957, and another job in the Specials Foundry on

December-9, 1957, and one on December 12, 1957 for a

trammer in the DeLavaud Finishing Department. Be-

cause John Martin did not bid on any of these particular

“colored jobs” at the time they came open, he was laid

off even though he was the oldest employee in the Yards

Department ( Plaintiffs’ Exhibit 8).

The company and the Machinists Union agreed to a

change in the seniority system on January 17, 1978. No

8la

member of the International Molders and Allied Workers

Union was present when the Company and the Machinists

signed the agreement, but International Molders repre-

sentatives Reid and Dockery ratified the agreement in

subsequent contracts. The statement on seniority is as

follows:

“An employee who bids into a regular department

has sixty days to determine whether or not he wishes

to remain in that department. At the same time the

foreman or supervisor of that department has sixty

days in which to determine whether or not the em-

ployee is capable of handling the job.

At the end of sixty days, provided the employee has

not asked to leave a department and signed such a

request in writing, and he is retained as an employee

in the department his new departmental seniority

will start as of the day he first entered the depart-

ment.

When an employee is rolled out of a department

through lay-off or otherwise moved back to one of

the ‘pool’ departments, he is eligible at once to bid

on jobs posted for bidding. If he is the successful

bidder, then the sixty day clause as above begins to

take effect. During the first sixty days after becom-

ing the successful bidder for the job, should the job

he left, or was rolled out of come open and is posted

for bids, he will have the opportunity to bid the job

in which he has experience. If, however, the sixty

day period has elapsed and his seniority has begun

in the department into which he bidded, he becomes

ineligible to bid into other departments as he is no

longer considered a member of one of the ‘pool’ de-

partments.

This does not mean that a rolled back employee will

not be used in a department where he has experience

and where temporary vacancies occur. This proposal

32a

in no way changes the regular seniority rules that

govern promotions, transfers, etc.

This new seniority bidding clause was neutral in form

but discriminatory in operation for there were only cer-

tain “colored jobs” that black members of the bargaining

unit could bid on. The court finds no such restriction

was placed on white members in the bargaining unit.

In the Yards Department, which was the labor pool

department to which blacks were initially hired, the fork-

lift job was filled by the oldest man in the Carpentry

Pool Department, which was the department into which

initial whites were hired.

Until the company and the Molders signed the 1972

collective bargaining agreement, the seniority system was

a departmental seniority system and did not allow job

bidding initiated by employees across departmental lines.

Transfers by the company of an employee and loans by

the company of an employee from department to depart-

ment, however, could and were made at the discretion of

management. Employees loaned by management from

one department to the other did not accumulate seniority

in the new department. Employees transferred from one

department to the other by management did accumulate

seniority in the new department after the employees had

been in the department for over sixty days. An employee

was always allowed to turn down a transfer within sixty

days of the transfer.

The court finds that the 1972 negotiations between the

officers of the defendant unions and the company rep-

resentatives resulted in significant changes to the sen-

iority system. After the company and the Molders signed

the 1972 collective bargaining agreement, employees

could bid across departmental lines one time, success-

fully, per year. If an employee transferred to a new

department by bid and remained there for over sixty

days, he lost the seniority he had earned in the prior

department and his new department seniority began on

38a

the day he entered the new department. This new sen-

iority system—departmental seniority with one success-

ful departmental transfer per year coupled with the loss

of accumulated seniority—remained the same until the

plant closed in 1980. Although this new seniority system

significantly improved the opportunities for blacks to at-

tain better jobs at the plant, the court finds that the

new seniority system perpetuated the effects of prior dis-

crimination. Accordingly, the court must now find

whether or not the unequal treatment caused by the sen-

iority system reflected an intent to discriminate because

of race, color, sex, religion, or national origin, on the

part of the eompany.? The court must decide whether the

totality of the circumstances demonstrates purposeful

discrimination.’

2 See International Brotherhood of Teamsters v. United States,

431 U.S. 324, 349-55 (1977). The court’s finding on the issue of

intentional discrimination will dictate the court’s conclusion on

whether the seniority system is “bona fide” pursuant to § 703(h) of

Title VII. Jd. at 353.

In determining whether the company intentionally discriminated

through the use of the seniority system, the court will be guided by

the four factors named by the Supreme Court in Teamsters and

expanded upon by the Fifth Circuit in James v. Stockham Valves

and Fittings Co., 559 F.2d 310 (5th Cir. 1977), cert. denied, 434

U.S. 1034 (1978) :

1) whether the seniority system operates to discourage all

employees equally from transferring between seniority units;

2) whether the seniority units are in the same or separate

bargaining units (if the latter; whether that structure is

rational and in conformance with industry practice) ;

3) whether the seniority system had its genesis in racial

discrimination; and

4) whether tre system was negotiated and has been maintained

free from any illegal purpose.

559 F.2d at 352.

3 See United States v. Georgia Power Co., 634 F.2d 929, 985 (5th

Cir. Unit B 1981), vacated on other grounds sub nom. Local 84 v.

United States, 456 U.S. 952 (1982).

84a

Did the seniority system operate to discourage all em-

ployees equally from transferring between seniority

units? The seniority lists indicate that the seniority

forfeiture rules were evenly applied; both black em-

ployees and white employees lost their accumulated sen-

iority upon transfer. Facially equal application, how-

ever, is not determinative.* Whether the discouraging

effect or impact of seniority system fell equally on blacks

and whites is determinative.®

Prior to 1965, separate labor pools existed for newly

hired black and white employees. Labor pools were com-

prised of employees who were not in an established line

of progression within a particular department. When

Title VII became effective on July 21, 1965, the com-

pany abolished the “Carpenter Labor Pool” (the white

pool) and the “Yards Labor Pool” (the black pool). At

the same time, the company announced that new employ-

ees would be hired directly into departments and that all

new, unskilled employees would have the same starting

pay. The company also announced its intention to re-

tain departmental seniority, to promote without regard

to race, color, religion, sex or national origin, to increase

a number of job rates, to promote based on skill, efficient

service, physical fitness, and departmental seniority, and

that “everything else being equal. departmenta! seniority

will govern the advancement.” At that time the com-

pany also announced the abolition of separate jobs for

blacks and white employees. In a meeting on September

18, 1969, the company announced that 40% of the em-

ployees were “working on jobs that were formerly pro-

hibited to them—white on formerly colored jobs, or

colored on formerly white jobs.” Thus, the court finds

that the employees in the less desirable, lower paying

jobs in the late 1960’s and early 1970’s were both white

and black.

4 Id.

5 Id

85a

The once-a-year bid clearly improved the advancement

opportunities for blacks. Mr. Howard testified at his

deposition that beginning in 1975 the opportunities for

advancement of black employees considerably improved:

“its just about broke wide open.” Ten black employees

entered the crane department, at one time an all white

department, between 1973 and 1978.° One (W.D. Kelley)

quit after 15 months and one (Abraham Holt, Jr.) was

unable to qualify. The remaining eight successfully quali-

fied and many progressed in the department: Cornelius

Reddock became a Crane Trainee on 8/13/73, was pro-

moted to Crane Operator on 11/12/73 in Department 54,

transferred to Department 80 on 1/21/74 and to Crane

Operator in Department 35 on 8/20/74; Mr. C.E. Cal-

houn, with a plant seniority date of 4/15/63, became a

Crane Trainee on 10/8/74, completed his training and

became a Crane Operator on 11/4/74, and on 9/6/77

became a Crane Operator in Department 40. The study

shows that Reddock’s and Calhoun’s advancements were

the result of successful bids on skill, efficient service,

physical fitness and departmental seniority. The analysis

reveals that many of the employees had plant seniority

dates much earlier than their entry into the department.

This indicates that these employees were dead-ended be-

fore passage of the 1972 modifications, which encouraged

employees to bid into new departments. For example,

Mr. Reddock had a plant seniority date of 5/10/48; Mr.

Matthews had a plant seniority date of 8/21/63; Mr.

Booker’s plant seniority date was 5/27/41; Mr. Kelley’s

plant seniority date was 8/19/70; Mr. Holt’s was 5/17/

62; Mr. Jemison’s was 9/24/62; Mr. Atkin’s was 7/11/

57; Mr. Collin’s was 11/4/74; ete. Based on this evi-

dence, the court finds that the new seniority systern

®T.R. Booker, Amos Holt, Cornelius Reddock, Norman Jemison,

E. Atkins, R. Matthews, C.E. Calhoun, W.D. Kelley, H. Owens, Jr.,

and Abraham Holt, Jr. A study was done of this department.

36a

operated to discourage all employees equally from trans-

ferring between seniority units.

Were the seniority units in separate bargaining units?

No, all employers at the company were in Local 100 of

the Molders Union.

Did the seniority system have its genesis in racial dis-

crimination, and was the system negotiated and main-

tained free from any discriminatory purpose? The sen-

iority system clearly had its genesis in a period of overt

racial discrimination at the company and the court so

finds. Blacks and whites were hired into separate de-

partments and blacks had the lower-paying, unpleasant

jobs that held little or no chance of advancement. In

1965, when Title VII became effective, these practices

ceased; blacks and whites were hired into the same de-

partments at the same wages. When the 1972 modifica-

tions to the seniority system became effective, blacks

finally had the same seniority rights that whites did.

Although the seniority system was stil] primarily a de-

partmental system (except for the once-a-year successful

transfer provision), the court finds that the seniority sys-

tem was functionally and rationally related to the neces-

sities and requirements of a large manufacturing facility

producing pipes and fittings, and that the seniority sys-

tem was in conformance with industry practice. The

departments represented the company’s attempts to or-

ganize the work and utilize the workers skills in the

most efficient manner. Based on this evidence, the court

finds that the seniority system was negotiated and main-

tained free from any discriminatory purpose beginning

in 1972.

Although the seniority system had its genesis during

a period of racial discrimination, the court finds that

the totality of the circumstances surrounding the sen-

iority system does not demonstrate an intent to discrimi-

nate by the company. The seniority system, which was

37a

first negotiated in 1936, was basically a departmental

seniority system until 1972. It was created at a time

when it was recognized that blacks would not be assigned

to certain depaitments. However, the court cannot say

that the purpose of the departmental seniority system

was, in and of itself, to discriminate against blacks. The

discrimination against blacks resulted from their being

substantially confined to common labor jobs without any

intent to assign them to various departments, seniority

or not.

Prior to the effective date of Title IV (July 2, 1965),

the company did not use written tests to select employ-

ees for promotion or to select employees for entry into

certain departments. Prior to 1965, the company did use

tests for supervisors. After July 2, 1965, the company

started using testing of employees prior to entry to jobs

and departments. The union defendants did not oppose

this.

Ernest Coppins and Eddie Taylor, black employees in

the Maintenance Department, had over twenty years of

seniority in the department as of July 2, 1965, but were

among the lowest paid men in the department and had

the lowest rated jobs. Mr. Whitney, the company rep-

resentative, said that these men would bid at the next

rate above their present rate in the Maintenance De-

partment ( Plaintiffs’ Exhibit 17). As shown by the tes-

timony, these men were required to take written tests,

which they failed on at least two occasions between 1965

and 1970. Later they were allowed to move up to the

newly created Millwright T job without taking a test.

Jobs for which the mechanical comprehension test were

required were the electrician job, pattern shop, night

DeLavaud maintenance laborer, machinist, millwright,

machine shop laborer, maintenance shop, flange shop

laborer, air test—flange shop, mold sand blast operator,

pattern changer assistant, pattern rates and inspector

(Plaintiffs’ Exhibit 57).

38a

The minutes of the June 16, 1965 meeting reflect that

Robert Hollman, a black member of the union committee,

asked about plant seniority (Plaintiffs’ Exhibit 17).

Whitney said plant seniority was recognized insofar as

vacations, insurances, annuities and lay-offs were con-

cerned. He did not respond to the issue of plant seniority

for bidding. In the minutes of March 21, 1969, Robert

Hollman said that he felt that all select jobs should be

open for general plant bidding and the company should

set the qualifications for the job and select from a list of

bidders. The representative of the company, Mr. Weaver,

responded that he would do that but eventually he would

set up job requirements and a training period for skilled

jobs (Plaintiffs’ Exhibit 20). However, craft jobs never

became open for plant wide bidding. After the 1972

negotiations certain select jobs became open for bidding

on a plant-wide basis one time per year.

The minutes of August 20, 1970 (Plaintiffs’ Exhibit

22) concerned a grievance from Ernest Coppins and

Eddie Taylor. Though the grievance is not attached to

the minutes as referred to in the minutes, the court finds

that the grievance relates to the complaint of Coppins

and Taylor regarding the requirement that they take and

pass a test and pass same prior to advancing to the

Millwright E job in the Maintenance Department. The

grievance is quoted as saying that Coppins and Taylor

complained that their civil rights were violated. The

union agreed with the company that their grievance was

not subject to the grievance procedure. The 1968 con-

tract, which was then in effect at the time this grievance

was filed, included an anti-discrimination clause. Plain-

tiffs’ Exhibit 22 shows that no union representative con-

tested the company’s determination that the grievance

of Coppins and Taylor concerning the test was not sub-

ject to the grievance procedure. The union offered no

reason at this August 20, 1970 meeting as to why it

did not pursue the grievance on behalf of these black

39a

union members. According to Frederick Kreitlein (Plain-

tiffs’ Exhibit 47), the only thing that stopped the com-

pany from using the test was the plaintiffs’ lawsuit which

caused an abrupt halt to the use of the test in 1977.

As a result, the court finds that Coppins and Taylor

were without representation in their grievance seeking

to prove that the employer breached the 1968 contract.

The answers to interrogatories of Clow Corporation

show that of the eighty blacks who took this mechanical

comprehension test, only ten passed; and of the one

hundred eighty-four whites who took the mechanical com-

prehension test, one hundred three passed. The selection

rates for the class of black employees who took the test

is less than eighty percent of the selection rate of the

whites who took the test and a presumption of discrimi-

nation arises from the use of the test.

A comparison of plaintiffs’ exhibit 58 with plaintiffs’

exhibit 59 shows that ''» new seniority provision con-

tained in the 1972 contract, which allowed once a year

plant-wide bidding across departmental lines, had some

effect in eliminating racially identifiable departments.

Plaintiffs’ exhibit number 58 shows that there were nine

racially identifiable departments as of September 1965.

Of those nine, department numbers 9, 14 and 54 were

all black; department numbers 40 and 50 were predomi-

nantly black; department numbers 60, 64 and 65 were all

white; department 62 was predominately white. On June

26, 1978, there were seven racially identifiable black de-

partments and five racially identifiable white depart-

ments. Departments 14, 30, 45 and 51 were all black;

departments 20, 54 and 77 were predominately black; de-

partment number 65 was all white; department numbers

95, 60, 62, and 68 were predominately white. Testing

impeded the employment opportunities of blacks who

sought entry into all white departments and jobs con-

tained therein which were more remunerative positions.

Paragraph E of Article 7 of the 1974, 1978, and 1981

Contracts provided that employees who had progressed

40a

to the top of their departmental progressions qualified for

a lateral transfer to a higher rated job in his area. This

section of the contracts also listed the areas and progres-

sions that were grounded together for purposes of lateral

progression. Testimony established that the progression

rules were instituted as a result of the 1972 negotiations,

although the progression schedule was subject to modifi-

cation in subsequent collective bargaining. The incentive

pay system affected an individual’s choice to change jobs

because to transfer from a high incentive job to a job at

a higher labor grade might result in a smaller rate of

pay.

Under the 1972 and 1974 contracts, the criteria used

by the company to fill jobs for all labor grades were

seniority, skill, efficient service, and physical fitness. In

the 1978 and 1981 Contracts, the criteria used to fill jobs

were seniority, skill, efficient service, and physical fitness

for all labor grades with the exception of labor grades

1 through 4; only seniority and physical fitness were the

only two criteria considered in filling jobs in labor grades

1 through 4. The 1972 line of progression rules provided

among other things that an employee could change his

line of progression by using his once-a year bidding right,

that an employee who declined a promotion was “frozen”’

but could change his mind at the time of the next

vacancy, that a job would be placed for plant-wide bid

if no one in the line of progression moved up, that the

senior qualified employee had the right to the promotion,

that if an employee allows a junior employee to go around

him in the progression, “that junior employee will al-

ways be around him, however, in case of a lay-off or roll-

back, that junior employee will return the same way he

went up.”

Under the terms of the 1972 through 1981 Contracts,

Clow exercised managerial discretion in the choice of em-

ployees for craft jobs to insure that qualified candidates

were placed in such jobs without regard to length of serv-

ice in the plant. Craft jobs were described in the 1972

4la

through 1981 contracts as jobs requiring special skills,

experience, training and responsibility. These Contracts

provided that employees would be considered for vacancies

in craft jobs if they signed a list of applicants which was

maintained in the Employee Relations Office. The process

by which an individual was chosen to fill a vacancy in a

craft position at Clow included an evaluation by the

applicable manager or supervisor of the individual’s tech-

nical competence and skill levels with respect to the par-

ticular craft position for which that individual applied.

Most craft employees were hired from the outside as

fully qualified journeymen. Beginning in 1978 the com-

pany instituted an apprentice training program for craft

employees: electrician, millwright, machinist, and pat-

ternmaker. Five union officials including James Howard

executed a statement that the union did not wish to be

part of the administration of the apprentice program.

Since July 2, 1965, certain bargaining unit jobs at

Clow, known as “select jobs” have been filled without

reference to a line of progression or seniority. The com-

pany insisted that it have discretion in filling the select

jobs because the company considered those jobs to be

critical to Clow’s overall plant operation, since the jobs

required individuals with special technical competence,

skill, prior experience, and/or reliability. Vacancies in

select jobs at Clow were filled by both internal and ex-

ternal applicants. The union did not strongly oppose this

system.

In the 1972 negotiations, the union proposed and the

company agreed to remove some 23 jobs from the select

job list. As a result, these 23 jobs would be posted and

filled by seniority, leaving eight select jobs. Thereafter

the melting department was assigned the select jobs of

control room technician, environmental control] technician,

and melting platform technician. A casting machine

technician was assigned to the pipe casting department.

42a

Pipe finishing select jobs included quality control inspector

and annealing oven operator. The locomotive crane op-

erator and the grove operator job were select jobs as-

signed to the shipping department. The court finds that

the job description and classification program, the merged

departments, the progression rules, the lines of progres-

sion, training programs for craft employees, reduction in

the number of select jobs, the right to file grievances and

to proceed to final and binding arbitration ali benefited

black employees and served to advance employment oppor-

tunities for black employees at Clow.

Plaintiff alleges that the company discriminated against

them based on race in filling craft and select jobs. Plain-

tiffs have failed to put on any evidence that the company

intentionally discriminated against plaintiffs in the selec-

tion of craft and select jobs. Accordingly, the court finds

that the company did not intentionally discriminate in its

assignment of craft and select jobs.

There is evidence that the company equated plant sen-

iority with inefficiency and waste and had no intention

of making any further concessions respecting seniority.

Thus, it is speculative only to conclude that Union de-

mands for seniority concessions would have been effective.

There was uncontradicted testimony that within Local

100, no suggestions or demands were forthcoming from

the membership for changes in the seniority structure as

it existed after 1972.7 The union’s policy and practice

was to post a notice on the plant bulletin board announc-

ing a special meeting to formulate bargaining demands

to present to the company for a new contract. There was

no testimony that the negotiating committee suppressed

or censored the proposals to eliminate any respecting

seniority modifications.

7™Mr. Kreitlein, a former company official, testified in deposition

that he was unaware that the black employees were dissatisfied

with the once-a-year bid opportunity (p. 110).

43a

The employee work force and the union membership

was composed of approximately equal numbers of black

and white members. In the 1972 negotiations the commit-

tee consisted of 5 black members and 5 white members.

At that time a black member served as Chairman of the

Shop Committee with administrative responsibilities un-

der the Contract. Blacks served on the committees for the

1974, 1977 and 1980 negotiations. Black candidates were

elected to union office, on some occasions defeating white

opponents.

Grievances by black employees protesting violations of

the contract were filed, processed and, absent settlement,

appealed to arbitration in appropriately equal numbers

as those for white employees. Black employees served on

the shop committee and on occasion as chairman of the

shop committee and there is no evidence that Local 100

was less aggressive in pursuing grievances for black em-

ployees than for white employees. The minutes of com-

pany-union meeting over a period of years reveals that

Robert Hollman, a black committeeman and on occasion

the Chairman of the Committee, was articulate and vocal

in asserting the rights of black employees (and indeed,

all employees). The record reveals that Mr. Hollman

voiced criticism of the company’s testing program on

January 19, 1970, demanded that the company abolish

select jobs on February 9, 1970, demanded plant-wide

seniority on June 5, 1972 and at the same meeting de-

manded better training (longer training periods) for

employees. At these times, Mr. Hollman was acting as

Local 100’s representative and his efforts are attributable

to that defendant since he was its agent.

The minutes of the meeting of August 11, 1975, reveals

that white committeemen also demanded an end to the

use of tests. The minutes also show that during the meet-

ing of February 9, 1972, the union demanded that the

company post and bid all select and craft jobs.

44a

The evidence is that upon request the union aggres-

sively pursued grievances by black employees and obtained

results were possible.

None of the plaintiffs’ witnesses denounced the Locai or

the International as indifferent or hostile for racial rea-

sons. For the most part, the plaintiffs’ witnesses re-

counted only what the union had failed to achieve in

collective bargaining. The witnesses did not reveal inci-

dents suggesting that the officers and agents of the union’s

were racially hostile to them or to their asperations,

either with respect to particular grievances or with re-

spect to the larger goals of achieving equal opportunities

at the plant. The plaintiff’s witnesses did not accuse the

union of altering the bargaining strategy to the detriment

of black employees, of failing to investigate black griev-

ances, of excluding blacks from participation in the

internal affairs of the union or the collective bargaining

process, or of failing to heed black suggestions for changes

in the labor contracts. The court cannot equate failure

to achieve in collective bargaining with failure to achieve

because of racial animosity.

The failure of blacks to transfer into top rated journey-

men craft jobs is noted but, on the other hand, there is

no evidence that white employees transferred directly

into top rate craft jobs. The company required that all

employees be hired as a qualified craftsman or the em-

ployee would necessarily have to acquire the requisite

skill by progressing through a normal progression sched-

ule required of all unskilled employees beginning at the

lowest rated job as stated in Plaintiffs’ Exhibits 8 and

26.5 There was no testimony or other proof that fully

qualified black craftsmen were working out of classifica-

tion and declined the transfer for fear of loss of seniority.

8 See the Kreitlein deposition at pages 120-125. The pattern was

that vacancies at the top rate were filled by hiring and vacancies

at the bottom were filled by bid.

| i

45a

The records do reveal transfer of black employees into

craft departments and progress to the top rated job.

Records reveal eight employees, six of whom were black,

entered the beginning machinist E category by bid in

1976. J. E. Bradford, W. McGinnis, and W. A. Neeley

were three of those six black employees. Their plant

seniority dates were, respectively, 11/24/69, 6/4/63, and

8/25/63. The exhibit shows Mr. Bradford’s progression

to Machinist D on 9/20/76, to Machinist C on 3/21/77,

and to Machinist B on 9/12/77. Mr. J. E. Parks, who

had a plant seniority date of 8/5/68, transferred from

laborer in department 78 to Machinist E on 5/3/76, to

Machinist D on 9/20/76, to Machinist C on 3/21/77,

and to Machinist B on 9/12/77.

Through comparison of the seniority lists of 1965 and

1978 (plaintiffs’ Exhibits 58 and 59), the plaintiffs assert

that there was no change in the racial identity of the

departments.® For example, the plaintiffs claim that

Departments 7, 14 and 54 were all black in 1965 whereas

Departments 14, 30, 45 and 51 were all black in 1978.

The significance is that by 1978, Departments 14, 30 and

45 were in a line of progression and provided the oppor-

tunity to advance to the top rated job in either the pipe

shop or the fittings foundry. The remaining Department,

51, had been merged with Department 50, a formerly

predominately black department, to create the melting

line of progression that provided the opportunity wo pro-

gress to the top rated job. The plaintiff overlooks the

integration by 1978 of four formerly all-white Depart-

ments (60, 62, 68 and 95) and the reduction of all white

Departments from 3 to 1 by 1978. Only the Carpenter

Shop, which included only three employees, was all white

by 1978. The departments predominantly black in 1965

® Although the 1965 seniority list (plaintiffs’ Exhibit 58) con-

tains the racial designations the 1978 list does not. Assuming the

accuracy of the plaintiffs’ description of the 1978 list an analysis

fails to support the conclusion that the composition of the depart-

ments was unchanged from 1965 to 1978.

46a

(40, 50 and 62) had changed by 1978. Department 40

was placed in the said foundry progression in 1972 and

Department 50 was merged with Department 51. The

predominantly black Departments in 1978 (20, 54 and

77) had been placed in a line of progression (Depart-

ments 20 and 77) were in the said foundry progression

and the racial makeup of Department 54 changed from

all black to predominantly black.

The approximately equal racial mixture of the im-

portant local union committees and the total membership

itself both before and after 1965, but more particularly

thereafter, does bear some weight in the considerations

involved in passing judgment on the union’s record in

representing its black members. There is no evidence of an

accusation of intimidation or coercion practiced against

black employees or that the union was dominated by a

hostile white majority. The union’s method for determin-

ing its collective bargaining strategy was open to black

members as well as white members.

Hildridge Dockery, the representative of the Interna-

tional Molders Union, became the advisor of the Interna-

tional for Local 100 in 1972 and remained the advisor

for Local 100 until the plant closed in 1980. Dockery

promoted and helped bring about the 1972 modifications

in the seniority system. Dockery testified that he worked

closely with the bargaining committee, advising them and

suggesting proposals for contract negotiations. Dockery

did not bypass the bargaining committee and take his

advice and suggestions to the membership directly.

Dockery unsuccessfully urged the bargaining commit-

tee in 1974 to seek a plant wide seniority system. He

testified that the committee liked the current once-a-year

transfer system and they did not want to change it.

Dockery testified that he did not learn of the company

testing program until sometime after he began his stint

as the International representative. Dockery testified that

Robert Hollman and George Estes had complained about

the tests.

| 47a

The court finds that Dockery, the International repre-

sentative, acted as the local union’s advisor from sometime

in 1972 until the plant closing in 1980. The court further

finds that he was intricately involved in the operation of

the bargaining committee and the formulation of Local

100’s bargaining positions. He supported and proposed

plant-wide seniority after 1972 in his dealings with the

bargaining committee. He clearly knew about the testing

of employees by the company, but there is no evidence

that he suggested or proposed to the bargaining committee

that they oppose the company’s testing program.

CONCLUSIONS OF LAW

Plaintiffs have brought the following five claims against

the defendant unions:

1) defendants violated 42 U.S.C. § 2000e-2(c) (3)

and 42 U.S.C. § 1981 by acquiescing in the institu-

tion and maintenance by the employer of the al-

leged discriminatory seniority system:

2) defendants violated the same two statutes by ac-

quiescing in the alleged discriminatory initial assign-

ment policies of the employer;

3) defendants violated the same two statutes by ac-

quiescing in the employer’s allegedly discriminatory

assignments of craft and select jobs to the employees;

4) defendants violated the same two statytes by ac-

quiescing in the administration by the employer of

facially neutral tests that had an adverse impact on

plaintiffs ;

5) defendants breached their duty of fair repre-

sentation in violation of 29 U.S.C. § 158(b) by mak-

ing distinctions based on race among its own mem-

bers on initial hiring and by failing to process the

1970 grievance filed by Ernest Coppins and Eddie

Taylor.

The court will consider each of these claims separately.

48a

The Seniority System

Plaintiffs claim that defendants are liable under § 703

U.S.C. § 2000e-2 (¢) (3)'° and 42 U.S.C. § 1981 '' because

they acquiesced in the institution and maintenance by

the employer of a seniority system that allegedly was

violative of Title VII and § 1981. To establish a viola-

tion of Title VII by defendants, plaintiffs must prove

first that the employer’s seniority system was not “bona

fide” pursuant to § 703(h) of Title VII, and second, that

defendants caused or attempted to cause the employer to

establish or maintain the allegedly discriminatory sen-

iority system. If the employer’s seniority system is “bona

fide,” pursuant to § 703(h) of Title VII, defendants can-

not be liable under Title VII. James v. Stockham Valves

& Fittings Co., 559 F.2d 310, 353 (5th Cir. 1977), cert.

denied, 434 U.S. 1034 (1978).

A seniority system does not violate Title VII merely

because it discriminates in effect against a particular

group or, stated another way, has a disparate impact.

International Brotherhood of Teamsters v. United States,

431 U.S. 324, 349-50 (1977). To establish that a sen-

iority system violates Title VII, the plaintiff must prove

10 This section states in pertinent part as follows: “(c) It shall

be an unlawful employment practice for a labor organization—

... (8) to cause or attempt to cause an employer to discriminate

against an individual in violation of this section.” 42 U.S.C.

§ 2000e-2(c) (1981).

11 Section 1981 states as follows:

All persons within the jurisdiction of the United States shall

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

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

full and equal benefit of all laws and proceedings for the

security of persons and property as is enjoyed by white citi-

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

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

42 U.S.C. § 1981 (1981).

49a,

the existence of an actual intent to discriminate accord-

ing to § 703(h) of Title VII. That section states in per-

tinent part:

Notwithstanding any other provision of this title,

it shall not be an unlawful employment practice for

an employer to apply different standards of com-

pensation, or different terms, conditions, or privi-

leges of employment pursuant to a bona fide sen-

iority or merit system, . .. provided that such dif-

ferences are not the result of an intention to dis-

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

national origin, ....

42 U.S.C.A. § 2000e-2(h) (1981). A bona fide seniority

system does not violate Title VII even if it perpetuates

the effects of prior discrimination. International Brother-

hood of Teamsters v. United States, 431 U.S. at 352-54;

see American Tobacco Co. v. Patterson, 456 U.S. 638

(1982).

Before a court can determine a seniority system is

“bona fide,” and thus protected under 42 U.S.C. § 2000e-

2(h), the court must resolve the ultimate fact issue:

whether the differing treatment caused by the seniority

system reflected an intent to discriminate because of

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

is one of pure fact and the court’s determination is a

finding of fact. Pullman-Standard v. Swint, 456 U.S.

273, 287-88 (1982); Terrell v. United States Pipe &

Foundry Co., 696 F.2d 1182 (5th Cir. Unit B 1983).

After consideration of the T’eamsters/Stockham Valves

factors, this court has found above that the differential

impact of the company’s seniority system did not reflect

an intent to discriminate on the basis of race. Accord-

ingly, this court now concludes that the seniority system

was “bona fide” pursuant to 42 U.S.C. § 2000e-2th).

Thus, defendants did not violate § 703(c) of Title VII,

42 U7, § 2000e-2(c), and the court does not reach the

50a

issue whether defendants agreed to or maintained the

allegedly discriminatory seniority system.

Plaintiff’s claim under 42 U.S.C. § 1981 regarding the

seniority system also must fail. The Fifth’ and Elev-

enth ™ Circuits have held that § 703(h) is a defense not

only to a Title VII claim, but also to a § 1981 claim.”

Accordingly, this court concludes that because the senior-

ity system was “bona fide” pursuant to § 703(h) of Title

VII, defendant did not violate 42 U.S.C. § 1981.

Even if the court were to conclude that the seniority

system was not “bona fide,” defendants still would not

have violated Title VII or § 1981, because they did not

“cause or attempt to cause . . . [Clow Corporation] to

discriminate against . . . [plaintiffs] in violation of this

section [$ 2000e-2]” during the time period of defend-

ants’ potential liability (May 5, 1975 to June 27, 1980).

42 U.S.C.A. § 2000e-2(¢c) (3) (1981). The Fifth Circuit

(Unit B) recently explained a union’s duty pursuant to

this section of Title VII:

Section 703(c) (3) of Title VII makes it unlawful

for a union to “cause or attempt to cause an em-

ployer to discriminate... .” 42 U.S.C. § 2000e-2

“(ljabor organizations, as well as employers, have

an affirmative duty to take corrective steps to prevent

the perpetuation of past discrimination.” Meyers v.

Gilman Paper Co., 544 F.2d 837, 850 (5th Cir.),

modified in other respects on rehearing, 556 F.2d

12 Scarlette v. Seaboard Cost Line R.R. Co., 676 F.2d 1043, 1050

n.18 (5th Cir. United B 1982); Pettway v. American Cast Iron Pipe

Co., 576 F.2d 1157, 1191 n.87 (5th Cir. 1978), cert. denied, 439

U.S. 1115 (1979).

13 Freeman v. Motor Convoy, Inc., 700 F.2d 1339, 13849 (11th

Cir. 1983).

14 Section 703(h) is a “defense” because a defendant can try to

prove that a seniority system is “bona fide.”

——

5ia

758, cert. dismissed, 484 U.S. 801, 98 S.Ct. 28, 54

L.Ed.2d 59 (1977) citation omitted).

Whether a party involved in an established Title

VII violation may be excused from liability there-

fore turns upon whether that party has proved to

the full satisfaction of the courts that it has taken

every reasonable step to bring employment practices

into compliance with the law. In applying this test,

we have recognized that even a union which signs a

contract establishing an unlawfui seniority system

may suffer no liability if it actively opposed the

adoption of this system. See James v. Stockham

Valves.

Terrell v. United States Pipe & Foundry Co., 644 F.2d

1112, 1129 (5th Cir. Unit B 1981) (emphasis added),

vacated on other grounds, 456 U.S. 955 (1982). The

plaintiffs in the Terrell case claimed that several unions,

including the Steelworkers, bore legal responsibility, pur-

suant to 42 U.S.C. § 2000e-2-(c) (3), for the alleged dis-

criminatory seniority system. During the late 1950’s and

early 1960’s, the Steelworkers represented virtually all of

the black workers at the employer’s plant. Four craft

unions, the Boilermakers, Machinists, Patternmakers,

and Electrical Workers, represented almost all of the

white employees at the plant during this time period.

Virtually all of the blacks worked in the “dead-end” jobs.

The white employees had better jobs and were in different

seniority units. If an employee transferred into a dif-

ferent seniority unit, he lost all of his prior seniority.

“{T}his inhibition upon transfers disproportionately prej-

udiced those workers in the predominately black Steel-

workers union who had been assigned to the least desir-

able, dead-end jobs.” Terrell v. United States Pipe

Foundry Co., 644 F.2d at 115.

The bargaining units at... [the plant] retained

this racially divided structure urtil the time appel-

52a

lants filed discrimination charges with the EEOC in

1969. In the period directly covered by this lawsuit,

. {the employer] negotiated collective bargaining

agreements with each of the unions in 1968, 1971,

and 1974. Prior to this time the Steelworkers had

repeatedly advocated plant-wide seniority. Armed in

1968 with the recently enacted Civil Rights Act,

the Steelworkers proposed plant-wide seniority on

the first day of negotiations. The company expressed

a willingness to make the requested changes, but

noted the need for the approval of the other unions.

The craft unions strongly disapproved of any change,

and the “lock-in” provisions remained intact.

In 1971, the company initiated the proposal of

plant-wide seniority. The Steelworkers met privately

with the other unions several times in an effort to

gain their agreement to such a system. Again the

craft unions prevented any change.

In 1974, the Steelworkers met with the craft

unions in advance of their separate negotiations with

the company in order to advocate plant-wide senior-

ity. The craft unions were intransigent. The Steel-

workers then agreed to a united union proposal to

the company for plant-wide seniority qualified by a

“unit preference” scheme which gave unit members

priority consideration for job vacancies. While the

Steelworkers and the company continued to express

their preference for a complete plant-wide seniority

system, both agreed to the compromise proposal.

Id., at 1116.

The Fifth Circuit ruled that the seniority system was

not “bona fide” but that the Steelworkers bore no legal

responsibility for the discriminatory seniority system be-

cause they took every reasonable step to oppose the system.

Id., at 1120.

53a

The Steelworkers local at... [the plant] was con-

sistently represented by black officials who had every

reason to oppose a seniority system which dispropor-

tionately prejudiced its predominately black member-

ship. These officials appear to have taken every rea-

sonable step to bring about plant-wide seniority,

from initiation of this proposal on the first day of

the 1968 negotiations with the company, to private

lobbying efforts in 1971 and 1974 with the craft

unions. Their acceptance of the “union preference

system in 1974 clearly represented a reasonable dec.-

sion to gain some improvement, rather than suffer-

ing compiete defeat at the hands of the craft unions.

Id., at 1121.

The Fifth Circuit reiterated the Terrell “every reason-

able step” standard recently in Waker v. Republic Steel

Corp., 675 F.2d 91 (5th Cir. Unit B 1982). The court in

Waker affirmed the district court’s ruling that the local

union was not liable for the maintenance of a discrimi-

natory seniority system:

Here, the Steelworkers’ local was not controlled by

blacks. Yet, the district court found that the local

had pressed the company for the changes in the sen-

iority system which plaintiffs now contend should

have been made. This finding is amply supperted in

the record through testimony of unien and company

negotiators and one of the plaintiffs. The union min-

utes reveal that ir 1962 the membership voted to

pursue its demand for plant seniority. Thus, this

union is distinguishable from that condemned in

Carey v. Greyhound Bus Co., Inc., 500 F.2d 1372

(5th Cir. 1974), which made no “concerted attempt”

to rectify discriminatory practices nor “actively

sought plant seniority.”

The appellants point out that the local refused to

strike over the seniority system. Terrell requires

54a

taking a!l reasonable steps. A strike is a drastic

measure. Requiring such action could contravene

the policies of the National Labor Relations Act and

could be unreasonable. See Thornton v. East Texas

Motor Freight, 497 F.2d 416, 426 (6th Cir. 1974).

The union in Terrell did not strike, but settled for

what it could get in light of craft union opposition.

The trial judge properly found for the local on this

issue in this case.

Waker v. Republic Steel Corp., 675 F.2d at 93.

In the case at bar, the Molders union successfully ne-

gotiated a change in the seniority system. For the first

time, employees could transfer once a year from one de-

partment to another. Although the employees who trans-

ferred lost their accumulated seniority in their prior de-

partment, the new seniority system enabled blacks to

escape the dead end jobs. The new seniority system was

obviously a compromise; the union had sought a plant-

wide seniority system. The Fifth Circuit pointed out in

Terrell, however, that the union does not have to achieve

its every goal to avoid liability under 42 U.S.C. § 2000e-

2(c) (3). No suggestions or demand: were forthcoming

from the union membership for changes in the seniority

structure as it existed after 1972. As was true in Terrell,

several blacks served on the Molders negotiating commit-

tee during negotiations in 1972, 1974, 1977, and 1980.

The court has found that the company had no intention

of making any further concessions regarding the seniority

system. Although union demands during the 1974, 1977,

and 1980 negotiations for plant-wide seniority would not

have been a “drastiz”” measure, as the Fifth Circuit used

that term in Waker in reference to a strike, the court is

satisfied that the union, given the company’s position on

seniority, took “every reasonable step to bring employ-

ment practices into compliance with the law,” even though

the union did not demand plant-wide seniority at the

negotiating table after 1972. Terrell, 644 F.2d at 1120.

55a

Accordingly, the court would conclude that the union de-

fendants did not violate 42 U.S.C. § 2000e-2(c) (3).¥

Because the court would conclude that the defendant

unions complied with the Terrell “every reasonable step”

standard, they clearly did not intentionally discriminate

against the plaintiffs vis-a-vis the seniority system. Ac-

cordingly, the court would conclude that the defendant

unions did not violate § 1981. See General Building Con-

tractors Ass’n, Inc. v. Pennsylvania, US. , 102

S.Ct. 3141 (1982).

initial Assignment

Plaintiffs claim that the defendant unions violated 42

U.S.C. § 2000e-2(c) (8) and 42 U.S.C. § 1981 by ac-

quiescing in the allegedly discriminatory initial assign-

ment policies of the employer. As the court has discussed

in the Findings of Fact, the company assigned newly

hired white employees to the Carpentry Department and

newly hired black employees to the Yards Department.

The company ceased this clearly discriminatory practice

in 1965 when Title VII became effective. Although the

defendant unions probably acquiesced in this practice,

these discriminatory assignment practices ceased to occur

almost ten years before the beginning of the unions’ time

period of potential liability (May 5, 1975). Accordingly,

the court concludes that the defendant unions did not

violate § 2000e-2(c) (3) or § 1981 as a result of their

involvement in the employer’s initial assignment policies

prior to 1965.

Craft and Select Jobs

Plaintiffs claim that the defendant unions are liable

for acquiescing in the employer’s allegedly discriminatory

assignments of craft and select jobs. Before analyzing

15 Of course, this “‘conclusion” is unnecessary in light of the

court’s conclusion that the seniority system was “bona fide.”

56a

the unions’ roles, the court must determine whether the

company’s practices were discriminatory.

The company used its discretion in filling all select and

craft jobs.'"* The company filled these positions with Clow

employees and with persons from off the street. If a

company employee applied for one of these positions, the

company did not consider the employee’s seniority; these

jobs were not part of the seniority system.

Plaintiffs have not stated whether this Title VII claim

is based on disparate treatment or disparate impact.

Plaintiffs have not established the existence of any “neu-

tral factor(s),’”’ such as an employment test or specific

work history requirements, that the company used to cull

the list of applicants for the select or craft jobs. Accord-

ingly, the court will treat plaintiffs’ claim as one alleging

disparate treatment.

Of course, to prevail on a claim of disparate treatment

based on race, plaintiff must prove that defendants in-

tentionally discriminated with regard to race. See United

States Postal Service Board of Governors v. Aikens, 51

U.S.L.W. 4854, 4355 (U.S. April 4, 1983). The court

has already found that the company did not intentionally

discriminate in its assignment of craft and select jobs.

Because the company’s craft and select jobs assignments

were not discriminatory, defendants clearly did not violate

42 U.S.C. § 2000e-2(c) (3) and 42 U.S.C. § 1981.

Testing

Plaintiffs allege that defendants violated 42 U.S.C.

§ 2000e-2(c) (3) and 42 U.S.C. § 1981 by acquiescing in

the administration by the employer of facially neutral

tests that had an adverse impact on plaintiffs. To pre

16 In 1972, the company agreed to allow the employees to bid on

23 select jobs. Thus, only 8 select jobs were left to be filled by the

company based on its discretion. The court is not able to determine

how many craft jobs existed.

57a

vail on this claim, plaintiffs must establish first that the

mechanical comprehension test used by the company vio-

lated Title VII, and second, that defendants failed to com-

ply with the Terrell “every reasonable step” standard."

The Supreme Court ruled in Griggs v. Duke Power Cu.,

401 U.S. 424, 481 (1971), that Titie VII “proscribes not

only overt discrimination but also practices that are fair

in form, but discriminatory in operation. The touchstone

is business necessity. If an employment practice which

operates to exclude Negroes cannot be shown to be re-

lated to job performance, the practice is prohibited.” A

plaintiff makes out a prima facie case of discrimination

by showing “that the tests in question select applicants

for hire or promotion in a racial pattern significantly

different from that of the pocl of applicants.” Albemarle

Paper Co. v. Moody, 422 U.S. 405, 425 (1975). The em-

ployer then has the burden to establish that the test is

job related. /d.

Clow Corporation used the mechanical comprehension

test as a condition to promotion from 1965 (the effective

date of Title VII) until 1977 (when this suit was filed).

During those years, 56% (103 of 184) of the white em-

ployees who took the test passed it; only 12.5% (10 of

80) of the black employees who took the test passed it.

The court concludes that plaintiffs established their prima

facie case of disparate impact discrimination. Defend-

ants did not rebut this presumption with any proof that

the test was job related. Accordingly, the court concludes

that plaintiffs established that the company’s mechanical

comprehension test, although neutral in form, had a dis-

criminatory impact and violated Title VII.

17 Although the Fifth Circuit in Terrell and Waker applied this

standard to situations involving seniority systems, this court as-

sumes that the Fifth Circuit would always apply this standard to a

labor organization’s conduct that is challenged under 42 U.S.C.

§ 2000-2 (c) (3).

58a

Next the court must determine whether the union de-

fendants satisfied the Terrell standard. Union representa-

tive Robert Hoilman criticized the company’s use of the

test on January 19, 1970. White members of the union

committee demanded that the company cease using the

tests on August 11, 1975. The court has pointed out that

the union members never demanded that the union at-

tempt to persuade the company to stop using the tests,

although Coppins and Taylor sought to challenge the va-

lidity of the tests through the grievance procedure in

1970. There was no evidence that the union committee

ever demanded during the 1972, or 1977 negotiations that

the company cease using the tests. Defendants did not

establish that the company would have refused to stop

using the tests.'* The company’s abandonment of the tests

when this suit was filed illustrates that the company

would have considered agreeing to halt the use of the

tests. Accordingly, the court concludes that the local un-

ion violated 42 U.S.C. § 2000e-2(c) (3) because it did not

satisfy the Terrell standard of taking every reasonable

step to ensure that the employer complies with Title VII.

Additionally, the court concludes that the lecal union vio-

lated 42 U.S.C. § 1981 because its conduct evidenced an

intent to discriminate.”

An international union can be held liable for a discrimi-

natory pracitce if it has a “sufficient connection’ with

the discriminatory practice. Myers v. Gilmen Paper

Corp., 544 F.2d 837, 851 (5th Cix.), cert. dismissed, 434

U.S. 801 (1977). The Fifth Circuit in Myers adopted the

18 This situation is to be compared to the seniority system situa-

tion: there this court found that “the company had no intention

of making any further concessions regarding the seniority sys-

tem.” See p. 36 supra.

19 Labor organizations violate 42 U.S.C. § 2000e-2(c) (3) if they

“cause or attempt to cause an employer to discriminate ... .”

(emphasis added). The court is of the opinion that this language

indicates that conduct which violates the section (2000e-2(c) (3) )

constitutes intentional discrimination.

59a

holding of the Fourth Circuit in Patterson v. American

Tobacco Co., 535 F.2d 257, 270-71 (4th Cir.), cert. denied,

429 U.S. 920 (1976): “The Fourth Circuit recently held

that a sufficient connection exists where, as here, the in-

ternational union provided an ‘advisor’ to the local in

its negotiations and the international approved the result-

ant collective bargaining agreement.” Myers v. Gillman

Paper Corp., 544 F.2d at 851. che court has found above

that Hildridge Dockery, the International Molders rep-

resentative for the Local Union, worked closely with the

bargaining committee as an advisor from 1972 until 1980.

The court concludes that Dockery’s activities provide a

suffiicent connection of the International to the Local Un-

ion’s violation of Title VII and $1981. Accordingly, pur-

suant to Meyers v. Gilman Paper Corp., the court con-

cludes that the International also violated 42 U.S.C.

§ 2000e-2(c) (3) and 42 U.S.C. § 1981 for its conduct re-

garding the company’s mechanical comprehension test.

Duty of Fair Representation

Plaintiffs claim that defendant unions breached their

duty of fair representation, pursuant to 29 U.S.C. § 158

(b), because they 1) made distinctions based on race

among its own members on initial hiring,?° and 2) did

not process the 1970 grievance filed by Ernest Coppins

and Eddie Taylor regarding the company’s mechanical

comprehension test. Although the defendant unions’ con-

duct regarding the initial hiring and Coppins’ and

Taylor’s 1970 grievance probably constituted a vioiation

of the duty of fair representation, the court cannot grant

judgment for plaintiffs because their charges are not

timely. The Fifth and Eleventh Circuit have held that

the state statute of limitations for tort claims should ap-

2° This charge refers to the company’s practice of assigning new

black employees to the Yards Department and new white employees

to the Carpentry Department. As discussed earlier, the company

ceased this practice when Title VII became effective (July 2, 1965).

60a

ply for actions claiming breach of the duty of fair repre-

sentation. Hand v. International Chemical Workers

Union, 681 F.2d 1308, 1818 (11th Cir.), reh’g granted,

692 F.2d 714 (1982); Edwards v. Sea-Land Service, Inc.,

678 F.2d 1276, 1292 (5th Cir. 1982); Cox v. C. H. Mas-

land & Sons, Inc., 607 F.2d 138, 148 (5th Cir. 1979) ;

Sanderson v. Ford Motor Co., 483 F.2d 102, 114 (5th

Cir. 1973).*! Accordingly, the Alabame one-year torts

statute of limitation, Alabama Code § 6-2-39, applies to

plaintiffs’ fair representation claims. Because these

claims arose more than one year before plaintiffs filed

suit (September 13, 1977), plaintiffs’ fair representation

claims are due to be denied.

Within one week after the entry of these Findings of

Fact and Conclusions of Law, the plaintiffs will submit

to the court a proposed order consistent with the Find-

ings of Fact and Conclusions of Law. The defendants

will respond thereto within one week, after wiich the

court will enter an order.

This the 1st day of June, 1983.

/s/ Robert B. Propst

ROBERT B. PROPST

United States District Judge

21 Although the Alabama Supreme Court ruled that the contract

statute of limitations should be applied to fair representation

claims in International Brotherhood of Electrical Workers v. Powel,

370 So.2d 987, 989 (Ala. 1979), this court agrees with Judge

Thompson’s decision that the Fifth Circuit’s ruling and not the

Alabama Supreme Court’s ruling is determinative for and binding

on the District Courts. Smith v. International Ladies Garment

Workers Union, 537 F.Supp. 347, 348-49 (M.D. Ala. 1981).

6la

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

Civil Action No.: CV77-PT-1235-S

JAMES HOWARD, et al.,

Plaintiffs,

INTERNATIONAL MOLDERS AND

ALLIED WORKERS UNION, et al.,

Defendants.

{Filed June 22, 1983]

ORDER

In conformity with the findings of fact and conclu-

sions of law entered herein on June 1, 1983, the court

finds in favor of the plaintiffs and against the defend-

ants for their violation of 42 U.S.C. § 200e2(c) (3) and

42 U.S.C. $1981, for its conduct regarding the use of

the mechanical comprehension test. The court denies all

other claims made by the plaintiffs.

Within forty-five (45) days from the date this order

is entered, the parties will attempt to arrive at an

amount of monetary remedy for the plaintiffs to compen-

sate them for the defendants’ discriminatory conduct

with respect to the mechanical comprehension test. If

the parties are unable to arrive, in good faith, at a mone-

tary remedy, then the court will enter such further or-

62a

ders or decrees as are necessary to enable the parties to

produce for the court their own procedures and formulas

for the calculation of the monetary remedy due the

plaintiffs. The court notes that the parties may reach

such an accord as to amounts, ete. while reserving the

right to appeal or seek other post-trial relief.’

DONE and ORDERED this 21st day of June, 1983.

/s/ Robert B. Propst

ROBERT B. PROPST

United States District Judge

1 The court has considered the objections of defendants to plain-

tiffs’ proposed judgment and considers them most appropriate for

post-juugment consideration.

63a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

Case No. CV 77-PT-1235-S

JAMES HOWARD, et al.,

Plaintiffs,

Vs.

INTERNATIONAL MOLDERS and

ALLIED WORKERS UNION, et al.,

Defendants.

[Filed July 30, 1984]

REPORT OF SPECIAL MASTER

By prior order of U.S. District Judge Robert B.

Propst, the undersigned magistrate was appointed as a

special master to hear and determine the issue of dam-

ages on this action. Judge Propst had earlier entered

an order in which he found in favor of the plaintiffs and

against the defendant unions in connection with said de-

fendants’ discriminatory conduct with respect to the use

of the mechanical comprehension test. All other claims

made by the plaintiffs were denied. The parties having

failed to arrive at an amount of a monetary remedy to

compensate the plaintiffs, the issue of damages was ulti-

mately referred to the undersigned as a special master to

conduct a hearing and make a determination of said is-

sue and to report findings of fact and conclusions of law

to the Court.

64a

After consulting with both counsel at a status con-

ference, it was initially determined that the method for

calculating damages was not ciecarly defined. Further,

both counsel expressed some concern with regard to their

ability to offer proof on the issue of damages. That con-

cern is now well understood by the magistrate. Neither

_ the plaintiffs nor the defendant unions have had direct

access to any of the employer’s records which obviously

are pertinent to the issue at hand. However, both coun-

sel have been able to obtain copies of many of the em-

ployer’s records, and those records appear to be adequate

for the purposes needed.

After Judge Propst was advised of the confusion con-

cerning the method for calculating damages, he entered

his “Supplemental Findings of Fact and Conclusions of

Law” on March 7, 1984. The Court first stated therein

that the sub-class of plaintiffs who are entitled to re-

cover back pay are those plaintiffs who took any me-

chanical comprehension test administered by Clow Cor-

poration between May 5, 1975 and October 15, 1977 and

did not pass any such test. The Court then established

the method for determining damages, as follows. The

magistrate was first directed to determine the number

of vacancies tested for between May 5, 1975 and October

15, 1977. The magistrate was directed to then determine

the number of black and white employees who were tested

during that time period. The magistrate was to then

assume that the black and white employees who took the

tests should have passed the tests in proportion to their

numbers who took the tests and to further assume that

vacancies should have been filled in those same propor-

tions. Judge- Propst then established the means by which

to determine the back pay to which the sub-class is en-

titled; however, the determination of any entitlement to

back pay depended upon a finding that black employees

did not fill the vacancies in the same proportions that

they took the tests.

65a

Another status conference with both counsel was con-

ducted after Judge Propst had set forth the detailed man-

ner in which damages should be determined. It was de-

cided that a hearing with regard to certain preliminary

issues should be conducted and that a determination of

those preliminary matters would determine whether a

further hearing would be necessary. Subsequently, a

hearing was conducted on March 30, 1984, limited to

the following issues: (1) How many vacancies were

tested for between May 5, 1975 and October 15, 1977?

(2) How many black and white employees took the tests?

(3) What are the proportionate numbers of black and

white employees who took the tests? (4) Did black em-

ployees fill the vacancies to the extent of the proportion-

ate number of them who took the tests?

At the hearing, there was only one witness, a lady by

the name of Shirley P. Rutherford who had worked at

Clow Corporation as personnel administrator. This wit-

ness was presented by defendants’ counsel. The other

evidence presented at the hearing consisted of copies of

various records of Clow Corporation, summaries of those

and other records, and exhibits from the January, 1983

trial of this case. Suffice it to say that the documentary

evidence received at the hearing was voluminous.

Subsequent to the hearing, plaintiffs’ counsel sub-

mitted copies of many Clow records and other records the

source of which is not clear. Plaintiffs’ counsel had been

advised at the hearing that he could submit additional

records if he deemed it necessary to supplement the doc-

uments which were offered into evidence at the hearing

by defendants’ counsel. However, after reviewing the

documents submitted by plaintiffs’ counsel after the hear-

ing, the magistrate questions their relevance since they

do not appear to furnish any new information bearing

on the issue at hand. Defendants’ counsel subsequently

wrote a letter to the magistrate objecting to the plain-

tiffs’ post-hearing submission, and at least one letter

66a

from each counsel followed. Although plaintiffs’ counsel

informally communicated to the magistrate that he

wished to respond to the last letter submitted by defend-

ants’ counsel, no such response has been received.

Notwithstanding the confusing state of the evidence,

the magistrate has spent considerable time reviewing all

of the documents and records submitted by the parties.

As a result, the magistrate is firmly satisfied and con-

vinced that he has been able to glean enough information

from these records to make the pertinent determinations

as directed by Judge Propst.

It should be initially noted that plaintiffs’ counsel and

defendants’ counsel have a basic dispute as to the inter-

pretation of “vacancies” as that term is used in the

Court’s “Supplemental Findings of Fact and Conclusions

of Law,” entered March 7, 1984. However, considering

the use of that term in its proper context, the magistrate

concludes that “vacancies” during the pertinent time pe-

riod should include only those vacancies (as evidenced by

“Job Vacancy” notices of the employer) for jobs (1)

which required passage of the mechanical comprehension

test, (2) which then current company employees bid for,

and (3) for which one of the employee bidders was ulti-

mately selected for a particular job. This means that the

term “vacancies” should not include (1) those situations

where bid notices were subsequently voided by the com-

pany or where no employees bid for the job, (2) those

situations where the company records do not indicate

who ultimately got a particular job (it is reasonable to

assume that in such a situation the job was either not

filled or was filled by someone outside the company work

force), and (3) those situations where the records indi-

cate that there were no successful bidders, either black

or white, from within the company. With that interpre-

tation of the term “vacancies,” the magistrate will pro-

ceed to render his findings of fact and conclusions of

law.

67a

Findings of Fact

During the relevant time period (May 5, 1975-October

15, 1977), the only mechanical comprehension test given

was the Bennett Mechanical Comprehension Test. Al-

though these were generally referred to as “Form S”

tests, Ms. Rutherford testified that sometimes a “Form

T” test was given; however, she testified that these were

essentially the same tests and that the different forms

were merely variations where the questions were the

same but were rearranged “to discourage cheating.”

Notices of job openings were published withiii the

company by posting “Job Vacancy” notices on the bulle-

tin board, where they remained for 48 hours. These no-

tices specified the name of the job which was vacant and

usually specified whether passage of the mechanical! com-

prehension test was required (although there were cer-

tain jobs for which passage of the test was clearly re-

quired whether noted on the form or not). If there were

no employee bidders or if no successful employee bidders,

a job vacancy was usually filled from outside the com-

vany. If a particular company employee was interested

in applying for a job vacancy, he merely signed his name

on a copy of the notice which was kept in the personnel

Office.

From the copies of various job vacancy notices which

were received as evidence, it appears that Defendants’

Exhibit 2 includes copies of all the job vacancy notices

(which required passage of the mechanical comprehen-

sion test) during the pertinent time period. The magis-

trate has prepared a summary of those job vacancy no-

tices, which is attached hereto as Exhibit “A’ and which

(1) names each job for which a vacancy notice was

posted, (2) states the date each notice was posted, (3)

states the number of employee bidders by race, (4) states

the race and name of each successful employee bidder, if

any, and (5) states whether each notice of job vacancy

is or is not considered as “vacancy” for the purposes of

68a

this inquiry (in accordance with the interpretation of

the term “vacancies” as set out hereinabove).

As can be seen from Exhibit “A” hereto, there were

vacancy notices posted for a total of 52 jobs requiring

passage of the mechanical comprehension test during the

pertinent time period. Of these, only 25 can be consid-

ered “vacancies” for the purposes of this inquiry. With

regard to the other 27 job vacancy notices, the vacancies

were not filled by employee bidders, either black or white,

for one reason or another. All of this is clearly set forth

in Exhibit “A” hereto.

Of the 25 vacancies for which employee bidders were

selected, 13 of the bidders were black and 12 were white.

Thus, 52% of the employee bidders who were selected for

job vacancies during the pertinent time period were

black, while only 48% were white.

Plaintiffs’ Exhibit 4, which was received in evidence at

the hearing, was offered by plaintiffs’ counsel as a list of

all active and inactive employees who took a mechanical

comprehension test. The list designates the race of each

employee, shows the date each test was administered, in-

dicates which form of test was given, and shows the raw

score of each employee tested. While this list includes

employees tested at times outside the pertinent time pe-

riod, and while there are relatively rare instances where

the date of testing is not shown, it is possible to deter-

mine from this list the total number of black and white

employees who were tested during the period from May

5, 1975 to October 15, 197. The magistrate has calcu-

lated these numbers and finds that a total of 76 white

employees were tested and 42 black employees were tested

(a total of 118 employees, both black and white). Thus,

35.6% of the employees tested during the pertinent time

period were black. The magistrate notes that plaintiffs’

counsel, in Plaintiffs’ Exhibit 2 (which was not received

in evidence since it is merely a summary of calculations

made by plaintiffs’ counsel), has calculated the numbers

69a

only slightly different from the magistrate. Plaintiffs’

counsel has concluded that the records (Plaintiffs’ Ex-

hibit 4) reveal that 75 white employees were tested and

49 black employees were tested. Even if those figures

are used, only 39.5% of the total number of employees

tested during the pertinent time period were black.

In conclusion, the magistrate finds that 25 vacancies

requiring passage of the test existed during the time in

question. Of the total employees tested during the per-

tinent time period, 35.6% (or, using the figures of plain-

tiffs’ counsel, 39.5% ) were black. Of the 25 job vacan-

cies, 52% of them were filled by black employee bidders.

Conclusions of Law

Applying the assumptions specified by the Court to the

above findings, black employees filled job vacancies to a

greater extent than the proportion of black employees

whe were tested. If it is assumed that black employees

should have passed the tests and subsequently filled the

vacancies in proportion to the number of black employees

who took the tests, then only 35.6% (or 39.5%, using

plaintiffs’ figures) of the black employees should have

filled the vacancies. In fact, black employees filled the

vacancies to the extent of 52%

Finding that black employees filled vacancies to a

greater extent than the proportion of black employees

who were tested, the magistrate concludes that, applying

the formula specified by the Court, the sub-class of plain-

tiffs is not entitled to any back pay and that no damages

should be required to be paid by the defendants.

In view of the foregoing, no further hearing on the

issue of damages is necessary. The documentary evidence

received at the earlier hearing is being submitted here-

with to the Clerk. The hearing itself was recorded by a

court reporter, but no transcript has been prepared. In

accordance with F.R.Civ.P. 53(e) (2), the parties shall

70a

have ten (10) days after being served with a copy of

this Report within which to file written objections. Pur-

suant to said rule, either or both of the parties may ap-

ply to the Court for action upon this Report and upon

objections hereto, if any.

The Clerk is hereby DIRECTED to serve a copy of

this Report of Special Master upon counsel for the par-

ties.

DATED this 30th day of July, 1984.

/s/ James F. Reddoch, Jr.

JAMES F. REDDOCH, JR.

United States Magistrate,

Acting As Special Master

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76a

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

Civil Action No.: CV77-PT-1235-S

JAMES HOWARD, et al.,

Plaintiffs,

INTERNATIONAL MOLDERS AND

_ ALLIED WORKERS UNION, et al.,

Defendants.

[Filed Nov. 29, 1984]

MEMORANDUM OF OPINION

This cause came on to be heard after the court had

referred this action to a Magistrate as Special Master for

a hearing with regard to damages after the court had

found the defendant unions liable under Title VII for

failing to take every reasonable step to insure that the

employer complied with Title VII by abandoning the

tests which had a discriminatory impact on black em-

ployees.*

1 This court was likely incorrect stating that same failure resulted

in a finding of intentional discrimination under 42 U.S.C. § 1981.

The court did not and does not make the finding that there was

otherwise direct or circumstantial proof of intentional discrimi-

nation.

ee:

77a

The plaintiffs have objected to the report of the Special

Master and the court has conducted a hearing thereon.

The court finds and concludes that the report of the Spe-

cial Master is factually accurate and the court accepts

and adopts the same.”

The court, swa sponte, asked the parties to address

whether Connecticut v. Teal, 457 U.S. 450 (1982) had

application to the case. After receiving briefs from the

parties, the court has determined that it does not. The

court had already determined that the defendant unions

were liable. The remaining issue was whether the class

had suffered damages during the designated period. The

court followed the procedure specified in United States

v. U.S. Steel, 520 F.2d 1048 (5th Cir. 1975) and Pett-

way v. ACIPCO, 681 F.2d 1259 (11th Cir. 1982). This

procedure resulted in a determination that the class suf-

fered no injury or damages for the designated period.

The plaintiffs have not proved, for the appropriate pe-

riod, an actual wage loss as the result of discrimination.

The class not having suffered any injury as the result of

the failure of the unions to take action, the plaintiffs are

not entitled to a recovery of back pay from these defend-

ants.

A final judgment will be entered in favor of the de

fendant unions.

This 29 day of November, 1984.

/s/ Robert B. Propst

ROBERT B. PROPST

United States District Judge

2 The court, in effect, replicates the Magistrate’s findings.

78a

APPENDIX F

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

Civil Action No.: CV77-PT-1235-S

JAMES HOWARD, et al.,

Plaintiffs,

Vv.

INTERNATIONAL MOLDERS AND

ALLIED WORKERS UNION, et al.,

Defendants.

{Filed Nov. 29, 1984]

FINAL JUDGMENT

In accordance with a Memorandum Opinion filed con-

temporaneously herewith, judgment is awarded in favor

of the defendant unions Local 100, International Molders

and Allied Workers and i.aternational Molders and Al-

lied Workers Union. The action is DISMISSED with

prejudice as to said defendants, all parties to bear own

costs.

DONE and ORDERED this 29 day of November, 1984.

/s/ Robert B. Propst

ROBERT B. PROPST

United States District Judge

79a

APPENDIX G

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

Civil Action No.: CV77-PT-1235-S

JAMES HOWARD, et al.,

. Plaintiffs,

INTERNATIONAL MOLDERS AND

ALLIED WORKERS UNION, et al.,

Defendants.

[Filed Dec. 3, 1984]

MEMORANDUM OPINION

The court hereby amends its Memorandum Opinion

filed on November 29, 1984 to add the following sen-

tence.

It may well be that, since there is no indication of any

disparate impact, during the relevant period, the court

should conclude that not only have plaintiffs failed to

prove any damages for the relevant period, but that the

court’s finding and conclusion of liability should be va-

cated. The court also cites Ingram v. Madison Square

Garden, 709 F.2d 80 (2nd Cir. 1983).

This 3 day of December, 1984.

/3/ Robert B. Propst

ROBERT B. PROPST

United States District Judge

80a

APPENDIX H

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH DISTRICT

No. 85-7008

JAMES HOWARD and ROBERT BATES, individually and on

behalf of all others similarly situated,

Plaintiffs-A ppellants,

Cross-A ppellees,

WILLIE L. McCoy, et al.,

Intervening-Plaintiffs-

Appellants, Cross-Appellees

versus

INTERNATIONAL MOLDERS AND ALLIED WORKERS UNION,

AFL-CIO-CLC, LocAL #100 OF THE INTERNATIONAL

MOLDERS AND ALLIED WORKERS UNION AFL-CIO-CLC,

Defendants-A ppellees,

Cross-A ppellants.

Appeal from the United States District Court for the

Northern District of Alabama

ON PETITION(S) FOR REHEARING

(February 18, 1986)

Before: GODBOLD, Chief Judge, JOHNSON, Circuit Judge,

and TUTTLE, Senior Circuit Judge

8la

PER CURIAM:

The petition(s) for rehearing filed by appellee Inter-

national Molders and Allied Workers Union, et al., is

DENIED.

ENTERED FOR THE COURT:

/s/ [Illegible]

United States Circuit Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.