# Appendix — International Molders & Allied Workers Union v. Howard

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1986
- **Citation:** 476 U.S. 1174

## Text

85-1629) |
No. | all Supreme Court, U.S.

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IN THE

Supreme Court of the Unite | taffe * *™

4 SEPH F. SPANIOL, JR.
OcTOBER TERM, 1985 < | °° Sot

\ sits tana
INTERNATIONAL MOLDERS AND ALLIED WORKERS
UNION, AFL-CIO, AND LOCAL 100 OF THE
INTERNATIONAL MOLDERS AND ALLIED
WORKERS UNION, AFL-CIO-CLC,
Petitioners,
V.

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

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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,
v.

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

2a

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.

3a

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).

4a

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

5a

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.

6a

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.

7a

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.

8a

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.

9a

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,
V3

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

ee
—

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.

a

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.

PS

48a

The Seniority System

Plaintiffs claim that defendants are liable under § 703
(c) of Title VII of the Civil Rights Act of 1964, 42
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
(c) (3). We have recognized that under the Act
“(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,
V.

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1687%3A2. Public record. Not legal advice.