Mississippi State Chapter Operation Push v. Mabus Plaintiffs' Supplemental Motion for an Award of Fees and Expenses
Public Court Documents
September 6, 1991
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Brief Collection, LDF Court Filings. Swint v. Pullman-Standard Brief for Defendant-Appellee, 1975. a0cc38a9-c59a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/53497d57-6d7e-48c8-9638-3440230228a8/swint-v-pullman-standard-brief-for-defendant-appellee. Accessed April 27, 2025.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 74-372G
LOUIS SWINT,
Plaintiff-Appellant;
WILLIE JOHNSON,
Plaintiff-Status on this Appeal Undetermined;
and,CLYDE HUMPHREY,
Intervenor-Status on this Appeal Undetermined.
v .
PULLMAN-STANDARD, a Division of PULLMAN, INCORPORATED;
UNITED STEELWORKERS OF AMERICA, AFL-CIO; LOCAL 1466;
UNITED STEELWORKERS OF AMERICA, AFL-CIO; and
LOCAL LODGE NO. 372, INTERNATIONAL ASSOCIATION
OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO;
Defendants-Appellees.
On Appeal from the United States District Court
for the Northern District of Alabama, Southern Division
Certificate Required by Fifth Circuit Local Rule 13(a):
The undersigned, counsel of record for Pullman-Standard, a division
of Pullman, Incorporated, one of the defendants-appcllecs, certifies that the
following listed parties have an interest in the outcome of this case. These
representations are made in order that Judge of this Court may evaluate possible
disqualification or recusal pursuant to Local Rule 13(a) .
Louis Swint, the plaintiff-appellant; Pullman-Standard, a Division of
Pullman, Incorporated, a corporation; United Steelworkers of America, AFL-
CIO; Local No. 14GG, United Steelworkers of America, AFL-CIO; Local Lodge
No. 372, International Association of Machinists and Aerospace Workers, AFL-
CIO; the defendants-appellees.
The undersigned is unable to certify whether Willie Johnson, who was
an original plaintiff below, or Clyde Humphrey, who intervened on the other side
as a plaintiff below, neither of whom is named in the notice of appeal herein,
and neither of whom has filed a bond for costs, or any class of persons has
any interest in the outcome of this case; having unsuccessfully sought instructions
from the Court in this regard the undersigned is without sufficient information
to enable him to certify that they have no interest, but verily believes they
have none.
I N D E X
Page
COUNTER-STATEMENT OF QUESTIONS PRESENTED 1
COUNTER-STATEMENT OF THE CASE-----------------------------------~ 3
STATEMENT OF FACTS----------------------------------------------------------------- 6
A. OVERVIEW--------------------------------------------------------------------- 7
B. FACTS SURROUNDING THE SWINT DISCHARGE--------------------- 11
C. FACTS CONCERNING ABSENCE OF PERPETUATION OF
EFFECTS OF PAST DISCRIMINATION--------------------------------- 21
D. FACTS SHOWING ABSENCE OF DISCRIMINATION IN ASSIGN-
' MENT OF WORK WITHIN THE SAME JOB CLASSIFICATION,
OR CLASSIFICATIONS HAVING THE SAME RATE OF PAY-------- 47
E. FACTS SHOWING ABSENCE OF DISCRIMINATION IN PRO
MOTIONS TO SUPERVISORY AND MANAGERIAL POSITIONS 51
F, THE DISCHARGE OF MR. CLYDE HUMPHREY HAD NOTHING
TO DO WITH HIS RACE OR FILING EEOC CHARGES
ARGUMENT-------------------------------------------- -
POINT I. UNDER FRAP RULE 3(c) , MR. SWINT, IN HIS INDIVIDUAL
CAPACITY, IS THE ONLY PARTY APPELLANT
POINT II. MR. SWINT'S DISCHARGE WAS LAWFUL
POINT III. THE SENIORITY SYSTEM IS LAWFUL--------- ;----------------
POINT IV. THE SYSTEM OF WORK ASSIGNMENTS IS LAWFUL
POINT V. THE SELECTION OF SALARIED SUPERVISORY AND
MANAGEMENT PERSONNEL WAS LAWFUL--------------------
POINT VI. THE DISCHARGE OF MR. HUMPHREY WAS LAWFUL
61
63
63
64
64
68
69
69
CONCLUSION 70
TABLE OF AUTHORITIES
Cases Page
A llegh en y Ludlum S te e l C o rp ., 26 LA 546 (2 9 5 6 )................. 59
Andreu v . C a n fie ld , 40 F la . 36, 23 So. 591, 42 LRA
72 (18 98 )..................................................................................... 63
B a ile y v. Ryan S teved o rin g C o ., 7 FEP Cases 914, 917
(M.D. L a ., 1 9 7 4 ) .................................................................... 68-69
Bard v. Board o f D ra inage, 274 Ky. 492, 118 S.W. 2d
1013 (1938 )................................................................................. 63
Bing v. Roadway Express 444 F.2d 687, 690 (5th
C ir . , 1971 ).................................................................................65
Brabham v. Custer County, 3 Neb. (u n o f. ) 801, 92 N.W.
989 (1 9 0 2 ) .................................................................................... 63
B ran tley v . Southern P a c i f i c C o., 486 F.2d 516,
517-8 (5th C ir . , 1 9 7 3 ) ....................................................... 64
Brown v. C ity o f P a la tk a , 132 F la . 260, 181 So.
529 (1 9 3 8 ) ................................................................................ 63, 64
C a r r o l l v. S a r ta in , 164 S.W. 2d 52 (Tex. C iv . 'App. ,
1942 )............................................................................................. 63
Chandler v . Foote & Davies C o ., 210 Ga. 370, 80 S .E .2d
292 (1 9 5 4 ) ...................................... ..........................................63
Cooger v . Cooger, 117 Ga. App. 614, 161 S.E .2d 428
(1 9 6 8 ) ......................................................................................... 64
Cooke and Sons Equipment, In c . v . K i l l e n , 277 F.2d
607 (9th C ir . , 1971) ....................................................... 63
C u rt is v. L oe th er, 415 U .S. 189 (1 9 7 4 ).................................. 47
Danner v. P h i l l ip s Petroleum C o ., 447 F .2d 881
(5th C ir . , 1971 )........................................................................ 64
Davenport v. F le tc h e r , 58 U.S. (16 How.) 140 (1953 ). . .63
i i
Deneale v. Archer, 34 U.S. (8 Pet.) 524 (1834) 63
EEOC v. D e tr o it Edison C o ., __ F .2d__ , 10 FEP Cases
239 ( 6th C ir . , 1 9 7 5 ) ...................................... • • • •
E stes v. Trabue, 218 U.S. 225 ( 1 8 8 8 ) . ..............................:
F loyd v. K roger Co. 8 FEP Cases 1244, 1245
(S.D. Ohio, 1974 )................................................................
Franks v. Bowman Transportation C o., 495 F.2d 398,
406-9 (5th C i r . , 1974), c e r t , d en ., 8 FEP Cases
1280, c e r t , gran ted on another q u es t io n , 43 LW
3510 (March 24, 1975 ).......................................................
Freedom v . The Ship P r o te c to r , 82 U .S. (14 W a ll . )
83 (18 71 )............................. ..................................................
Gas S e rv ic e C o ., 35 LA 637 (1 9 6 0 ) .................................. ....
Heard v. M u eller Co., 464 F .2d 190 ( 6th C i r . , 1972)
H igg in s v. Shepard, 48 Tex. C iv . App. 365, 107 S.W. 79
(1908) ................................................................................
47, 68
63
68
64
63
69
65, 68
63
H i l l v . American A ir l in e s , In c . , 479 F .2d 1057, 1060
(5th C ir . , 1 9 7 3 ) .................................................................................
Howard v . Lockheed G eorgia C o ., 372 F. Supp. 854_
(N.D. Ga. , 1 9 7 4 ) .................................. ..............................................
H u ff v. N.D. Cass Co. o f Alabama, 468 F.2d 172, 176
(5th C ir . , 1972) 485 F.2d 710, 712, 715 (5th C i r . , 1973)
In te rn a t io n a l M in era ls , 61-2 ARB 118383................. .............................
Jack v . American Linen Supply C o ., 493 F .2d 191, 194
(5th C ir . , 1 9 7 4 ) .................................................................................
John Deere T ra c to r C o., 16 LA 576 (1 9 5 1 )...........................................
L a n ie r v. B a ile y , 206 Ga. 161, 56 S.E.2d 515 (1949) .................
L e ic h t v. Snow H i l l Mining C o rp ., 101 Ind . App. 584,
200 N.E. 427 (1936)................................... ..........................................
L e s s ic v. Booske, 86 F la . 251, 97 So. 383 (1 9 2 3 )..........................
64
47
64
69
64
69
63
63
63
i i i
L i f e Time Doors, In c . v . W alled Lake Door C o ., 505 F .2d
1165, 1167-8 ( 6th C ir . , 1974 )............................................................ 63
M artin v. Thompson T ra c to r C o ., 486 F.2d 512, 514-8
(5th C ir . , 1919 )........................................................................ .... 64
McDonnell Douglas Corp. v . Green, 411 U.S. 792,
800-1 (1973) .......................................................... ............................. 64 , 65
McGaffney v. Southwest M is s is s ip p i G eneral H o s p ita l,
6 FEP Cases 1123 (5th C i r . , 1973), a f f ' g 5 FEP
Cases 1312, 1316 (S.D. M is s ., 1973 )............................................... 69
Meanor v. Goldsm ith, 216 Pa. 489, 65 7\ 1085 (1907). . . . . . 63
M ichigan C onso lida ted Gas C o ., 42 LA 385 (1 9 6 4 ) .............................. 69
M i l l e r v . McKenzie 78 U.S. (10 W a ll . ) 582 (1871 ). '..........................63
M ill ik e n v. Bradley U . S . ____, 94 S. C t. 3112 (1 9 7 4 ) .................. 67 , 68
M itc h e ll v. In te rn a t io n a l D is t r ib u t io n , In c . , 5 FEP
Cases 14 (W.D. Tenn. , 19 72 )................................................................ 69
N a tion a l Standard Co. , 29 LA 837 (1 9 5 7 ) ............................................... 69
Owings v. Kincannon, 33 U.S. (7 P e t . ) 403 (1833). . . . . . . . 63
P a rr ish v. Board o f Commissioners o f the Alabama
S ta te Bar, 505 F.2d (Advance S heets ) 12 (5th
C i r . , Dec, 1 9 7 4 ) ..................................................................................... 5
Penw ell v . Newland, 180 F.2d 551 (9th C i r . , 1950) ................. . . 5
P erry v . B a ile y , 290 K y. 129, 160 S.W.2d 617 ( 1 9 4 2 ) ...................... 63
Pettway v. ACIPCO, 494 F.2d 211, 242, n. 77 (5th C i r . , 1974 ). . 61
Republic S te e l Corp. 37 LA 591 (1 9 6 1 ) ................................................... 69
Resendis v. Lee Way Motor F r e ig h t , In c . , 505 F.2d 69, 72
. (5th C ir . , 1 9 7 4 ) ..................................................................................... 64
Rockw ell R e g is te r Corp. , 36 LA, 1160 (1 9 1 1 ) .......................................69
Rodriguez v . East Texas Motor F r e ig h t , 505 F .2d
40, 53 (5th C i r . , 1974). . . ............................................................ 65
Roman v. ESB, In c . , 7 FEP Cases 1063, 1071 (D .S .C ., 1973) . . . 69
Smith v. C la rk , 54 U.S. (12 How.) 21 (1 8 5 1 ) .......................... 63
i v
I
I
i
Smith v . U n iversa l S e rv ic e s , In c . , 454 F. 2d 154,
15G, (5th C ir . , 1 9 7 2 )................................................................ 64
Stone v . In te r s ta te N atu ra l Gas C o ., 103 F. 2d
544 (5th C ir . , 1 9 3 9 ) .................................. •............................ 64
Tandy v . W o lfe , 270 Ky. 556, 110 S.W. 2d 227 (1937) . . . 63
65
The Duriron Co. , 66-2 ARB V8468 ................................................... 69
U .S. v . J a c k s o n v ille Term inal C o ., 451 F. 2d 418, 443-8
(5th C i r . , 1971) c e r t , d en ., 406 U .S. 906 ...................... 46, 69
Van Hoose v . Eidson, 450 F. 2d 746 ( 6th C i r . , 1971). . . 63
Washington v. Safeway C orp ., 467 F. 2d 945, 947, 949
(1 0th C ir .., 1 9 7 2 )........................................................................ 69
W e lls v . Chemical Bank, ]08 Ga. App. 387, ]33 S.E . 2d
68 52 (1 9 6 3 )................. ; ....................................................................63
Y a le & Towne Mfg. C o., 24 LA ] 6 0 (1 9 5 5 )...................................... 69
Miscellaneous:
F ed era l Rules o f A p p e lla te P rocedu re, Rule 3 ( c ) ..........................63
F ed era l Rules o f A p p e lla te P rocedure, Rule 12(a) . . . . 1
F ed era l Rules o f C iv i l P rocedu re, Rule 7 ( b ) ( 2 ) and 1 0 ( a ) . . 4 , 63
F ed era l Rules o f C iv i l P rocedure, Rule . 52 ( a ) ................................ 63
M o s te lle r , e t a l . , "E va lu a tion and Experim ent: C r i t i c a l
Issu es in A ssess in g S o c ia l Programs" .............................. 66
O tten , "Learn ing What W orks," W all S t r e e t Jou rn a l,
A p r i l 1 7, 1 975, p. 1 8 ................................................................66
V
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 74-372G
LOUIS SWINT.
WILLIE JOHNSON,
and CLYDE HUMPHREY,
Plaintiff-Appellant;
Plaintiff-Status on this Appeal Undetermined;
Intervenor-Status on this Appeal Undetermined;
v r
PULLMAN-STANDARD, a Division of PULLMAN, INCORPORATED;
UNITED STEELWORKERS OF AMERICA, AFL-CIO; LOCAL 14GG;
UNITED STEELWORKERS OF AMERICA, AFL-CIO; and
LOCAL LODGE NO. 372, INTERNATIONAL ASSOCIATION
OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO;
Defendants-Appellees.
On Appeal from the United States District Court
for the Northern District of Alabama, Southern Division
BRIEF OF DEFENDANT-APPELLEE,
PULLMAN-STANDARD
COUNTER STATEMENT OF QUESTIONS PRESENTED
1. Who took the appeal and in what capacity? 1/
\J Our motion for instructions on this question was denied by order of March 24,
1975. If, as we believe to be correct, the only party appellant is Louis Swint in
his individual capacity, then questions 3 through 6 are not before the Court.
Being uncertain who took the appeal, we have captioned our brief as best we
can to comply with FRAP Rule 12(a) . We don't know whether there are 1, 2, or 3
appellants or whether any are here in a representative capacity, and in order to
2. Was the district court's finding clearly erroneous that Mr. Swint was
not discharged on account of his race nor because he had filed charges with the
EEOC?
3. Was the district court's finding clearly erroneous, that the seniority
system provided for by the collective bargaining agreement between Pullman
and Steelworkers, as modified in Pullman's corrective action program in its
agreement with the OFCC, and as further modified in the district court's judg
ment, did not perpetuate any effects of past discrimination?
4. Was the district court's finding clearly erroneous, that Pullman does
not discriminate on account of race in making work assignments among employees
in the same job classification, nor in assigning employees to different job class
ifications having the same hourly wage (job class)?
5. Was the district court's finding clearly erroneous that Pullman did not
discriminate against black employees in promotions to supervisory and manag
erial positions?
1/ (Cont'd)
make rational discourse possible without appearing either to beg or concede that
question v/e shall use the numerically indeterminate terminology "the other side"
when necessary to refer to whoever filed the notice of appeal.
Pullman-Standard, a Division of Pullman, Incorporated will be shortened to
"Pullman"; United Steelworkers of America, AFL-CIO to "Steelworkers"; its
Local 1466 as "the Steelworkers' Local"; and Local Lodge No. 372, International
Association of Machinists and Aerospace Workers, AFL-CIO as "the Machinists
Local."
In addition to abbreviations whose meaning is obvious, we shall sometimes
refer to the District Court's Opinion (Record, V ol. I, document 16) as "Opinion,
page___ "; to Company Defendant's Exhibit as "CDX"; to Plaintiffs' Exhibit as "PX"
to unemployment compensation as "UC"; to supplemental unemployment benefits as
"SUB"; to job class as "JC"; to Office of Federal Contract Compliance as "OFCC."
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6. Was the district court's finding clearly erroneous, that Clyde Humphrey
was not discriminated against on account of his race or filing EEOC charges, by
being discharged for refusing to do his assigned work, and thereafter reinstated
without back pay in an arbitration between Pullman and Steelworkers?
Other issues may be presented with respect to the appellee labor
organizations.
COUNTER-STATEMENT OF THE CASE
■*>
This action was commenced by a complaint (R. Vol. I, Doc. 2) filed by
"Louis Swint and Willie James Johnson, on behalf of themselves and others simi
larly situated", containing the typical so-called "across the board" V allegations
of racial discrimination in employment at Pullman's Bessemer, Alabama plant,
as well as a claim that Mr. Swint was discharged "in retaliation for the charges
he filed" with the EEOC. Following answer by the defendants and several plead
ing amendments (R . Vol. I, Docs. 3, 4, 6) the district court entered a pretrial
order on June 5, 1974 (R. Vol. I, Doc. 7) limiting the issues substantially to four
whether the seniority system "perpetuates the effects of past discrimination";
whether the assignment of work within job classifications or assignment of in
dividuals to job classifications having the same rate of pay was racially discrimi
natory; whether Pullman discriminated racially in promotions to supervisory
managerial positions; and whether Pullman discharged Mr. Swint because of his
race or in retaliation for filing EEOC charges. This pretrial order also granted
2/ This phrase is defined in Webster's 3d International Dictionary, p. 20, as
"embracing all classes or categories without exception."
leave to add the Machinists Local as a party defendant and allowed intervention
of Clyde Humphrey; in an amended complaint filed thereafter (R . V o l. I, Doc. 8)
and erroneously captioned, 3/ the International Association of Machinists [sic: not
the Machinists Local] was purportedly added as a defendant and an additional
claim was made by Mr. Humphrey that he was fired because of his race and was
thereafter reinstated by an arbitrator without bade pay. Thereafter, a second
amended complaint was filed on the third day of trial (R . Vol. I, Doc. 14) , again
incorrectly captioned but naming the Machinists Local correctly.
After a lengthy trial to the court without a jury the Court made its findings
of fact and conclusions of law in a written Opinion (R . Vol. I, Doc. 16) finding
the other side had failed to sustain its factual allegations, except that it found a
slight revision of Pullman's corrective action program set out in its agreement with
the Office of Federal Contract Compliance was in order and that said agreement
as so revised should be declared binding on Steelworkers (which had never
agreed to it) . This opinion was filed September 13, 1974 and on the same date
a judgment (R. Vol. I, Doc. 17) was entered in accordance with said opinion.
The only notice of appeal filed in this case (R . Vol. I, Doc. 18) bore the
district court caption prescribed for all district court papers filed after the com
plaint, inF.R. Civ. P. Rules 7(b) (2) and 10(a); i . e . , "Louis Swint etal . .
Plaintiffs, vs. Pullman-Standard, et a l., Defendants" and contained this text:
"PLEASE TAKE NOTICE that the plaintiff, Louis Swint, by his under
signed attorney hereby appeals to the United States Court of Appeals for
3/ Clyde Humphrey's name never made it into any caption of any paper filed by
the other side in the district court.
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the Fifth Circuit the final order [sic] of the United States District Court
for the Northern District of Alabama entered in the above action on the
13th day of September, 1974."
The notice of appeal was signed by "Attorneys for plaintiff
The only bond for costs filed in this case was similarly captioned and was condi
tioned as follows:
"whereas the plaintiff has appealed to the Court of Appeals for the
Fifth Circuit by Notice of Appeal filed September 16, 1974, from the judg
ment of this Court entered September 13, 1974, that if the plaintiff shall
pay.all costs adjudicated against him.. .then this bond is to be void, but
if the plaintiff fails to perform this condition, payment of the amount of
this bond shall be due forthwith."
This bond is signed (without indication of who is principal and who are sureties)
by Louis Swint, U. W. Clemon, Caryl P. Privett, and Adams, Baker & Clemon.
So far as appears, Mr. Swint seems to be the principal and the sureties are
Mr. Clemon, Ms. Privett, and the law partnership of Adams, Baker and Clemon.
We have no cost bond from Messrs. Johnson or Humphrey.
In view of the puzzling opinion in Parrish v. Board of Commissioners of
the Alabama State Bar, 505 F. 2d (Advance Sheets) 12 (5th C ir ., Dec. 2, 1974),
which was contrary to an unbroken line of positive authority as to the effect of
such a Notice of Appeal, and which was withdrawn by the Court ex mero motu, we
were and still are at a loss to know who is on the other side in this Court, whether
Mr. Swint is here in any capacity other than individual, and what questions are
to be decided. We moved for instructions from the Court as to who is on the other
side, and having failed to get any instructions will do the best we can to write
intelligibly as to what this appeal is about.
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STATEMENT OF FACTS
Like all true works of fantasy, the statement of facts in the other side's
bi’ ief simply ignores all facts which do not fit its imaginary construct. We recom
mend as a quick antidote that the Court first carefully read the district court's
Opinion. (R . Vol. I, Doc. 16). This brief will summarize the evidence supporting
the findingscontained in the opinion, and filling in some of the detailed facts
which will present them in true depth and perspective.
As for statistical evidence, we shall demonstrate that the so-called statistical
analysis of the other side began with insignificant data, applied erroneous
principles to them, including a number of arithmetic errors as well as statistical
fallacies, and sought to infer conclusions which are devoid of rational basis.
Pullman introduced detailed and mathematically sound statistical analyses and
testimony, on the other hand, which powerfully supported the district court's .
findings and indeed, leave the open-minded observer no choice but to accept
district court's conclusions. £/
Like the district court, we shall begin with an "overview" or general
factual background. Then, since plaintiff-appellant Swint's discharge is unques
tionably an issue which must be decided, we shall deal with the facts of his in
dividual discharge claim. Thereafter we shall take up the facts involved in the
other three issues stipulated in the pretrial order (R . Vol. I, Doc. 7) and lastly,
the facts of Mr. Humphrey's individual claim. Thus the facts will be presented
£/ The other side should find some solace in those conclusions, for their unmis
takable message is that it is possible to devise an affirmative action program that
really works, actually eliminates any present effects of past discrimination in a
short span of years, and without prohibitive cost in destroyed efficiency.
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in descending order of likelihood that the Court will have to consider them .
A. O V E R V I E W F o r the sake of brevity, we request the Court to read
the portion of the district court's Opinion entitled "Overview", Opinion pages 1-7.
The factual findings are thoroughly grounded in the evidence, and Pullman be
lieves it is appropriate to enlarge upon them by adding the following facts, all
of which are substantially undisputed:
The Bessemer plant is the largest freight car building plant in the world,
*
and the most versatile (T. 1228-9, 1247, 2176) . The types of cars produced
include box cars, flat cars, gondola cars, open and covered hopper cars, and
automobile hauling cars. Each of these generic types have many variations and
specific differences, especially numerous being the types of box cars, which are
of different lengths and heights; have different sizes and types of doors; diff
erent types of side construction; different underframes, some being equipped
with special cushioning devices and some not; different interiors, floors, and
bulkheads; different bolsters; different construction methods, some being all-
welded and some mostly riveted; etc. Most cars are made of steel, but some
have aluminum and stainless components, and although wood floors and interiors
have gone out of style in recent years there are still occasional repair orders on
box cars so equipped. (T . 1229; 1358-66) . In this respect the Bessemer plant
differs markedly from Pullman's car building plant in Butler, Pennsylvania,
which is smaller and devoted virtually exclusively to producing a single model
of closed hopper car. (T. 2175) .
Not only are there frequent and large fluctuations in the size of the active
work force at Bessemer, as found by the district court, Opinion page 2, but it
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is an important fact that as each new car order goes into production at the Bes
semer plant, there are large fluctuations in manpower levels in each department
which reach their peaks at quite different times (T . 1229-34) . The surge of
demand for manpower begins in the Steel Stores, Punch and Shear, and Forge
departments, where raw materials are handled and components fabricated; then
it moves on to the Wheel and Axle, and Truck departments as the cars begin to
take shape; then to Steel Construction where subassemblies are put together,
then on to Steel Erection where the cars are built; the Welding and Inspection
Departments have their personnel throughout many different departments and
have periodicity of their own; and then on to the Paint and Shipping Track depart
ment where they are completed and necessary final correction work done. The
time span for producing the first car of an order, from shearing the first plate
to final inspection typically runs into weeks, and it is not at all uncommon for one
department to be laying off while another is recalling large numbers of em
ployees. 5/ To complicate this pattern, the plant may have several different
orders in production, all at different stages, at the same time. There are three
separate erection tracks or assembly lines and the plant may be operating one
track on one shift or all three tracks on three shifts (T . 1230-34) . The Paint
and Shipping Track department is approximately a half mile away from the Punch
and Shear department and the skills required in most departments are vastly
dissimilar. (T . 1337; CDX 292) . The manpower requirements for flatcars are
5/ Employees laid off in one department may elect to take available work in other
departments rather than being laid off, or to receive UC and, if eligible, SUB.
Once they qualify for SUB, practically no employees elect the first option, UC
plus SUB amounting to about of their regular take-home pay.
- 8 -
quite different from those for a Big John boxcar; and numerous production
workers are absent on most days. Therefore there is a certain irreducible mini
mum of changes in work assignments going on all the time. However, the fre
quency and magnitude of such changes is kept down by having seniority applied
in general within the several departments (i .e ., when the Paint Department's
manpower needs are decreasing at the same time as Wheel and Axle's are increas
ing, experienced spray painters are not sent a half mile to try to grind axles;
rather an experienced wheel and axle man is recalled from layoff) and by Pullman's
in general deciding on individual task assignments within groups having the same
job classification or JC rather than permitting employees to pick their work as
signments ( e.g. , permitting the welder who is senior and most experienced on
overhead welding, to pick a flat welding assignment because he thinks it is
easier or more pleasant) .
The relationship between employee familiarity with specific work assign
ments and productivity was shown by uncontradicted statistical evidence (CDX
351, pages 87-92) . It was shown that during the period of starting up a new
order of cars, on the average for the first nine working days, while employees
(even though mostly in their familiar departments and familiar job classification)
were becoming familiar with specific work assignments, production would be
below the standard; during this initial period productivity is 54.7% of standard
productivity; following this period, the erection track workers characteristically
quit working after producing the standard day's number of cars, on the average
completing the standard about 40 minutes before quitting time (CDX 351, pages
87-92) . The duration of this initial period of low productivity increases
- 9 -
sharply as the complexity of the car being built increases.
It is an obvious conclusion from this uncontradictcd statistical evidence
that permitting promiscuous movement from one department to another, or from
one work assignment to another, with all the fluctuations in manpower require
ments Which obtain in this plant and in many departments, would reduce efficiency
and increase costs considerably. (CDX 351, page 88) . It was shown without con
tradiction that it would also have drastic effects on quality of the product (T . 2147-
52) . Indeed, black witness after black witness called by both sides testified that
it would be impossible to build cars if the men picked their own assignments by
seniority rather than to be directed by supervision (T . 424-5, 8G3- 4, 8G6, 847,
2853) . 5A/
B. FACTS SURROUNDING THE SWINT DISCHARGE . - Since M r. Swint
i
undoubtedly is a party appellant in his individual capacity, we believe it is ap-' • ;
• t. r
propriate to deal with the facts of his individual case first. Obviously, it may be
p*
unnecessary to decide any questions other than whether he was fired on account
of his race or on account of his having filed charges with the EEOC .
5A/ While this is not to be confused with the defense of so-called business
necessity, such defense having been so narrowly construed by some courts as
to mean it is not met by proof that to change would make boxcars cost $1 million
each to build, and is met only by proof of impossibility to build them at any price,
it is significant on the question whether Pullman's seniority or work assignment
system perpetuates any disadvantage to black employees. For if an increase in
cost of $500 a car at Bessemer should divert all the sales to competing plants or
the Butler plant, no advantage to blacks would result from adopting an inefficient
method which would cause such increased cost; and since the burden is on the
other side to show perpetuation of some disadvantage to blacks, it is significant
that the other side has not shown cars built by methods they advocate can be
sold; quite apart from the so-called business necessity affirmative defense.
It was shown without contradiction that such inefficient methods of making
work assignments were major contributing factors to the closing of a Pullman
car building plant in Michigan City, Indiana (T . 2173, 2199-2204) .
- 10 -
The district court's Opinion (p . 32-34) found: The principal reason
assigned by Pullman for firing Mr. Swint was insubordination; Pullman had ample
reason to believe he was guilty of insubordination, and if necessary the Couit
would find, as did the arbitrator, that he was guilty of insubordination; this
reason was not a subterfuge; there was not the slightest evidence that Mr. Swint
was fired because he was black; Mr. Swint's insubordination was directed toward
a black foreman. M r. Swint was not fired because he had filed charges with the
EEOC; it does not appear that the persons who made the decision to fire Mr. Swint
were even aware of his having filed such charges (T . 1956; 2444); many black
employees who have made claims of racial discrimination have obtained, if any
thing, favored treatment thereafter in the form of promotions and the like; with
the exception of the claims of Messrs. Swint and Humphrey, no instance of alleg
ed retaliatory treatment for filing an EEOC charge was even suggested in the evi
dence. "In the present case it is unlikely that either Swint or Humphrey would
have remained with Pullman as long as they did unless the company had been
'bending over backwards' on their behalf" (Opinion, p g . 34) . These findings
are amply supported in the evidence. If we may add a few details about Mr.
Swint's history, this Court may readily understand why the district court was
so unusually emphatic in its findings. Many employees, black and white, had
difficulties with Mr. Swint for a period of years. 6/ Mr. Franklin Rodriguez,
6/ When Mr. Harry Debrow, a black man who was later to become a Contract
Compliance Officer at Pullman, became a salaried foreman in 1968 Mr. Swint,
a stranger to Mr. Debrow at the time, walked up to him and said "I would
let the company keep their gold hat" (T . 1776) . Mr. Alfred Moorer, another
black man, testified that wrhcn he was made riveter ahead of Mr. Swint, Mr. Swint
appeared to resent it and when acting as his bucker was uncooperative, would
not do the job in a normal manner and would not hand him things he was supposed
to (T . 2554) . When Mr. Moorer first became a salaried foreman in 1970, soon
- 11 -
a Spanish surnamcd foreman whose father was born in Mexico, testified that he
had problems with Mr. Swint's work on several occasions. Sometimes Mr. Swint
would complain that his back was bothering him (T . 2455) . or that his knee hurt
(T. 2408) , and he constantly wanted someone, else's job (T . 2491) . Mr. Rodriguez
tried to accomodate Mr. Swint by moving him around, but his work didn't improve. 7/
•i
4
1
1
after another black man, Perry (Tiger) Thompson, had been elected Picsident
of the Steelworkers Local, Mr. Swint accosted him at a gathering of employees at
one of their homes and said, "he and the Tiger were going to take care of the
Uncle Tom's" (T 2551) . Mr. Moorer, who was anxious to succeed in his new
position, was not receptive to Mr. Swint's suggestion that he and Tiger were out
to get him, and told Mr. Swint if he wanted to take care of him the best place t
do so was right there (T . 2552) . Mr. Swint commented aloud to a large group of
people on at least one other occasion in the plant as Mr. Moorer passed by thei e
goes one of those Uncle Tom's" (T. 2G03) .
In the fall of 1970, after Fred Prince, a black man was promoted to temporary
foreman in the Paint Department. Mr. Prince signed a notice of disciplinary
layoff directed to a black employee named Ed Loiton for insuboi .din at ion (CD
302- T 3193) . Thereafter, Mr. Prince received a notice of a union disciplinary
■proceeding against him based on his having signed Lofton's disciplinary notice
(CDX 304- T. 3190-97) . When Mr. Prince arrived at the Union healing he found
that Mr. Swint was presiding over the trial committee (T . 3200) . In this hearing,
Mr. Swint told Mr. Prince that if Mr. Prince was working as a foreman, he was
not supposed to reprimand or report anyone for failing to do his wor , an ra
than do so he should "give up his job" as temporary foreman (T . 3206). •
Swint told Mr. Prince about a black temporary foreman who had done this in
the Wood Mill Department (T . 3207) . A Mr. Henry Mixon, a black man stated
that he almost got into a fight with James Heard, a friend of Prince s who de
fended Prince's conduct as just doing his job and Mr. Mixon told Mr. Prince
that he too had given up his job as temporary foreman rather than maintain dis
cipline (T. 3206) . Mr. Swint told Mr. Prince he was "guilty" for having signed
the disciplinary notice and there was no way to defend such conduct ( r . 3 ) •
Mr. Swint was doing most of the talking and the hearing wen on iom . •
until after 4- 00 P.M. ( T . 3209; 3242) . Louis Swint, Henry Mixon and Edward
Lofton, as might be expected, each testified against the company in this case. as
did Willie Johnson, a co-plaintiff and the bailiff at P red Prince s trial (1 . 3190)
7/ On one occasion Mr. Swint moved, with Rodriguez’s permission, from the
roll-over position where he had been spoiling 3/4 of his rivets to the A rig i
corner hut his work did not improve (T . 2400-09) . On another occasion when
Mr Swint complained about someone mistreating him, Mr. Rodriguez suggested
he go see Mr. Debrow, the black Contract Compliance Otficer. Mr. Swint re
plied that he "didn't have anything to say to that damn Uncle Pom (1 . 2a06) .
X
- 12 -
Mr. Swint liked to rivet on the A right corner, and remove bolls, so he
could drive them hastily and poorly and walk off the job to gather with his
cronies and hold whispered conferences until the next "pu ll." 7a/ His oppor
tunity to hold lengthy conferences were limited inside the hopper where he had
to do his own correction work instead of leaving them to be corrected by others
7/ (Cont'd)
Finally, Mr. Rodriguez, on still another occasion refused to move any more men
around to accomodate Mr. Swint and sent Mr. Swint out the gate for the rest of
the day (CDX 207; T. 2455) .
In April 1070 when Mr. Swint, after refusing one riveting job (T . 2319) ,
complained about another man having a different riveting job on a bull riveting
machine, Mr. Moss, a white foreman, gave Mr. Swint an opportunity to try the
bull machine and Mr. Swint in front of Dave Mason, a black foreman, and Willie
Key, a black union official, proceeded to cripple two box cars with bad rivets
(T . 2320) . On another occasion the men doing correction work complained
about Mr. Swint driving a great many bad rivets (T . 2322) . Mr. Moss investigated
and found that Mr. Swint had been leaving his work station, going down to the
next position and taking bolts out of the steel. The bolts were holding the steel
he was about to rivet together. Taking the bolts out at the position before made
it possible for Mr. Swint to hold more extended conferences after every other
car but resulted in bad rivets because the steel plates were slipping apart and were
no longer in close contact when Mr. Swint riveted them (T . 2323) . Mr. Swint had
been warned on at least two prior occasions not to take the bolts out until after
some of the rivets had been driven (T . 2683) . On still another occasion, Mr. Swint
was driving so many bad rivets that Mr. Moss moved him to a position inside a
hopper car where he had fewer rivets to drive but was required to correct his
own work as his rivets would be later covered up by a plate (T . 2326) . Mr.
Debrow, the black Contract Compliance Officer, and Mr. Hammonds, a black man
then a union committeeman, observed Mr. Swint until he had riveted two cars
without a problem (T . 1894-95) . As soon as they were gone, Mr. Swint, a
large muscular man who certainly seemed healthy enough until then, claimed to
have suddenly developed a backache (T. 2326) . Three other riveters were doing
the same work Mr. Swint was doing and had no trouble with the job, and Mr. Swint
was replaced by a 130 pound 55 year old white man who performed the work with
out any problems (T. 2331) . Thereafter, whenever Mr. Swint wanted a change
of assignments it seems that he complained of trouble with his back or knees or
his assignment.
7a/ When the work at each position is completed, the simultaneous movement of
the cars on a given track to their next positions is referred to as a "pull" .
at the "O .K ." position. 7b/
In May or June 1970, Mr. Swint was assigned to the crew of Mr. Fred
Cottrell, a black salaried foreman. Thereafter, Mr. Swint left his job on several
occasions when he should have been working and wandered down the track.
Mr. Swint was warned not to do this by Mr. Cottrell, but his behavior persisted
(T. 3093-94) . On June 9, Mr. Cottrell left the area for awhile to see about a
broken pump. When he returned, Mr. Swint again had disappeared (T . 3071) .
Tn order to keep the entire track from being held up by Mr. Swint's absence
Mr. Cottrell performed Mr. Swint's work himself (T . 3074-7 5) , and when
Mr. Swint strolled back 20 minutes later without any excuse for his absence,
Mr. Cottrell gave him a written warning (CDX 256; T . 3071-72) . When on
another occasion, Mr. Swint was leaving rivets out of some holes and Mr. Cottrell
asked about it, Mr. Swint told him that the holes were too small for the rivets.
Mr. Cottrell checked them himself and found that there was nothing wrong with
the holes (T. 3076) . On still another occasion when rivets were being left out,
Mr. Cottrell questioned each man on the rivet gang to find out who was respons
ible. When it seemed clear that it was Mr. Swint, he confronted Mr. Swint who
simply replied "you leave some, Boss, and you get some" (1 . 3100) .
The foremen as a group. Black, White, and Spanish surnamed, were of
one sentiment when it came to assigning men to their crews "Give me anybody,
but don't give me Swint" (T . 2351; 2485; 2588-89; 2702) . His fellow workers
7b/ It was only after Pullman's assignments began to interfere with his apparent
intrigues that Mr. Swint developed back symptoms. From the evidence of his
 ork history at Commercial Fabricators after Pullman fired him, involving
strenuous physical activity without any back treatment or trouble to the date of
trial (T. 2524; 2532), and from neuro-surgical opinion evidence T . 2275-78, it
appears probable that Mr. Swint's back trouble was feigned.
- 14 -
complained about having to do Mr. Swint's work behind him and of excessive
correction work on the work he did (T . 2505) .
Throughout the remainder of 1970, Mr. Swint continued to try various de
vices to get his choice of assignments, continued to drive bad rivets frequently
and complained about various health problems (T . 1912-18) . He missed several
months' time in 1970 due to claimed back problems (CDX 251) , and drew either
Accident and Sickness insurance or supplemental unemployment benefits from
♦
the company. From January 15, 1971 until May 7, 1971 Mr. Swint was again ab
sent from work due to sickness (this time real, a collapsed lung) .(CDX 251) .
When Mr. Swint returned to work on Friday, May 7, 1971 the Steel Erection
department was starting on a new boxcar order and Mr. Swint and the other men
who had reported in that morning and who did not yet have assignments were
escorted in a group down the erection track by track foreman Rodriguez accom
panied by Mr. Ross Hammond, the black Steelworkers Local Vice President
(T . 2560; 2564) . As the group reached successive car positions Mr. Rodriguez
would consult with the foreman of that position about his manpower needs. Since
employees have several days to report when they are recalled from layoff, and
because of absenteeism problems, it is impossible to know in advance where to
place available unassigned manpower (T . 2351-53) . As the group arrived at
position 4, one of the positions supervised by black foreman Mr. Alfred Moorer,
Mr. Moorer indicated to Mr. Rodriguez that he could use two men. Mr. Rodriguez
then directed Mr. Swint and one other man to work at that position. Mr. Moorer
shook his head (T . 25G0-G1) , because it was generally understood in the shop
- 15 -
that it was bad news to have Mr. Swint in your crew (T . 2589) . Though
Mr. Moorcr had not previously supervised Mr. Swint, a lot of supervisors had
been kidding Mr. Moorer that he would get his turn (T . 2588) . Mr. Rodriguez
told Mr. Moorer that he had to take Mr. Swint (T . 25G1) . Mr. Moorer then made
the detailed assignments on the position directing Mr. Swint to an assignment
which required him to ream certain rivet holes and then assist another employee
to lift scaffold boards and hand them up to other employees who were inside the
car. This assignment was as an assembler, JC G. As the department was build
ing up after a layoff this was the highest job to which Swint's seniority would
entitle him (T. 25G1-62) . Before he went to work Mr. Swint wanted to see his
shop steward (T. 25G3) . Because there was work to be done and because
Mr. Swint would have breaks during the day including his lunch hour to see a
union representative, Mr. Moorer denied the request at that time (T . 2564) .
Mr. Swint later said he was trying to get a different work assignment (CDX 387) .
When Mr. Swint completed the first car there was a short interval between the
completion of his work and the first "pull" and he again requested permission
to go down the track. Mr. Moorer granted him permission so long as he was back
for the next car (T. 25G5) . Mr. Swint then proceeded to position number 11, the
roof position, a position supervised by black foreman Mr. Miles T . Ward and
where union steward, Mr. Louis Pinkard was assigned to work (T . 2227; 2235-36;
2567) . At position number 11 the crew places roof panels on the cars and bolts
- 16 -
them temporarily into place. Work had been proceeding at this position with a
12 man crew without incident. But after Mr. Swint visited the area some men
complained to Mr. Ward that the crew should have had 13 men instead of 12
(T . 2224) . Mr. Swint said after he got to the roof position he did not discuss his
own claim that he ought to be placed on a different work assignment with Mr.
Pinlcard, "after I saw that he had a more pressing problem." (CDX 257, p. 387,
393) . Mr. Ward, not being sure of the customary crew size on that particular
position and type car, asked Mr. Pinkard to give him time to check on it and that
he would find out about the crew size and get it straignt and no one would lose
any money. (T . 2248) . Meanwhile Mr. Moorer upon learning of trouble at posi
tion 11 instructed Mr. Swint not to leave his work area without permission (T . 2567) .
But Mr. Swint ignored Mr. Moorer's instruction and proceeded again to position
11 several times that day (T . 2567) . After the second pull a work stoppage occur
red at position 11 stopping work on the entire track (T . 2226; 2248) . When Mr.
Rodriguez arrived at position 11 to see about the problem several men'from other
positions were at position 11 including Mr. Swint. Mr. Rodriguez directed them
all to return to their own positions and each left except Mr. Swint who would not
do so until finally persuaded to leave by Mr. Hammonds, the black union vice
president (T . 2474; 2475; 2478) . The work stoppage continued some 30 or 45
minutes (T . 2228) .
On Monday. May 10, 1971, Pullman began an in-depth investigation into
the work stoppage of Friday, May 7, 1971 (CDX 258) . Work proceeded on Monday
in a relatively normal manner. On Tuesday, May 11, while the investigation
- 17 -
was continuing, Mr. Rodriguez told Mr. Moorer that they were again having
trouble at the roof position and to keep Mr. Swint away from there (T . 2G1G) .
Mr. Moorer who had already told Mr. Swint several times that morning to stay
off the roof position without any effect on Mr. Swint's actions (T . 2G30) , asked
Mr. Rodriguez to wait a minute so that he could "verify the fact that I had told
Swint to stay off the roof" (T . 2570) . Mr. Moorer, in Mr. Rodriguez' presence,
then told Mr. Swint again to "stay off the roof position" (T . 2570) . Mr. Swint
replied, "you mean I can’t go no place", and Mr. Moorer told him he could go to
the bathroom, the coke machine and the water box, but to stay off the roof posi
tion (T . 2570-71) . To this Mr. Swint replied "I go where I damn please" (T . 2570;
2628; 2480) . Thereafter, each time a car was finished that morning Mr. Swint
would leave his work area without permission and go towards the roof position
(T . 2571; 2635) . Then at 10 minutes until 12, while work was still to be done,-
Mr. Swint quit work again, taking off his gloves (T . 2572) . Mr. Moorer told him
it was not yet lunch time. Mr. Swint replied that-his watch must have stopped
(T. 2573), turned and walked again towards the roof position (T . 2573) . Without
Mr. Swint's help the other man on the ground could not lift the scaffold boards
into the car. Three men were idled by Mr. Swint's absence and could not com
plete their work (T . 2573; 2G24) . Mr. Rodriguez and Mr. Moss both observed
Mr. Swint go to the roof position, climb up the ladder and onto the roof scaffold
(T . 2481) . Mr. Swint admitted he went there after Mr. Moorer had directly ordered
him to stay away from there (CDX 257, p. 396-7) . Mr. Swint said that he went
down there to talk with Mr. Pinkard "about how terrified those people were"
- 18 -
whom Pullman was interviewing in its investigation of the wildcat (CDX 257, p.
395) , although elsewhere he gave conflicting testimony (CDX 257, p. 397-8) .
Following this incident Mr. Swint was interviewed as part of the continuing in
vestigation of Friday's wildcat strike at the roof position and related problems.
In this interview, Mr. Swint denounced the investigation as a Kangaroo court and
the witnesses Pullman had interviewed as all "pimps and ex-foremen" (CDX 257,
p. 403-5) . Later that day Mr. Swint was given the following written notice of
termination (PX. 80):
Dear Mr. Swint:
Having carefully considered the evidence produced in an investigation
of recent problems in the Steel Erection Department, we have concluded
that you are guilty of not leaving the roof position when your supervisor
directly ordered you to leave; that you are also guilty of repeatedly leaving
your work station without proper authorization of or notification to your
supervisor; that this was after you had been given repeated warnings and
instructions not to leave your work area without authorization, that these
actions have been willfully disobedient or insubordinate. You returned
to the roof position after being directly ordered to keep away from there.
You have demonstrated poor attitudes toward fellow workers, your super
visors and your job . You failed to cooperate satisfactorily in our investi
gation by refusing to furnish certain information about your activities in
our plant, claiming privacy, when the information was clearly a matter
of legitimate concern to the company; and by characterizing the investi
gation as a Kangaroo court and as railroading you and calling all witnesses
who had participated in our investigation pimps and ex-supervisors.
Based on all of these matters, and a careful review of your entire disci
plinary and work record, we have decided to discharge you effective
immediately upon your receipt of this notice.
Mr. Swint filed a grievance over his discharge. His grievance was arbi
trated and the Arbitrator, Robert J. Wagner, concluded:
Aftar a careful exhaustive study of the hundreds of pages of sworn
testimony in this case (from both the Company's investigation and the
arbitration hearing) from some 27 witnesses, and the many exhibits
and numerous citations from other arbitration cases entered by both
parties, I can— most emphatically—find no evidence of racial bias, as at
one time charged. In fact, it is questionable if a white employee, build
ing an employment record like that of Swint, would have lasted as long
as Swint did. (CDX 259 p. 1G) .
In the transcript of the arbitration hearing, the following questions and answers
appear (CDX 257, p. 402-3):
"Q. [By Mr. Stelzcnmullcr]: Let me ask you this, Mr. Swint, in this
complaint [ i .e. , in the instant civil action] you alleged that you were
discharged because of filing three or more charges with the EEOC .
What cause or basis do you have for that?
"A. [By Mr. Swint] : I think you would have to refer your question to
my attorney.
"Q. Well, do you have any information on that?
"A. No, I don't have any information."
The Alabama Department of Industrial Relations determined, after a hearing,
that Mr. Swint was properly discharged for "misconduct connected with his work",
and therefore partially disqualified Mr. Swint for unemployment compensation
(CDX 260).
On three successive Sundays after his discharge beginning on July 4, 1971,
Mr. Swint made broadcasts over Radio Station WJLD (CDX 340-50; T . 3418) . In
his first broadcast on July 4 he was introduced as "the man who was fired from his
job because he stood on a principle." During the first broadcast in telling what he
said was "the Story of Pullman Standard and their corrupted local" he stated:
"The employer, he discriminate against all working men.. It is not a
question here of black versus white—it is a question of labor versus
management.
(CDX 348) . Throughout the broadcasts his open antagonism towards any super
visor or black persons with responsibility was clearly manifested. For example,
on July 11 he staled:
"The next thing-you got some Uncle Toms in these companies. And
any jokers you find that eases in there and that good white man put
- 20 -
him in there, you can bet he's a Uncle Torn—because that man is not
gonna put anybody in there that's for the welfare of the working man.
He's gonna need somebody to keep you down.
CDX 349. The three broadcasts amounted to a non-racial appeal to class warfare,
inconsistent with Mr. Swint's contentions herein that he has a racial complaint.
After Mr. Swint's discharge but before trial, he began working for Com
mercial Fabricators doing strenuous work, with no back complaints (T . 2524,
2532) . There within the course of a year two other black employees quit work
because of Mr. Swint. One stated that he had to leave "before he got in trouble
with Mr. Swint" (T . 2525-26) . The other said that he also had had words with
Mr. Swint (T . 2526) . Both stated to the Commercial Fabricator's supervisor upon
leaving that they were "as good a Black man as Louis Swint" (T. 2526; 2541-42) .
C. FACTS CONCERNING ABSENCE OF PERPETUATION OF EFFECTS
OF PAST DISCRIMINATION. - The District Court found that the plaintiffs had
not sustained the burden of proving that Pullman's seniority system as modified by
its affirmative action agreement with the OFCC, U'.S. Department of Labor, and
by a small further change ordered by the court, perpetuated any present effects
of past discrimination. The District Court's Opinion, pages 8-20, treats this
matter in considerable detail, and its findings are well supported in the record.
We believe it will facilitate understanding of the case if we take a slightly dif
ferent approach to summarizing the facts relative to the seniority system of the
Bessemer plant.
The production and maintenance employees have been covered by collective
bargaining agreements since the early 1940's. The bulk of them, comprising 25
operating departments, have as their certified bargaining representative the
Steelworkers. The remaining employees in the Machine Shop, some 5-8% of the
work force, are represented by-the Machinists Local. The Steelworleers Local
j4G6 was principally organized by black employees at Pullman and blacks have his
torically held many of the offices in the Union. (Opinion, p. 20) 'lhe seniority
system in Pullman's Steelworkers' contract has always provided for both accrual
and application of seniority by departments in layoffs, recalls, and promotions.
ThGre are no smaller groupings or categories such as classifications, occupations,
or lines of progression wherein employees compete for vacancies with fewer than
all others in their respective departments. 7c/ Therefore, the mobility of these
employees may be greater than in systems where relative standing is measured
by plant-wide continuous service, but competition for vacancies is limited to
small groupings called lines of progression, occupations, or the like. Seniority
exercise by department minimizes mobility among departments, but as practiced
at Pullman resulted in easy upward mobility within the department as blacks be
came qualified for more skilled jobs; because of the constant layoffs and recalls in
practically all departments, more and more senior blacks have displaced junior
whites in their departments as they became qualified and as layoffs were made
according to relative continuous service in the departments.
For as the work force fluctuates, in each department employees are con
stantly moving up or down in their actually assigned job classification . Each em
ployee is designated by a nominal job classification on the seniority roster, but
the significance of this is simply that this is the highest rated job in the depart
ment for which he has demonstrated satisfactory perfoimance. Opinion, p. 15.
7c/ Thus there is no similarity between Pullman's seniority system and that of
the steel mills.
- 22 -
Under the Steelworkers contract, the company must observe seniority m filling
vacancies in the department, provided the senior candidate is "relatively equal"
in ability to do the work to his juniors; but with the qualification that once he has
demonstrated satisfactory ability to do the particular work, the company may no
longer c.onsider relative ability and must follow straight seniority.- (Steelworkers
Contract, PX 74. Sec. VI. A. 3) This means that among employees listed on the
seniority list as Welder, the senior gets the welding vacancy until the list of nom
inal Welders is exhausted; then the Company may temporarily promote a welder-
helper, who is paid the higher welder's rate but is not formally reclassified on the
seniority list until his proficiency has been demonstrated on the job and not just in
a welding test. The Company may hire a Welder off the street if it has exhausted
the nominally designated Welders and if no others in the department have relatively
equal ability . What this means is, in a reduction in force, layoffs are made from
the bottom of the seniority lists and the remaining employees are moved down to
lower paying job classifications according to their relative standing m the depart
ment . The most senior employees may stay in their nominal job classification all
the time, but the typical Pullman employee is constantly being laid off and recalled,
moving up to the highest position his seniority can command, or down to a lower
one if he lacks seniority to keep the top job he is qualified for.
It is true that from the late 40's until June, 1965 a number of the better jobs,
including supervisory positions, were de facto occupied only by white employees,
although earlier than that, back to the time the plant was built in 3 928, a good
many of these were racially mixed. This state of affairs was not shown to have
been the result of Pullman's conduct, however, and although the District Court
- 23 -
found it was something which "the company condoned, if not approved," the evi
dence is consistent with this being the result of differences in quit rates, initial
skills, etc., an alternative explanation the validity of which the District Court
recognized in Opinion, p. 4, footnote 11 and p. 11, footnote 28.
However, Pullman has not appealed and it is unnecessary to challenge the
District Court's findings of past discrimination, because the facts are so clear
that the seniority system has not perpetuated, but has instead assisted in eradicat
ing any effects of such past discrimination. Opinion, page 16 at footnote 31.
In March, 1965, the Steelworkers, using the contract grievance procedure
on beh.'ilf of negro employees in the Steel Erection and Steel Construction depart
ments, obtained an arbitration award from .Arbitrator Whitley 1 . McCoy ordering
the company to give performance tests in riveting to blades, the Riveter classifica
tion being at that time all-white. Opinion p. 5. As soon as this was done, the
company took immediate steps throughout the plant to open up any customary or
de facto barriers to negro advancement to the highest paid departmental jobs. It
gave performance type tests to black Rivet Ruckers and upgraoed their Seniority
list classifications as soon as their proficiency as Riveters was demonstrated on
the job . The same thing occurred in the Welding department as all black Welder-
Helpers were given welding tests, and in the Punch & Shear Department as black
Machine Helpers became qualified as various types of Machine Operators. The
result in all racially mixed departments was to eliminate in fairly short order, the
effects of past discrimination, for as soon as a black Helper became qualified, if
he was senior to a white Operator, the next time there was a layoff and recall,
the black got first crack at an operator vacancy and the white, though nominally
- 24 -
classified as a Punch Press Operator, had to content himself with a Helper slot if
that is all his seniority would command. Thus it is undisputed that over a period
of years in the Punch & Shear department, the employees actually working as
Machine Operators, formerly predominately white, have become practically all
black; and the employees actually assigned to work as Helpers, though qualified
as Operators, are most junior whites. It was shown without dispute that there are
some white employees in Punch & Shear who hold the nominal job classification of
Press Operator who have not operated any machine in over ten years, because they
are junior to qualified blacks they work as their Helpers (T . 3116) . T . lo22 34,
CDX 278.
Thus, in the normal operation of the seniority system many inequities were
rectified fairly rapidly after March, 1965. Beginning in June, 1965 black employees
began to receive assignments as hourly foremen. Pullman instituted a system of
reporting hires and promotions; and a recruiting program for the more highly
skilled jobs. In early 1966 it entered an agreement with the Steelworkers to ob
serve seniority in filling temporary vacancies. Beginning in 1968 and over a
period of several years thereafter Pullman was engaged in negotiations with the dc
partment of Labor, Office of Federal Contract Compliance (OFCC) over the terms of
a Corrective Action Program. Throughout these negotiations certain changes were
implemented as tentative agreements were reached. The approach taken was to
identify the problem areas and to take action appropriate to each specific problem.-
One of the primary objectives was to identify "aficcted classes" that could be ad
versely affected by any continuing effect of past discrimination. To that end. the
work force was subjected to a statistical analysis similar to that which appears on
- 25 -
page 10 of the District Court's Opinion. All departments were substantially inte
grated in June, 1905, except five which were all white, three which were all
black (Truck, Production Die and Tool, and Janitor) and the Steel Miscellaneous
Department, which had two whiles and 86 blacks. Four of the all-white depart
ments had a relatively high range of job classifications, and the three all-black
departments had the lowest range of job classifications. It was agreed by Pullman
and OFCC that the black incumbents of these substantially all-black and "low ceil
ing" departments were an "affected class" entitled to corrective action on their be
half and to special transfer rights to other departments with carryover of plant sen
iority and retreat rights. Such transfers could be made to any department in either
bargaining unit; management undertook to explain to each employee his rights and
to maintain documented records. Qualifications of affected class members were in
no event to be required to be higher than those of the least qualified employee who
had successfully held the particular job.
It was further agreed, to rectify any perpetuation of the all-white department
problems in addition to these special rights of the "affected class", all Negroes em
ployed prior to April 30, 1965 (a date prior to the effective date of the Civil Rights
Act of 1964, selected as the date after which no affirmatively discriminatory prac
tices or system persisted) were granted preferential transfer.rights to the all-white
departments, with the same seniority provisions and recall rights as those provided
for affected class members and at least a 1: 1 ratio of black to white filling of vacan
cies in these five departments until a better racial balance is achieved.
The next problem area identified concerned advancement of Negroes in all
departments. It was agreed that the contractual seniority provisions as to promo-
- 26 -
n
1- '
e-
en-
hier
id
n
io
ent
ro
ts
rite
ded
tn-
tions would be modified to allow black employees straight seniority preference on
permanent promotions, without the requirement of prior demonstration of satis
factory performance. Pullman established in connection with this corrective action
program and agreed to continue maintaining a Plant Contract Compliance Office
staffed by two salaried Compliance Officers, one black and one white, both with
extensive plant experience and sensitivity to the problems which were to be encount
ered. The Corrective Action Agreement also provided that these Compliance Officeis
were to review all waivers of promotions or passing over of senior Negroes for pro
motions; for giving additional training where appropriate and for reoffering the
promotion if discrimination was deemed by them to be a factor; with retreat rights
for unqualified employees.
The next problem identified was that of temporary promotions; for it was
recognized (see Opinion, p. 3) that the concept of permanent promotions is indeed
elusive in a plant with constant movement of employees up and down in the job
classification structure, and that failing to make some special provisions for tem
porary advancements of Negroes above their nominal seniority list classifications,
might result in an imbalance in on-the-job training opportunities. To deal with this
problem the Corrective Action Program provided that temporary vacancies in each
department must be filled, on a monthly basis, with Negro employees in propor
tion to their ratio in the department, with a minimum of one Negro temporary pro
motion in any month in which two or more occur. It was further provided that
a supervisor temporarily promoting any junior white over a Negro must submit
a report thereof with written justification, to be immediately reviewed by the
Contract Compliance Officers. T . 1G12-13; 1G20-24.
- 27 -
\
The next problem area identified was the fact that many Negro employees
were lacking in education and training without which their opportunities for ad
vancement were limited. Pullman had prior to agreement on the Corrective Action
Program, already expanded and liberalized a tuition reimbursement piogiam to
deal with this problem, agreed to maintain it in the Corrective Action Program,
and from time to time since lias continued to liberalize it to extend its benefits to
spouses and children of employees. In brief, any employee can take a course of
♦
instruction at any trade school, high school, college, or other educational insti-
tuiton at Pullman's expense, provided the course has some conceivable 1 elation
to any work done at Pullman, he applies for tuition reimbursement, and success
fully completes the course. Spouses and dependent children have the same bene
fit except it is limited to trade school courses. This program has been administei.
ed by the Contract Compliance Officers, widely publicized by them, and availed
of by many black employees and their families. Its requirements have been intei
preted liberally in favor of Negroes on several occasions documented in the record .
As an additional contribution to educational assistance Pullman offered to give
$45,000 to predominately Negro trade schools in the Bessemer area, in accepting
which the OFCC dropped its request that Pullman negotiate over back pay, there
having been substantial agreement that no means of ascertaining or estimating
back pay existed. T . 1048-58; 1833-43.
In addition, the Corrective Action Program contained provisions for Negro
supervisor advancement, for special efforts to place Negroes in the Machinists
unit and the five formerly all-white departments as well as the Maintenance
Department and the Plant Office, for recruiting black apprentices and clericals,
for affording hook-ons training in crane operation, for extensive documentation
- 28 -
and monthly reports and for completion and implementation of a comprehensive
Affirmative Action Program satisfactory to OFCC .
The Steelworkers refused to sign or to become a party to the OFCC agree
ment establishing the Corrective Action Program. This produced some uncer
tainty and delay in its full implementation. The first Pullman-OFCC agreement,
was a memorandum of understanding signed in January, 1909, which was condi
tioned on acceptance by the Steelworkers. Opinion, p. 5; CDX 271. Ihough nevei
so accepted, Pullman unilaterally instituted most of its provisions, and in May,
1972 Pullman entered into the definitive OFCC agreement which was not so con
ditioned and which without substantial dispute has been duly carried out.CDX 272.
Although the Steelworkers were unwilling to become a party to it, in order not
to prejudice their position in other litigation, it was tacitly understood that they
would not impede its implementation by concerted activity, grievances, oi othei-
wise, and they have not done so.
The seniority system as modified by the OFCC Corrective Action Agreement
being racially neutral on its face, the burden fell upon the other side to show
some way in which black employees continued to be placed at some disadvantage,
relative to white employees, as a result the interaction of earlier racial discrimi
nation in wages, hours, or working conditions, with the present application of
the seniority system as so modified .
Pullman presented a variety of statistical studies (CDX 351) which indicate,
along with other proof, that its seniority system and the OFCC Agreement have
in fact not perpetuated ancient wrongs or retarded black progress toward right
ful place, but because the OFCC Agreement was carefully tailored to provide
appropriate solutions to well-defined problems, and the seniority system already
provided conditions favoring upward mobility for blacks in racially well-mixed
departments, the event has proved that blacks have rapidly advanced in accord
ance with the rightful place principle.
In the first place, these statistical studies were based on a wide variety
of input data which in turn were selected as having the soundest rational rela-
tionship toward the aspect of the employment relationship being studied. For
example, in analyzing the question whether Pullman discriminated in hiring, a
comparison of the composition of the seniority lists, which has at all material times
been around 49.5% black (Opinion, p. 4; CDX 351, p. 60) , to the overall latest
census figures for Bessemer, which was 52.2%, may be highly misleading. For
careful study of the census figures shows that the black population of Bessemer,
Jefferson County, and Alabama is disproportionately composed of women, children
and old men. (CDX 351, p. 4-13) . Between 1900 and 1970 the population m
Alabama of white males in the prime hiring years of 20-39 has increased 7.7% an
nually while the population of black males in this age range decreased 5.1% annual
ly , and in absolute numbers decreased over 40% between 1940 and 1970 (CDX 351,
p. 2-3) . In Jefferson County the proportion of prime age black males dropped
40% in those three decades and in 1970 only 25% of the prime age males in Jef
ferson County were black (CDX 351, p. 8-11) . In Bessemer the drop in the
absolute number of black males aged 20-39 was over 40% (CDX 12-13) , and the
percentage of total males in this age group was only 41% in 1970. The actual per
centage of black employees at the Bessemer plant is thus significantly higher than
the percentages of the sector of the population constituting the relevant work
- 30 -
force. About half the employees at the plant and half the black applicants for
employment reside in Bessemer (CDX 351, p- 12) . Random distribution from
the labor market would result in a work force about one-third black, while the
actual observed frequency is around 50°o. This certainly negatives any claim of
discrimination against blacks in hiring which one might have supposed possible
from a superficial analysis of census data. Compare Rios v . Enterprise Ass'_n
Steamfitiers Local 638, 501 F. 2d 622, 633 (2d Cir. , 1974) , where the Court said
that "reliable statistics with respect to the labor force provide a more accurate
basis" than total census figures which include "females, children, retired persons
and others"; and "that from the outset the court should be guided by the most pre
cise standards and statistics available " lest the court become involved ' in un
justifiable 'reverse racial discrimination'." It is true that the high proportion of
blacks in Pullman's work force is consistent with a higher quit and discharge rate
of whites relative to blacks (Opinion, p. 4, footnote 11) or a higher rate of black
applicants, as well as with deliberate selection of blacks, but whatever the ex
planation, it is a statistic demonstrating that Pullman has to be either uncommonly
desirous of hiring blacks, or a place to work relatively desirable to blacks, or
both. This conclusion is not apparent on superficial examination of raw census
figures for Bessemer, but clearly emerges upon careful analysis of the relevant
work force. (CDX 351, p. 13) .
It is apparent that about half the prime age Negro male population of Bes
semer work at Pullman, and if Pullman recruited that entire population, there
would be none left to work at the other large industrial plants there (T . 3793-4) .
Following this rationale of selecting the best and most pertinent data avail
able, Pullman's statistical Exhibit CDX 351 further shows: Functional illiteracy
- 31 -
among the black sector of males 20-39 years old in Alabama in 1970 was over 6
times as common (48%) as among white males in the same age group (7.5%) . (CDX
351, p. 1G-17) While educational levels of blacks have risen dramatically in the
younger age groups, there remains a great disparity in levels of school completed
(CDX 351, p. 14-19) and a much smaller proportion of blacks than whites have com
pleted trades and crafts vocational training programs (CDX 351, p. 20-21); for
both races the largest percentages completing vocational courses were in the 35-44
age bracket, and the smallest were in the 18-19 bracket.
It is clear that, to the extent that literacy, general educational level, and
craft skills are necessary or desirable characteristics for certain types of work at
Pullman, the availability of whites with those characteristics must be much higher
than blacks. 8/ A.study of the educational characteristics of the Pullman work
force in 1973 reveals a striking change and bodes well for future progress, be
cause in contrast to previous years, black employees hired in 1965 and after had
a higher average level and smaller range of school years completed, than whites
hired after January 1, 1965. Functional illiteracy among blacks hired before
that date was 13.3%; among those hired after, the rate had dropped to 0.5%.
(CDX 351, p. 22-23) . However, an analysis of job applicants in 1973-74 indi
cated that white applicants were over twice as likely to have at least one year's
experience as blacks. White Production Welder (JC 10) applicants had an average
of 3 times as many years of experience (3.G vs. 1.2 years) as blacks, averaged
8/ It was uncontradicted that the Birmingham SMSA for 8 or 10 years has had one
of the lowest unemployment rates in the country (T . 3290-1); that there is
generally a shortage of journeymen machinists, maintenance electricians, mainte
nance mechanics, and Welders of all races (T. 3272, 3289) and more unfilled
openings than available applicants; that Pullman takes qualified welders as they
come from the State Employment Service regardless of race. (T . 3286-7;
CDX 305-307) .
- 32 -
somewhat older and had somewhat less education (CDX 351, p. 37-38) .
During the CO's, although the total population of Jefferson County increased
by 5.4%, its black population decreased by 7.9%, a phenomenon explained by a
heavy net out-migration of negroes, which was most pronounced among males
15-24 years old (CDX 351, p. 24-27) . This has important sociological implica
tions, there being a low ratio of black males to black females in the principal
marriageable ages, around 3 males to 4 females. Consequently the rate of family
formation among blacks is lower than for whites and for every age group above
14 the proportion of black males and females" married and living with spouse" is
much smaller than for the whites; this undoubtedly affects the rate of transition
to work force status and stability of employment habits associated with assumption
of family responsibilities (CDX 351, p. 29-31) .
At the same time these profound changes were occurring in the work force
in Alabama, during the 60's there was a greater than 4 0% increase in the number
of employees on manufacturing payrolls compared with less than 20% nationally
(CDX 351, p. 32-33) . Therefore, Pullman had to compete with an expanding
number of industrial employers for a shrinking black work force.
Because of the extremely cylical and irregular nature of production
and employment at Pullman's Bessemer plant, as shown by the graph on page
34 hereof reproduced from p. 35 of CDX 351, Pullman's ability to recruit, train,
promote, and hold employees generally is much impaired (CDX 351, p. 34-35) .
However, through operation of the seniority system the frequent layoffs and
recalls enabled senior blacks as they became qualified in certain sk ills, rapidly
to occupy higher paying jobs which had once been held primarily by whites.
- 33 -
PULLM AN-STANDARD
and the junior whites were relegated to lower paying slots, this undoubtedly
accounts in part for the higher quit rate among whites, but even among employees
of equal seniority whites quit at a much higher rate (CDX 351, p. 66-6/,
82-83) but the discharge rate of new hires in Job Class 10 (Production Welder)
was lower for whites than blacks, no doubt I'eflecting the importance of
prior experiences to probability of successful performance as a Welder (CDX
351, p. 37, 39) . Analysis of disposition of all discharge grievances from
January 6, 1965 through February 19, 1973 shows that blacks have received
more advantageous treatment in the grievance procedure than whites (CDX
351, p. 80-81) . The results Pullman has experienced in improving the
- 34 -
lot of its black employees must be evaluated in the light of the characteristics
of the available work force and its production process, and in that light is im
pressive and enlightening.
A comparison of Pullman's work force with federal governmental agencies
nationally and locally (Birmingham SMSA) and with respect to distribution among
wage grades shows blacks receiving vastly better treatment statistically at
Pullman than from the federal government. (CDX 351, p. 40—4C) . Since the
federal agencies all have affirmative action programs and presumably are work
ing toward equal employment opportunity, the conclusion appears reasonable
that Pullman's program is working very well, indeed, and must give pause to
advocacy of other forms of remedial action which have never been tested or
shown to have produced better results.
By June 7, 1968, at least one black had attained the highest Job Class
rating in 11 of 24 departments; by February 1, 1974, this number had increased
to 18 of 24 (CDX 351, p. 48-49) . Another clue to the improving Job Class posi
tion of the blacks is found in the sharp increase in the number and proportion
of black production welders from 1965 to 1974. The increase has been from 1
out of 700 in 1965 to 200 out of 840 in mid-1974. This is the largest job classifi
cation by far, requires a relatively high degree of skill, and is relatively
highly paid. The beneficial effect of the tuition reimbursement program part of
Pullman's corrective action plan, and the efforts made to encourage black em
ployees to train as Welders are clearly reflected in these figures (Opinion, p. 5) .
Over 100 other blacks trained as welders under Pullman's tuition reimbursement
program have voluntarily left to work elsewhere, illustrating the difficulty
of retaining skilled workers in a highly cylical operation.
The Paint, Steel Construction, and Steel Erection departments include
about one-fourth of the total Steelworker unit, and a high proportion of blacks.
An analysis of the seniority list job classifications in these departments showed
that by 1973, the mean black job class level was approximately equal to the white
level (as compared with 3 grades lower in 1962) , and had increased regularly
since 1962, while the average white job class decreased. The rate of terminations
(quits, discharges etc.) among whites increased rapidly during this period, and
remained at lower levels for blacks (CDX 351, p. 50, 52-53) . Thus, in the Steel
Construction department, of all hires in 1972, over 60% were white, but by 1974,
85% of these whites had departed while only 35% of these blacks had left, so that
only 27% of the 19.74 residual of the 1972 new hires were white. (CDX 351, p.
66-67) This accounts for the department remaining about 85 s black in spite of
a much higher rate of hiring whites.
A study of refusals to work overtime, in these departments characterized
by frequent overtime opportunities, showed that blacks were significantly more
apt to refuse overtime than whites (CDX 351, p. 55-56) .
A study of a sample of pay transactions in September. 1973 indicated black/
white parity on total hours worked with the proportion working over 40 hours in
any week increasing equivalently with seniority for both races (CDX 351, p. 62-63)
In making an overall quantitative evaluation of the jobs held by negroes,
and comparing them with jobs held by whites at Pullman, the most significant
- 36 -
measure was selected to be total annual, earnings, plus unemployment compensa
tion and supplemental unemployment benefits. This quantity was determinable
from W-2 Forms and was not subject to the deficiencies in the seniority list job
classification as a measure of an employee's good fortune (infra, p. 42-47) .
The varying degrees to which employees are subject to layoff, the mitigation of
layoffs by supplemental unemployment benefits (to which employees become en
titled after 3 years plant service) , and the constant movement of many employees,
from one job or rate to another (see CDX 351, p. 64-65) , are all taken into account
in this index. An employee qualified to earn a high hourly rate, but who works
that job very few hours, such as a Wood Correction Man, is in a situation
difficult to evaluate quantitatively on any other basis. A janitor who is never
laid off may be better off than a welder who often is. For these reasons, annual
earnings including U.C. and S.U.B. is the best available index for comparing
the lot of whites and blacks.
In the last year for which annual earnings were available, 1973, the mean
annual earnings of black employees, including S.U.B . and U.C. received by
employees subject to S.U.B . (Pullman has no record of U.C . received by employ
ees not so entitled) was 98.5% of this mean figure for all employees (CDX 351,
p. 59-60) . Calculation of mean annual earnings including S.U .B . was made for
each year, 1970 through 1973; this showed the black percent of the total was
(CDX 351, p. 61):
1970 94.0°o
1971 96.0
1972 96.1
1973 98.0
It is clear that there lias been a gradual and consistent improvement in the pros
perity of black employees, as shown by the best available index, and that sub
stantial parity had been attained by 1973.
The trial judge's independent analysis of the data in CDX-351, p. 74
showed that 4 0% of the blacks and only 3G% of the whites were in departments in
the upper half of departments ranked according to desirability (Opinion, p. 13) .
Also his analysis of the seniority list classifications led to the same conclusion,
that negroes outside the OFCC - determined "affected class" were not subjected
to a disadvantage thereby, but on the average were more likely to be in one of
the better than average departments (Opinion, p. 12-13).
In implementing the OFCC Corrective Action Agreement and Affirmative
Action Plans thereafter adopted, a key role was assigned to the Contract Compli
ance Officers, required to be one black and one white. They repeatedly canvassed
the members of the "affected class", explained the options available, training
available under the tuition reimbursement plan, patiently counselled with affected
class members, documented their actions, filed reports monthly with OI’ CC, and
the Company was formally determined by .the OFCC to have complied with its
undertakings so that reporting was no longer required. (CDX 279) They con
tinued.their efforts nevertheless and continued to document them. They partici
pate in periodic revisions of Pullman's continuing affirmative action program
which the OFCC agreement required it to adopt.
One feature of the OFCC agreement which produced surprisingly meager
results was the offers of special transfer rights to "affected class" members.
- 38 -
Few accepted transfers and most of these thereafter elected voluntarily to icturn
to their original departments. In 1973 seventy-four of them refused offeis of
transfer to higher Job Class jobs in other departments (such as Assembler, JC-6
in Steel Erection) (CDX 351, p. 70-71; CDX 279) . 9/ A statistical analysis of
their earnings in 1973 (averaging $8,672) shows that every one of these individ
uals earned substantially more than the equivalent earnings working full-time
at 40 hours a week in their respective Job Classes (CDX 351, p. 69-70) and sub
stantially more than the average black employee, the average white employee, or
the average of all employees made in 1973, even adding in U .C . and S .U ,B . (CDX
351, p. 60) . Thus even the janitors department members of the "affected class",
which has the lowest Job Class, were in that department by choice; all but one
by expx'ess request for transfer, and the last, a black man with a slight physical
handicap, being emphatic in his desire not to be transferred . 3 he finding of the
trial court (Opinion, p. 13, note 29) is amply supported:
"The matter of personal choice cannot be wholly discounted when eval
uating departmental statistics. It is clear from the evidence that the Blacks
in the Janitors department prefer it to most - and a few of them prefer it
to all — departments. The actual earnings of employees in the Janitors de
partment indicate that due to greater stability of employment, it may indeed
have greater earnings potential than employment in a number of other de
partments with higher JC positions." 10/
9/ In 1972, an OFCC woman lawyer interviewed a considerable number of "affected
class" members to show Pullman's Contract Compliance Officers the proper way
to get them interested in transferring to other departments. The results were no
transfers and one amazed government lawyer (T . 1556-9) .
10/ There was also uncontradicted evidence that all affected class members could
by taking a welding course under the tuition-reimbursement plan, or other voca
tional training, have moved to an almost assured job as welder, and with seniority
carry over would have steadier employment than most welders; this was repeated
ly explained to them by the Contract Compliance Officers (T . 1636) .
- 39 -
CDX 279 is a detailed record of interviews and refusals to transfer by "affected
class" members.
Another important phase of the OFCC agreement was the undertaking
to afford temporary promotion opportunities to blacks at least in proportion
to their numbers in all departments. This has resulted in opening up equal
on-the-job training opportunities. The ratio of temporary promotions ( i . e . ,
above nominal or seniority list classification) of blacks to non-supervisory
jobs was significantly above their ratio in the work force (Opinion, p. 22,
n. 38; CDX 351, p. 7G) , even though blacks were significantly more prone
than whites to refuse these temporary promotions (CDX 351, p. 71-72) . Also,
temporary promotions of blacks involved persons at lower JC levels than for
whites, and further involved advancement to proportionately higher levels than
'for whites (CDX 8.51, p. 75-76) . The explanation why more blacks are not
made temporary foremen is treated at length in the portion of this Statement
of Facts dealing with foremen (infra, p . [49-61]) . Over 47% of black temporary
promotions were to other departments; for whites the corresponding figure was
28% (CDX 351, p. 77-78) . On the whole, therefore, the program of temporaly
promotions has been eminently fair and has been successful.
In addition to the special transfer rights of "affected class" members, all
blacks employed before April 30, 1965, had seniority carry-over rights into
the previously all-white departments. There have been a fair number of such
transfers, and all departments have been integrated. Although the.Janitois
department was again all black at the time of trial, there had been two whites
janitors hired who voluntarily quit (Opinion, P . 13) . 11/
Further statistical studies indicated marked equality of treatment of
blacks relative to whites as measured by the following ratios (CDX 351, p. 84- 05):
1. Recalls to layoffs.
2. New hires to terminations.
3. Permanent promotions to total active employment.
4. Temporary promotions to total acti ve employment.
A multiple regression statistical analysis of pensioners showed general equality
of treatment of both races for all types of retirement options (CDX 351, p . 92-99) .
There is no question that Pullman's statistical evidence used the most
appropriate data inputs available; they were computer processed to rigorous
standards under the professional supervision of a skilled consulting statistician
with extensive industrial experience as well as special familiarity with demo-
1
graphic and economic statistical analyses. The trial court's findings are amply
supported, if anything understated (Opinion, p. 16) that:
"What little racial identification of job classifications can still be dis
cerned is basically due to the time lag which is an inherent quality of
'rightful place' remedies.
"Supportive of the conclusion that the seniority system at Bessemer is
not perpetuating the effects of prior discrimination are the earnings figures
submitted into evidence. The average earnings for black employees in com
parison to those of white employees has risen steadily, such that by 1973
the average total earnings for black employees was $7,031, or 96.8% of
the average total earnings for whites, $7,259. If one could eliminate from
such calculations those whites holding high-paying jobs due to craft status
or pre-1965 incumbency, it is clear that earnings of blacks would be on a
parity with, or somewhat above, those of comparable while employees.
11/ Footnote 23, p. 14 of the other side's brief, is quite misleading. For example,
three whites were hired in Pi'oduction Die & dool in 1971 and another three in
1973. (PX 8,9,10). It is not surprising that on a particular date only blacks
were actually working in the department; the whites, being junior, would often
be laid off. This does not show discrimination against blacks. This same
phenomenon obtained in all four departments, of course.
- 41 -
Moreover, though not capable of measurement, there arc potential oppor
tunities for further increases in relative earnings for blacks due to the
transfer rights under the agreement from some of the lower paying depart
ments and to some higher.paying departments."
The trial court found (Opinion, p. 19-20) that Pullman did not move as
fast as it might have in integrating the four "affected class" departments and
ordered the affected class as defined in the OFCC agreement to be expanded
somewhat to include certain additional blacks who worked in those departments
during certain periods of time after April 30, 1965, and likewise expanding the
category of black persons entitled to seniority carryover on transfer-in into
the previously all-white Inspection and Air Brake and Pipe Shop departments.
The question whether these findings are supported is abstract and not before
this Court, as none of the defendants has appealed. Pullman is complying with
these provisions and will continue to do so. The Steelworkers was also ordered
to respect the OFCC agreement, as modified by the trial court, as prevailing over
its collective bargaining contract, and it is abiding by that command.
The findings of the trial court as to other matters are not clearly erroneous
indeed, there was simply no substantial evidence, statistical or otherwise, of
any perpetuation of effect of past sins, if any, in the seniority system.
The other side introduced a series of "statistical" exhibits (PX 11-51)
based entirely on the job classifications shown on the annual seniority lists.
In determining whether these exhibits and the arguments based on them could
conceivably provide the basis for overturning any of the district court's findings
as clearly erroneous, the following observations must be borne in mind:
- 42 -
First, the data base has relatively little significance to the relative well
being of black and while employees. As found by the district court (Opinion ,
p 3 15) > the seniority rosters only list the highest rated job classification foi
which the employee has demonstrated satisfactory performance so as thereafter
not to be questioned as to "relative ability" under the terms of the union contract,
to fill vacancies in such job classification. These are not permanent assignments,
for fluctuations in job requirements and employment levels cause frequent move
ments of employees from one job and pay grade to another (Opinion, p. 3, CDX
351, p. 64-65) . The seniority roster listings do not provide the basis of any
inference as to what job employees are doing at any particular time or on the
average or what hourly rates they are earning. In fact, these job classification
designations do not signify that the employee ever will work in that classification,
the evidence showed without dispute that there are, for example white employees
in Punch & Shear who have been classified on the roster as machine operators
for over ten years during which time they have never operated a machine (3 . 3116,
Rebuttal 31-34) because, though qualified, they are junior to so many blacks who
qualified after they did; and that in that department many other whites classified
as operators are usually working as helpers for the same reason. All the em
ployees in the Wood Erection, Wood Mill and Wood Stores Department do practi
cally no work in their specialties because of the obsolescence of wooden and wooden-
floored box cars; they are with rare exceptions doing other types of work such as
performing steel erection work (T . 1231; 1320) . The seniority list job classifi
cations do not reflect any differences in incentive pay opportunities. The
seniority lists also do not reflect who is actually working at any particular time
- 43 -
I
f !)i ,
i i
i ;
(Opinion, p. 13) as there are constant layoffs and recalls all the time which are
not shown by seniority lists; the annual earnings of employees are influenced
more by how regularly they work than by their nominal or seniority list job
classification, yet an analysis of seniority lists docs not lake this into account
at all. Therefore, the designations of job classifications on the seniority lists
have a rather tenuous and indirect relationship to the actual wages, hours, or
working conditions of employees, and do not provide a substantial means of
measuring the relative well-being of whites and blacks.
Secondly, having begun with a flimsy data base, the other side added up
the data in a manner which yielded totals still more removed from a description
of a particular work force. For the other side simply added up all the names
on each seniority roster, including those who were terminated, new hires, or
transferred from one department to another during the year and thus appearing
repeatedly (T. 722-5, 714-7) . 12/ The totals do not bear any relation to the
composition of the work force at any particular moment, but include everybody
who worked at any lime during the year, people on side leave all year, and
duplication of people who were transferred to another department during the
year. Thus, on l’ X 01, total employees are shown as 3,694 m 1964, but average
monthly employment in 1964 was about 1.850 or half that figure. The names of
foremen appear on the seniority lists also, and in the case of supervisors who
12/ As amallcr of fact, the period of time covered actually exceeds a year,
STneethe seniorily lists are made up as of June 1 of each year, then revised
to show new hires, terminations, etc. up to the lime the next complete sen
ioritv list is finished, which may be five or six weeks after the next unciorily
(PX 1-10) .
- 44 -
\
tire over several departments, appear repeatedly. If an hourly employee is pro
moted to salaried foreman, his name appears on the list twice that year. 1 he
totals the other side worked with are not a picture of any actual work force, then,
but are at best a blur as if a photograph bad been taken with a time exposure of
one year, of a set of concepts which corresponded rather remotely with reality
. anyway.
Thirdly, the other side, having extracted this jumble of figures, applied
erroneous statistical notions to them . Their analysis completely disregarded
the truism that it is impossible to integrate racially a one-man job classification,
and the related principle that to obtain a meaningful index of integration, more
weight should be given to large departments and job classifications. 1 heir argu
ment is equivalent to saying that in a department which has one white tool room
attendant, one black fork lift operator, and 500 Welders, half black and half
white, two-thirds of the job classifications are "segregated." It has no more
real significance than the fact that 100% of Pullman's Spanish surnamed work force
are supervisors; one man, Mr. Franklin D. Rodriguez. The district court's
Opinion, p. 14-15, sufficiently disposes of this particular sophistry, and we
will not belabor the obvious fallacy in this approach. But there are many others
besides those we have mentioned. It is misleading, to say the least, to speak
only of the numbered job classes corresponding to the seniority list job class
ifications. One might get the impression that a JC 10 job classification such as
Welder is five times better than JC 1-2, Janitor. But the straight-time hourly
rale of Janitor with cost of living adjustment was 83.2% that of Welder at the
- 45 -
(toe or trial. Then, wart loss than a $.10 an hour differential between each suc
cessively higher .lob Class (rX .71. p. 59)..or at most about 2-1/2% difference
for each stop. A Janitor working full-time will earn more than a Welder on lay
off an appreciable part of the time especially if the latter has not enough plant-
wide seniority to qualify for S.U.B. (See Opinion, p. 13. n. 29) . The other
side's seniority list analyses do not even weight their averages by the hourly
raletf corresponding to Job Classes. It this is done, even with all the imper
fections in the other side's statistical approach, substantial equality of blacks
, . r , r T „t ,,e io](e px 55, for example. It concludes:is indicated rather than inequality. Let us take
Percent earning less Percent earning more
than $1.25 hourly • than $4.40 hourly
(J.C. 8 or below___ W ^C m O _M _above)_
Black
White
74. l 9c
15.8%
19.9%
80.7%
But with all the defects in the data as implying such conclusions, if you simply
multiply the number of employees shown on PX 55 by the hourly wage shown,
and divide the sum of the products by the total number of employees, so as to
derive the average hourly rate, the resulting averages arc: white. $4 .455:
blacks, $4,141: Total $4,201. Average black hourly rale as percent of Average
Total hourly rate. 99J1. even without taking U .C . and S .U.B . into account.
Which would increase this percentage somewhat. (CDX 351. p. GO-61) .
InU .S . v . Jacksonville Terminal Co.. 451 F. 2d 410, 442 (a thC jr.,
1971) this Court approved evidence of statistical probability to support an infer
ence of racial discrimination, but added this important caveat: ''certainly the
weight to he accorded this inference varies: much depends on the correctness,
completeness, and comprehensiveness of the figures proffered."
- 46 -
It is plain that the statistics relied on by the other side are neither cor
rect, complete, nor comprehensive, and that the best available statistical data
thoroughly supports the trial court's findings and conclusions that no perpetua
tion of effects of past discrimination has been shown in this case. The Unions'
brief contains an able discussion of statistical misstatements in the other side s
brief, which we adopt.
Dv FAC
WORK WITHIN
TS SHOWING ABSENCE OF DISCRIMINATION IN ASSIGNMENT OF
THE SAME JOB CLASSIFICATION, OR CLASSIFICATIONS HAVING
THE SAME RATE OF PAY . -
In this aspect of the case the other side contended that work having the same
rate of pay was assigned in such a way that blacks get less pleasant tasks. 13/
The trial court, however, found on ample evidence (Opinion, p. 24):
The evidence taken as a whole is unconvincing that blacks are
being discriminated against in the assignment of work.
Except for the special case of subassembly assignments in the Welding Depart
ment (Opinion, p. 25-6) assignments of individuals to crews are made by B
foremen or track foremen, and then assignments to individual work positions
or tasks are made by the A foremen or immediate line foremen. Under the
Steelworkers contract these are management decisions, not subject to seniority
preference, and typically these are made in the light of who is available and
13/ This aspect of the case could not support a back pay award, EEOC_v
Edison Co
Detroit
F. 2d , 10 FEP Cases 239 (Gth C ir. , 1975); Howard v. Lockheed-Ij U i o W J i , *■ • ~ - -------
Georgia Co., 372 F. Supp. 854 (N.D. Ga ., 1974); nor an award of compensatory
damages, at least without a jury trial. Opinion, p. 21 n. 37; Curtis v. Loethci_,
415 U.S. 189 (1974) . We need not dwell further on the remedy sought, which
makes sense like letting the University of Alabama football team pick their play
ing positions according to their years in school, instead of the coaches' assign
ing them positions, and quite a few even of the other side's witnesses candidly
admitted as much (T . 424, 425, 823-4, 866, 947) .
- 47 -
what is needed at the particular time, prior satisfactory performance of that
specific assignment, special skill or proficiency (overhead welding, for example,
or bull machine riveting) , and physical differences such as right or left handed
ness (T . 1318-9) . The supervisor's duty is to maximize efficiency, and although
he may take'employee preference into consideration, other things being equal,
he is not bound to do so. Particularly, it is usual; after everyone has been placed
and the work is proceeding smoothly, not to shift people around unnecessarily
as it always takes time for anyone to get into the swing even if he has done the
job before. If a man is absent, it would be usual to.fill the spot with an unas
signed person, such as one who has come in on recall from layoff, rather than to
shift several people around or consult with the whole crew, department or plant
as to their preferences. 13a/
13a/ Seniority has never been applied to select individual work assignments
(except subassembly tasks in the Welding Department) and white employees have
lost in arbitrations where they sought to assert such a right (T . 3371-3; CDX
311) . Almost every witness, on both sides and of both races, agreed that the only
way boxcars can be built is to allow the first line foreman to make specific job
assignments among employees having the same job classification. Mr. Harvest
Morgan, a black man testifying on behalf of the plaintiffs, stated that "you have
to have someone to assign work" (T. 425) . He agreed that the more senior men
could not be allowed to select their jobs because, he said, "You couldn't make
production if you didn't have the right man in the right place" (T . 424) .
Mr. Tommy Williams, another black man testifying on behalf of the plaintiffs,
indicated that if men could move around to other jobs at their.disci'ction rather
than being assigned by the foreman additional mistakes would be made and
efficiency lost (T . 8G3-64 & 8GG) . Mr. Willie Johnson, a plaintiff below, testi
fied that he had heard the statements that Mr. Williams made on this subject
while Mr. Williams was on the stand and agreed with them (T . 947) . Mr. Rod
riguez, a Spanish surnamed foreman, testifying on behalf of Pullman, said that
it wouldn't work to let men pick their own job assignments (T . 2492) . Mr.
Llewellyn Leshoure, a black salaried foreman, testifying on behalf of Pullman,
staled that it wouldn't work to have men pick the positions they wanted (T . 2853) .
Mr. Glaser, an employee of Pullman who was sent to a box car building plant at
- 48 -
The contention that there has been discrimination in the appointment of
stencilers in ttic paint department is without merit. 13b/
The quality of the remaining evidence by the plaintiffs relating to dis-
rimination and job classifications is illustrated by the following:cr
Q. [Ms. Jlolifield] Are you familiar with the job of weld rod
Btoresman? Is that job in the welding department?
A. [Mr. Baltimore] That's in the welding department, that s while.
Q . That's a primarily whi te job?
Q* Have you ever seen a Blaclv ever work that job?
A Black never worked that job .
* * *
Indiana, to investigate p r o b e s
the time the Michigan City plant was closed ^ c h p a d d ed for a
Michigan City resulting in its closing was a Union contract w P
system of posting and bidding Tor individual '(px
13b/ Approximately 1/3 of the new stenc.lcrs smee 186a b«cn
F l o ) Mr Fred Prince, a black foreman, who has performed Dot t,
ib a id the spray painting job testified that he wen.M s p »y P ™ ■ H - a id
that it was just a question of personal oho.ee tbmt stencde were q
clean their stencils ^ ^ m d
fumes in an enclosed area, that spia> p L 3 side’s avowedly
receiving the same pay as stencilers (T. 3254 > . ^ blacks from
.'most vivid example; °£_thc ar^ ™ ry ^ J / in 1973 thrCe stencillers were black
more desirable jobs” Brief. P • 2° but ah eady m ̂ g ^ time of trial we bad
and seven spray painters were w - ’ ooqq\ p takes only ten minutes
women, black and white, in the department (T . 3389 . It takes Y ^
to spray a car, so in a typical 8-hour day a spray painter £ actually wo
.wohours and forty minutes: they arc often through w orth y
Spray P“ int,nR ^ ; UW f 4 ^ J uVrs muTt wear a respirator too. an OSHA require-
rrr #»». zix :ir*T i:r7y;i
wear an airline respirator which coders J supposed to be bad because
only the lower face (T . 1342 3) . &pray P< ™ L it- i]lcrs t paint
As a matter of fact, the paint department is so clean
S u , loois mo“ like a surgical ward than an industrial plant
ICO, 1.81-2) . There is no substance in this most vivid example, as the dist
court found (Opinion, p. 23) .
- 49 -
Q. [Mr. Stclzenmullcr] What job class is weld rod sloresman,
M r. Baltimore?
A. I really don't know. I never have been told, and I don't know .
Q. Well, you want that job? I expect I could get you on it.
A. What, take a cut from 10 to G?
Q. G, you knew what it was, you suddenly remembered? That was a
job class G that fellow had, and you are a job class 10 making more
money?
A. I didn't know--- 1 learned a couple of days ago about that job, I did .
T . 762-G3. Every single example of alleged discrimination in job assignments
upon closer examination of the facts was revealed to be entirely unfounded . 13c/
♦
13c/ For example, Mr. Edward Lofton stated on the stand under oath that he had
fifed a number of grievances relating to racial discrimination in promotions, assign
ments, etc. Upon such assertion the company took from its files, then present in
the courtroom, copies of the grievances filed by Mr. Lofton and examined M r. Lofton
as to the particular facts of each. Mr. Lofton had stated that most of his grievances
had been filed against young whites (T . 311) . But the individual examination of
each grievance revealed not a single grievance among all twenty M r. Lofton ever
filed, in which he contended that a younger white man had received a job which
he should have received . Invariably the grievances related to another black
man receiving a job that Mr. Lofton thought lie should have received or were
concerned with situations unrelated in their entirety to job assignments, such as
a disciplinary layoff for insubordination to black foreman Fred Prince. (Opinion ,
p. 22-3, n. 39; T. 314-37) Following Mr. Lofton's testimony the trial court ad
monished other witnesses against perjury and cautioned that it might lead to
total rejection of a witness' testimony (T . 337-8) . It was asserted by Mr. Albert
Johnson that whites were never used as riveters on the roof because it was a "nasty"
job in which one must kneel in tar to rivet (T . 483) . However, photographs of the
roof of a typical boxcar constructed at Pullman's Bessemer Plant introduced in
evidence showed that the roof is not covered with tar but merely has a bead of seal
ing material along each side of the riveted seam caps which cover the seam between
the roof panels (CDX 292, photo # 115; T . 1312-16) . Moreover, Mr. Alfred Moorer
testified that he had whites riveting these seam caps on the roof. It is true, Mr.
Moorer said, that two black men usually get this assignment. lie explained to
the court that these two are two of the most senior riveters in the department,
that is the task that they prefer, and that he tries to assign these two men the
job since they both like it and are able to perform it well (T . 2590) . During the
trial the other side tried to make something of the fact that an older white riveter,
one Charlie Robinson, was ordinarily assigned to the same riveting position on
most boxcar orders, and by innuendo, that it was an easier job. But the testi
mony revealed that in fact was not an easier job, that both black and white
foremen had assigned Robinson to this assignment and that the reason for assign
ing him there was because it was a particularly delicate riveting operation where
- 50 -
There is simply no evidence that employees lack knowledge as to vacancies
and work assignments. 13d/ There was no evidence of any impropriety in incen
tive rates, which are established through time and motion studies, subject to
review through the grievance procedure (T. 1273-4, 1385-0). The standard
number of pieces per hour for a given operation obviously depends on the
complexity of each operation, something which the other side ignores or
misunderstands (Brief, p. 22) .
E. FACTS SHOWING ABSENCE OF DISCRIMINATION IN PROMOTIONS TO
SUPERVISORY AND MANAGERIAL POSITIONS . -
The trial court's detailed findings on this question (Opinion, p. 26-30)
were summarized by it as follows:
13c/ (Cont'd)
bad rivets could cripple the entire car, and Robinson had the additional duty of
okaying (doing correction work) on all the rivets driven at that track position.
The foreman knew Mr. Robinson could perform the job and assigned him there
whenever possible (T . 2256; 2495-96).
13d/ Matthew Hunter, suggested by the other side as "illustrative of the problem,"
knew when a new man was assigned to the overhead crane in the forge depart
ment within an hour and a half of the time the new man was assigned (T . 144) .
Mr. Spurgeon Seals, a black man testifying on behalf of the other side, stated
that even though jobs are not posted everybody knows about a new man being
assigned to a job and there is no problem resulting from a lack of publicity
(T . 180) . Page 26 of the other side's brief contains gross factual misstatements
as to Mr. Matthew Hunter's alleged mistreatment. The truth is, he was a Hook-
on in 1965; in June, 1969, Pullman canvassed the entire Forge Department for
anyone who thought he could operate a crane; Mr. Hunter said he could not; no
one in the Department was interested, so a black crane operator from Steel
Miscellaneous was temporarily assigned to the Forge Department until a regular
operator could be obtained. In 1970 he was promoted and upgraded on the
seniority list to Sheax’ Operator JC 6 and refused an offer of a JC 8 operatoi s
job; the first time Mr. Hunter ever filed a grievance for a crane operator's
job was during the trial ofthis case, and the first time he grieved, he immediately
got the promotion (T . 131, 135, 3354) . Then after a few days in the crane he
requested to be returned to his old job because operating the crane made him
too nervous. Pullman complied with his wish after taking the elementary
precaution of getting him to put it in writing (T . 3353) . Any claim that Mr.
Hunter has been abused is a sham.
- 51 -
" . . . upon a consideration of the whole of the pertinent evidence -
and not merely those parts highlighted by p la in tiffs-, the conclusion must
be reached that the claim of racial discrimination in promotion of employees
to foremen positions has not been proved and is therefore to be denied."
(Opinion, p. 30) Rather than reduplicate the trial court's findings, although
they are well supported in the evidence and correctly lead to the conclusion
it reached, we believe there are still more compelling reasons, based on uncon-
tradicted evidence, for affirming this result.
*■ As found by the trial court, since mid-1965, some 56 blacks, approxi
mately one-third of the total number, have been appointed as hourly foreman,
and considering the higher incidence of functional illiteracy among black employ
ees, particularly those with most experience, the higher incidence of refusals
by blacks of such promotions, and the time lag necessarily inherent in right
ful place remedies, this does not support a claim of discrimination since 1965
(Opinion, p. 28; CDX 351, p. 22, 71, 76) . Promotions to salaried foremen,
approximately 20% of those made since mid-1965, the trial court- also found to be
not disproportionate considering such factors (Opinion, p. 30; CDX 351, p. 98-
99) . Blacks promoted to temporary foremen also averaged more than two job
classes lower in their seniority list classification than whites so promoted
(CDX 351, p. 76) . The other side's brief, p. 22, incorrectly stales the first
black became a salaried foreman in 1966. It is undisputed that both Willie Carter
and Richard Washington were promoted to salaried foreman in 1965 (P. 3237,
3244; CDX 278 (Steel Misc. Dep.)) This is just another error in the other side’s
"statistics" (see PX 33) .
However, here is an area where the naked statistics do not begin to tell
- 52 -
uM
the whole story about promotions of blacks to management. Nor does the trial
court's Opinion deal with the most remarkable chapter in that story, perhaps
because it was possible to ground the result sufficiently on other reasoning,
and perhaps because this subject is a little ticklish to discuss in a judicial
Opinion. It is otherwise in a brief, however, and we believe an adequate under
standing of the black foremen's problem at Pullman can be attained by this Court
only by addressing itself to the uncontradicted evidence of massive social or
psychological peer pressure by a small segment of blacks on other blacks to
discourage them from accepting foremen positions, or for that matter even non-
supervisory promotions or positions of leadership in the Union; and the same
kind of pressure to discourage them from doing a responsible job of maintaining
order and discipline, once made an hourly foreman, and to intimidate them into
giving it up after accepting the job .' The truly amazing thing is not that Pullman
did not promote more, but that it succeeded in promoting as many blacks to
supervision as it did and that so many of them had’ the fortitude to run the gant
let, truly accept the responsibility, and succeed in the job.
And it was the protagonist, the eponymous hero of the other side, Louis
Swint, who was in the forefront of those who have been subjecting Pullman's
black foremen to this type of abuse. 13e/
]3e/ It 'ii undisputed th^Tsoon after Mr. Harry Debrow became a salaried foreman,
mT. Swint told him he should give it up (T . 1773A-177G) . Mr. Debrow made an
outstanding foreman and was thereafter selected to serve on Pullman's first
Contract Compliance Office team as its black member. Mr. Swint later responded
to Jack Comer's suggestion that Mr. Debrow might be able to help him with the
contemptuous remark that lie would not go to that "damn Uncle Tom" for anything
(T . 250G) . Soon after Mr. Alfred Moorer made hourly foreman Mr. Swint
fl
tt
- 53 -
But Mi'. Swint was only the worst participant in this activity. There were
many others who followed his example, probably forming no more than a minority
of the blacks, but quite a vocal minority .
Mr. Henry Vann, one of the first black hourly foremen in the welding de
partment, testified that when he was offered a temporary foreman position in 1908
he refused it. Early in 1970 he was offered the job again and again he refused to
take it ( T . 1982, 198d) . He told the company only that lie did not want the job
because there had been a lot of "complaints" by other black men about the blacks
who had previously taken supervisory positions (1 . 2982 83) . He was asked
several more times early in 1970 to take the job and finally .1 . K. Jones, a white
supervisor, Mr. Harry Debrow, and a number of other employees, both black and
white, in the department persuaded him to try it for at least a few weeks. Soon
thereafter, Mr. Vann testified, "he had a lot of problems" with blacks. They told
him he was "pimping. . .for the company." They called him other names which
he preferred not to repeat in open court and wrote on a sheet of paper for the
judge. On several occasions outside the plant, Mr. Vann recalled, he would be
walking with his wife and some of the blacks from the plant would sec them and
openly call him "White folks’ n igger", "Pimp", "Uncle Tom", and other names
13e/ (Coat’d)
threatened him that he and Tiger Thompson had a plan to "take care of" all you
Uncle Tom’s (T. 2551); a remark which Mr. Moorer found so offensive that he told
Mr. Swint he was ready to take care of it right there. And Mr. Swint as presiding
judge put Mr. Fred Prince as a new black foreman through a "trial" lasting over
7 hours in which he solemnly informed Mr. Prince that lie must not sign a dis
ciplinary notice of an insubordinate black, that he must instead resign as fore
man (T . 3193-320G; 3242) . And instance after instance was shown in which Mr.
Swint defied orders of other black foremen and repeatedly declared that all black
foremen and blacks in other responsible positions at Pullman were Uncle Toms.
Mr. Swint did this to their face, behind their backs, and in writing. He preached
it over the air on weekend radio programs. He put it in affidavits to the EEOC
(T. 3557-59).
- 54 -
(T . 199]) . Mr. Vann became a salaried foreman later in 1971 and the hariass
ment continued until in 1972 when Mr. Vann was cut back to a welder because
of a reduction in force (T. 1992-93) . Three weeks later employment picked up
somewhat and he was asked to take the salaried foreman job again. He refused
the job, telling Jack Comer, the superintendent of welding, that be "didn't want
any part of it" (T. 1995) . Mr. Vann recalled to the court that after his refusal
to go back up to his salaried job almost every white foreman in the department
came to him and asked him to return to supervisor (T . 1996) . Only after about
a year did Mr. Vann finally try the salaried foreman position again (T . 1998) . 14/
Mr . Vann said if he had it to do over again he would probably not go through
with it; that he look the promotion thinking he was helping his race make progress
and preparing the way for others, and could not see why some black employees
refused to see it that way and subjected him and other black foremen to such
treatment (T. 2096-97).
If we may venture a hypothesis which fits the evidence, it is this. Those
blacks typified by Mr. Swint and his small coterie of followers had as their
chief distinction a resentment of authority, discipline and order. They aie
H^The other side's callousness about the campaign of humiliation of black fore
men was astonishingly demonstrated by its cross-examination- of Mr. Vann,
wherein lie was bailed with questions about accusations that he shined shoes and
cooked fish for white foremen, and that he had had while foremen at his house
for dinner (T. 2041-43; 2053-57; 2095-90) . It appears that Mr. Vann's actual
amenities toward whites were quite modest, such as exchanging portions of lunch
one day. and accepting a string of fish from a white friend who called at his house.
But if the other side wants Pullman to make continued progress in race relations,
and to persuade more blacks to take foreman jobs and accept responsibility for
giving orders and maintaining discipline, this seems an odd approach to take
toward a black foreman for nothing more than common courtesy toward whites.
- 55 -
therefore equally emphatic in their denunciation of responsible unionism and of
\
management. They are even more bitter against blacks who rise to leadership in
either, for those individuals do this by displaying precisely the opposite of the
traits Mr. Swint and his followers advocate, willingly accepting responsibility
for carrying out orders and maintaining order and productivity, and so they
try to drag such individuals back down to their level and make them pattern
their behavior after Mr. Swint's rebellious and destructive image.
Other blacks who might have been interested in supervisory positions in
the welding department observed the harassment of Henry Vann . When John
London, a black welder, was offered a temporary foreman position he refused it.
The next day Mr. Vann approached Mr. London to persuade him to take the super
visory position (T . 2123) . Mr. London told Mr. Vann that he had "heard through
out the shop, the way the men had talked about him" saying that "he had cooked
fish and shined shoes, and he was Uncle Tom, and white man's nigger and stuff
like that" and told Mr. Vann that he simply did not want to be subjected to that
type treatment (T . 2123) . Mr. Vann tried to persuade him to change his mind,
telling him that there were not many black foremen and that the company needed
more black foremen. Mr. London still refused (T . 2124) . Later Mr. Dcbrow
talked to Mr. London and tried to persuade him to take the position but he still
refused (T . 2124) . Finally, after about a week, another conversation with
Mr. Dcbrow and encouragement from Jack Comer, a white welding supervisor,
Mr. London agreed to try it as an hourly foreman but said that he couldn't
promise that he would stick with it (T . 2125) . Mr. London's crew had sixteen
- 5G -
while men and two blacks (T . 2125} . He had no trouble with the whites but
immediately experienced some difficulty with one of the blacks who would not
cooperate with him (T . 212G) . Thereafter, he testified that lie was called "all
kinds of names" and "threatened" by several black employees (T . 2128) . On
the public streets he was accosted with "Uncle Tom" and "Jack Comer's boy
(T. 2128) . It wasn't all the blacks, by any means but enough to be quite damag
ing to self-esteem and reputation in the black community. Mr. Vann and Mr.
London had the determination to bite the bullet and to overcome. Other blacks
in the welding department have not had the fortitude. Henry Vann recalled
specifically Leonard Lewis (a witness for the other side) and Robert Moseley
as blacks who had turned down temporary foremanships in the welding depart
ment and said that he knew of several others he could not name (T . 2037) . Harry
Crane, the assistant department head, recalled the names of several others -
Neal Bell, Calvin Simpson, Eugene Underwood and Albert Johnson (T. 2988) .
Some have refused to try the job at all. Others have tried it but refused to take
it again (T. 2288) . The harassment of Henry Vann and John London by a sig
nificant minority of black employees was not unusual nor was it limited to the
welding department.
Mr. Ralph Jones, the first black salaried foreman in the steel erection de
partment, gave up his position and went back to the bargaining unit (T . 3557
& Rebuttal at 53-54 & G7) . Mr. Llewellyn Leshourc, a black foreman in the
steel construction department, told the court how when he became a foreman
some of the black men in his crew began slowing down the work and would not
- 57 -
cooperate with him. Mr. Leshoure said they called him "sand totcr" (defined by
him as a black who tells white men anything he knows, an informer) , and said
things to him such as "that lie wasn't nothing but an Uncle Tom" (T . 2842-43) .
Mr. Leshoure personally knew of at least three blacks (O. J. Gilbert, David Heard,
and Willie McKinley) who had served as temporary foreman but "didn't want it
anymore" (T. 2846-2847) . Mr. Fred Cottrell, a black foreman in the steel erec
tion department, testified that when he became foreman some of the blacks in his
department began treating him differently (T . 3080) . They became uncooperative
and didn't want to do the work and "would call me Uncle Tom, Uncle Charlie's
boy, and things like that." A lot of the name-calling directed at Mr. Cottrell
was by black employees not even in his department (T . 3080-82) . Mr. Cottrell
told the Court that the harassment was so hard on him and that he had decided to
give up his hourly foreman job and go back to being an assembler when he was
offered a salaried foreman's job and decided to "try it a little longer" (T . 3082-83);
these employees appeared to be trying to make him give up the job of foreman
(T. 3107-8) . Miles Ward, a black foreman in steel erection, recalled that when
he made foreman he experienced threats and name-calling. Mr. Ward was under
standably reluctant to say he was called Uncle Tom by members of his race; when
asked,whether it was true, he could only reply "I wouldn't say it's not so"
(T. 2222) . Mr. Alfred Moorer, the black foreman in the steel erection who
Mr. Swint threatened to "take care of" testified that he knew of "quite a few"
black men who have declined hourly supervisory positions because they "just
don't want to put up with it" (T . 2583-84) . Mr. Moorer had been told by other
blacks that all black foremen at Pullman were "Uncle Toms." Mr. William Eddings,
- 58 -
a supervisor in the steel erection department prepared a list of persons who
had refused offers of promotions to hourly supervisor (T . 2724) the accuracy of
which list was never disputed. It contained the names of fourteen black men and
four white men (T . 2721; 2725) . Mr. Clyde Robertson, the white Contract Com
pliance Officer, testified that the Contract Compliance Officers at Pullman keep
statistics on refusals of temporary foreman positions and said that between 1968
and the date of trial approximately thirty blacks and seventeen whites had refused
such offers (T . 1537 & 1619) . Among the blacks refusing temporary foreman
positions was Willie Johnson, a plaintiff below (T . 938). Mr. Johnson admitted
this was so, and said he was afraid taking the promotion might aggravate his
ulcer (T . 938) , a fear which seems entirely justified in view of + V» <-\ I r f l o f m o n l Cm
other black foremen .
The harassment and its effects were prevalent throughout the plant. Mr.
Harry Debrow stated categorically: "Some of the young men who would make,
in my judgment, good supervisors are declining it. They say, 'I don't want to
get in trouble or get involved with that kind of treatment’" (T . 192C) . Mr. Ross
Hammonds, the former black president of the Local Steelworkers Union testified
that the harassment of the black supervisors, name-calling and insubordination
began with the first two blacks he knew who made temporary foreman and contm
Ued as a general pattern thereafter throughout the plant (T . 3554-57) .
Indeed, the harassment of black men who assumed any responsibility at
the plant was evident even below the supervisory level. The harrassment of
Henry Vann really began when he was promoted to fork lift operator, a JC 8
job at a time before 1965 when most blacks in the department were JC G helpers
- 59 -
(T . 2043-46) . It only became worse when he was promoted to foreman. Mr.
Swint's antagonism toward Mr. Moorer started when Mr. Moorer was promoted
to riveter, a JC 11 job. lie refused to give him normal cooperation as his bucker
(T. 2534) . Black Union officers come in for the same type of harassment as
black foremen. Mr. Swint in an affidavit to EEOC referring to all black union
committeemen slated: "The Negro committeemen can only be considered as
Toms" (T . 3557-59) . Mr. Swint's affidavit, Mr. Hammonds said, was typical of
the attitude of a certain number of Pullman employees (T . 3559) , and he affirmed
that he knew of four employees, one being Mr. Hammonds himself, who had
declined promotions to temporary foreman partly or wholly because of this haras
sment (T. 3559-60) .
The attitudes underlying this intense hostility of certain blacks toward
black foremen and union officials were epitomized in Mr. Swint's radio broad
casts (CDX 348, 349, 350) in which he declared that these Uncle Toms were
leaders given to the labor force by the oppressor,' the employer; leaders he
controls. (What could we do if we could not control our foremen?) That the
Steelworkers Local is corrupt and helps the oppressor exploit the labor force.
That a good labor force is one which the oppressor cannot control, and one which
will reduce the oppressor's profit. That anybody the white man puts in charge,
"you can bet he's a Uncle Tom, because that man is not gonna put anybody in there
that's for the welfare of the working man. He gonna need somebody to keep you
down. But Tom, he plays an important role to the employer." The oppressor
must be brought to his knees, not by picketing but by hitting him in his pocket-
- 60 -
book . "It is not a question here of black versus white — it is a question of
labor versus management."
In truth, the main problem of Mr. Swint and others of his ilk is not
racial, as he himself acknowledges, but their state of rebellion against all of
those in authority whether white or black.' As we told the district court, if any
injunctive relief is called for on this record, how about enjoining harassment
of our black foremen and potential foremen?
Who knows what the statistics would show if there had been no campaign to
humiliate our black salaried and hourly foremen, to frustrate our efforts to make
promotions to those positions, and to intimidate the hardy souls who would take
temporary foreman into being jellyfish who would not maintain discipline or con
trol, thereby demonstrating their unsuitability as permanent foreman? Our sta
tistics are not bad, on the contrary they are astonishing when all facts are con
sidered. It is a tribute to the indomitability of the human spirit that Pullman was
able to find so many dedicated and capable black leaders who would take on such
a job in the face of such adversity, such opposition and such threat of ostracism
from friends and neighbors, which Mr. Swint typifies. 15/
P. THE DISCHARGE OF MR . CLYDE HUMPHREY HAD NOTHING TO DO
WITH HIS RACE OR FILING EEOC CHARGES. -
The trial court's Opinion, p. 33-34 adequately deals with the facts of
Mr. Humphrey's case. He and another black employee were assigned to reaming
holes. They quit reaming and were called into a plant office, where they had
15/ And fortunate that, so far as appears in this record, none suffered a mental
breakdown CP. Pettway v. ACIPCO, 494 F. 2d 211, 242, n. 77 (5th C ir., 1974) .
- Cl -
T IT
i
union representation. The other employee said he was willing to ream and would
have gone on reaming except that it was a two-man operation and Mr. Humphrey
refused to help. This man was then sent bade onto the.job; Mr. Humphrey per
sisted in his refusal and was fired. 15a/ The trial court found that theie was
ample reason to believe Mr. Humphrey was guilty of insubordination, as well as
previous misconduct; that there was no evidence that the reason assigned by
Pullman for discharging him was a subterfuge or that the true reason was his race
or filing an EEOC charge; that Pullman leaned over backward for Mr. Humphrey. 10/
15a/ The Union took his case to arbitration before Arbitrator Carl Warns, and the
other side admitted at the close of their case that the Union fairly represented^
Mr. Humphrey in the arbitration hearing (T . 1221; 1224); in fact, Mr. Johnnie
Lee Williams, a black Steelworkers International Representative, presented
Mr. Humphrey's case in the arbitration (T . 1012; 1044). Arbitrator Warns found
that Mr. Humphrey was guilty of insubordination, but that the disparity of his
treatment compared to the other employee's was too great, and ordered him re
instated without back pay. (CDX 247) . Pullman introduced several arbitration
awards in which the same Arbitrator, Carl Warns, had ordered white employees
reinstated without back pay (CDX 298 & 312-3) .
16/ The trial court found (Opinion, p. 34) that those who have made claims of ra
cial discrimination have obtained, if anything, favored treatment thereafter, list
ing by way of example, six named black employees. More particularly, the evi
dence showed: Mr. Miles Ward in 1954 filed the first grievance claiming discnm
ination against blacks in hiring riveters (T . 3505) . He later became an hourly
foreman and is now a salaried foreman (T . 2215-16) . Mr. Henry Vann, Jr. in ^
1965 filed the first grievance claiming discrimination in hiring welders (T . 2099-
2100) . He, too, proceeded from hourly to salaried foreman (T . 1967) . Ih e
black steward who filed both grievances, Mr. Ross Hammonds, thereafter became
president of the local union and an hourly foreman (T . 3502-03; 3554) . Mr.
Spurgeon Seals filed an EEOC charge in 1967 but has received promotions from
spray painter (JC 6) to shot blast operator (JC 8) (T . 156; 167) . Mr. Ed Lofton
filed EEOC charges in 1967 and 1970 and thereafter was taken off spray painting,
which he said irritated his sinuses and assigned to installing crossover steps, an
easy job (T . 257; 200-82; 206) . Mr. Junior Wormley filed EEOC charges in I960
yet thereafter was promoted to assembler, bucker, and riveter (JC 11) (T . 510;
520-526) . Mr. Willie James Johnson filed this lawsuit and was thereafter groomed
for and promoted to tool repairman, JC 12, a job he sought. Ironically, when of
fered a promotion to temporary foreman, he declined it ('!'. 800; 930) . See also
William C. Harris rebuttal at T. 212; Mr. Edgar Davis at T . 381-02.
- 62 -
ARGUMENT
This case turns not on disputed principles of law, but on the evidence
which clearly supports the trial court's findings, wherefore these are conclusive
under Rule 52(a) , F.R. Civ. P. Not one procedural or evidentiary error is
assigned. Our legal argument may therefore be abbreviated.
POINT I. UNDER FRAP RULE 3(c) , MR. SWINT, IN HIS INDIVIDUAL
CAPACITY , IS THE ONLY PARTY APPELLANT . -
Rule 3(c) requires a notice of appeal to "specify the party or party taking
an appeal." The only person specifically identified as appealing in the notice
of appeal was Mr. Louis Swint. The caption of the notice of appeal was the regu
lar district court caption prescribed by F.R. Civ. P. Rules 7 (b) (2) and 10(a)
and would be the same, whoever appealed. Under an unbroken line of authority,
the only party appellant is Mr. Swint, 17/ and since he did not specify any
17/Life Time Doors, Inc, v. Walled Lake Door C o., 505 F. 2d 1165, 1167-8
(6th C ir., 1974); Van I-loose v. Eidson, 450 1''. 2d 746 (6th C ir., 1971); Cooke
and Sons Equipment, Inc. v. Killcn, 277 F. 2d 607 (9th C ir., 1900); Owings
v. Kincannon, 33 U.S. (7 Pet.) 403 (1833); Davenport v. Fletcher, 58 U.S.
(16 How.) 140 (1953); Smith v. Clark, 54U.S. (12 How.) 21 (1851); Freedom
v. The Ship Protector, 82U.S. (14 Wall.) 83 (1871); Deneale v. Archer, 34
U.S. (8Pet.) 524 (1834); Estes v. Trabue, 128 U.S. 225 (1888); Miller v.
McKenzie, 78 U.S. (10 Wall.) 582 (1871); Wells v. Chemical Bank, 108 Ga.
App. 387, 133 S.E. 2d 52 (1963); Chandler v. Foote & Davies C o ., 210 Ga.
370, 80 S.E. 2d 292 (1.954); Lanier v. Bailey, 200 Ga. 161, 56 S .E . 2d 515
(1949); Brown v. City of Palatka, 132 Fla. 260, 181 So. 529 (1938); State ex
rel. Andreu v. Canfield, 40 Fla. 36, 23 So. 591, 42 LltA 72 (1898); Lessic v .
Booske, 86 Fla. 251, 97 So. 383 (1923); Leicht v. Snow Hill Mining Corp . ,
lO llnd. App. 584, 200 N.E. 427 (1936); Brabham v. Custer County, 3 Neb.
(Unof.) 801, 92 N.W. 989 (1902); Carroll v. Sartain, 164 S.W. 2d 52 (Tex. Civ.
App., 1942); Perry v. Bailey, 290 K y . 129, 160 S .W . 2d 617 (1942); Bard v.
Board of Drainage, 274 K y . 492, 118 S.W. 2d 1013 (1938); Tandy v. Wolfe,
270 K y . 556,"TFO S.W . 2d 227 (1937); Meaner v. Goldsmith, 216 Pa. 489, 65 A.
1085 (1907); Higgins v. Shepard, 48 Tex. Civ. App. 365, 107 S.W. 79 (1908);
4 C .J.S ., Appeal & Error 5413, p. 1365-66; 9 Moore's Federal Practice (2nd
Ed., 1970) §203.17.
representative capacity, the appeal is in his individual capacity only. 10/ lie
is also the only party who filed an appeal bond.
POINT II. MR. SWINT'S DISCHARGE WAS LAWFUL -
There was no evidence contrary to the trial court's findings as to Mr. Swint
discharge, and the award of Arbitrator Robert J . Wagner (CDX 259) and decision
of the State Unemployment Agency were to like effect (CDX 2G0) . I he judgment
!
as to Mr. Swint's discharge must be affirmed. 39/
POINT III. - THE SENIORITY SYSTEM IS LAWFUL. -
McDonnell Douglas Corp . v ■ Green , 411 U.S. /92, 800-1 (19/3).
. . .As noted in Griggs [v. Duke Power Co. , 401 U.S. 424] :
"Congress did not intend Title VII, however, to guarantee a job to
every person regardless of qualifications. In short, the Act does not com
mand that any person be hired simply because he was formerly the subject
of discrimination, or because he is a member of a minority group. Dis
criminatory preference for any group, minority or majority, is precisely
and only what Congress has proscribed . What is required by Congress
is the removal of artificial, arbitrary, and unnecessary barriers to em
ployment when the barriers operate invidiously to discriminate on the
basis of racial or other impermissible classification." Id. at 430.
18/ Pen well v. Newland, 180 F. 2d 551 (9th C ir., 3 950); Stone v . Interstate
Natural Gas Co., 103 1
, ^ v, w ^ ---- X-- ' ’ ----------- --------- -----
2d 544 (5th C ir., 1939); Cooger v . Cooger, 117 Ga.
App. 614, 161 S.E. 2d 428 (1968); Brown v. City of Palatka, 132 Fla. 260, 181
So. 529 (1938); Danner v. Phillips Petroleum C o ., 447 F. 2d 159, 164, reh.den.
450 F. 2d 881 (5th C ir., 1971) .
19/ Huff v. N.D. Cass Co. of Alabama, 468 F. 2d 172, 176 (5th C ir., 1972),
485 F. 2d 710, 71.2/7UT(5th C ir., 1973) , Franks v. Bowman Transportation Co. ,
495 F. 2d 398, 406-9 (5th C ir., 1974), cert, den., 8 FEP Cases 1280, cert, granted
on another question, 43LW 3510 (March 24, 1975); Jack v. American Linen
Supply Co .,493 F . 2d 191, 194 (5th C ir., 1974); Hill v. American Airlines, Ine^,
479 F. 2d 3 057, 1060 (5th C ir., 1973); Martin v. Thompson T ractor Co., 486 F.
2d 512, 514-8 (5th C ir., 1919) Brantley v. Southern Pacific Co., 486 F.^2d
516, 53 7-8 (5th C ir., 1973); .Smith v. Universal Services, Inc., 454 F
156 (5th C ir., 1972); Bcscndis v. Lee Way
69, 72 (5th C ir. , 19 74) .
Motor Freight, Inc., 505 F
2d 154,
2d
- 64 -
There are societal as well as personal interests on both sides of
this equation. The broad, overriding interest shared by employer,
employee and consumer, is efficient and trustworthy workmanship
assured through fair and racially neutral employment and personnel
decisions.
As the district court held (Opinion, p. 9) there is nothing per se illegal in having
a labor force divided into several seniority units. Rodriguez v . East Texas
Motor Freight, 505 F. 2d 40, 53 (5th C ir., 1974); Heard v . Mueller C o ., 404
F. 2d 190 (Gth C ir., 1972) . As held concerning such seniority systems which
at first view are racially neutral, in Ding v. Roadway Express, 444 F . 2d 007,
690 (5th C ir., 1.971) :
Once it has been established that an employer or union has discriminated
in the past, the inquiry is. . .: (1) Does the present policy perpetuate
the past discrimination?
The plaintiff has the burden of making out the elements of this prima facie case
of rac ia l discrimination. McDonnell Douglas v . Green , 411 U .S . 792, 002 (1973)
It was incumbent on the other side to show that the present seniority system con
tinues to have some effect of locking in those blacks, who were found to have
been once systematically placed in less desirable departments or jobs, in a posi
tion of economic inferiority. Tire Pullman seniority system as modified by its
OFCC Agreement, however, was shown by the only credible statistics in the
record, and by a vast amount of evidence credited by the district court, to
have opened the way for those blacks, to move to top jobs in their departments,
from the low ceiling departments to all departments, and from all departments
to previously white departments, and that any vestiges of past discrimination
have disappeared or are approaching the vanishing point as fast as rightful
place remedies allow; that is, without firing, demoting, or executing whites to
- C5 -
!i
i
make way for blacks. The former stratification has been turned upside down
in whole departments; and essential equality of annual earnings has in fact been
attained. The blacks who are janitors are there because they want to be and be
cause those jobs pay better than the aveiage job.
In short, Pullman's efforts to achieve racial equality have succeeded far
better than those of the federal bureaucracy to put its own house m order, and
better than the published results of any court-ordered plan which our research
has unearthed; and we are sure if the other side knew of any court-oroered
plan which has been proved to work better in actual practice, they would tell
this Court about it. Instead, in effect the other side is arguing to the Court
that it must find a departmental seniority system per se illegal and reverse the
judgment below, as Galileo was made to renounce his heresy, on the basis of
ideological dogmata which do not accord with evidence or experience. 20/
20/ An exhaustive study entitled "Assessing Social Innovations: An Empirical
B^se for Policy", conducted by Harvard professors Frederick Mosteller, Richard
Light and John Gilbert, sponsored by various federal agencies, of which new
programs to improve society work, and which do not, and why, is to be pub
lished in summer, 1975, by Academic Press as part of a book named "Evaluation
and Experiment: Critical Issues in Assessing Social Programs." Published
previews of this work (Otten , "Learning What Works, " Wall Street Journal,
April 17 1975 p. 10) indicate that statistical evaluation of 30 government pio
grams to improve society in all sorts of fields shows that a surprisingly modest ̂
fraction, perhaps a fifth or less, actually were "clear and substantial successes.
Perhaps another fifth had smaller success, while the other programs had little
or no effect. Even the programs that worked well usually produced relatively
small gains; but the authors insist that this is good and that spotting just such
small changes is the key to evaluating the programs; that most social progress
docs not come in great leaps forward, but "small changes continued through
time often result in large changes." Once small changes have been identified
"it may be possible to build improvements upon them." Applying this rationale
to the present case, a soundly conducted statistical evaluation has shown
Pullman's program to be in the area of that 20" or less which are clearly and
- 06 -
In Mill ikon v. Bradley, _U .S ._ _ , 94 S. Ct. 3112 (1974), it was held
that the Constitution did not compel the bussing of blacks in Detroit across
school district lines into adjoining school districts, even though many Detroit
schools were 90% black, their ratio increasing, and suburban school districts
20/ (Cont'd)
substantially successful. The other side, and Mr. Swint certainly, seems to
complain that it was not sufficiently revolutionary and did not adopt the meat-ax
approach. Now they are asking this Court to use the meat ax on ideological
grounds. But the study of Dr. Mostellcr, et a l., suggests that the surgical
scalpel approach used in the OFCC agreement may be just why it has been so
successful in actual experience compared to other more drastic programs,
court-ordered or otherwise. The OFCC agreement sought to isolate problem
areas and correct them . The most successful innovations seem to have been the
tuition-reimbursement vocational training program, the assurance to blacks of
an equal share of temporary promotions, which are on-the-job training oppox
tunities, and the use of an independent biracial enforcement staff to police the
program. The least changes, on the other hand, have been experienced in tlxe
low-ceiling department affected class transfer-out seniority carry-over program.
Dr. Mostellcr's study indicates the best policy is to build on those parts whose
effectiveness is proved by experience. Yet the other side ignores all this and
wants to aggrandize just those things that work least, both at Pullman and at
the basic steel mills, according to available statistics. D rM oste ller 's study
advocates building in evaluation procedures into new programs, examining
their strengths and weaknesses while they go forward, preferably by random
ized, controlled field trials. This type of thing has not been undertaken by
Court orders in the civil rights field; surely, however, the lessons of experi
ence, statistically demonstrated, should not be ignored when they present
themselves in a record on appeal as they do here. Pullman happens to have
evolved a program which works, and is suited to its particular problems and
needs. Two centuries ago the founders of this country spoke of building a
city on a hill, an example for all nations; two millenia ago Pericles spoke of
Athens as the School of Hellas. If we have found, by luck or good judgment,
something which produces excellent results, why on earth should we cast it
out in favor of stronger medicine whose effectiveness is at best unknown, at
worst may make the patient languish or die? Why not view Pullman s progiam
as an education for all of us, as a guide in knowing how to design a program
of affirmative action that works?
67 -
had ns low as K b lack enrollment, simply to attain more mixing. There are
certain parallels with seniority systems. It is simply not the law that
maximum mixing must be obtained at all costs and regardless oi whether
there is actual perpetuation of discrimination . Obviously we have to consider
practicality and cost-benefit ratio, regardless of the tortured construction
some courts have give,, the so-called business necessity defense.
. [Tlhe remedy is necessarily designed, as all remedies are, to
restore the victims of discriminatory conduct to the position they would
have occupied in the absence of such conduct.
Milliken v . Bradley, supra, 94 S . Ct. at 3128. The object is hot punishment,
EEOC v. Detroit Edison C o., _ P . 2 d _ . 10 PEP Cases 239 (6th C ir ., 1975),
and not attaining maximum homogeneity per se. That is really all the other
' side is seeking, for any once valid objections to the seniority system have been
remedied, as the trial court held . 2\J
POINT IV . THE SYSTEM OF WORK ASSIGNMENTS IS LAWFUL -
In addition to the authorities cited under Point III, see Floyd V. Kroger Ccn
g PEP Cases 1244. 1245 (S .D . Ohio. 1974); Bailey v. Kyan Stevedorin g ^ .
21/Heard v. M ^ lteT cT . ■ 464 F. 2d 190. 193 1611. C ir.. 1972):
The appellant seems lo contend that any departmental seniority system
per se illegal and a violation of Title VII. That is not the ease Under the
CWiUliehts Act of 19G4, the Federal Courts have consistently held that
seniority provisions are illegal only if they tend lo "freeze or perpetuate
the effects of historic or traditional discrimination in luring or m p i « «
tion E r .: Bailey v. American Tobacco Company, 462 F. 2d i
Cir .1972)',’ Quarles v. Phillip Morris, Inc., 279 F . Supp . 505 517-520 (L .
Va. 1968) . The record shows that the appellant failed to establish that
"locking" exists within the three departments involved in this suit.
- G8 -
7 FEP Cases 914, 917 (M.D. La., 1974); Roman v. ESB, In c ., 7 PEP Cases
10G3, 1071 (D.S.C., 1973); U.S. v . Jacksonville Terminal C o ., 451 F. 2d
418, 443-8 (5th C ir ., 1971), cert, den., 406 U .S . 906; Washington v . Safeway
Corp ., 467 F. 2d 945, 947, 949 (10th C ir., 1972); Mc.Gaffney v. Southwest
Mississippi General Hospital, 6 FEP Cases 1123 (5th Cir. , 1973) , aff g o FE1
Cases 1312, 1316 (S.D. Miss., 1973); Mitchell v. International Distribution^
Inc., 5 FEP Cases 14 (W.D. Tenn., 1972) . We agree with the trial court's
opinion on this point, except we do not share his initial astonishment that
such a system—or lack of a system—could work" (Opinion, p. 31) , because
the truth is that the practices of Pullman in making work assignments within
classifications have always been far more common in industry than any type
of application of seniority or personal preference in making individual work
assignments. 22/
POINT V. THE SELECTION OF SALARIED SUPERVISORY AND MANAGEMENT
PERSONNEL WAS LAWFUL. -
See argument and authorities cited under POINT I I I .
POINT VI. THE DISCHARGE OF MR. HUMPHREY WAS LAWFUL. -
See argument and authorities cited under POINT I I .
22/ Elkouri and Elkouri, "How Arbitration Works" (3d Ed.) 458; The Duriron
Co., 66-2 ARB 118460; International Minerals, 61-2 ARB 110383; Michigan
Consolidated C.as C o., 42 LA 385 (1964); Republic Steel Corp. 37 LA 591
(1961); Rockwell Register Corp., 36 LA, 1160 (1911); Gas Service C o ., 35 LA
637 (I960); Allegheny Ludlum Steel Corp., 26 LA 546 (2956); Yale & Townc
Mfg. Co., 24 LA 160 (1955); National-Standard Co. , 29 LA 037 (1957); John
Deere Tractor Co,, 16 LA 576 (1951) . When the trial court spoke on p. 32 of
its Opinion of "typical collective bargaining agreements"; it was no doubt think
ing of the basic steel agreement, which the trial judge became familiar with in
the Steel industry Title VII litigation, but which, as the above authorities show,
is not typical at all of industry in general. The usual industrial practice is much
like Pullman's.
CONCLUSION
The purported appeals of Messrs. Johnson and Humphrey should be dis
missed. The judgment appealed from by Mr, Swint should be affirmed, with
costs including a reasonable attorney's fee taxed against Mr. Swint.
THOMAS,TALIAFERRO,FORMAN,
BURR & MURRAY
1G00 Bank for Savings Building
Birmingham, Alabama 35203
OF COUNSEL.
C. V. Stelzegpmller
1G00 Bank for Savings Building
Birmingham, Alabama 35203
D . Frank Davis
1000 Bank for Savings Building
Birmingham, Alabama 35203
c _ y ^ (\
Franklin B . Snyder
200 South Michigan Avenue
Chicago, Illinois 00604
ATTORNEYS FOR DEFENDANT-APPELLEE
PULLMAN
- 70 -
CERTIFICATE O F SERVICE
I hereby certify that I have served two copies of the above and foregoing
Brief upon each of the following, U.S. Mail properly addressed and postage
prepaid on this /J?z^-day of May, 1975:
Mr. U. W. Clemon
Adams, Baker h Clemon
Suite 1C00 - 2121 Building
Birmingham, Alabama 35203
Ms. Marilyn Holifield
10 Columbus Circle
New York, New York 10019
Mr. John Falkenberry
Cooper, Mitch & Crawford
Suite 201
409 North 21st Street
Birmingham, Alabama 35203