Ford v. United States Steel Corporation Reply Brief for Plaintiffs-Appellants

    IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 

NO. 73-3907

JOHN S. FORD, et al..
Plaintiffs-Appellants,
- vs -

UNITED STATES STEEL CORPORATION, 
et al.,

Defendants-Appellees. * 10

REPLY BRIEF FOR PLAINTIFFS-APPELLANTS

OSCAR W. ADAMS 
JAMES K. BAKER 
U. W. CLEMONSuite 1600 - 2121 Building 

2121 Eighth Avenue North 
Birmingham, Alabama 35203

JACK GREENBERG 
JAMES M. NABRIT, III BARRY L. GOLDSTEIN

ALBERT J. ROSENTHAL435 West 116th Street 
New York, New York 10027

Suite 203010 Columbus Circle
New York, New York 10019

Of Counsel Attorneys for Plaintiffs-Appellants



I N D E X

Note on Form of Citations ii
Table of Authorities iii
INTORDUCTION......................................  1

I. THE DEFENDANTS ENGAGED IN A GENERALPATTERN AND PRACTICE OF RACIAL DISCRIMINATION 
WHICH RESULTED IN BLACK WORKERS BEING 
EXCLUDED FROM HIGHER-PAYING JOBS AND FROM TRAINING OPPORTUNITIES...................  3

(a) Promotion and Training for Trade and
Craft Positions........................  4

(b) Selection for Supervisory Positions.... 5
(c) Discriminatory Establishment of Seniorityand Promotional Systems in the 1960's... 5

(1) Line of Progression ("Unit" or
"LOP") 308, Ensley Steel Plant... 5

(2) Pratt City Car Shop.............  7
(3) Plate Mill, Fairfield Steel.....  7
(4) The Establishment of Labor Pools.. 8

II. THE DISCRIMINATORY PRACTICES OF THE
DEFENDANTS RESULTED IN SUBSTANTIAL LOST 
EARNINGS TO THE AFFECTED CLASS...  10

III. IN LIGHT OF THE PLAINLY UNLAWFUL PRACTICESOF THE DEFENDANTS WHICH RESULTED IN SUB­
STANTIAL ECONOMIC HARM TO THE AFFECTED CLASS,
THIS COURT SHOULD REVERSE THE LOWER COURT1S 
DENIAL OF BACK PAY...............  15

IV. THE CONSENT DECREES DO NOT PROVIDE ANYBASIS FOR DENYING BACK PAY TO THE AFFECTED 
CLASS.....................................  19

V. THIS APPEAL IS PROPERLY BEFORE THIS COURT-- 23
APPENDIX A, X189
APPENDIX B, Tr. Vol. 50, Nov. 30, 1972, pp. 162-165, 239- 

239-243.
APPENDIX C, Tr. Vol. 50, Nov. 30, 1972 pp. 23-25,192-199

Page

- l



Note on Form of Citations

The following citations are frequently used in this brief:

"A. II pages of the "Joint Appendix"filed in 
this appeal, as numbered therein

"X. II exhibit introduced at trial as 
designated therein.

"G Br. Brief filed by the United States in the 
appeal consolidated with this appeal.

”U. Br. Brief filed by the defendants-appellee United Steelworkers of America
"c. Br. Brief filed by the defendant-appellee 

United States Steel Corporation.
"PI . Br. Brief filed by the plaintiffs-appellants 

Ford, et al.
"Tr II Transcript of the trial testimony,

designating the date of the testimony, 
the volume of the transcript and the 
page number (s).

11



TABLE OF AUTHORITIES
PAGE

Cases

Alexander v. Gardner-Denver Corporation, 39L.Ed.2d147 (1974)....................................  22
Arkansas Education Assn. v. Bd. of Education of

Portland, 446 F.2d 763 (8th Cir. 1971)........  28
Baxter v. Savannah Sugar Refining Corporation,

495 F. 2d 437 (5th Cir. 1974)..................  3,12,16,22
Bell v. Maryland, 378 U.S. 226 (1964)...............  4
Bush v. Lone Star Steel Corporation, 373 F.Supp.

526 (E.D. Tex. 1974).........................  19
Carey v. Greyhound Bus Co., Inc., No. 73-3133

(5th Cir. Sept. 26, 1974)....................  16
Duhon v. Goodyear Tire & Rubber Company, 494

F .2d 817 (5th Cir. 1974)....................  16
Franks v. Bowman Transportation Company, 495

F.2d 398 (5th Cir. 1974)....................  16
Gonzales v. Cassidy, 474 F.2d 67 (5th Cir. 1973).... 25
Griggs v. Duke Power Company, 401 U.S. 424

(1971)......................................  3, 18
Griggs v. Duke Power Company, 420 F.2d

112 5 (4th Cir. 1970)........................  18
In the Matter of Bethlehem Steel Corporation,

Decision of the Secretary of Labor,
Docket No. 102-68, January 15, 1973
EPD K 5128...................................  19

Jenkins v. United Gas Corp., 400 F.2d 28 (5thCir. 1968)..................................  28
Johnson v. Goodyear Tire & Rubber Company, 491

F. 2d 1364 (5th Cir. 1974)...................  3,15-17
Moody v. Albemarle Paper Company, 471 F.2d

134 (4th Cir. 1973).........................  18

-  i n



Statutes and Other Authorities

Federal Rules of Civil Procedure
Rule 23.......................................  26

Federal Rules of Appellate Procedure
Rule 4 (a).....................................  24

Title VII of the Civil Rights Act of 1964
(as amended 1972) 42 U.S.C. §§2000e et seq.... passim

Wright & Miller, Federal Practice and Procedure......  26,18
29 U.S. C. §§151 et seq..............................  18
42 U.S.C. §1981......................................  17

Page

v



TABLE OF AUTHORITIES [Cnnl- ’H]

Page

Pettway v. American Cast Iron 
494 F.2d 211 (5th Cir. Pipe Company, 1974).......

Rowe v. General Motors Corporation, 457 F.2d 348 (5th Cir. 1972)............
Sprogis v. United Air Lines, 444 F.2d 1194 

(7th Cir. 1971) cert, denied 404 U <5 991 (1971).... 7777.7..... ........
Sprogis v. United Air Lines, 56 F.R d 420 (N.D. 111. 1972)............. '.....
Taylor v. Armco Steel Corporation, 8 EPD H9550 (S.D. Tex. 1973).......................
Taylor v. Armco Steel Corporation, 429 F.2d498 (5th Cir. 1970)............. ).....
United States v. Bethlehem Steel Corporation446 F.2d 652 (2nd Cir. 1971)........ ' ̂
United States v. Georgia Power Company, 471

F • 2d 906 (5th Cir. 1973)................
United States v. Hayes International Corp. 456 F.2d 112, 121 (5th Cir. 1972)................. *
United States v. H.K. Porter Corporation, 296F.Supp. 40 (N.D. Ala. 1968)...............
United States v. H.K. Porter Corporation 491 f 2d 1105 (5th Cir. 1974)...................
Williamson v. Bethlehem Steel Corporation, 468 F•2d 1202 (2nd Cir. 1972) cert.denied 411 U.S. 973 (1973)......7777.77.....
Whitfield v. United Steelworkers, 267 F.2d 546 (5th Cir. 1959)...............

3, 15-18, 20-22 

5

26

26

19

18, 19 

19 

18 

25 

18 

19

25-26 

17, 19

IV



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

NO. 73-3907

JOHN S. FORD, et al.,
Plaintiffs-Appellants, 
- vs -

UNITED STATES STEEL CORPORATION, 
et al.,

Defendants-Appellees.

REPLY BRIEF FOR PLAINTIFFS-APPELLANTS

I N T R O D U C T I O N
The defendants—appellees, United States Steel Corporation 

("U.S. Steel" or the "Company") and the United Steelworkers of 
America ("Steelworkers" or the "Union"), rely in their briefs on 
several events which took place since the lower court entered its 
opinion: (1 ) the consent decrees between the government, nine
major steel companies and the Steelworkers, and (2) the effect of

1/ On April 12, 1974, the Department of Justice, Department
of Labor and the Equal Employment Opportunity Commission filed a 
Complaint in the Northern District of Alabama against nine major 
steel companies, including U.S. Steel, and the Steelworkers,



the remedial order of the district court. Neither the consent 
decrees, see section XV, nor the purported effect of the remedial 
order, see section II, provide any basis for denying back pay to 
the affected class.

The Company questions in its brief the authority of the 
plaintiffs to represent the affected class. Even though this issue 
is not properly before the Court, since U.S. Steel did not appeal 
from the lower court's conclusion of law that the plaintiffs were 
appropriate class representatives, the plaintiffs—appellants briefly 
respond to this argument, Section V.

Finally, the plaintiffs-appellants respond to the defendants' 
assertions concerning the scope of their discriminatory practices, 
Section I, the economic effect of those practices, Section II, and 
the application of this Circuit's standard for the exercise of 
district courts' discretion to deny back pay, section III.

1/ [Cont'd .]alleging, inter alia, unlawful racial discrimination in the terms 
and conditions of employment. United States v. Allegheny-Ludlum 
Industries, Inc., et al., Civil Action No. 74-P-339. On that same 
day the parties presented two consent decrees which purported to 
resolve all issues "between the plaintiffs [i.e., the Government] 
and the defendants". U.S. Steel's Appendix, p. 4, para. C. The 
district court also signed the consent decrees on the day they were 
presented, April 12, 1974.

Twenty—nine black steelworkers sought and were granted the 
right to intervene for the limited purpose of challenging certain allegedly illegal provisions. (Several female steelworkers, who 
challenged the lawfulness of the consent decrees, were allowed to 
intervene as well). The intervenors have appealed the district 
court's refusal to vacate the consent decrees; the appeal is 
presently pending with this Court, No. 74—3056.

2



THE DEFENDANTS ENGAGED IN A GENERAL PATTERN AND 
PRACTICE OF RACIAL DISCRIMINATION WHICH RESULTED 
IN BLACK WORKERS BEING EXCLUDED FROM HIGHER-PAYING 
JOBS AND FROM TRAINING OPPORTUNITIES______________
The district court explicitly found that the defendants 

engaged in unlawful practices which perpetuated the discriminatory 
effects of the previous system of racial segregation of job oppor­
tunities. [A. 159-61; see Pi. Br. 14-21] These unlawful practices 
coupled with the clear showing of lost earning suffered by Blacks 
establishes a clear requirement for back pay. Pi. Br. 31-34, 
section IV, infra.

The thrust of Title VII is directed to the consequences, 
in this case economic loss, of discriminatory practices, not to the 
motivation or intent of the employers. Cf. Griggs v. Duke Power 
Company, 401 U.S. 424, 432 (1971). However, the defendants, in 
their brief, have argued that the practices "only" continued the 
effects of past discrimination and continually congratulated them­
selves on their "good faith" attempts to terminate discrimination. 
Since the defendants rely on their supposed good faith in a number 
of their arguments, the plaintiffs-appellants, in order to afford 
some balance to the evidence of discrimination, cite several in­
stances of blatant discrimination which resulted in lost earnings

1/to black workers. 2

I.

2 / The Union recognized the clear law of this Circuit that "good 
faith" efforts by defendants is not a valid defense to claims for 
back pay. Union Br. 21. Johnson v, Goodyear Tire & Rubber Company, 
491 F .2d 1364, 1376 (5th Cir. 1974); Pettway v. American Cast Iron 
Pipe Company, 494 F.2d 211, 253 (5th Cir. 1974); Baxter v. Savannah 
Sugar Refining Corporation, 495 F.2d 437, 443 (5th Cir. 1974).

3



The selection for apprentices, craft jobs, and supervisors,a
traditional "whites only" preserves, is/good indication of the con­
tinued resistance to equal employment by the Company.

(a) Promotion and Training for Trade and Craft Positions 
The continued limitation on the promotion of black

steelworkers to trade and craft positions or to training programs
3/after 1963 reveals the intransigence of U.S. Steel. Blacks, his­

torically had been almost totally excluded from the trade and craft
4/positions, which include a larger number of the better-paying jobs. 

The Company changed its policy from total exclusion to nothing more 
than tokenism: during the pay period ending February 6 , 1972 there

5/were 1,392 whites and 20, or only 1.4% blacks working in the 23
crafts at Fairfield Works. [X106, para. 12]

From July, 1964 through June 3, 1970, 154 employees became
journeymen; only 8 of these employees were Black. [Id. para. 8]
During this period 27 whites and 1 Black completed the Company's

6/apprentice program. para. 9] * * * *

3/ Judge Pointer offered some praise for United States SteelCorporation's limited revision of its segregationist practices in 
1963. [A. 160] For a contrary appraisal, see Bell v. Maryland,
378 U.S. 226, 270 n.3 (concurring opinion) (1964)
4/ Prior to October 1, 1963, journeymen classifications were re­
stricted to whites by formal Company policy, except for one unit of 
black pipefitters and one unit of black painters. [X106, para. 2]
5/ Of the 20 black craftsmen, 12 were working in the traditional
all-black pipefitter and painter units. See n. 4 , supra. Also the four black Mobile Equipment Mechanics had their status changed 
to craftsman as a result of an agreement which defined their job 
as a craft job. [X106, paras. 1, 13]
6/ The Company had complete discretion, unfettered by anycollective bargaining contract, to select apprentices from October 
1, 1963 to August 1, 1968. During this period 48 whites were 
selected and 5 Blacks. [X106, para. 18]

4



(b) Selection for Supervisory Positions
As of November, 1971, there were 1,047 managerial 

employees at Fairfield Works; 928 of these supervisors were serv­
ing at the general foreman and lower supervisory positions. [X36] 
Only 16 or 1.7% of the 928 supervisors at the general foreman level 
or below were Black. [X36] In fact prior to July 1, 1966 not one
Black had ever worked in a supervisory position. [X36]

\

The Company regularly promotes employees from their hourly
Vworkforce to supervisory positions. Since the effective date of 

Title vil, July 1, 1965, and December 31, 1970, 295 employees were 
promoted to supervisory positions; only 16 or 5.6% of the promotions 
were afforded to Blacks, who comprise approximately 27% of the 
workforce. [X36]

(c) Discriminatory Establishment of Seniority and 
Promotional Systems in the 1960's___________
The defendants under the guise of integrating jobs at 

Fairfield Works established practices which were blatantly dis­
criminatory.

(1) Line of Progression ("Unit" or "LOP")
308, Ensley Steel Plant
Prior to September 22, 1963, jobs in LOP 308 were 

staffed solely by white employees, and the jobs in LOP 310 solely 
by black employees. [X108, para. 2] Effective September 22, 1963# 7

7 / The selection procecure for supervisors is within the dis­
cretion of management. There are no written guidelines or bid pro­
cedure; the selection is left to the determination, and accordingly to the subjective judgment, of management personnel. [Tr. Vol. 2, 
June 20, 1972, at 133-34, 150] See Rowe v. General Motors 
Corporation, 457 F.2d 348 (5th Cir. 1972)

5



the two lines were redesignated 308 and 308A respectively. However,
the two lines were not merged; rather the employees in LOP 308
(who were white) were able to "bump" employees in LOP 308A (who
were Black) during a reduction-in-force on the basis of their LOP
308 seniority. But Blacks in LOP 308A were only able to promote
into a vacancy in LOP 308 after all the white incumbents in that
LOP, including those with recall rights, had the option to move
into the vacancy, even if black employees had greater seniority in
LOP 308A than the white employee had seniority in LOP 308. If a
black employee was finally able to promote into LOP 308 he did not
carry with him his seniority from LOP 308A; his seniority in LOP
308, for purposes of promotion and regression within that line was
limited to the date he first was permanently assigned to a job in

8/LOP 308. [X108, paras. 4-7]
The 1963 Agreement also provided that LOP 308A would have a 

preference over all other employees or hirees for vacancies in LOP 
308. [.Id. para. 8] Despite this preference at least 8 white em­
ployees were either directly hired or transferred into LOP 308 be­
fore any black employee was able to promote into LOP 308. None of

8/ A similarly egregious situation occurred in LOP 222, Ensley
Steel Plant. The effect of this particular merger was, on the one hand, to allow whites who had less seniority in the particular 
LOP to "bump" Blacks from the formerly all-black switchmen 
positions, and on the other hand to prevent Blacks who were formally qualified as engineers from promoting to engineering 
vacancies which were filled by whites who were junior to the 
qualified black engineers. Tr. Vol. 51, December 1, 1972 at 
149-67, 179-85, 197-221, 218-21; Tr. Vol. 28, August 31, 1972, 
at 6 6-6 8, 81-85.

6



these white employees worked in LOP 308A before they
2/entered LOP 308. [Id., para. 9]

(2) Pratt City Car Shop.
In 1964 the Steelworkers and U.S. Steel abrogated a

1963 agreement which would have afforded blacks in the Car Shop
the opportunity to move to their rightful place within a year by
permitting them to "carry" their seniority in the all-black Car
Shop LOP to the all-white Car Shop LOP. Under the 1964 Agreement

10/
there was no carry-over seniority. [See Pi. Br. 21-24; X105, 
paras. 6-1 0]

(3) Plate Mill, Fairfield Steel.
The union placed a white grievanceman on the stand, 

Robert Jones, who testified that in 1962-63 he canvassed black 
hookers in the plate mill department as to whether they wanted their 
hooker jobs merged with crane operator positions or retained in the

9/ X191 is a general approximation of the economic harm sufferedby Blacks in LOP 308A. The white employees who moved into LOP 308 
averaged gross earnings of $10,552.67 in 1970 while the black employees who were passed over in LOP 308A averaged $9,512.30 for a difference of $1,043.37 per man for the year. See Tr. Vol.
54, December 6 , 1972 at 103-06 for a discussion of some of the 
limitations of the exhibit.
10/ The sequence of events concerning LOP 107 of Ensley Steel plant was similar to the abrogation of the agreement in the 
car shop.

In March, 1963 LOP 107 (which was all-white) was merged 
with LOP 108 (which was all-black) to form one continuous LOP; 
this merger would have allowed Blacks an opportunity to reach their 
rightful place. [X133; Tr. Vol. 28, August 29, 1972, at 107-110]
Six months after the merger the LOPs were re-separated. [Id.*]

7



i i_ ythe all-black LOPs. [Tr. Vol. 24, August 25, 1972, at 50-59]
Mr. Jones stated that a majority of Blacks did not want their
hooker jobs merged with the crane job. [Id.] In fact, the Blacks
in the plate mill, just like Blacks throughout Fairfield Works,
were not consulted during the period when the defendants made some
changes in the segregationist employment structure; over thirty
black workers, a majority of those working as hookers at the time#
testified that Mr. Jones had never asked them about merging the

12/hooker job with the crane operator job.
There are numerous additional examples of discriminatory 

practices being purposely incorporated into the changes in the system 
of segregated job structure in the 1960s. See PI. Br. 17-20.

(4) The Establishment of the Labor Pool.
U.S. Steel argues that appellants' brief gives a mis­

taken impression concerning the creation of the labor pools; the

11/ It was during that period that the Company and the Union
agreed to "merge" some lines of promotion. Prior to this time 
all the jobs at Fairfield Works were segregated. [A.159-61]

There were three hooker jobs in the plate mill department.
A hooker in essence works as an assistant or helper for a craneman. 
Hooker jobs were staffed by Blacks, and craneman jobs by whites.
The "merging"of the jobs, hooker and craneman, would have allowed 
Blacks to transfer to the craneman job without the loss of their 
seniority as a hooker.
12/ The following is a list of these witnesses .and the Volume 
and page on which their testimony begins: Vol. 53, December 5, 1972 - 
Ard. 6 6, Richardson, 73, Thomas, 80, Peavy, 84, Jordan, 89, Hunter, 106, Dorsey; 116; Rambo, 119, Carter, 130, Suttle, 137, Davis, 144 
O'Neal, 163, Jordan, 166, Watkins, 168, Thomas, 182, Lockett, 214, 
Lavender, 223, Harper, 228, Mims, 234, Gaines, 240, Gilmore, 245, 
Steele, 253, Birchfield, 255, Gadsden, 263, Henderson, 289, Wyatt, 
315, Martin, 318, Skipworth, 334; Vol. 54 —  Hardy 15; Dees, 44, Austin, 49.

8



Company further argues that the establishment of the pools did not
have any discriminatory effect on Blacks and that the government

13/agreed that the pools were a "good thing". [c. Br. 47-8]
The position of the government is fully set forth in their 

brief; the brief clearly establishes the discriminatory effect of 
the method in which the pools were established in Fairfield Works;

14/a method practically unique in the steel industry.
The adoption of the pool concept was industry­wide and, as the district court indicated, the 

Government has not challenged the concept itself or 
the reason behind its adoption (App. 153, fn. 11).
What we do point out, however, is that because blacks at the Fairfield Works were confined to the 
lowest Job Class rated jobs, it was primarily black- 
only jobs which were placed in the pool. Further­
more, the pool jobs were severed from the portions 
of the lines of promotion which were above the Job 
Class 4 or pool level. This was a feature of the 
Fairfield pools which was not followed industry­
wide, but in fact represented a violation of the 
industry-wide Basic Steel P&M agreements which specifically provided for the continuation of the 
lines unsevered (App. 113-114).— '

10/ The 1964, 1968 and 1971, industry­
wide Basic Steel P&M Agreements each spe­
cifically provided (in Subsections 13-L-l and 13-L-3) that employees who were on jobs which were placed in the pool were to re­
tain their seniority rights to progression into the jobs in the line of promotion above the pool to which their jobs were 
to remain in part, irrespective of whether they had "regularly worked" in jobs above 
the pool prior to the creation of the pool 
(App. 113-114; Ex. 45).

13/ The position of the United States is grossly misrepresented by 
the Company's taking a statement of a government attorney out of context
14/ The plaintiffs take the liberty of quoting extensively from 
the government's brief because the brief of the government may not 
be before the Court if the government withdraws its appeal.See C. Br. 49.

9



As a result, the blacks in the pool jobs retained 
no promotional rights above the pool and thus, for 
many of them, the mergers of the following year 
meant nothing because they were in jobs which no longer were part of the remnant of the all-black 
line which was merged with a white line (App. 89-93).

The magnitude of this latter advese effect is 
best demonstrated by statistics. Of the 1,156 
jobs within the Works which prior to 1963 were limited exclusively to whites, only 1 0, or less than 
one percent, were placed in the pools. On the other 
hand, of the 751 jobs to which blacks had access 
prior to 1963, 385, or better than 51%, were placed 
in the pools (Exs. 7-15). The effect of this was 
still very evident as of the time of trial. The 
following set forth for all P&M employees at Fair- 
field Works as of February 6 , 1971, the total 
numbers who: (1 ) had established seniority in a
line of promotion above the pool; (2 ) had only 
seniority in the pool; and, (3) the percentage who 
had only pool seniority (Ex. 39, p. 635):

LOP Sen. Pool Sen. % Pool Sen. Only
White 5,247 647 11.0
Black 1,571 1,495 48.0

The percentage of white P&M employees who only
had pool seniority (1 1%) was as high as it was only 
because since 1963, pool jobs had served as the 
initial jobs for nearly all new P&M employees, regardless of race. Thus, as of 2/6/71, the 
median plant seniority date of the 647 white pool 
employees was only 2/18/69, or 2 years, while the 
median plant seniority date of black pool employees 
was 6/29/50, or more than 20 years (Ex. 107 1(5).
G. Br. 13-15.

II.
THE DISCRIMINATORY PRACTICES OF THE DEFENDANTS 
RESULTED IN SUBSTANTIAL LOST EARNINGS TO THE 
_______________AFFECTED CLASS_______________

It is clear, as the district court found, that the defendants
engaged in discriminatory practices which resulted in Blacks being
assigned to and unlawfully restricted to lower-paying jobs and

10



conversely to their being excluded or limited in their opportunity 
to receive training for and promotion to the better-paying jobs 
at the Company. [See Pi. Br. 14-16, A. 159-71, Section I, supra]
It is also clear that Blacks earned appreciably less than whites

15/with comparable seniority. The 3,404 black production and
maintenance ("P&M") workers who earned more than $3,500 for the
year 1970 averaged for that year $8,150.09 in gross earnings;
whereas, the 6,236 white P&M workers who earned more than $3,500
for the year 1970 averaged for that year $9,940.09, or $1,790 or

16/22% more than black workers. [X189, attached hereto as 
Appendix "A"]

The Company attempts, by various methods, to demonstrate
that the clearly inferior earnings of black employees at Fairfield
Works since July 1, 1965 has little or nothing to do with the
discriminatory practices. It may well be that some of the marked
difference in average hourly or gross earnings between black and
white workers is not due to the discriminatory practices at

17/
Fairfield Works, but rather to other factors. [See A. 160]
However, the question presently before this Court is not the specific

15/ The enormous disparity in earnings is graphically demon­
strated by X189 which is attached hereto as Appendix "A".
See also X101.
16/ The disparity in average hourly earnings is just as 
startling. [X 102]
17/ Of course, the reverse is also true. An individual black employee, given equal opportunity, may well have out-earned his 
white contemporary, rather than just equaling his earnings.

11



\

amount due the class of affected employees, or to a specific 
employee, but rather whether the defendants are liable to the 
affected class for economic loss suffered as a result of dis­
crimination. See Baxter v. Savannah Sugar Refining Corporation,
495 F .2d 437, 443-44 (5th Cir. 1974).

Nevertheless, it is necessary, for the sake of clarity and 
accuracy, to respond to some of the statements made by the Company 
concerning the statistical evidence, even though the relevancy
of those statements, if they in fact are relevant at all, goes to

18/questions of mitigation and not the question of liability.
The company primarily relies on the testimony of Dr. Gwartney, 

an economist, who testified as an expert witness, and whose find­
ings are incorporated in X1013. [C. Br. 11-19) U.S. Steel pre­
sents Dr. Gwartney's testimony, including his charts, to this
Court, as if the testimony went unrebutted and as if the district19/
court relied on Dr. Gwartney's testimony in denying back pay.

18/ The Company admits to some disparity in earnings between 
Blacks and whites. It is unnecessary on this appeal to argue 
that the greater disparity demonstrated by the exhibits of the 
plaintiffs are more accurate.

However, one gross inaccuracy should be clarified. The 
Company states that 246 pattern makers and transportation workers 
were erroneously included in the plaintiffs' statistics because 
these groups were not represented by the Steelworkers and were 
thus not involved in any of the consolidated actions. [C. Br. 9, n. 11] The "pattern and practice" suit was brought against United 
States Steel for discriminating against black employees, not just 
those represented by the Steelworkers. [A. 18-22] Similarly, the 
Ford class involves all black employees, not just those represented 
by the Steelworkers. [A. 128]
19/ The district court does not mention either Dr. Gwartney 
or his charts [X1013] anywhere in its decision denying back pay.
[A. 147-75]

12



Dr. Gwartney's testimony, as described by the Company, 
essentially purports to explain the earnings difference between 
Blacks and whites in terms of "productivity factors": several 
factors were quantified in terms of effect on earnings such as

2education and "freezes", i.e., the refusal of employees to promoteT
It is incredible that the Company represents Dr. Gwartney's

testimony on "freezing" as unrefuted when the district court
specifically ruled that the testimony of Dr. Gwartney on "freezing"
was so riddled with error that it had to be excluded from evi-

21/dence. [Tr. Vol. 50, Nov. 30, 1972, at 164-65, 239-243]
While the district court did not exclude Dr. Gwartney's 

conclusions, as set forth in X1013, concerning education, the 
Court stated that these conclusions of course were dependent upon

20/ Dr. Gwartney also compared the earnings of Blacks at U.S.Steel with the earnings of Blacks in the Birmingham area, the South, 
and the United States. [C. Br. 13-14, 37-40] This evidence is of no probative value.

Clearly the disparity in earnings between Blacks and whites 
in various labor markets was partly the result of discrimination 
within firms and partly the result of the fact that the black 
unemployment rate is almost twice that of whites. U.S. Census 
Bureau, Statistical Abstract of the United States (Washington, D.C., 1972), p. 221. Only the first type of discrimination is revealed 
in the comparison of earnings of Blacks and whites at Fairfield Works.

At most, Dr. Gwartney's method of comparison may be inter­preted to mean that the economic results of discrimination is some­
what less severe at U.S. Steel than at other firms. This Court 
has plainly held that even if an employer in "good faith" intended a policy of no discrimination if, in fact, the practices dis­
criminated, then the employer violated Title VII and is responsible for back pay. The argument advanced by U.S. Steel is not even one of 
good faith" — just that they may be a little less guilty than some.

2_1/ Pages 162-165 and 239-343 of Vol. 50, have been attached 
as Appendix "B" hereto for the convenience of the Court.

13



the data used to make the study. [Tr. Vol. 50, Nov. 30, 1972, 
at 240-41] On rebuttal the plaintiffs clearly demonstrated that
the educational level of Blacks had been consistently underre-

22/
presented in the data used by Dr. Gwartney.

In addition to the unreliability of the statistics used in 
X1013, Dr. Gwartney in attempting to establish the "cause" of the 
disparity in earnings between Blacks and whites, simply ignored 
important factors of discrimination. For example, he used "craft 
training" as a variable but did not examine the current dis­
criminatory effect of the discriminatory exclusion of Blacks from

23/training for or for promotion to craft jobs. Finally, Dr. 
Gwartney, even though he was aware that up until 1962-63 Blacks 
and whites were segregated into separate jobs and LOPs with Blacks 
generally in the lower-paying jobs, made no attempt to study the 
continuing economic impact of this discriminatory practice.
[Tr. Vol. 50, November 30, 1972, at 202-09] Dr. Gwartney's refusal 
to consider the major discriminatory practice of the defendants, the 
lock-in effect of the seniority system of a past segregated job 
assignment system, makes the study, X1013, irrelevant at best.

22/ Approximately fifty witnesses were put on by the plaintiffs 
who testified that their educational level was higher than represented 
in the statistics used to compile X1013. Tr. Vol. 52, December 4,
1972, 135-177, 247-8, 256-269; Vol. 53, December 5, 1973, 56-65, 124- 
128, 190-201; Vol. 54, December 6 , 1972, 2-6, 59-64, 237-41.
23/ See the district court's examination of Dr. Gwartney on this 
point, Vol. 50, Nov. 30, 1972, at 23-25 and also cross-examination, 
Vol. 50 at 192-199. These pages are attached hereto as Appendix "C".

14



The Company also relies on "post-trial statistics re­
quested by the Decree". [C. Br. 20-8] These statistics are not 
before this Court; the Court cannot properly evaluate evidence which
is over a thousand miles away and is only referred to in the form24/
of conclusory statements in defendant U.S. Steel's brief. More 
importantly, any evidence of post-trial promotions or refusals to 
promote cannot have any relevance to the question of liability, the 
only question before this Court; if such evidence has any relevance 
at all it is for the question of mitigation. On remand the dis­
trict court may properly decide if the evidence has relevance for

25/
the question of mitigation.

III.
IN LIGHT OF THE PLAINLY UNLAWFUL PRACTICES OF 
THE DEFENDANTS WHICH RESULTED IN SUBSTANTIAL 
ECONOMIC HARM TO THE AFFECTED CLASS, THIS COURT 
SHOULD REVERSE THE LOWER COURT'S DENIAL OF BACK PAY

The Union argues that the district court's denial of back
pay may be affirmed by this Court as a sound exercise of the court's
discretion under the principle of law enuniciated by the Court in
Pettway v. American Cast Iron Pipe Company, supra, and in Johnson v.

2 4/ As discussed in the section on Dr. Gwartney's testimony 
some of the statistical evidence presented by the Company at 
trial was not always reliable.
25/ Plaintiffs do not in any way admit the sweeping generali- 
i^tion drawn by the defendants from the post-trial reports. The validity, accuracy and interpretation of these reports may properly 
be explored at a remand hearing on the calculation of back pay.

15



Goodyear Tire & Rubber Co., supra. The union candidly admits 
that the lower court's reasons for denying back pay, e.g., the 
"good faith" of the defendants, difficulty of calculation, and 
"equitably determining the true balance of interests", have been 
declared by this court to be invalid reasons for denying com­
pensation for economic harm suffered by Blacks as a result of dis-

27/
criminatory employment practices. However, the Union attempts
to recast, at least in part, the district court's rationale for
denying back pay in terms of the "special circumstances" standard:

Once a court has determined that a plaintiff 
or complaining class has sustained economic loss from a discriminatory employment practice, back pay should normally be awarded unless 
special circumstances are present.
(footnote omitted).

* * *

The 'special circumstances' where an unjust 
result has prevented an award of back pay 
have been narrow.

Pettway v. American Cast Iron Pipe Company, supra 252-54.
In particular, the Union argues that the "unique litigation 

history" involving the steel industry creates a special exemption

26/

26/ U.S. Steel as set forth, supra, argues that the evidence does 
not support a finding of discrimination or alternatively that the 
discriminatory conduct did not result in economic harm. The Union 
does not deny that discriminatory practices at Fairfield Works 
resulted in economic harm to the affected class.
27/ Johnson v. Goodyear Tire & Rubber Company, 3upra; Pettway 
v. American Cast Iron Pipe Company, supra; Franks v. Bowman 
Transportation Company, 495 F.2d 398, 421-22 (5th Cir. 1974);
Baxter v. Savannah Sugar Refining Company, 495 F.2d 437, 442-44 
(5th cir. 1974): Duhon v. Goodyear Tire & Rubber Company, 494 F.2d 
817, 819 (5th Cir. 1974); Carey v. Greyhound Bus Co., Inc.,
No. 73-3133 (5th Cir. Sept. 26, 1974).

16



from judicial awards of back pay. (Union Br. 21-27) This argument 
is totally inconsistent with this Court's standard for awarding 
back pay which is firmly based on the fundamental purpose for such 
an award - to compensate the victims of discrimination.

The Court had made plain that the "unsettled" state of the 
law is no defense to a valid claim for back pay. Johnson y.
Goodyear Tire & Rubber Company, supra; Pettway v. American Cast 
Iron Pipe Company, supra; see also Pi. Br. 48-49. However, the 
Union proposes an imaginative expansion of the holding in Johnson 
that liability for back pay under 42 U.S.C. §1981 should not 
extend beyond the effective date of Title VII, July 2, 1965.
Johnson v. Goodyear Tire & Rubber company, supra at 1378. The 
Court founded this ruling on two grounds: (1) it was not until the
effective date of Title VII that "employers clearly became aware 
that they would be held accountable for employment discrimination", 
and (2 ) uniformity in the application of back pay is necessary.
Id. 1378-79.

On July 2, 1965 the steel companies just like other industries 
received notice that they would be responsible for their unlawful 
practices of discrimination . Furthermore, to establish different 
dates by industry, on the basis of district court interpretations 
of Title VII, for when back pay could be awarded would create a 
crazy quilt pattern: Blacks might be able to receive compensation 
for economic harm for example, after 1970 in the steel industry, 
after 1971 in foundry operations, after 1972 in the petro­
chemical industry, etc.

The gist of the Union position is that on the basis of 
Whitfield v. United Steelworkers, 267 F.2d 546 (5th Cir.1959),

17



an action brought pursuant to the duty of fair representation,
29 U.S.C. §§151 et seq., the United States v. H.K. Porter Corp­
oration . 296 F.Supp. 40 (N.D. Ala. 1968), U.S. Steel and the 
Steelworkers had a reasonable basis for believing that seniority 
systems in the steel industry were not in violation of the law.

It should be noted that this defense is closely analogous 
to the defense of American Cast Iron Pipe company ("ACIPCO") with 
respect to the use of the Wonderlic Test: ACIPCO argued thatp the
use of a professionally developed test, such as the Wonderlic, had

28/been held by various courts to be lawful. Of course, the Supreme 
Court rejected this argument in April, 1971. Griggs v. Duke Power 
Company, 401 U.S. 424 (1971) Shortly after the Supreme Court's 
decision ACIPCO ceased employment testing; yet the Court held ACIPCO
liable for all back pay discriminatory practices, including testing.

lPettway v. American Cast Iron Pipe Company, supra. See also 
United States v. Georgia Power company, 471 F.2d 906 (5th Cir. 1973) 
Moody v. Albemarle Paper Company. 474 F.2d 134 (4th Cir. 1973). 
Similarly, the unsettled law concerning steel seniority systems 
under Title VII may not be used as a defense to back pay claims.

Furthermore, this Court made it clear, years ago, contrary 
to the Union's assertion, that there was no exemption from Title VII 
for the seniority system in the steel industry. In Taylor v. Armco 
Steel Corporation, 429 F.2d 498 (5th Cir. 1970), which involved

28/ See Griggs'v. Duke Power Company, 420 F.2d 1125 
(4th Cir. 1970).

18



the same facility as the Whitfield action, the Court stated that 
seniority practices lawful under the duty of fair representation,
2 9 U.S.C. §§151 et_ seq., were not necessarily lawful under Title VII.

Moreover, when United States v. H.K. Porter Company, Inc.,
297

was argued, on April 21, 1970, the Court indicated from the bench 
"that major changes in the seniority and other systems at the plant 
were required in order to achieve compliance with Title VII"; the 
Court directed the parties to confer towards the purpose of pro­
viding the Court with a proposed decree. United States v. H.K.
Porter Company, Inc., 491 F.2d 1105 (1974).

Finally, the district court did not consider that the 
"unique" history of Title VII litigation in the steel industry pre­
cluded an award of back pay, since the court in fact awarded such
relief to sixty-one black workers. [A. 142-45] See also Bush v.30/
Lone Star Steel Company, 373 F.Supp. 526 (E.D. Tex. 1974)

IV.
31/THE CONSENT DECREES DO NOT PROVIDE ANY BASIS FOR 

DENYING BACK PAY TO THE AFFECTED CLASS___________
The defendants have incorrectly relied on the consent decrees

in their briefs. The Company maintains that assuming back pay is

2 9/ The Union was a defendant in that action.
3 0/ in fact, seniority systems in the steel system have been re­
peatedly found to have been in violation of Title VII. [A. 159-61]; 
United States v. H.K. Porter Company, supra; United States v. Beth­
lehem Steel Corp.. 446 F.2d 652 (2nd Cir. 1971); Bush v. Lone Star 
Steel Company, supra; Taylor v. Armco Steel Company, & EPD 1(9550 (S.D. 
Tex. 1973); In the Matter of Bethlehem Steel Corporation, Decision 
of the Secretary of Labor, Docket No. 102-68, January 15,1973 EPD 1(5128
31/ See 1-2, n.lr supra.

19



appropriate or required in this case, then the Court should simply 
approve the back pay awarded in the consent decrees. The Company 
represents to the court that "back pay has now been awarded by 
subsequent mofification of the trial court's decree". [C. Br. 67-68] 
This is not true. The defendants' motion, joined by the EEOC, to 
amend the Fairfield Decree to include the back pay provision in 
the consent decrees was denied by the district court at hearing on 
October 3, 1974. The plaintiffs-appellants argued, and the district 
court agreed, that it would be inappropriate, as well as beyond the 
authority of the district court, to incorporate the back pay pro­
visions of the consent decrees in the Fairfield Decree at this 
time with appeals pending before this Court concerning both the 
Fairfield Decree and the consent decrees.

The Company further maintains that the method utilized by 
the trial court to determine the award of "back pay in the Consent 
Decrees" is consistent with the guidelines established by this 
Court in Pettway. This argument distorts the carefully designed 
suggestions for calculating back pay set forth in Pettway.

The Court established a basic principle - the award of back 
pay should be calculated in order to restore the Blacks who 
suffered from discrimination to the economic status which they would 
have attained but for the unlawful practices of the defendants. 
Pettway v. American Cast Iron Pipe Company, supra at 252, 263.
The court also established two corollary principles to insure the 
award of full back pay:

20



Therefore, in computing a back pay award 
two principles are lucid: (1 ) unrealistic
exactitude is not required, (2 ) uncer­
tainties in determining what an employee 
would have earned but for the discrimina­
tion, should be resolved against the dis­
criminating employer, (footnotes omitted)

Pettway v. American Cast Iron Pipe Company, supra at 260-61, see
also Baxter v. Savannah Sugar Refining Corporation, 495 F.2d 437,

32/
445 (5th Cir. 1974).

The Company does not mention any of these principles in 
asserting that the settlement of back pay in the consent decrees 
was consistent with Pettway; rather, the Company relies on the 
single fact that the EEOC participated in the consent decrees and 
approved the back pay provision. In Pettway the Court, among other 
suggestions, proposed that the district court in determining back 
pay may want to refer the matter to a Special Master or to use the 
EEOC to 11 supervise settlement negotiations" or to aid in determining 
the amount of the award." (emphasis added) Id. at 258. Certainly, 
the Court did not mean to suggest the approach followed in this 
action. The EEOC, reached an agreement, after plaintiffs had 
filed their brief on appeal, with nine steel companies and the 
Steelworkers which provides a lump sum of back pay to all black, 
female and Spanish-surnamed Americans in the steel industry. The 
trial court did not in any meaningful sense approve the calculation 
of that award for the simple reason that the calculation of that 
award remains a total mystery. To this date there is no record

32/ See Pi. Br. 38-46.

21



of (1 ) how the award was calculated, (2 ) what period of time the 
award purports to cover, (3) the amount of the award which is de­
signated for black workers at Fairfield Works, or (4) the amount 
of money which any individual will receive at Fairfield Works. 
Pettway does not empower the EEOC to totally usurp the authority 
of the district court to determine what is an appropriate award, 
by an in camera negotiation procedure to which the real parties 
in interest, the black employees, are excluded, and reached by a
method of calculation which is not revealed to the court nor to

33/the plaintiffs. * 1 2 3

3 3/ it should also be noted that the $30.9 million settle­
ment figure for over 60,000 Black, female and Spanish—surnamed 
Americans appears on its face to be inadequate to provide full back pay. The consent decree figure provides for approx­imately $500 per person; whereas, the sixty-one employees who 
received back pay in these consolidated actions received over 
$200,000 in back pay or almost $3,300 per man. [A. 142-45]

Moreover, the consent decrees provide that in orderfor 
an employee to receive back pay he must execute a release which 
purports to waive, inter alia, certain prospective rights:

1. The right to sue for additional injunctive 
relief if the Decree does not eliminate the 
continuing effects of past discrimination.

2. The right to sue to enforce the Decreesif the defendants fail to comply with their 
provisions.

3. The right to sue for back pay or damages which 
may arise in the future by reason of the defendants' failure to eliminate the con­
tinuing effects of past discrimination.

The intervenors-appellants argue that such a waiver of pro­
spective rights is unlawful. Alexander v. Gardner-Denver Company. 
39 L.Ed.2d 147, 160 (1974). In any case plaintiffs,if they
prevail on this appeal# are entitled to full back pay without 
having to waive their rights to prospective relief.

22



Finally, the Company neglects to mention that the class
of black employees represented by Ford is broader thatn the class 
of black employees entitled to back pay under the consent decrees 
in three respects: (1) the Ford class includes all those Blacks
hired at the plant prior to January 1, 1973, whereas the consent 
decrees provide back pay for only those employed prior to January 
1 , 1968; (2 ) the consent decrees award back pay only to those
Blacks who were working at Fairfield Works on April 12, 1974 or 
who retired since 1971 (3) on pension, while the Ford class does
not exclude those who retired before April 12, 1972 or who did not 
retire on pension. /

V.
THIS APPEAL IS PROPERLY BEFORE THIS COURT

U.S. Steel challenges the propriety of the action of the
court below in expanding the class represented by the appellants
Ford et al. to include also those black employees whose interests
had been represented at the trial by the United States and who were
not also members of any of the other private action classes.

34/
(C. Br. 52-59).

We respectfully submit that these objections —  whether char­
acterized as relating to standing, to the creation of an invalid "felse'1 

class, or to an alleged conflict of interest -.are utterly specious.

34/ The Union expresses doubt as to this question but urges 
that these considerations not be allowed to serve as a barrier to 
the disposition of this appeal on the merits. (U. Br. 29, n.ll).

23



1 . First of all, the issue is pot before this Court,
The defendants could, of course, have appealed that portion of the 
decree of the court below that expanded the Ford class (A. 128), 
either before or within 14 days after service of appellants' notice 
on appeal. Rule 4(a), Federal Rules of Appellate Procedure. They 
elected not to do so. The correctness of the decision of the dis­
trict court with respect to the definition of the class may 
therefore not be raised in this court.

2. Even if the issue was properly here, this aspect of 
the decree, far from constituting reversible error, was a wise 
exercise of judicial discretion.

The decree came at the end of a consolidated trial, in which 
there were joined a number of private class actions and a govern­
ment "pattern and practice" action, all alleging racial discrimina­
tion in employment at United States Steel's Fairfield Works. The 
trial was conducted under a rule that evidence introduced in any 
part of the trial could be used where relevant in connection with 
any of the actions consolidated. The government case alleged 
plant-wide racial discrimination and asked for back pay for all 
victimized Blacks, as well as plant-wide injunctive relief. (A.
18 et seq.) Evidence was introduced relating to the loss of 
earnings by all black employees, not merely by those who were 
members of the classes represented in the private actions. See 
Section II, supra.

The district court decreed back pay for certain members of 
three private classes, while denying it to those employees repre —

24



sented only by the government. At the same time, the lower court 
took measures which would have the effect of ensuring that the
latter group would have an opportunity to test on appeal its denial

35/of relief to them. Since it was not certain whether the govern 
ment would continue to assert their rights on appeal and with 
the benefit of hindsight we can see how justified these doubts in 
fact were —  the court expanded the Ford class so that these 
employees would continue to receive adequate representation.

This procedure served the important interests of judicial 
economy and speed. The affected employees could probably have still 
instituted an independent action for relief, even at that late 
date. Williamson v. Bethlehem Steel Corp., 468 F.2d 1202 (2d Cir.
1972), cert, denied, 411 U.S. 973 (1973). But the issues had al­
ready been tried; to require their retrial would have been onerous
and wasteful.

The Company makes the inconsistent contention, in another 
part of its brief (pp. 77-87) that the decision denying these 
employees back pay is res judicata, although they were not, tech­
nically, parties. This is a dubious proposition. Cf. Gonzales 
v. Cassidy, 474 F.2d 67 (5th Cir. 1973); Williamson v. Bethlehem

35/ The district court recognized the importance of a full deter­
mination of appropriate relief for discrimination ; accordingly, t 
Tiwer cSu?t insured the right of the affected class to appeal 
similarly in United States v. Hayes International Corp., 456 F.2d 119 121 *(5th Cir 1972) the court considered that back pay was suchai integril^ert of a Title VII remedy that it required the issue to 
be fully determined on remand even though the question of back 
pay "was not specifically raised until the post-trial stage of 
litigation".

25



Steel Corp., supra. But if it is correct, it would be all the
more reason to ensure that this group of employees be given the
opportunity to test on appeal the correctness of the decision
adverse to them. The Company would make the adverse decision on
back pay binding upon these employees and at the same time deprive
them of their only effective opportunity to obtain its reversal.

While adjustment of the membership of a class at the end of
a litigation is unusual, it is not unique. See, e.g., Sproqis v.
United Air Lines. Inc.. 444 F.2d 1194, 1202 (7th Cir. 1971) cert

36/
Honied 404 U.S. 991 (1971); 7 Wright & Miller, Federal Practice
and Procedure §1754 (1972). Orders in the conduct of class actions
"may be altered or amended as may be desirable from time to time." 

37/Rule 23(d), Federal Rules of Civil Procedure ("FRCP"). "This 
passage emphasizes the judicial flexibility that characterizes 
the entire subdivision". 7A Wright & Miller, supra, §1791 (1972). 
The defendants in the instant case suffered neither surprise nor 
prejudice. In the context of this litigation, this exercise of 
judicial flexibility was entirely appropriate.

The arguments advanced by the Company as to Ford's standing
(Brief, pp. 52-55) are not in point. Ford was and is a black

36/ It should be noted that on remand the district court deter­
mined that a class action was not appropriate; however, the court 
relied on the fact that the claims of the class members were not 
presented at trial - a rationale which is plainly inappropriate to 
this appeal. Sproqis v. United Air Lines. 56 F.R.D. 420, 423 
(N.D. 111., 1972).
3 7/ it may also be sustained independently as "a class action 
with respect to particular issues". Rule 23(c)(4)(A), FRCP.

26



employee at the Fairfield Works of U.S. Steel, seeking redress 
for racial discrimination in employment. There is nothing .in­
appropriate in his representing a class of black employees at the 
Fairfield Works of United States Steel who also seek redress from 
racial discrimination in employment. Whehter the class represented 
by Ford should be only those in the Pratt City Car Shop, or should 
also include all or most of those in the rest of the Fairfield 
Works, involves only questions of discretion relating to efficient 
judicial administration —  not questions of standing. And there 
is nothing inherently inappropriate in a plant-wide class involv­
ing large numbers of employees. Cf. Pettway v. American Cast—Iroii
Pipe Co.. 494 F.2d 211 (5th Cir. 1974).

The fact that back pay was awarded by the district court to 
some of those in the Car Shop did not disqualify Ford from repre­
senting on appeal both the Car Shop employees —  in the event that 
they wished to appeal for greater relief or in the event that they 
were faced with an appeal by the defendants —  as well as other 
black employees with parallel claims for back pay. He was, as 
noted above, a member of the class of black employees at Fairfield 
claiming employment discrimination. And the question whether his 
claims were "typical of the claims . . .  of the class (Rule 23(a)) 
is similar to the question which he raises on the merits in this 
appeal - that those employees are equally entitled to back pay. 
Moreover, to satisfy that test it is not necessary that Ford's 
claims to back pay be identical in every particular with those of 
all members of his class; varying fact patterns or differences in

27



damages claimed are not barriers to serving as class repre­
sentative. See Arkansas Education Assn, v. Board of Education 
of Portland, 446 F.2d 763, 767 (8th Cir. 1971); 7 Wright & Miller, 
supra. §1764. Nor is the case one in which there is the slightest 
semblance of conflict of interest; back pay for one group of 
employees will not result in a reduced award to others, and the 
interests of all can be consistently and vigorously protected. The

ffact that Ford and some others from the Car Shop have now been paid
in full - stressed by the Company at p. 58 of its brief - does not
mean th^bhe is incapable of continuing to represent other members
of the class whose rights are still in dispute. Jenkins v. United

38/
Gas Corp., 400 F.2d 28 (5th Cir. 1968).

38/ Ford's intervention in the entirely separate matter of 
united States v. Alleaheny-Ludlum. Industries. Inc,. No. 74-3056, 
is entirely irrelevant in the instant case. Moreover, there is no inconsistency between his positions in the two cases. In 
Allegheny-Ludlum he is opposing a settlement, which violates the 
rights of black employees to full relief from employment dis­
crimination. His objective in both cases is identical - to secure 
for black employees all of their legal rights.

28



The added members of the class represented by Ford need 
more vigorous representation than the government apparently 
intends to accord them. The Court below felt that representation 
by Ford, and Ford's attorneys, would serve their interests 
best.

Respectfully submitted,

OSCAR W. ADAMS 
JAMES K. BAKER 
U. W. CLEMON

Suite 1600 - 2121 Building 
2121 Eighth Avenue North 
Birmingham, Alabama 35203

JACK GREENBERG JAMES M. NABRIT, III 
BARRY L. GOLDSTEIN

10 Columbus Circle 
Suite 2030

ALBERT J. ROSENTHAL New York, New York 10019435 West 116th Street 
New York, N.Y. 10027

Of Counsel
Attorneys for Plaintiffs-Appellants

29



CERTIFICATE OF SERVICE

I hereby certify that on this 11th day of October, 
1974, I served two copies of the foregoing Plaintiffs- 
Appellants1 Reply Brief upon each of the following counsel 
of record by depositing copies of same in the United States 
mail, adequate postage prepaid.

James R. Forman, Jr., Esq.
Thomas, Taliaferro, Forman, Burr & Murray 
1600 Bank for Savings Building Birmingham, Alabama 35203
Jerome A. Cooper, Esq.Cooper, Mitch & Crawford 
409 North 21st Street 
Birmingham, Alabama 35203
Demetrius C. Newton, Esq.
Suite 1722 - 2121 Building 
2121 Eighth Avenue North Birmingham, Alabama 35203
Beatrice RosenbergAssistant General Counsel
Equal Employment Opportunity Commission
Office of the General Counsel1206 New Hampshire Avenue, N.W.
Washington, D.C. 20506
Michael H. Gottesman, Esq.Bredhoof, Barr, Gottesman, Cohen & Peer 
1000 Connecticut Avenue 
Suite 1300 
Washington, D.C.

S b A c k k * , __________
Attorney for Plaint iffs-Appellants



f K f f l

APPENDIX "A"

Tut following sots forth the average gross earnings in _
* ■*' V*calendar year. 1970 for all active white and Negro PS-.M 

employees with gross earnings of $3*500.00 or more.

Year 8 i f  V/ Avg. V/hit9
35+ ' . 92 10,727.44 •79
34- 100 10,694.39 . 114
33 -146 ■ 11,006.78 123
32 i75 11,341.94 58
31 139 10,692.24 • 55
30 183 10,848.30 180
29 313 10,517.22 198
28 322 10,411.70 • 129

iAvg. Negro Difference - ."1 11 '•."i ■
8,635.60 2,091.84 .■••j;-'.• V \ .s '
8,507.42 

* 8,733.52
2,186.9? %

<0

2,268.26 '! V •
9,170.58 2,171-36 4  '
8,864.31 1,827.93;%;'
8,6o9.57 2,153.73iV;"?'

• 8,554.97 1,962.85^ _
, 8,288.27 ' f. 9 y  • f* J)

. l .

•
j.• * V.v 'V1 I

■ ''iV’v
■ mw.

" i'i ;y

A - /



j
i

luaxi
2.7

iL JiL

141
2 V. V ft • Will \j V 
10,206.78 1 0 5

i k v ̂
8
A.*;
,164.24‘ 2,122.54

' 1 l 26 174 . 10,527.76 100 0 ,582.59 1,945.37
1i 25 225 1 0 ,1 7 5 . 6 6 190 8 ,089.07 2,086.59

' i 24- 321 10,459.94- 282 8 ,198.58 * 2,241.56
-{' . . K 23 425 • 10,101.89 247 8 ,287.25 ' '1,814.66

i • 22 476 10,186.94- 258 8 ,117.12 5 2,069.82

21 274- 10,168.61 111 8 ,075.40 • 2,093.21
. i

r . 20 333 9,861.53 128 8 ,189.24 1,672.29

. . I * 19 299 9,826.79 157 8 ,257.01 1,589.78
• *9
i . 18 295 9,870.94 101 ' 8 ,354.07 1,516.87
ii

■■1
i

17 218 '10,119.07 75 8 ,565.53 1,555.54
16 5 8,658.85 0

I. •' • 15 1 3 2
9,852.45 .... 6 7-T530.01 . 2,302.44

• 1 
- 1 14 85 10,14-1.07 40 8 ,1 5 1 . 8 5 1,989.24

i • - 13 141 9,158.61' 65 .7,5 1 9 . 1 3 1,639.48«i
•vi •ii

12 6 . 10,736.17 0
11 145 9,191.69 55 8 ,228.15 965* 56

■1. i:•)• - j
. ’ i

10 82 9,301.85 14 7 ,651.37 1,670.46

9 25 9,825.97 1 6 ,467.61 3,356.36
• •. . • i 8 30 8,801.71 1 8 ,209.75 591.96
• ■ i 7 33 9,533.01 • 2 5 ,480.67 • • 4,052.34
S- * 6 153 9,305.41 77 7 ,536.58 1,768.83

5 -166 8,525.05 141 7 ,589.79 935.24
•J
X 4 72 0,970.76 39 7 ,544.79 1,425.97

•
3 111 7,945.11 101 7 ,222.52 722.79

1 2 129 8,457.54 35 ' 7 ,286.91 1,170.63
1 278 7,825.54 181 e>,864.45 959.11

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Federal Court Reporting Company 

409 Federal Building
Birmingham, Alabama APPENDIX B -Trt-

l

—

Q Let me get another quealon here with re-

16Z

2 garde to, for inetance, with the freeze data.

3 It your assumption that with regard to

4 researching that data and compiling it, that the

5 company devoted equal effort to finding whites 1

6 who had frosen and identifying them, and the data

7
Jand so on and so forth, that equal effort went into j

8 '
9 A Well, the freexe data are a little bit; they
10 are a little bit like apples as compared to an
11 orange, for this reason: that the freexe data have

_  12 to do with the individuals who were entered in

13 the court proceedings.
14 Now, whether it is true that the company I

15 q uite likely searched more diligently for black

16 freexes than white freexes, 1 think it is also

17 true that the government, including the government

18 attorneys, have a tendency to search more diligently1

19 for white freezes than black freezes.

20 T H E  COURT: I don't b e l i e v e  —  I don't

21 believe, Mr. Moore, we need to go into any more

22 details on the freexe situation. I think you can

23x_•
move on to something else.

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MR. MOORE: All right, Your Honor. I do hove;
on e more question with regard to the counting 
of temporary and permanent freezes, if I could.

In this freeze data. I don't know if you have 
that one before you. but one last question. I am 
showing you again Exhibit 880, the Exhibit indi­
cates , and it says so on it, that the nature of 
the freezes, whether the offer was for a permanent 
promotion, or temporary promotion, but if you 
will notice here on this 880, there are people I
who are shown to have declined a temporary pro­
motion; do you understand the difference between 
a temporary and permanent promotion?
A No; I don't.

Well, the word "temporary", sort of implies 
something. I take it that one of them is one that 
would be thought of as permanent promotion, and 
t emporary is one that would be altered at some 
future time, designated or undesignated, and beyond 
that I have no comprehension of what the technical 
term means in that case.
Q Do you understand that in the freeze infor­
mation supplied to you which appears in Table 15,

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namely the number of employees who have frozen, 
that they are both temporary and permanent freezes? 
A I did not put that data together; the discus­
sion never came up with me.
Q Well, with regard to Table 21, and the im­
pact of freeses, can you tell us whether or not in 
your opinion that Impact would be affected by 
whether or not the freezes which were counted, 
and went into the data that determined the ratio 
of white freeses to black freeses, that that data 
had situations in it where persons were declining 
simply on a one day temporary step up?

MR. MURRAY: Judge, he already asked this 
question several times, and the witness has 
already answered it; that is the first question 
he asked.

MR.MOORE: I haven't asked about temporary 
and permanent.

THE COURT: You have asked about it, and Mr. 
Moore, I am not going to allow or receive the 
portion of Tab£e, 21 relating to freezes.

Now, if you want to keep hammering on it, 
you awy, but I am going to rule in your favor on

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the freeze pert of Table 21. 
MR. MOORE: Yes, sir.

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Mr. Moor* 1* In error when he talk# about being an
i /

lapaet on*70 earnInga; he hao misstated the caae.
MR. MOORE: Table 20 earning*.
THE COURT: Are there other particular table*f

that you are referring to in that contest?
MR. MOORE: Of course, that i* in a —  in 

Table 21, the information that goes into Table 21, 
of course, came from Table 17, which says estimate 
impact of days in pool and missing bids amt of 
pool on annual earnings la 1970. ,

THE COURT: All right. i
MR. MOORE: And this is by testimony, la the iIfootnotes, in the exhibit connection to those, 

of course, I think —  well, that item, we would move
that that be stricken; I think that the reliability■
of these figures, that of course other testimony 
and other evidence goes much to the weight, but I 
believe —  or with regard to the testimony of an 
expert concerning a hypothetical that the reliablllt: 
of the information going into it, and that it is
the end product goes also to really its tieslblilt
and therefore, we object to t o o  that ground, to 
the admissibility of 1013.

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THE COI»T: Of course, you have other objections 
going to weight, which ere aot strictly objections 
but trgusests egnlast the weight.

MR. MOORE: Yes, sir.
THE COURT: Do private plaintiffs have ob­

jections In addition to those stated by the 
Goveraaent? /

MR. COAR: Your Honor, we object to Exhibit
Table 4, 5, and 7 on the grounds of relevancy and 
aaterlallty.

MR. MOGRE: We would, of course, object to
It on the grounds of relevancy and aaterlallty 
In light of particularly the testlnony which bears 
on the weight of it.

THE COURT: I aa going to overrule objections 
as to reIsrancy and aaterlallty as stated by the
parties.

I sustain the objection as to the part of 
Table 21 dealing with Job freeses for the reason 
that the coaparable figures in Table 15 which are 
used to support that are factually froo two dif­
ferent types of salsa Is, that is, the freeses, 
so to speak, blacks, and the freeses of whites, as



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derived from the record in the cose, that ore
|arrived at In two different ways; this court per­

mitted evidence of black freezing, whether or not 
they were passed by blacks or whites, but only 
in essence allowed evidence of white freezing,
If they were passed by blacks.

Furthermore, there was a difference la the 
cot-off date for the two categories, and to soae 
degree a difference In the effort at eempleteness 
of number of freezes, the end result being that 
the line one dealing with job freezes la attempting 
there to make measurements that go back to the 
guestions of number of blacks freezing, and number 
of whites freezing, simply cannot be compared based 
on the data upon which they are based.

Bow, I overrule the objections as to all the 
other items Insofar as data base Is concerned. As 
far as the educational data, of course, and the 
possibility the government may have other evidencev
at a later point to dispute the accuracy of the data 
about education that appears on the cards, employ­
ment record cards, even though It may be premature 
•t this time, nevertheless, what I see that this

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Federal Court Reporting Company
409 Federal Building

Birmingham, Alabama

•tody does isatteapt to Mtaare a correlation 
between educational data as shown on these euploy- 
•eat records versus earnings oa those —  versos 
earnings rather than showing a correlation between 
actual educational levels and earnings. Hew, if
there is a variance between actual education and«
the educational level shown on the euployaeat cards;'
this will go to the weight, but as far as this 
study is concerned, it can only be taken, as I
see it, as a Measure of correlation between the

. ‘ (
data given to the witness and that which he arrived 
at. It can't be given wore than that. How, insofar

ias the use of post-1970 data, for exaaple, in the 
refusals to bid, I do not see this as a reason to 
elininate the study aade; it would, for exaaple, 
be possible to look at earnings in 1970 and see if 
there is a correlation between that and refusals 
to bid that took place solely after 1970. How, 
if there is a correlation that nay have sene signi­
ficance, enough to prove that poet *70 refusals 
to bid were a cause of difference in earnings, 
because obviously they couldn't be a cause, but the 
post 1970 refusals to bid could be a result of name



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Federal Court Reporting Company
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other factor which in turn woo a cease for the 
earning differential that Is involved*

The study, as I see it, that is being pre­
sented, is not ultimately a study that is being 
presented in causation, but a study of correlation 
between the factors.

It is up to the court after hearing argument 
and hearing a 11 the evidence to make such deter­
minations as are needed to causation.

Furthermore, as an example, that this wit­
ness has found some statistical significance -in 
correlation between quantity of schooling and 
earning# does not mean that that indicates, or at 
least to that extent, a lack of discrimination on 
the part of the employer for the reason that school 
requirements in essence cannot be, at this point 
in time, used as a determinant of earnings by a 
company, that is, a qualification unless there is 
a violation of such a requirement to the extent then 
that any educational requirements, for example, 
may have contributed to a difference in earnings. 
This may be so, but it doesn't indicate whether it 
is discriminatory or non-dlscrlmlnatory. I am



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saylug all of this to indicate th« limitations I 
its opon the study; 1 think it is of soma value, 
but it doas not ultimately answer the question, 
even assuming the probative value of the statistics 
as to causation, or whether there is dlscriainatlon 
that now is prohibited by law; I should say this: 
that as I see the study made and educational 
measurement, for example, may have aa Influence, 
for example, on an employee *s perceived ability 
or capability to do a job, it may have a bearing 
on the esq»loyee*s attitude and motivation, and 
it nay have other iaqpacts. So, that although the 
study attempts to look at measurable 
14 Is not necessarily the same criteria that 

the court is going to have to look at.
How, with that rather lengthy explanation of 

the ruling, 1 do receive the balance of Exhibit 
1013 into evidence with the exception of the 
part dealing with job freuses.

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federal Court Reporting Company
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Birmingham. Alabama APPENDIX "C"

plumber. He works perhaps as an a p prentice, 

then wor k s  his way up from the a p p r e n t i c e  to a 

skilled carpenter an d  acqu i r e s  skill. And that 

this takes place for a period of ten years Just 

as a h y p o t h e t i c a l  —  I could have used two.

It di d n ' t  make that much difference. But ifwe 

look at these two i n dividuals ten years later 

while the firm has followed this d i s c r i m i n a t o r y  

policy, ten years later these i n d ividuals in 

terms of p r o d u c t i v i t y  c h a r a c t e r i s t i c s  and their 

c u r rent p r o d u c t i v i t y  c h a r a c t e r i s t i c s  a r e  d i f f e r e n t  

individuals. One individual is hi g h e r  skilled 

than the other, even though had the first 

individual, A, been g i v e n  the same e m p l o y m e n t  

o p p o r t u n i t i e s  that tfen years later he very well 

would have had the same skill level ad the 

individual B. No w  --

THE COURT: Let me stop y o u  there. Isn't

that a p r e s e n t  ef f e c t  of past d i s c r i m i n a t i o n  

rather than past effect of past disc r i m i n a t i o n ,  

the e x ample y o u  have just used?

A  Wel l ,  it will h a v e  a present e f f e c t  on

product i v i t y ,  but in terms of its impact on



earnings, the impact on earnings is because of 

the past discrimination. So I'm talking about 

the impact pf earnings.

THE COURT: The past d i m i n u t i o n  in

earnings is a past effect, but viewed let's 

say at this mo m e n t  the empl o y e e  A  is still let's 

say the janitor.

A  Uh h u h .

THE COURT: N o w  is the current income

level, is a c u r r e n t  e f f e c t  a present effect?

A That's right.

THE COURT: It may be caused by the

past d i s c r i m ination.

A Right. That's right.

THE COURT: It seems to me that, and I don't 

know w h e t h e r  you in your factors w h e r e  y o u  list 

factor 25 and 26, 25 y o u  say past effects of 

past employer disc r i m i n a t i o n ,  and 26 y o u  say 

c u rrent employ m e n t  d i s c r i m i n a t i o n ?

A Yes.

^ THE COURT: D o  y o u  include w i t h i n

factor 26 present effects of past employer
* :

d i s c r i m i n a t i o n  or do y o u  just leave that out?

Federal Court Reporting Company
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A  P r esent on earnings.

THE COURT: Yes.

A  No. I would say that that factor —

well, because the individuals have d i f f e r e n t  

p r o d u ctivity at the time, now that —  may I 

j u s t  go one step further in terms of a couple 

of h y p o t h e t i c a l  cases?

S t i c k i n g  with my e x a m p l e  of the A  and B 

d i s c r i m i n a t i o n  in say forty and ten years of 

d i s c r i m i n a t o r y  policy at 1950, y o u  h a v e  an 

individual A  wh o  is sure of these kinds o f  

skills that will be r e w a r d e d  in the labor market, 

w h e t h e r  firm A  rewards them or not, and the 

individual B has more of these kinds of skills.

If the f i r m  at that time begins an 

equal o p p o r t u n i t y  policy that they ar e  g o i n g  to 

treat employees w h o  b e g i n n i n g  on J a n u a r y  1, 1950, 

in the h y p o t h e t i c a l  case, equal e m p loyees equally, 

that those two indiv i d u a l s  are no longer as of 

1950, and we w o u l d  expect the equal o p p o r t u n i t y  

policy wou l d  n o t  lead to the equal earnings on 

J a n u a r y  1, b e t ween those two employees. Now 

let me make one other point. I think this

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Birmingham, Alabama

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n o t  « w a r e  that on e  c o u l d  not enter w i t h o u t  ha v i n g  
go through --

Q A l l  right, air. You are a w a r e  that la a
w a y ?

A  Yea.

Q A l l  right. G o  ahead. Now y o u  were

e x p l a i n i n g  w h y  -- your u n d e r a t a n d i n g  of w h y  the 
figurea are as t h ^  a r e ?

A  Well, I waa m e r e l y  aaying lots of factors

a r e  u n d o u b t e d l y  irrelevant. One ia the r e p r e ­

s e n tation of blacks a m o n g  the® w i t h  c r a f t  

training in the local labor market. A s  to others ! 

would r e q uire a much more d e t a i l e d  a n a l y s i s  

than w h a t  I h a v e  done to indicate p r e cisely  

w h y  you have the u h d e r - r e r p e s e n t a t i o n  indicated.

Q N o w  the record in this case —  well, let

«e a a k  y o u  a hypothetical.. As s u m e  that prior 

to 1963 that as a ma t t e r  of policy the c o m p a n y  

re s t r i c t e d  some 98 percent of all trade and 

craft positions solely to members of the w h i t e  

race, that they were jobs n o t  open to blacks.

A s s u m e  that that is so. W o u l d  you consi d e r  —  

well, that w o u l d  of c o u r s e  be a relevant factor

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in explaining thi* difference?
A That 's right. And would Indicate that
discriminatory employment practices were being 
followed before 1962.
Q All right. And with regards to the
impact of lack of trade and craft training 
which is estimated in Table 21, if -- and I 
assume you to assume this for a hypothetical, 
if the company was obligated to train blacks 
to become trade and craftsmen on an equal basis 
with whites, and further were even obligated 
to correct the effects of this past discrimination 
we just discussed, and assume further that they

i
failed to do so, then could these magnitude 
figuces in Table 21 be considered to be figures, 
the cause of which is directly traceable to 
the company?
A 1 think here, and this really relates
to an earlier point of discussion, that the 
distinction between a policy that was followed 
prior to 1962 and policies followed after that
time would be very important. The firm of -- 
if under your hypothetical assumption, excluded

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blacks from moving into these occupatio ns 
before 1962, was following discriminatory 
policy at that time, and you have an under­
representation, now as to whether or not 
since that time that their policies have been 
further discriminatory or their policies have 
not tended to bring about an increase in 
representation as blacks as rapidly as m$ght 
be expected under equal opportunity policy, 
one would have to know something there seems 
to me about job openings and about applications 
of blacks for craft jobs, vis-a-vis blacks 
turned down for craft jobs, and that was data 
simply not at my disposal.
Q Assuming the hypothetical that I posed
to you, and that there had been opportunities, 
number unknown to you, but some opportunities 
not utilised by the company, that is blacks 
didn't get those opportunities to train, then 
some of this impact here, the exact magnitude 
unknown, would be due to that policy of the 
company,.would it not?
A If by opportunities you're saying that



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the company had an equally qualified black and 
equally qualified white, and they chose the 
black under your set of circumstances would be 
true. If the company had a white that had 
better qualifications than might talk —  might 
talk about what we mean by better qualifications.
I don't mean to make a judgment about that. But 
if under reasonable criteria that the white had 
better qualifications, certainly equal opportunity 
would not mean giving it to the individual who 
had inferior qualifications even though he was 
black. Certainly the fact he was black would 
have nothing to do —
Q My hypothetical did not go to qualifications,
and let me however inject qualifications into
the hypothetical. Assume that amongst all of
the blacks whom there are approximately 4,000 —
3,906, that there are blKks at Fairfield Works
who desire to become trade and craftsmen, and
who have the qualifications to become trade
and craftsmen, assuming that fact, and that
there had been apprenticeship openings over
the years w h i c h  were filled by whites, w h i c h



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could have been filled by blacks, aad therefore 
could have partly redressed this imbalance 
which exists today; assuming that, then this 
craft training estimate impact of that factor 
in the black~whlte earnings differential would 
be traceable to the failure of the company to 
utilise those apprenticeship openings opportunities 
for blacks, couldn't it?
A What apparently you fail to recognise
his qualifications are a relative thing. If 

for example we had blacks who were qualified 
to be lawyers for the Justice Department and -- 
Q Wait. Can't we just stick with the
Fairfield Works question that I have asked you, 
and the hypothetical?
A Excuse me. If it appeared I was attempting
to go on a path not directly in response to 
the question, but qualifications are a relative 
thing. There are people who are qualif led to 
be plumbers, but some people due to training 
factors, due to other factors that relate to 
being a quality plumber of superior qualifications 
to others, it is hot just a question of being

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able to perform the task. Qualifications are 
al«#ays a relative thing.
Q Let's assume they are equal.
A That was my original assumption that under
cases of equal qualifications, if blacks are 
turned down relative to whites, that would not 
be an equal opportunity policy. That was ay 
original case.
Q Right. And then insofar as they fail
to use those opportunities with blacks, then 
some of this differential is traceable to 
company*8 —  company failure?
A Let me say what an economist would mean
by equal employment opportunity policy, would 
be different from what the legal profession 
would mean, and the Judge will have to make a 
judgment on this.

But what an economist would mean is you 
would expect that race between people who have 
equal qualifications would not be relevant.
That there would be random choices of people, 
blacks and whites in cases of equal -- equal 
qualifications. Now my own view would be —  ay

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own preference would be, and I would hope 
that the company would follow this policy, 
giving the unrepresentation of blacks in 
these areas that have given me equal quail* 
fications, that the black would always be 
given the benefit of the doubt. That would be 
ay own preference^ but that would —  that 
would indicate favorable type of treatment 
that I would happen to be in agreement with. 
But it would not be ~  would not be a -- equal 
opportunity the way the economist use it would 
be at random.



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Q Because, to gat away from that economist 
view of equal opportunity, let's just assume that 
they have an obligation to upgrade blacks, and had 
missed —  that is, upgrade, and these would be 
trade and craft, and they have failed to do so, 
and then, Insofar as that is true, this estimated 
impact of trade and craft training on black and 
white earnings differential would be traceable 
to that company, the cosy any '■ failure in that re­
gard, would it not?
A Well, I suppose the answer to your question 
is yes, Mr. Moore.

You are asking me a question of something I 
am not qualified to answer. I am an economist, 
and I can only give an economist view.
Q All right.

Doctor, that brings op another thing. You 
testified that your instructions were to determine 
whether or not —  let's see if I can get a little 
closer to what you said.

I believe you said that your instructions 
were todetermine the following questions: are
current employment practices at Fairfield Works

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