Pullman Standard Incorporated v. Swint Respondent's Brief in Opposition

    Nos. 80-1190, 80-1193

1st the

l$>u$jrpmp (Enurt of tty Intfpft £>tate
October T erm, 1980

P ullman-Standard, a Division of Pullman, Incorporated,
Petitioner, No. 80-1190,

Dotted Steelworkers of A merica, APL-CIO and 
L ocal 1466, Dotted Steelworkers of A merica, AFL-CIO,

Petitioners, No. 80-1193,

Loins Sw int and W illie Johnson, et al.,
Respondents.

BRIEF IN OPPOSITION

Jack Greenberg 
James M. Nabrit, III 
Judith Reed 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

Elaine R. Jones*
Barry L. Goldstein 

Suite 940
806 15th. Street, N.W. 
Washington, D.C. 20005

Oscar W. A dams, III
2121 Eighth Avenue, North 
Birmingham, Alabama 35203

Attorneys for Respondents

* Counsel of Record



TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................... i i

STATEMENT OF THE CASE ........................................ 1

REASONS FOR DENYING THE WRIT ...........................  6

ARGUMENT

I.  IN HOLDING THAT THE SENIORITY SYSTEM 
WAS UNLAWFUL, THE FIFTH CIRCUIT PRO­
PERLY APPLIED THIS COURT'S DECISION 
IN TEAMSTERS v. UNITED STATES ............... 8

Page

I I .  IN REVIEWING THE DISTRICT COURT'S
DECISION, THE FIFTH CIRCUIT PROPERLY 
DISCHARGED ITS FUNCTION UNDER RULE 
52(a) IN A MANNER CONSISTENT WITH 
THE DECISIONS OF THIS COURT AND WITH 
THE DECISIONS OF OTHER CIRCUITS ........... 21

H I .  IN CONCLUDING THAT THE COMPANY UNLAW­
FULLY DISCRIMINATED IN THE SELECTION 
OF SUPERVISORS, THE FIFTH CIRCUIT 
FOLLOWED THE PRINCIPLES ESTABLISHED 
BY THIS COURT IN A MANNER CONSISTENT 
WITH THE APPLICATION OF THESE PRINCI­
PLES BY OTHER CIRCUITS ...........................  29

CONCLUSION 34



- i i -

TABLE OF AUTHORITIES
Cases

Asbestos Workers Local 53 v. Volger,
407 F.2d 1047 (5th Clr. 1969)...........

Baumgartner v. United States, 322 U.S. 
665 (1943) ...........................................

Bostic v. Boorstin, 617 F.2d 871 (D.C. 
Cir. 1980) ...........................................

Causey v. Ford Motor Co., 516 F.2d 416 
(5th Cir. 1975) .................................

Dayton v. Bd. of Educ. v. Brinkman, 443 
U.S. 526 (1976) ..................................

Duckett v. Silberman, 568 F.2d 1020
(2nd Cir. 1978) ..................................

East v. Romine, Inc., 518 F.2d 332
(5th Cir. 1975) ..................................

EEOC v. Chesapeake & Ohio Ry. Co., 577 
F.2d 229 (4th Cir. 1978) ..................

Griggs v. Duke Power Co., 401 U.S. 424 
(1971) .................................................

International Brotherhood of Teamsters 
v. United States, 431 U.S. 324 
(1977) ..................................................

Kelley v. Southern Pacific Co., 419
U.S. 318 (1974) ..................................

33

22

29

22

24,27

28

22

28

7,33

passim

Page

25



- i i i -

Page

Keyes v. School District No. 1,
Denver, 413 U.S. 189 (1973) ................  17

Kunda v. Muhlenberg College, 621 F.2d
532 (3rd Cir. 1980) ............................... 28

Mt. Healthy City Bd. of Educ. v. Doyle,
429 U.S. 274 (1977) ............................... 20

National Labor Relations Board v.
Pittsburgh S.S. Co., 337 U.S.
656 (1949) ............................................... 27

Norris v. Alabama, 294 U.S. 587 (1934)... 23

Pack v. Energy Research & Development 
Administration, 566 F.2d 1111 
(9th Cir. 1977) ...................................... 28

Silberhorn v. Gen. Iron Works Co.,
584 F.2d 970 (10th Cir. 1978) ............. 29

Sweeney v. Board of Trustees of 
Keene State College, 604 F.2d 
106 (1st Cir. 1979) .......................   28

United States v. Board of School
Comm’rs, 573 F.2d 400 (7th C ir . ) ,
cert, denied, 439 U.S. 824 (1978) . . . .  17

United States v. General Motors, 384
U.S. 127 (1966) ....................................  23,25,26

United States v. Johnston, 268 U.S.
220 (1925) .............................................. 7



United States v. Oregon State Medical
Society, 343 U.S. 326 (1952) ................  26

United States v. Parke, Davis & Co.,
362 U.S. 29 (1960) ..................................  25

United States v. U.S. Gypsum Co.,
333 U.S. 365 (1948) ............................ 7,22

United States v. Yellow Cab Co., 338
U.S. 341 (1949) .......................................  26,27

Village of Arlington Heights v. Metro­
politan Housing Development Corpora­
tion, 429 U.S. 252 (1977) ...................... 17

Washington v. Davis, 426 U.S. 229 (1976).. 11

OTHER AUTHORITIES

Civil Rights Act of 1866, U.S.C. §1981 . . .  2

Rule 52(a) Fed.R.Civ.P. 6,23,25

Title VII of the Civil Rights Act of
1964, 42 U.S.C. §2000e 2,8,14

- i v -
Page



Nos. 80-1190, 80-1193

IN THE

SUPREME COURT OF THE UNITED STATES 

October Term, 1980

PULLMAN-STANDARD, a Division of 
Pullman, Incorporated,

Petitioner, No. 80-1190,

UNITED STEELWORKERS OF AMERICA, AFL-CIO 
and LOCAL 1466, UNITED STEELWORKERS OF 
AMERICA, AFL-CIO,

Petitioners, No. 80-1193,

v.

LOUIS SWINT and WILLIE JOHNSON, et a l . ,

Respondents.

BRIEF IN OPPOSITION 

STATEMENT OF THE CASE

The respondents, on their own behalf and on 

the behalf of other black employees, fi led this 

suit against Pullman—Standard (the "company ), the



2

United Steelworkers of America and its  Local 

1466 ("Steelworkers" or "USW") and the Interna­
tional Association of Machinists ("IAM")— asser­

ting violations of Title VII of the Civil Rights 

Act of 1964 (as amended 1972), 42 U.S. C. § 2000e 

and the Civil  Rights Act of 1866 U.S.C. § 1981. 

Pullman-Standard and the Steelworkers have each 

filed a petition for a writ of certiorari.

The d is t r ic t  court found that there was a
"segregation of jobs [at the Bessemer plant of

Pullman-Standard] prior to March 1965 -  which
certainly must be taken as an employment practice

and policy, whether or not ever formally approved
by company and union .... If all the jobs of a
department wre 'consigned1 to employees of the

same race, the department was, of course, totally
2 /segregated...." A 197.— Both courts below held 

that racial segregation was practiced in every 

conceivable aspect of employment at the Bessemer

1/ By pretrial  order, leave was granted to add 
YAM as a defendant for the purpose of enabling the 
court to fashion a fu l l  remedy. See App. A, one 
of two apprendices to this Brief.

2/ "A" refers to the "Appendix to Petition for
Writ of Certiorari" submitted by Pullman-Standard.



plant.— The Fifth Circuit also ruled that 

"racial segregation was extensively practiced at 

Pullman-Standard [and] in the union h a l l . . . . "  A 

168. The pre-1965 discrimination covered assign­

ments to jobs "in varying degrees [in] virtually
4/

every department." A 106-107.—

The major issues l i t ig a ted  in the lower 

courts concerned whether the discriminatory

-  3 -

3 /

3/ The district court made the following find­
ings :

Bathhouses, locker rooms, and toilet fa c i l i ­
t ies were rac ia l ly  segregated. Company 
records -  including employee rosters,  in ­
ternal correspondence, records of negotiation 
sessions, l i s t s  of persons picketing -  
included racial designations. In 1941 some 
of the 'mixed' jobs even had different wage 
sca le s  fo r  whites and b lacks .  A l l  of  
the Company's o f f i c i a l s ,  supervisors and 
foremen were white. Union meetings were 
conducted with different sides of the hall 
for white and black members, and social  
functions of the union were also segregated. 
(A 142.)

4/ In its petition (p. 6), the company misrepre­
sents the district court's finding on discrimi­
natory assignments by re ferr ing  to its  1974 
opinion. In i t s  later  opinion, which is the 
subject of this proceeding, the court reversed its 
position, see A 106-97.



assignments to production and maintenance jobs— 

and discriminatory supervisory selection proce­

dures continued during the period covered by this 

lawsuit and whether the seniority system was 

unlawful. T r ia l  proceeded on three separate 

occasions. The init ia l  1974 tr ia l  lasted 16 days. 
The district court concluded that the company and 

unions had not engaged in unlawful practices A 

1-44), but the Fifth Circuit vacated the decision 

and remanded the case for further tr ia l  proceed-

5/ Neither the company nor the union raise the 
Tssue of post-Act discriminatory assignments in 
their statement of questions presented. Neverthe­
less,  the company, in i t s  statement of facts,  
maintains that the Fifth Circuit wrongly concluded 
that assignments were made on a discriminatory 
basis after 1965. Co. Pet. 18-20. This is in 
f l a t  contradiction to i t s  own admission that 
during this period 47 whites and 3 blacks were 
assigned to the Die and Tool (IAM) department, Co. 
Pet 18. These statistics demonstrate the dis­
crimination even more c lear ly  than those upon 
which the Fifth  Circuit relies.^ They also 
i llustrate the correctness of the Fifth Circuit's 
holding that the district court, in the company's 
own words, erred "in counting." Co. Pet. 20. 
Compare A 108-09 with a 162-63; see also PX 2-8, 
which support the Fifth Circuit's conclusion that 
there was discrimination in assignment.



ings. A 45-99. A second t r i a l  was held over 

two days in February 1977. The district court 
delayed ruling until after this Court rendered its 

decision in International Brotherhood of Teamsters 

v. United States, 431 U.S. 324 ( 1 9 7 7 ) ,  and then, 

once again held that no unlawful pratices had been 

committed. A 100-23. The plaintiffs  moved for a 

new tr ia l  because Teamsters had altered the legal 
standard for determining the validity of a sen­

iority system and, accordingly, there had been no 

evidence presented in the prior two trials rela­

ting to the bona fides of the seniority system. 
The d i s t r ic t  court agreed (A 134-27), and an 

evidentiary hearing was held. The hearing 

on the Teamsters issue lasted less than a day

and oral testimony was presented by only two
6/witnesses.— The oral testimony was limited, but 

extensive documentary evidence was presented 

covering the institution, development and main­
tenance of the seniority system from 1941 to the 

present.
The district court found that the system was 

"bona fide" and lawful even though it adversely

-  5 -

6/ See, infra, Argument, Pt. I I .



6

affects  the employment opportunities of black 

workers. A 128-52. The Fifth Circuit reversed 

because " [ a ]n  analysis of the to ta l i ty  of the 

facts and circumstances surrounding the creation 

and continuance of the departmental system at 

Pullman-Standard leaves us with the definite and 

firm conviction that a mistake has been made" 

[footnote omitted], A 170. The Fifth Circuit 

also held that the lower court erred in concluding 

that the company had not discriminated in the 

assignment of employees and in the selection of 

supervisors. A 153-79.

REASONS FOR DENYING THE WRIT

The questions presented by the Steelworkers 

and Pullman-Standard challenge the Fifth Circuit's 

ruling on sen io r ity .—̂  The company also chal­
lenges the Fifth Circuit's ruling on the selection 

of supervisors. The petitions are not due to be 

granted because they present no conflict of

7/ One of the questions presented by the Steel­
workers is cast in terms of Rule 52(a), Fed. R. 
Civ. P.



7

decisions among the circuits— and because they
present no confl ict  with decisions of this 

9/Court.— Moreover, the decision of the Fifth  

Circuit reaches a proper result  on the facts  

of this case. In any event, the Fifth Circuit 

opinion raises no important or new issues of law 

but rather applies this Court's decisions in 

Teamsters v. United States, supra, and Griggs v . 

Duke Power Co. , 401 U.S. 424 (1971), to a complex 

factual situation (Sections I and I I I ,  i n f r a ) ^

8/ The company does not even assert that the 
case presents a conflict of decisions. The 
Steelworkers erroneously assert that the Fifth 
Circuit's application of Rule 52(a) conflicts with 
the application of the Rule by other circuits. 
The Fifth Circuits's decision not only is consis­
tent with decisions of other circuits but also 
expressly follows a seminal decision of this 
Court, United States v. U.S. Gypsum Co., 333 U.S. 
364 (1948), interpreting Rule 52(a). See Section 
II ,  infra.

9J As described in the Argument, the asserted 
conflicts disappear when this Court's opinions are 
properly applied to this case.

10/ Essentially petitioners ask this Court to 
perform the appellate court function of "review- 
ting] the evidence and discuss [ ing]  specific  
facts." United States v. Johnston, 268 U.S. 220, 
227 (1925).



-  8 -

ARGUMENT

I.

IN HOLDING THAT THE SENIORITY SYSTEM WAS 
UNLAWFUL, THE FIFTH CIRCUIT PROPERLY APPLIED 
THIS COURT'S DECISION IN TEAMSTERS v. UNITED 
STATES.

This Court in International Brotherhood of 

Teamsters v. United States, 431 U.S. 324 (1977), 

neither condemned nor condoned a l l  seniority  

systems which perpetuate the effects of pre-Act 

discrimination. I d . at 353-55. "To be sure, 
§703(h) does not immunize a l l  seniority systems," 

i d . at 353. Section 703(h) covers only "bona 

fide" systems; it  specifically excludes any system 

in which differences in treatment are "the 

result of an intention to discriminate because of

race____" 42 U.S.C §2000e-2(h) In ruling that

the system in Teamsters was protected by § 703(h) 

the Court examined several factors: whether 

the system "applies equally to a l l  races," whether 
i t  is " in  accord with the industry practice  

and consistent with National Labor Relations 

Board precedents," whether it  had "its genesis in 

rac ia l  discrimination, " and whether " i t  was 

negotiated and has been maintained free from any



i l lega l  purpose." 431 U.S. at 355-56; 346 n.28. 

The Fifth Circuit applied these Teamsters factors

to the particular employment context presented at
, 12 /the Bessemer plant.—

1. Neutra l i ty . The undisputed evidence 

establishes that the trad it iona l ly  a l l -b lack  

departments have the lowest median job classes at 

the Company; the traditionally white departments 

(with two exceptions) have among the highest 

median job classes. The district court recognized 

that the "No transfer with seniority carryover" 
rule has the l ike ly  e f fect  of discouraging a 

disproportionate number of black employees from

-  9 -

11/ Application of these factors by the Fifth 
Circuit necessarily required a careful review of 
the record. While respondents are reluctant to 
burden this Court with a factual recital, both 
petitions were riddled with statements that are 
direct ly  contrary to the record. Respondents, 
therefore, are constrained to set forth the 
record facts on the seniority system, which 
appear in Appendix B to this b r ie f  (App. B).
12/ The Steelworkers claim the the Fifth Cir­
cuit's decision "robs § 703(h) .. of the content 
which this Court . . .  found that Congress meant to 
give i t . "  USW Pet. 23. On the contrary, the 
Fifth Circuit followed the balanced approach which 
this Court applied in Teamsters.



10

transferring, i f  the relative economic desira­

bi l ity  of the departments is considered. A 134. 

However, the Court f e l t  i t  "inappropriate" to 

consider economic d e s i r a b i l i t y ,  and found the 

system to be neutral because in effect, it  locks 

white employees out of the lower-paying black 

departments to the same extent that it locks black 

employees out of the higher-paying departments. 

It disregarded the distinction that in Teamsters, 
the employees who were "discouraged from transfer­

ring . . .  [were] not a l l  Negroes and Spanish- 
surnamed Americans [but] the overwhelming majority 

[were] white." 431 U.S at 356.
Here the evidentiary facts are not in dis­

pute and the Court of Appeals properly reversed 

the district court, which committed legal error in 

fail ing even to consider the inference of inten­

tional racial discrimination raised by the fact

that the seniority system excluded blacks from
13/higher-paying departments.---- A 165-166, see

13/ The Steelworkers distort the Fifth Circuit's 
statement that blacks were excluded by the first  
Steelworkers' contract from "better jobs." USW 
Pet. 16 n.9. The Fifth Circuit was referring to 
the fact that the departmental system was estab­
lished by the contract and that there were several



11

Washington v. Davis, 426 U.S 229, 242 (1976) 

( " I n ] ece s sa r i ly , an invidious discriminatory 

purpose may often be inferred from the totality 

of the relevant facts, including the fact, i f  

true, that the law bears more heavily on one race 

than another").

2. Rat iona l ity . I t  is  undisputed that 

unionization and creation of the seniority system 

resulted in the separation of two racially mixed 

operational departments, the Die and Tool Depart­

ment and the Maintenance Department, into four 

separate seniority units, including three one-race 

departments, A 136, A 166; App. B 9. The lower- 

paying jobs consigned to blacks were included in 

the Steelworkers unit while the higher-paying

13/ continued

all-white departments. The requirement that an 
employee fo r f e i t  seniority upon transferring  
departments (A 131, 158), served as a bar to 
transfer and thus excluded blacks from the better 
paying jobs in the all-white departments. The 
Steelworkers further erroneously criticize the 
Fifth Circuit in stating that it wrongly referred 
to a "no transfer rule." USW Pet. 17 n.9. The 
Fifth Circuit did not "substitute" its judgment 
for that of the district court, but rather ex­
pressly adopted the lower court 's  appropriate 
characterization of the seniority for fe iture  
provision. Compare A 134 to A 158.



12 -

jobs were included in the IAM unit. The district

court fa i led  to consider the i r ra t iona l i ty  of

dividing operational departments into separate
units because this "separation into d i f fe r in g

bargaining units was not merely, as in Teamsters,
'consistent with National Labor Relations Board
precedents, it  was rather required by a

specific decision of the NLRB and the outcome of

the elections." A 140. The Fifth Circuit ruled
that the district court had once again erred as a

matter of law by refusing to consider whether the
division of these operational departments into

racially segregated seniority units was motivated
by race. A 166, A 169. Teamsters did not state,

as the d i s t r i c t  court in fers ,  that whenever a
unit-system is certified by the NLRB it has an

14/imprimatur of rac ia l  neutra l i ty . ---- Moreover,

14/ Teamsters did not involve, as this case does, 
tFe development of separate bargaining units in a 
specific plant. Teamsters involved the division 
of jobs, over—the-road and city drivers,  into 
separate seniority units in a manner which was 
consistently applied throughout the industry. In 
this case, the IAM with the cooperation of the 
Steelworkers and the company entered into a series 
of maneuvers designed to accomplish one goal ■ 
the establishment at the Bessemer plant of a 
one-race unit. App. B 6-8.



13 -

the company's and unions' creation of numerous 

one- race departments was not justifiable by any 

business reason; the only consistent thread 

passing through the development of these depart­
ments was race. App. B 9, 13.

3. Genesis. The seniority system had its

genesis in 1941 and 1942 when the IAM and the 

Steelworkers sought and obtained bargaining 

units. In its petition to the NLRB the IAM sought 

to exclude Blacks from its bargaining unit. App. 

B 4-5. As an example, the IAM petitioned for 

inclusion of jobs such as crane operator, machine 

operator and handyman when staffed by whites but 
did not seek those jobs when staffed by blacks. 

Moreover, immediately after certification the IAM 

and the USW traded jobs along racial lines through 

a 1941 inter-union agreement. Having completed 

these rac ia l  maneuvers, which resulted in an 

all-white IAM bargaining unit, the unions, then 

entered into collective bargaining agreements with 

the company, which established a departmental 

seniority system.— The district court erred as

15/ For evidence in the record which details the 
racially motivated agreement, or "clarification, 
between the USW and the IAM, see App. B 6-9; cf. 
Co. Pet. 12. In what we believe to be an irres­
ponsible manner,— "the 'A l ice  in Wonderland'



14 -

a matter of law by ignoring the motives of the IAM
.16  /

in establishing an all-white bargaining unit—— 

and by failing to consider properly the 1941-42 

genesis of the system. A 130, 142. The Fifth

15/ continued
quality of the Court of Appeals' inferences" - -  
the Steelworkers criticize the Fifth Circuit's 
conclusion regarding the 1941 transfer of jobs. 
USW Pet. 18 n .11. The Steelworkers, however, do 
not then refer  to the 1941 trading of jobs 
between the unions, but to a wholly separate 1944 
transfer. App. B 7, 10.
16/ The district court found it  "unnecessary" to 
determine the motives of the IAM because "the 
[steelworkers and the company] cannot be charged 
with rac ia l  bias in its  response to the IAM 
situation." A 145. The company and the Steel­
workers make the same error. Co. Pet. 16; USW Pet. 
8 n.3. The issue tried in the district court is 
simply whether the seniority at the Bessemer plant 
is bona fide, or more particularly, whether an 
intent to discriminate entered into its creation 
and development. 431 U.S. at 346 n.28.

I f  the system had its genesis in discrimina­
tion, then the protection of §703(h) does not 
apply and thus a court properly may order the 
removal of the adverse racial consequences of the 
system. Teamsters v. United States, . supra, 431 
U.S. at 349 (absent the protection of §703(h) the 
seniority system f a l l s  "under the Griggs ra ­
tionale") .



15

Circuit correctly stated that the "motives and 

intent of the IAM in 1941 and 1942 are significant 

in consideration of whether the seniority system 

has its genesis in racial discrimination." A 169. 

The Fifth Circuit properly relied upon the 1941 

racially motivated agreement, in concluding that

The I AM manifested an intent to selec­
t ive ly  exclude blacks from its  bargaining 
unit NLRB ce r t i f ic a t ion  considerations 
notwithstanding.. . .That goal was u l t i ­
mately reached when maneuvers by the IAM 
and USW resulted in an all-white 
IAM unit. A 69-70. 17/

The unionization and the establishment of 

a contractual departmental seniority system in 

1941-42 not only resulted in the establishment 

of the "seniority forfeiture" obstacle to transfer 

to the then existing four all-white departments,

17/ Although stating that the "objective facts 
are not greatly in dispute" (A 145), as they could 
not be since the facts are set forth in NLRB and 
company documents, the district court failed to 
consider this racially directed transfer because 
of its view of the applicable law. This inter­
union swapping and maneuvering of jobs based on 
the race of employees in those jobs regardless of 
their functional relationship, contradicts the 
assertion of the company that the unions had
no real choice". Co. Pet. 22.



16

but more importantly resulted in doubling the
18/

number of one-race departments. —
4. Maintenance. The racial consequences of 

the seniority system were maintained and indeed 

expanded by the parties to the collective bargain­

ing agreements. Under those agreements, an 

employee foreits accumulated seniority when he 

voluntarily transfers from the bargaining unit of 
one union to the bargaining unit of another. The

criterion used for seniority within the Steel- 
. . . 19/workers bargaining unit---- was "departmental"

form 1942 through 1947, then "occupational" from 

1947 through 1954, and then once again "depart­

mental" after 1954. The 1954 seniority system at

18/ As a result  of unionization and the sub­
sequent inter-union agreement, five additional 
one-race departments were created. Once again 
the Steelworkers rely upon invective rather 
than upon a review of the record when they 
state that the Fifth  C ircu i t ' s  ruling that "a 
substantial number of one-race departments 
were established upon unionization" is  "sheer 
invention."  USW Pet. 16 n.9. The court below 
is correct. App B 8-9.
19/ As a result of the racial maneuverings by the 
IAM and USW in the creation of their respective 
bargaining units, and the negotiation of the 
"no-transfer rule", App. B 3-9, n. 13, supra, a l l  
the blacks at Pullman were concentrated in the 
USW unit.



17

the Bessemer plant remained "virtually unchanged 

throughout the next eighteen years of collective 

bargaining." A 131, 158; App. B 15.

The Fifth Circuit properly concluded that the 

"creation of the new departments in the years 

subsequent to unionization involved continued 

separation of the races." A 167. In examining 

the "gestalt of the system" the district court 

erroneously failed to examine the racial conse­
quences of the departmental changes. A 140-41. 
In an employment context where race receives 

constant consideration in the allocation of jobs, 

employee badge numbers, etc., when a series of 

acts, such as the creation of new one-race depart­
ments, adds to the discriminatory consequences 

of the system then there is created an inference 

of segregative intent. See, Village of Arlington 

Heights v. M etropo l itan  Housing Development 

Corporation, 429 U.S. 252, 266-67 (1977); Keyes v . 
School D istr ict  No. 1, Denver, 413 U.S. 189, 
207-08 (1973); United States v. Board of School 
Comm1 r s , 573 F.2d 400, 412 (7th C i r . ) ,  c e r t . 

denied, 439 U.S. 824 (1978).
The departmental changes which occurred in 

1954 at the time of the switch from occupational 
to departmental seniority show a clear pattern of



18

discrimination.—  When the departmental struc­

ture once again, in 1954, became c r i t i c a l  in 

establishing a worker's employment opportunity, as

in 1942-47, f ive  brand new, one-race depart-
. • • 21 /  *ments were created within the USW unit.—  App.

B 13-14.

20/ Contrary to the representations of the union 
and the company, respondents have not challenged 
"departmental service,. . .  as the measure of senior­
ity", USW Pet. 5, nor a departmental system per 
se, Co. Pet. 23-25. What respondents have chal­
lenged on the facts of this case is the manner in 
which the seniority system was established and 
maintained at Pullman. Considerations of race 
permeated the establishment of the bargaining 
units, the creation of the departments and the 
genesis and maintenance of the system.

21/ One of the five was the Janitor Department. 
The Steelworkers assert that the separation of the 
job of janitors, a "black" job, from the job of 
watchman, a "white" job, occurred in 1952 (USW 
Pet. 9), concluding therefore that the separation 
did not harm the employment opportunities of 
blacks, since an occupational seniority system was 
in effect in the years 1947 to 1954. In fact, the 
separation occurred, as the Fifth Circuit con­
cluded (A 167), in 1954, just prior to and in 
comtemp1 ation of, a sh i ft  to a departmental 
seniority system. See PX 2-7 which show the jobs 
in the Safety department for 1947-52, PX 8 
which shows the jobs in the Plant Protection 
department in 1953 and PX 9 which shows the 
janitors in an all-black Janitors Department and 
the watchmen in an a l l -wh ite  Plant Protection 
department in 1954.



19

In conclusion, the Fifth Circuit correctly

determined that the district court had wrongly
applied the law, had failed to consider relevant

facts, and had made clearly erroneous findings of
fact. In applying Teamsters to the particular

22/facts at the Bessemer plant,—  the Fifth Circuit 

reached the proper legal conclusion — the sen­

iority system was discriminatory and unlawful:

We consider s ignif icant in our decision 
the manner by which the two s en io r i t y  
units were set up, the creation of the 
various a l l -white  and a l l -b lack  depart­
ments within the USW unit at the time of 
certification and in the years thereafter,
conditions of rac ia l  discrimination which 
affected the negotiation and the renegotia­
tion of the system, and the extent to which 
the system and the attendant no-transfer rule 
locked blacks into the least remunerative 
positions within the company. (A 171).

The company also asserts that a question 

presented by this case is whether resolution of 

the issue on bona fides of a particular seniority 

system includes application of a "but for" test.

22/ Contrary to the St-eelworker' s assertions that 
this case has affected the "seniority expectation 
of over 2,000 employees . . . "  (USW Pet. 26), this 
plant was closed permanently in January 1981.



20

Co. Pet. 23. Nothing in Teamsters requires such a

test. Teamsters held that a court must inquire

into whether an intent to discriminate entered

into the adoption and maintenance of a seniority 
23/

system.—"

In any event, the question presented —  

"whether . . .  a departmental seniority system would 

have been adopted . .. even i f  there had been no 

racial aspect involved," Co. Pet. 25 — is not 
posed by the instant case. The Fifth Circuit's 

opinion and the position of the respondents, (see 

n.20, supra),  do not depend upon any per se 

criticism of "departmental" seniority but rather 

depend upon the specific application of seniority

23/ In Mt. Healthy v. Doyle, 429 U.S. 274 (1977), 
this Court articulated "a rule of causation" that 
had been utilized in "other areas of constitu­
tional law [where] this Court ha[d ]  found i t  
necessary to distinguish between a result caused 
by a constitutional v io la t ion  and one not so 
caused." Id . at 286. The Mt. Healthy standard, 
developed for an individual case involving an 
a l legat ion  of a F irst  Amendment v io lat ion  is  
inapposite to the analysis of whether a seniority 
system is lawful under Title VII. This Court has 
set forth the applicable standard in Teamsters and 
the Fifth Circuit followed that standard. ~



-  21

to the gerrymandered departmental and unit struc­

ture at the Bessemer plant.
24/

II.

IN REVIEWING THE DISTRICT COURT'S DECISION, 
THE FIFTH CIRCUIT PROPERLY DISCHARGED ITS 
FUNCTION UNDER RULE 52(a) IN A MANNER CONSIS­
TENT WITH THE DECISIONS OF THIS COURT AND 
WITH THE DECISIONS OF OTHER CIRCUITS.

The Court of Appeals, a fter  reviewing the 

record before it , concluded that:

24/ The company suggests that this Court grant 
certiorari to consider the question of whether 
T it le  VII requires a showing of causality,  
because there is a "current controversy" over this 
question. Co. Pet. 25 n.24. In support of this 
contention, the company cites three circuit court 
decisions, i d . These cases, one involving a 
"no-beard" policy, another involving an individual 
a l leg ing  reverse discrimination and a third 
involving the alleged discriminatory discharge of 
an individual who had lied on his application, are 
inapposite. The question of whether those 
courts applied proper Title VII standards to the 
facts of those cases is not before this Court. In 
any event, those opinions present no conflict 
with the Fifth Circuit's opinion, nor are they even 
related to the issue of whether the seniority sytem 
is lawful.



-  22

An analysis of the totality of the facts and 
circumstances surrounding the creation and 
continuance of the departmental system at 
Pullman-Standard leaves us with the definite 
and firm conviction that a mistake has been 
made.

A 170. This standard of review, articulated in 

the seminal decision of this Court in United 

States v. U.S. Gypsum Co., 333 U.S 365 (1948), is 

the one used.
The Steelworkers attempt to convince this 

Court that the Fifth Circuit's reasoning was based 

on the standard articulated in East v. Romine, 

Inc. , 518 F. 2d 332, 339 (5th Cir. 1975). It is 

clear from the decision of the Court of Appeals 

that this is not so. The Court of Appeals cites 

East for the proposition, established long ago by 

this Court, that the ultimate conclusion of 
whether the entirety of the facts establishes a 

statutory violation is an appropriate determina­
tion for an appellate court to make. Baumgartner 

v. United States, 322 U.S 665, 670-71 (1943), 
followed in Causey v. Ford Motor Co. , 516 F.2d

416, 420 (5th Cir. 1975); cf. USW Pet. 21 n. 14. 

Thus the Court of Appeals properly notes that 

while appellate courts can overturn subsidiary 

facts only under the clearly erroneous standard,



-  23 -

they can, and indeed are under a duty to, make an

independent determination of whether a violation
25/

of Title VII has been established.---- * As this
Court has recently noted, "the ultimate conclusion 

by the tr ia l  judge, [of violation of the Sherman 

Act ] ,  is  not to be shielded by the 'c lea r ly  

erroneous' t e s t . . . . "  United States v. General 

Motors, 384 U.S. 127, 142 n. 16 (1966)— ^

Not only did the Court of Appeals follow the 

correct standards under Rule 52(a) ,  but the 

d is t r ic t  court here made numerous errors of

25/ See, Norris v. Alabama, 294 U.S 587, 589-90 
(1934): "That the question is one of fact does not 
relieve us of the duty to determine whether in 
truth a federal right has been denied."

26/ The Steelworkers criticize a number of the 
conclusions reached by the Court of Appeals, see, 
e.g.,  USW Pet. 21 nn.9, 10, and 11. As we have 
shown earlier, their criticisms, based on distor­
tions of the record, are totally unwarranted, as 
each of the Fifth C ircu i t ' s  conclusions had 
abundant factual support in the record and was 
reached through an application of the correct 
lega l  pr incip les .  See supra nn.13, 21, 23, 
26.



-  24 -

law 27/ and, as the Court of Appeals correctly

27/ The d is t r ic t  court 's  erroneous view of 
controlling legal principles manifested itse lf  in 
several distinct ways, including the following:

( i )  The d is t r ic t  court 's  f a i lu re ,  indeed 
refusal, to consider the motives of the IAM with 
regard to either genesis or maintenance, see supra, 
p .13-17, and n .16;

( i i )  the district court's determination that 
whether the 1941-42 or 1954 period of time was 
selected for consideration of the genesis factor 
was inconsequential. See A 142; cf. App. B 3-9, 13;

( i i i )  the district court's apparent view that 
NLRB certification somehow insulated the system 
from a finding of irrationality; see supra, p. 12;

( iv )  the district court's failure to consider 
the seniority system's exclusion of blacks from 
higher-paying departments, see supra p. 10 and n.13

(v) the district court's failure to consider 
the creation and maintenance, through the collec­
tive bargaining process, of an ever-increasing 
number of one-race departments, see supra pp. 15, 
18;

(v i )  the district court's failure to consider 
the racial consequences of later changes to the 
seniority system, see supra, 16-18;

As did the district court in Dayton v. Bd. of 
Educ. v. Brinkman, 443 U.S. 526, 535-36 (1979), 
the district court "ignored the intentional main­
tenance" of a discriminatory seniority system.



25

noted, Rule 52(a) has no application "where 

findings are made under an erroneous view of 
controlling legal principles, the clearly erro­
neous rule does not apply, and the findings 

may not stand." A 178 n.6. See United States v . 
Parke, Davis & Co. ,  362 U.S. 29, 44 (1960);

United States v. General Motors, supra, 384 

at 142; Kelley v. Southern Pacific Go. , 419 U.S. 

318, 323 (1974).
In an attempt to bo lster  their argument,

petit ioners claim that the d is t r ic t  court 's
conclusion was reached only after listening to

"weeks of testimony." USW Pet. 16. As discussed

in the Statement of the Case, the district court
granted p la inti f fs '  motion for a new trial  limited

to the Teamsters issue. A 126. The hearing on
that issue lasted less than three hours, during

which time the district judge heard the testimony
28/of only two witnesses.---- In other words, i t

28/ These witnesses were called by respondents. 
Mr. Samuel Thomas, a black employee at the company 
since 1946, testified as to segregation in seating 
at the union hiring hall and at union sponsored 
social ac t iv i t ie s  (Tr. 18-19), and the rac ia l  
composition of union o f f ice rs  and negotiating 
groups (Tr. 23-24). The other witness, Mr. Willie  
James Johnson, also a long-time black employee, 
testified regarding the segregated seating (Tr.30), 
segregated faci l it ies  at the company and union



-  26 -

"was essentially a 'paper case.'"  United States v.
29/General Motors, supra, 384 U.S at 142 n.16—— 

The Steelworkers' reliance, therefore, on United 

States v. Yellow Cab Co., 338 U.S. 341 (1949) and 

United States v. Oregon State Medical Society, 343 

U.S. 326 (1952) is misplaced. In both of those 

cases the resolution of issues of intent turned 

"peculiarly upon the credit given to witnesses by 

those who see and hear them." 338 U.S. at 342. 
This Court reaffirmed this view in Oregon State 

Medical Society, cited by the Steelworkers, who 

chose to eliminate a very relevant portion of the 

quote, which it reads in fu l l  as follows:

28/ continued

ha l l  (Tr. 30-31), r ac ia l  identity of various 
International representatives (Tr. 30), as well as 
the handling of grievances regarding rac ia l  
discrimination. (Tr. 32-33). Neither witness was 
subjected to extensive cross-examination and 
neither petitioner attacks the c red ib i l i ty  of 
these witnesses.

29/ The documentary evidence consisted of over 
TOO exhibits for plaintiffs (respondents) and 27 
for defendants (petitioners).



-  27

There is no case more appropriate for ad­
herence to [Rule 52 (a ) ]  than one in which 
the complaining party creates a record of 
cumulative evidence as to long-past trans­
actions, motives, and purposes, the effect 
of which depends largely on credibility of 
w i t n e s s e s . 341 U. S . at 332 ( emph as i s
added).

Unlike the "ordinary lawsuit" that "depends for
its resolution on which version of the facts in

dispute is accepted by the trier of fact."  U.S.

v. Yellow Cab Co. , 338 U.S at 341, quoting from
National Labor Relations Board v . v, Pittsburgh S.S

Co., 337 U.S. 656 (1949), this case depends upon

the correct application of Teamsters principles
30/to facts culled from documentary evidence.----

Here, the Court of Appeals performed "its unavoid­
able duty . . .  and concluded that the Distr ict  

Court had erred. Dayton v. Bd. of Educ■ v . 

Brinkman, supra 443 U.S. at 534 n.8.

30/ The Fifth Circuit has not held that the 
standards of Rule 52(a) do not apply to a review 
of findings on discrimination purpose, as the 
Steelworkers assert. USW Pet. 22. Further, 
there is no conflict between the Fifth Circuit and



-  28

30/ continued

any other circuit over the applicable standards, 
as the Steelworkers imply. Id . Here, the dis­
trict court failed to consider properly documen­
tary evidence because of its erroneous view of 
controlling legal principles, and the Court of 
Appeals correctly reversed. The cases cited by
the Steelworkers ( id . ) did not involve crucial 
errors of law. In addition, those cases concerned 
individual discharge and promotion claims, that 
revolved around the testimony of witnesses, 
thereby invoking particularly the requirement of 
Rule 52(a) that "due regard shall be given 
to the opportunity of the tr ia l  court to judge the 
credibility of witnesses." See EEOC v. Chesapeake 
& Ohio Ry. 577 F.2d 229, 233 (4th Cir. 1978) (de­
pended on credibility of witness' testimony and 
the inference to be drawn from sharply conflicting 
evidence); Kunda v. Muhlenberg College, 621 F.2d 
532, 544 (3rd C ir. 1980) (d is t r ic t  judge had
opportunity to observe principal w itnesses); 
Duckett v. Silberman, 568 F.2d 1020, 1023 (2nd
Cir. 1978) (credibility a major factor) and re­
viewing court noted, t r ia l  judge was there, "we 
were not"); Sweeney v. Board of Trustees of Keene 
State Co llege . 604 F .2d 106, 109 n .1 ( " . . . t h e  
opportunity for first-hand observation may be 
especially important in [a case] such as this, 
. . . "  but court goes on to note it would attempt to 
"detect infection from legal error . . . . " ) ;  Pack v. 
Energy Research & Development Admininstration, 566 
F.2d 1111, 1113 (9th Cir. T9TT) (involving opinion



29

III .

IN CONCLUDING THAT THE COMPANY UNLAWFULLY 
DISCRIMINATED IN THE SELECTION OF SUPERVISORS, 
THE FIFTH CIRCUIT FOLLOWED THE PRINCIPLES 
ESTABLISHED BY THIS COURT IN A MANNER CONSIS­
TENT WITH THE APPLICATION OF THESE PRINCIPLES 
BY OTHER CIRCUITS.
The district court found that respondents had 

made out a prima facie case of discrimination with 

respect to promotions to supervisory positions, 

based on the s ta t is t ic s  presented at t r i a l :
At the time of t r ia l  only some 10% of 

Pullman's sa laried  foremen were black, a 
figure  which is substantia lly  below that 
expected from the labor market -  which ranges 
from 25 to 35% black, depending on the age 
group and area selected — or from Pullman's 
own work force -  which ranges from approxim­
ately 45 to almost 50% black, depending upon 
the time selected.

30/ continued

testimony of p la in t if f 's  qualifications; Bostic v. 
Boorstin, 617 F.2d 871, 875 (D.C. C i"r"! 1980) 
(d istrict court required to resolve conflict in 
expert testimony); Silberhorn v. Gen. Iron Works 
Co. , 584 F . 2d 970 (10th Cir. 1978) (d is t r ic t
court required to evaluate testimony of co-workers 
and supervisors regarding p la in t if f 's  behavior).



-  30 -

A 110. The district court had also previously

found that " [ s ] elect ion of foremen has been
largely a matter of subjective evaluation by an

all-white group of supervisors, A 26. The

Court of Appeals, in its earlier opinion, agreed

with the district court, holding:

The appointment of supervisory personnel at 
Pullman-Standard is done to ta l ly  subjec­
tively. There are no established criteria  
for selection of new foremen. . . . .  In 1966, 
the first  black was promoted to one of the 
431 existing sa lar ied  foreman positions. 
Four years later, there were only nine black 
salaried foremen while there were 151 white 
foremen. At the time of t r ia l ,  there were 13 
departments in which blacks had never been 
offered either salaried or temporary forman 
positions. Since 1966 and until the time of 
this tr ia l  there were at least 59 salaried 
formen vacancies. Only 12 of those were 
f i l led  by blacks.
The company recognizes that classwide dis­

crimination in promotion for foremen has been 

shown Co. Pet. 25; however, the company contends 

that the Court of Appeals erred in concluding that 
the company had failed to rebut the prima facie 

case. The company does not assert that the 

decision of the Court of Appeals conflicts with the 

decisions of this Court or with those of other 
circuits; rather, the company asserts that the 

Court of Appeals erred in two ways. First, by 

"refusing" to take into account evidence regarding



-  31

black refusals of supervisory positions. Second, 

by inquiring into whether the company had justi­

fied its practices under the business necessity 

doctrine. Co. Pet. 25-29. The company's petition 

is not due to be granted on either of these 

issues, because the firs t  is not presented by the 

decision of the Court of Appeals, or the record in 

this case, and the second is already settled by 

decisions of this Court.

The F ifth  Circuit did not state, as the 

company maintains, Co. Pet. 26, that refusals by 

black workers of company promotional offers could 

not be taken into account in rebutting a prima 

facie case of discrimination. In fact, the Fifth 

Circuit considered this evidence and concluded 

that, under the circumstances of this case, since 

black refusals of promotions were closely tied to 

the "very discrimination which the class members 
seek to eliminate," the defendant had failed to 

rebut the prima facie case. A 176.
The evidence established, and both courts 

found, that the company's practice was to make 

promotions to temporary foremen of any given 

department from employees already within that 

department. A 113 and A 171. The company now, 

for the f i r s t  time, terms such a practice an



-  32 -

"imaginary requirement." Co. Pet. 29. Yet the

company admits that only 3% of the promotions for
31/

foremen are not from the same department. Id .

Both courts below then considered whether this

practice was ju s t i f ie d  by business necessity
32/

(A 113 and A 173).—  The Court of Appeals held

31/ This figure may be compared to the finding 
of the district court that " [o ]f  the 415 monthly 
promotions reported from January 1969 through May 
1974, 403 -  or 97% -  were appointments of a 
person when in the department." A 122 n.18. 
Apparently the company would require a finding 
that a l l ,  or 1 0 0%, of the promotions were from 
within the department, before it would be appro­
priate to use the term, "practice."

32/ The district court held that " [t ]he  restric­
t ion  of such temporary promotions to persons 
working in the department is a bona fide occupa­
tional qua li f ica t ion , ju s t i f ie d  by business 
necess ity ."  A 113. Because of the d is tr ic t  
court's intermingling of two separate and very 
distinct Title VII defenses, the Court of Appeals 
discussed the distinction between the two, cor­
rectly concluding that the bona fide occupational 
qua li f ic a t ion  exception was not applicable to 
cases involving race discrimination. A 174.



33

that in order for the company to rely on a proce­

dure having a disparate impact on blacks, it  must 

show that the procedure is justified by business 

necessity. A 174. In so holding, the Court of 

Appeals was following the principles enunciated by 

this Court in Griggs v. Duke Power Co. , 401 U.S

424 (1971). 33/

33/ See also Teamsters, supra, 431 U.S. at 349. 
The company asserts that the business neces­
sity defense is applicable only in cases involv­
ing a "test or screening device." Co. Pet. 29. 
This assertion is plainly wrong. As this Court 
noted in Teamsters "[o]ne kind of practice 
' f a i r  in form, but discriminatory in operation' 
is that which perpetuates the effects of prior 
discrimination." 431 US. at 349, citing as an 
example the nepotism requirement at issue in 
Asbestos Workers Local 53 v. Vogler, 407 F. 2d 
1047 (5th Cir. 1969). Id at n.32. Similarly, the 
requirement, at issue in the courts below, that a 
person have worked in the department prior to 
being promoted —  in effect a kind of "grandfa­
ther clause" —  automatically precluded the 
consideration of blacks who but for past d is ­
crimination, would have worked in a greater 
number of departments.



-  34 -

CONCLUSION

For the foregoing reasons, the petitions for 

a writ of certiorari should be denied.

Respectfully submitted,

JACK GREENBERG 
JAMES M. NABRIT, I I I  
JUDITH REED

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

ELAINE R. JONES*
BARRY L. GOLDSTEIN

806 15th Street, N.W. 
Suite 940
Washington, D.C. 20005

OSCAR W. ADAMS, I I I
2121 Eighth Avenue, North 
Birmingham, Alabama 35203

Attorneys for Respondents 
*Counsel of Record



APPENDIX A



COURT: U.S. District Court, N.D. Ala., Sou. Div.
CASE : Swint, et al. v. Pullman-Standard, et al., CA 71-P-955
ORDER: Supplemental pre-trial conference held June A, 197^.

1. Counsel. The following counsel were present: For
plaintiffs, U.'W. Clemon; for defendant Company, C. V. Stelzenmuiler; 
a n d  for defendant Steelworkers Union, John C. Falkenberry.

2. Class Action. The parties have made known certain facts 
to the court and have agreed that such facts may be considered by 
the court without formal hearing otherwise required under Rule 23.
On the basis thereof, the court finds and concludes that the 
prerequisites of Rule 23(e) and 23(b)(2) are satisfied and that 
this action may hereafter be maintained on behalf of all black 
persons who are now or have (within one year prior to the filing 
of any charges under Title VII) been employed by defendant 
Company a3 production or maintenance employees represented by the 
United Steelworkers. The court concludes that individual notifica­
tion of class members is unnecessary in this action under Rule 
23(b)(2) but that it would be appropriate for a general notification 
of the pendency of this litigation to be posted at the premises of 
the Company. Counsel for the parties shall attempt to draft such
a notification and in the event of disagreement the same shall be 
presented to the court for its approval.

3. Parties. Leave is hereby granted to the plaintiffs to _ 
add as additional party defendant (insofar as the relief requests- 
may involve or infringe upon the provisions of such Union's 
collective bargaining agreement with the Company, it being noted 
however that no request for monetary relief is being sought against 
said Union) the aDpropriate entity of.the International Association 
of Machinists. Leave is also granted for the Intervention as a 
party plaintiff of an employee by the name of Humphrey for the 
presentation of his claim under Section 1981 with respect to his 
discharge and subsequent reinstatement without back pay.

It. Issues. The following charges are made by the plaintiffs 
as violations of either Title VII or of Section 1981:

(a) That a system of departmental seniority, even with 
changes made pursuant to a corrective action program with 
the Department of Labor, nevertheless perpetuates the effects 
of past discrimination in the assignment of black employees 
to generally less desirable departments. This issue subsumes 
the following assertions by the plaintiffs:

The transfer provisions under the agreement with the 
Department of Labor apply to only four departments; 
the transfer rights which are granted under such plan 
are inadequate by reason of the failure to provide red- 
circle rates and by reason of the restriction to a 
single exercise of such rights; and such rights of 
transfer do not apply to Jobs In the machine shop 
represented by the IAM. (The issue relative to the 
machine shop may have to be severed for subsequent 
trial depending upon the Joinder, service, and availa­
bility and readiness of the IAM with respect to the 
trial date already scheduled.)
( b )  The Company has dlscrlmlr.atorily made assignments 

of functions to persons serving in the same Job ciassirica- 
tlon based on race and has discrimlnatorily assigned p 
on the basis of race to "lateral'' Job classifications having
the sam e J o b  c l a s s .  FILED IN CLERK'S OFFICE

NORTHERN DISTRICT OF ALABAMA

JUH5 1974
W ILLIAM . E. DAVIS 

CLERK, U. S. OISTRICT COURT
■v.------7 OlFUTT CUXMtf



(c) The Company has dlserimlnatorily failed to 
promote black production and maintenance employees to 
supervisory and managerial positions.

(d) As individual, non-systemic, claims, the Company 
has discharged the plaintiff Swlnt in violation of Title VIZ 
or Section 1981 and has discharged (without giving back pay 
on reinstatement) the potential Intervenor Humphrey in 
violation of Section 1981.
The plaintiffs seek back pay or other monetary relief incident 

to the foregoing claims of discrimination; but such issue is 
severed for trial, if necessary, at a subsequent date. The plain­
tiffs, in view of proposals made by the defendants in conference, 
do not intend to challenge the practice by which dally assignments 
and vacancies have not been publicly posted; but reserve the right 
to present such an issue at trial if the conference proposals by 
the defendants prove to be unsatisfactory.

The defendants deny the several charges of discrimination set 
out above and in addition assert defenses in part based upon 
applicable statutes of limitation and the effect of arbitration 
awards.

5. Discovery ■ The parties are given leave to proceed with 
further discovery provided the same be completed at least ten days 
prior to trial. The parties shall at least ten days prior to trial 
exchange a list of witnesses and documents which they anticipate 
utilizing at trial.

Done this the V  _  ■ day of June, 1971•



APPENDIX B



APPENDIX B

THE SENIORITY SYSTEM IN 
EFFECT AT PULLMAN-STANDARD

INTRODUCTION

The seniority system at Pullman involves the 

Company and two bargaining units -  one represented 

by the IAM and the other represented by the USW. 
The system at Pullman-Standard was part and parcel 

of the rac ia l  discrimination practiced at the 

Bessemer plant; it  was negotiated, adopted and 

maintained with an intent to discriminate.
At the time Pullman-Standard was organized in 

1941, considerations of race permeated the manner 

by which the two bargaining units were set up. 
With the active cooperation of the USW and the 

agreement of the company, the IAM sought and 

achieved an a ll-w h ite  bargaining unit. The 

efforts of the parties to the collective bargain­
ing process resulted in substantially increasing 

the number of one-race departments that had 

existed at the plant prior to unionization. With 

the negotiation of the "no-transfer" rule, the IAM 

was able to maintain its all-white status, with 

blacks being concentrated in the USW bargaining

unit.



-  2 -

The departments in the USW bargaining units 

were thereafter manipulated so that even the 

potential for blacks to move into better jobs in a 

given department was removed, these manipulations 

occurring s ign if ican t ly  enough, on the eve of 
changes in the seniority criteria. The evidence 

in the record demonstrates that when the seniority 

cr ite r ion  was broadened, i . e .  "departmental,” 

departments were less racially mixed, due to the 

creation of one-race departments, and therefore 

less likely to offer even potential opportunities 

for blacks to exercise seniority rights vis-a-vis  

whites in higher paying jobs or whites with less 

seniority. Similarly, when the seniority c r i­

terion was narrowed, i . e . ,  "occupational" (1947- 

54), departments were likely to be more racially  

mixed, the limitation of opportunities for blacks 

to exercise seniority rights in better jobs was a 

fait accompli since an employee held seniority 

only within the occupation in which he worked. It 

is clear, then, that the structure of the opera­
tional departments was manipulated along racial 

lines, depending on how broad or restrictive the 

seniority criterion.
The seniority system in effect at Pullman- 

Standard' s Bessemer plant may be viewed as having 

three distinct phases: the 1941-42 in it ia l  organ­



3

ization  of the company and negotiation of the 

system; the 1944-54 changes in the system and 

departmental structure; and the 1954 return to 

departmental sen iority . The discussion that 

follows details the actions taken by the parties 

to the collective bargaining process during each 

of those time periods.

1941-42: UNIONIZATION AND GENESIS 
OF THE SENIORITY SYSTEM

Pullman commenced operations in Bessemer, 

Alabama in 1929. At that time, and for the 

next 12 years, there were no recognized unions at 

Pullman. Prior to unionization, the company was 
divided into 20 departments: 5 one-race depart­
ments (4 of which were all-white)-  and 15 were

1/ These figures, based on the record, stand 
in stark contrast to those set forth by the 
Steelworkers, see, e .g , USW Pet. 7 n.2. The 
Steelworkers' analysis of departmental changes 
during the period from 1941-1954 (USW Pet. 6 - 8 ), 
rests in large part upon a chart created by the 
district court for the purpose of describing the 
departmental structure in 1965. The 1965 chart, 
earlier criticized for other reasons by the Fifth 
Circuit (A 55-58), just cannot explain departmen­
tal changes which occurred over the preceeding 20 

years and reliance on that chart resu lts  in 
numerous errors in the Steelworkers' analysis.



-  4 -

racially racially mixed.— PX 1, 109.

The NLRB c e rt i f ic a t io n  and subsequent " c la r i f i ­
cation"

In 1941, the IBEW, I AM, and USW, a l l  of 

which had filed  representation petitions, jointly 

participated in a representational hearing. PX 13 

A151, 178.
The I AM, while claiming to represent a unit 

consisting only of machinists and their helpers 

and apprentices at Pullman, in fact sought recog­

n ition  on behalf of employees in occupations 

which cannot properly be regarded as "machinist" 
occupations, e .g . ,  cranemen, welders, wheel

2/ The four all-white departments were: Lumber 
Yard, Welding, Template, and Plant Protection  
(job of "Janitor", not included in this department 
but in racially mixed "Superintendent" Depart­
ment). The a l l -b la ck  department was the Truck 
Department. A-150 n.12; PX 109. The racially  
mixed departments included the following: Die and 
Tool, Forge, Maintenance, Paint, Press,Punch and 
Shear, Shipping Track, Steel Construction, Steel 
Erection, Steel Miscellaneous, Stores, Superin­
tendent, Wheel and Axle, Wood Erection, and Wood 
Mill.



f i t t e r s ,  tool grinders, ax le -f in ish e rs ,  and 

pipefitters. Moreover, the IAM did not seek to 

include in their unit machinist-related occupa­
tions (e .g .,  machine operators, punch and shear 
operators) in ra c ia l ly  mixed departments. PX 

13, 14, 112. In its petition to the NLRB the IAM

sought to exclude blacks from its  bargaining 
3/unit.—

-  5 -

3/ For example, the IAM petitioned for inclusion 
of the job of handyman in the racially mixed Die 
and Tool department, where it  was staffed by 
whites, but not in the racially mixed Maintenance 
Department where it was staffed by blacks; peti­
tioned for inclusion of crane operators in the Die 
and Tool Department and racially mixed Wheel and 
Axle department, where the job was staffed by 
whites, but not in the ra c ia l ly  mixed Steel 
Miscellaneous department where it was staffed by 
blacks; and petitioned for machine operator jobs 
in departments where the job was staffed by 
whites, but not in departments where i t  was 
sta ffed  by blacks. PX 1, 13, 109. Moreover, 
in the racially mixed Die and Tool Department, the 
IAM sought recognition on behalf of every single 
production and maintenance job except those 
occupied by blacks. Id.



. • 4/On November 19, 1941 the Board cert i f  led—-

the I AM as the bargaining agent for a particular 

group of workers in the Die and Tool department, 

Welders, Wheel and Axle, and Truck departments, 

and Air Brake department; and USW Local 1466 as 

the co llec t ive  bargaining agent for a l l  other 

production and maintenance employees of the 

Company. PX 14, 15. However, as a resu lt of

the NLRB November 1941 certification of the IAM 

unit, several jobs staffed by blacks were included 

within the jurisdiction of the IAM. For example, 
the November certification of the IAM unit in­
cluded the all-black Truck department, and the 

all-white Wheel and Axle departments, because the 

evidence demonstrated that these departments 

performed a coordinated function and were opera­

tionally treated as one department. PX 13, pp. 

29-30, 89, 144-48.-/

-  6 -

4/ The IBEW was certified to represent elec­
trical workers and powerhouse operators. PX 15.

5/ Also included in the IAM unit at the time of 
T n it ia l  c e r t i f ic a t io n  in November 1941 were 
jobs staffed by blacks in the racially mixed Die 
and Tool departments and the racially mixed Wheel 
and Axle Department. PX 15, 109.



7

However, the racial integration of the I AM
unit was "corrected," and a "clarification" made,

by a letter agreement, dated December 19, 1941,

reached by the IAM, the Steelworkers and the 
6 /company.— A 151 n. 13 By this agreement be­

tween the parties , entered into immediately 

a fter  NLRB c e rt i f ic a t io n ,  the a l l -b lack  Truck 

Department and a l l  other jobs staffed by blacks, 

certified by the NLRB to be in the 1AM unit, were 

given to the USW. As a further provision of the 

agreement the USW ceded to the I AM the jobs held 

by two white employees which had been certified in 

it s  bargaining un it.—■ (Compare PX 1, 15, 17

pp. 14-16, 109, CX 14.)

6 / The agreement provides that the NLRB s 
Tecision "is . . .  in minor respects inadvertent in 
the c la s s i f ic a t io n  of employees as has been 
recognized both by the company and by the respec 
tive bargaining agencies."PX 17, pp. 14-16.

7/ In total, the IAM swapped 24 black employees 
Tor 2 whites from the USW. The I AM gave up no 
whites. PX 1, 15, 17, 109.



-  8 -

In short, the IAM gave its black members to 

the USW and the USW, in turn, gave two of its  

white members to the IAM, with the acquiescence of 
the company and of the Board, thereby maintaining 

the al 1-white—/ nature of the IAM despite the 

NLRB certification.

The increase in the number of one-race depart- 
ments after unionization

Efforts to exclude blacks from the IAM unit 
and the subsequent swapping of jobs between the 

bargaining units (USW and IAM) in December of 1941 

resulted in doubling the number of one-race 

departments which existed prior to unionization.

81/ The evidence in this record f lat ly  contra­
dicts the company's contention that blacks were 
included in the IAM at the time of unionization 
in 1941-42. Co. Pet. 12. In support of this 
contention, the company makes reference to the 
welder-helper job, a job in the IAM unit. This 
record shows 3 blacks in the position of welder 
helper in 1944. PX 2, 63. There were no blacks 
in the job when the company was organized and the 
seniority system was adopted. PX 1, 13, 15, 17, 
109. The uncontroverted evidence is that the IAM 
unit was an all-white unit upon unionization of 
the company, and subsequent c la r i f ic a t io n ,  in 
1941-42. PX 1, 17, 109.



-  9 -

As a resu lt of unionization and the subse­
quent inter-union agreement, see p. 7, supra, five

. . 9/
additional one-race departments were created.—
In addition to dividing ra c ia l ly  the Die and

Tool department leaving the all-black remnant in
the USW, as well as carving out an an all-white

segment from the ra c ia l ly  mixed Maintenance

department, the IAM and USW also converted a
racially mixed department, Wheel and Axle, into a
one-race all-white department, by their December
1941 agreement or "c larification ."— ^

9J The five departments were as follows: ( i )  The 
all-black Die and Tool (CIO) department repre­
sented by the Steelworkers; the all~white IAM 
departments, including ( i i )  Die and Tool (IAM), 
( i i i )  Maintenance (IAM), ( iv ) Wheel and Axle, and 
(v) Air Brake. PX 1, 13, 17, 109.

10/ Prior to unionization and even after the 
in it ia l  NLRB certification in November 1941, PX 
15, the Wheel and Axle department had been ra­
cially mixed. PX 109. However, the inter-union 
agreement caused the Wheel and Axle department to 
become an a ll-w h ite  department within the IAM 
unit. PX 1, 13, 15, 17, 109.



-  10 -

1944-54: THE MAINTENANCE OF A DISCRIMINATORY 

SENIORITY SYSTEM

The 1944-46 manipulations

In 1944 the IAM ceded to the USW the depart­
ments in its bargaining unit, with the exception 

of the all-white Die and Tool (IAM) and all-white 

Maintenance (IAM), two departments which have 

remained in the IAM since unionization. The

all-white Wheel and Axle-^-^ all-white Air Brake
12/

Pipe—-  and the recently racially mixed Welding

11/ Although racially mixed prior to unioniza­
tion, the Wheel and Axle department continued to 
be all-white upon its return to the USW unit. PX 
2, 15, 17, 109.

12/ The history of the a ll -w h ite  A ir Brake 
department is instructive when looking at this 
particular department system. Prior to union­
ization  the three jobs which comprised this  
department were located in two ra c ia l ly  mixed 
departments. PX 13, p. 85; PX. 17, pp. 14-15. 
In 1941, these jobs were assigned to the IAM 
where they formed an all-white department. Then 
in 1944, the department was transferred back to 
the Steelworker unit, PX 19, pp. 23-24, disbanded, 
and its jobs, pipefitter and pipefitter helper, 
were placed in the racially mixed Steel Erection 
department where they remained during the period 
when occupational seniority was used. Finally, 
in 1954, when departmental seniority returned to 
Pullman, the white-only Air Brake department was 
re-established. PX 9.



11

departments were ceded by the IAM to the USW in 
13/

1944.—
An all-white Powerhouse department, which had

been created and represented by IBEW at the

organization of the company, was disbanded in
1946; those jobs were then placed in a racially

mixed department represented by the USW, A 
14/151, PX 2.—

13/ Regarding the rac ia l  composition of the 
1944 transfer of employees from the IAM to the 
USW unit, the USW states categorically "SO were 
white and 20 were black." USW Pet. 11, 18 n . l l .  
This assertion is not supported by the evidence in 
this case which is that 3 blacks, not 20, were 
assigned to jobs in the IAM unit in 1944. PX 2, 
63, CX 5. Apparently, the Steelworkers relied 
upon the company's brief in the Court below rather 
than the record for these statistics. The company 
admitted in the Court of Appeals that these 
statistics were based on mere speculation: "The 
inference might possibly be drawn that as many as 
20 of the 100 lost were black . . .  although there 
is an element of conjecture in this ". Co. Brief 
at 2 1 .
14/ During the occupational seniority system 
TT947-54), the all-white Powerhouse jobs remained 
in the racially mixed department. A new all-white 
Powerhouse department was created within the USW 
unit in 1954 upon the return to a departmental 
system.



-  12 -

The imposition of occupational seniority (1947-54)

During this seven-year period, there was an 

occupational seniority system in effect at Pull­
man. Under the occupational seniority system an 

employee could hold seniority in only one occupa­

tion, except that at the discretion of management 

an employee could be transferred and hold sen­
io r ity  in two occupations. PX 47, pp. 13-14 

(1947 agreement). At this time, many of the one-

race departments and the sp linter departments
15/created at unionization were re-merged—  into 

the racially mixed departments, represented by the 

USW, from which they had been separated at the 

time of unionization. During this period there 

was a decrease in the number of one-race depart­

ments, an increase in the number of racially mixed 

departments, and the configuration of the depart­
ments was broadened. Two all-white departments 

in the IAM and IBEW units, which were ceded to the 

USW in 1944 and 1946, respective ly , were d is -

15/ /The all-White Powerhoue and Air Brake Pipe 
departments were merged into ra c ia l ly  mixed 
departments during this time frame. PX 2-7.



13 -

banded; those jobs were then placed in the ra­
cially mixed departments where they had been prior 

to unionization. See, supra, p. 11, nn.12, 14.

The Return to departmental seniority and concom­
itant changes in departmental structure (1954 to 
t r ia l )

A company-wide agreement was negotiated with 

the Steelworkers in August of 1954 which included 

a ll  Pullman-Standard plants, and in 1956 for the 

f irs t  time the seniority was used for promotional 

purposes. A 131.—  As a result of the 1954 nego­

tiations, Bessemer returned to the departmental
17/

seniority  system.---- However, the system was

not imposed upon the departmental configuration

16/ Previously, seniority, whether departmental 
or occupational, was used only for purposes of 
layoff and recall.

17/ Under the departmental system an employee 
who transfers from one department to another 
"shall relinquish seniority in the department from 
which he is transferred and shall start as a new 
employee in the department to which he is trans­
fe rred .. . . "  See e.g ., PX 35, p. 25 (1944 
agreement) PX 34 (1954 agreement).



14 -

which obtained at the Bessemer plant during the 

period of occupational seniority (1947-54).

Instead, when the departmental seniority  

system returned to Pullman (1954-1972), again 

the racial composition of the departments within 

the USW unit was altered. More one race depart­

ments were created, including some one-job depart­
ments, were carved from racially mixed depart­

ments, In June 1954, two months prior to the 

negotiation of, and return to, the departmental

system at Bessemer, five  brand new, one-race
18/departments were created within the USW unit.—  

Compare PX 8 with PX 9.

18 / The Steelworkers misstate the facts regard­
inĝ  the establishment of these one-race depart­
ments. The Steelworkers assert that the depart­
ments were created during the period when occupa­
tional seniority was in effect and thus conclude 
that the creation of the departments did not harm 
the employment opportunities of the black workers. 
USW Pet. 8-10, 17 n.9. In fact, these departments 
were created just prior to the shift to departmen­
tal seniority. PX 8 , 9.



15

The increase in one-race departments

19/ .The five  one-race departments---- included
the establishment of one all-black department, 
Janitors, and four a l l  white departments: Plant

Protection, (see Brief, n.21), Boiler House, Power 

House, and the Air Brake Department. See nn.12, 
14,supra; PX 8, 9. The 1954 seniority system at 

the Bessemer plant remained "virtually unchanged 

throughout the next eighteen years of collective 

bargaining." A 131, 158.-^^

19/ In 1954 another department, Railroad, was 
created which, except for the highest paying job, 
was all-black, PX 8, 9.

20/ In 1972 under the direction of the Labor 
Department an alteration in the system was made 
to-allow a limited opportunity for some of the 
black employees to promote to formerly white-only 
jobs without forfeiting their seniority. See A 
131-32, 159.



ME11EN PRESS INC. —  N. Y. C. *»’