Pullman Standard Incorporated v. Swint Respondent's Brief in Opposition
Public Court Documents
October 6, 1980

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Brief Collection, LDF Court Filings. Pullman Standard Incorporated v. Swint Respondent's Brief in Opposition, 1980. 19aca4a5-c19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/0cb0d428-4715-49b1-8581-30fbc216b3e9/pullman-standard-incorporated-v-swint-respondents-brief-in-opposition. Accessed July 13, 2025.
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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. *»’