Sassower v Field Petition for Rehearing and Suggestion of Rehearing En Banc

    IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA 

WAYCROSS DIVISION

OLIVER W. SCARLETT, et al.,
Plaintiffs,

v. NO. CV 576-32
SEABOARD COAST LINE RAIL­
ROAD COMPANY, et al.,

Defendants.

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT

VOLUME I

MOTION FOR PARTIAL SUMMARY JUDGMENT

BRIEF IN SUPPORT OF' THE MOTION FOR SUMMARY 
JUDGMENT, IN OPPQSITION TO DEFENDANTS' 

MOTION AND ON THE QUESTION OF LIMITATIONS

Of Counsel:
0. PETER SHERWOOD 

10 Columbus Circle 
Suite 2030
New York, N.Y., 10019 
Tele. (202) 586-8397

FLETCHER FARRINGTON 
Fletcher Farrington & 
Post Office Box 9378 
Savannah, GA 31402 
Tele. (912) 233-0111

Associates



r

TABLE OF CONTENTS 

VOLUME I

, • *  i ■ — >

Page

Introduction of counsel ............................... iii
Motion for partial summary judgment ..................
Brief in support of plaintiffs' motion for partial 
summary judgment; in opposition to defendants' 
motions; and on the question of limitations;

iv

Statutes involved .................................. 1
Statement of the case .............................. 3

I. Course of the proceedings .................. 3
II. Statement of undisputed material facts .... ■5

A. Working on the railroad - the
Nineteenth Century ..................... 5

B. Development of the seniority
system - 1900-1917 ..................... 7

C. Simple justice - World War I and
the Depression ......................... 8

D. A united front - World War II and
the fifties ............................. 10

E. Civil rights, consolidation and
merger - recent history ................ 15

Argument ............................................ 18
Summary of the argument ............................ 18

I. Plaintiffs' injuries are the result of
an intention to discriminate ............... 19
A. The Teamsters criteria ................. 20

1. This system had its genesis in
racial discrimination .............. 21

2. This system has not been maintained 
free from any illegal purpose .....

3. In the railroad industry, the 
federal government sanctioned
discrimination ....................

22

2323



\

Page

4. This system does not apply
equally to the races ...............  24

5. The system's similarity with
others in the industry indi­
cates its racial heritage .......... 26

6. The system is not rational ........  27
B. Other evidence of a racial system .....  27

II. The action is timely ........................ 30
A. The court has jurisdiction

under Title VII ......................... 30
1. Oliver Scarlett's case ............. 30
2. The other plaintiffs ..............  31

B. The court has jurisdiction
under 42 U.S.C. § 1981 .................  32

III. Plaintiffs are entitled to partial summary
judgment as a matter of lav/ ................. 34

Conclusion .............................................  36
Appendix A - quotation from SCL, with map ............
Appendix B - quotation from UTU, with seniority list .
Appendix C - Waycross yard seniority list ............
Appendix D - Chrapliwy v. Uniroyal, Inc., May 31,

1977 [Chrapliwy I] ...............................
Appendix E - Chrapliwy v. Uniroyal, Inc., September

9, 1977 [Chrapliwy II] ...........................
Certificate of Service ................................

VOLUME II

Preface to the evidence
Affidavits and other evidence in support of the 
motion
Certificate of service



INTRODUCTION OF COUNSEL

O. PETER SHERWOOD is counsel to Fletcher Farrington and 
Associates, attorneys for plaintiffs in this case, on ques­
tions involving the application of Section 703(h) of Title 
VII of the Civil Rights Act of 1964. He is a member of the 
New York bar, and is admitted to practice before the United 
States Supreme Court. He has appeared in cases in the North­
ern, Middle and Southern Districts of Georgia, among others.
He is co-counsel in Myers v. Gilman Paper Company, currently 
pending in this Court. Mr. Sherwood is employed by the NAACP 
Legal Defense and Education Fund, Inc., and is that organiza­
tion's senior New York staff lawyer on employment discrimina­
tion cases. As such, he is currently involved in more than a 
dozen Title VII cases in which the bona fides of the seniority 
system are at issue. He resides in Brooklyn.



IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA 

WAYCROSS DIVISION

OLIVER W. SCARLETT, et al., )
)

Plaintiffs, )
)

v. )
) CIVIL ACTION NO. CV 576-32 

SEABOARD COAST LINE RAIL- )
ROAD COMPANY and UNITED )
TRANSPORTATION UNION, )

)_________________Defendants. )

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

Come now plaintiffs OLIVER W. SCARLETT and others and 
respectfully move this Court, pursuant to Rule 56(a), Federal 
Rules of Civil Procedure, for judgment on the issue of liability 
of defendants herein. As grounds for this motion, plaintiffs 
show that there are no genuine issues of material fact in 
dispute, and that they are entitled to judgment as a matter of 
law. There are filed herewith a brief, affidavits and other 
evidence in support of the motion.

Wherefore, plaintiffs respectfully pray that their 
motion be granted.

Of Counsel:
O.PETER SHERWOOD 
Suite 2030 
10 Columbus Circle 
New York, New York

FLETCHERS FARRINGTON
Fletcher Farrington & Associates 
Post Office Box 9378 
Savannah, Georgia 31402 

10019 (912)233-0111



IN THE UNITED STATES DISTRICT COURT FOR THE 
SOUTHERN DISTRICT OF GEORGIA 

WAYCROSS DIVISION

OLIVER W. SCARLETT, et al., )
)Plaintiffs, )
)

v.
SEABOARD COAST LINE RAILROAD 
COMPANY and UNITED TRANSPOR­
TATION UNION,
_________ Def endan ts .

)
)
)
)
)
)
)
)

CIVIL ACTION NO. CV576-32

BRIEF IN SUPPORT OF PLAINTIF 
JUDGMENT; IN OPPOSITION TO 

AND ON THE QUESTION
FS' MOTION FOR SUMMARY 
DEFENDANTS' MOTIONS; 

OF LIMITATIONS

Of Counsel:
O. PETER SHERWOOD 

10 Columbus Circle 
Suite 2030
New York, N.Y., 10019
Tele. (202) 586-8397

FLETCHER FARRINGTON 
Fletcher Farrington & 
Post Office Box 9378 
Savannah, GA 31402 
Tele. (912) 233-0111

Associates



STATUTES INVOLVED

42 U.S.C. § 1981:

All persons within the jurisdiction 
of the United States shall have the same 
right in every State and Territory to 
make and enforce contracts, to sue, be 
parties, give evidence, and to the full 
and equal benefit of all laws and pro­
ceedings for the security of persons and 
property as is enjoyed by white citizens, 
and shall be subject to like punishment, 
pains, penalties, taxes, licenses, and 
exactions of every kind, and to no other.

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 
2000e et seq:

§ 703(a):
It shall be an unlawful employment 

practice for an employer --
(1) to fail'or refuse to hire or 

to discharge any individual, or other­
wise to discriminate against any 
individual with respect to his com­
pensation, terms, conditions, or 
privileges of employment, because of 
such individual's race, color, relig­
ion, sex, or national origin.

(2) to limit, segregate, or classify 
his employees or applicants for employment 
in any way which would deprive or tend to 
deprive any individual of employment 
opportunities or otherwise adversely affect 
his status as an employee, because of such 
individual's race, color, religion, sex, or 
national origin.

§ 703 (c) :
It shall be an unlawful employment 

practice for a labor origanization —
(1) to exclude or to expel from its 

membership, or otherwise to discriminate 
against, any individual because of his 
race, color, religion, sex, or national 
origin;

(2) to limit, segregate, or classify 
its membership or applicants for membership 
or to classify or fail or refuse to refer 
for employment any individual, in any way 
which would deprive or tend to deprive any 
individual of employment opportunities or 
otherwise adversely affect his status as an



employee or as an applicant for employment, 
because of such individual's race, color, 
religion, sex, or national origin; or

(3) to cause or attempt to cause an 
employer to discriminate against an individual 
in violation of this section.

§703 (h) :
Notwithstanding any other pro­

vision of this title, it shall not be an 
unlawful employment practice for an 
employer to apply different standards 
of compensation, or different terms, 
conditions, or privileges of employment 
pursuant to a bona fide seniority or 
merit system, or a system which meas­
ures earnings by quantity or quality 
of production or to employees who work 
in different locations, provided that 
such differences are not the result of 
an intention to discriminate because 
of race, color, religion, sex, or 
national origin ....

TWO



STATEMENT OF THE CASE
I.

COURSE OF THE PROCEEDINGS

Thxs action was commenced on June 15, 1976 by eleven 
black trainmen-7 who are employed by Seaboard Coast Line 
Railroad Company (SCLJ. Among other things, they alleged 
that the collective bargaining agreements between their 
employer and the union having jurisdiction of their jobs (UTU) 
perpetuate earlier racial discrimination against them, and 
as such violate the civil Rights Act of 1964, 42 U.S.c.
S 2000e et set., and the civil Rights Act of 1866, 42 U.S.c.
5 1981. They seek under both statutes injunctive relief, 
back pay and attorneys' fees.

Defendants moved to dismisss on a number of grounds, all 
of which were denied by an order dated October 27, 1976.
Among other rulings, the Court held that the action was timely 
filed under both civil rights statutes. The question of 
whether those plaintiffs who had not met the statutory re­
quirements to bringing a suit under Title VII should be dis­
missed was deferred. Thereafter, plaintiffs and SCL sought 
and were granted stays lasting until March 28, 1 977.

On May 11, 1977, the Court set the case down for pretrial 
conference. On the following day, the Court denied SCL's 
motion for summary judgment, thereby reaffirming its earlier 
ruling on timeliness. On May 28, 1977, SCL filed a second

man: brakeman, flagman“ rbiggagraLter1®"?®'re3* t r°ad
“ StSii S°“  2Soperatais used here and throuqhout the 1 ?%° ?  thf road • The term

See Deposition of Donald Sheldon rvf ^  the latter sense.
Seaboard Coast Line Railroad d d ' of Labor Relations,
Volume II, Exhibit D [hereinafK; hereto inp. ___."] hereinafter cited as "Sheldon, Ex. D,

THREE



motion for summary judgment on grounds that the statutes of 
limitation had run on both causes of action. Three days later, 
the United States Supreme Court gave its decision in International 
Brotherhood of Teamsters v. United States, 431 U.S. , 45 
USLW 4506, holding that a seniority system whose only vice 
is that it perpetuates the effects of earlier discriminatory 
conduct and which might otherwise violate Title VII is immune 
from that statute because of the affirmative protection afford­
ed to bona fide seniority systems by § 703(h) of the Act. On 
the same day, it also decided United Air Lines, Inc, v. Evans,
431 U.S. ___, 45 USLW 4506, holding that an employee who had
been fired and who waited five years to file an EEOC charge 
could not claim that her employer's refusal to credit her 
seniority for the time she was off after she was rehired 
was not unlawful.

SCL promptly filed a third motion for summary judgment 
alleging again that the statute of limitations had run. This 
time the railroad asserted that the seniority system was 
protected from a finding of illegality by § 703(h) of the Act. 
Plaintiffs asked the court to vacate the pretrial assignment 
in order that they might study the effect of Teamsters on the 
case. On July 7, 1977 plaintiffs informed the Court , by
letter, that they did not concede the bona fides of the seniority 
system.

On July 25, 1977, SCL renewed its earlier motions to 
dismiss all Scarlett's co-plaintiffs for their failure to 
meet any of the jurisdictional requirements of Title VII. The 
railroad moved to dismiss Scarlett himself on Teamsters and 
--vans grounds. By orders entered August 5 and October 19,
1977, the Court granted defendants' motions.

On December 19, 1977, the Court granted summary judgment 
on the § 1981 claims, holding that seniority systems which 
are protected by Title VII are a fortiori lawful under § 1981.

FOUR



Final judgment was entered on December 27. Plaintiffs filed 
a timely motion for reconsideration. By order dated February 
21, 1978, the Court reopened the judgment for a period of 
30 days to allow the parties to file additional evidence on 
the question of the bona fides of the seniority system. 
Plaintiffs were also directed to respond to an earlier motion 
filed by SCL to apply the Florida statute of limitations to 
the Section 1981 claims of the Florida plaintiffs.

II.
STATEMENT OF UNDISPUTED MATERIAL FACTS

A. Working On The Railroad — The Nineteenth Century
The development of the railroads was central in the

economic life of the United States in the years following the
Civil War. It was a matter of national priority that the
railroads be expanded into virtually every inhabited or
productive area of the country. This National policy,
implemented through federal land grants to the railroad
holding companies, mandated completion of the major lines as
quickly as possible. This growth created hundreds of thousands
of new jobs offering lucrative wages to people who were not
accustomed to such prosperity.—^

By 1880, most of the major lines had been established.
The remaining construction work was for trunk and local service.
National focus turned to the operation of the railroads.
Trains were operated, then as now, by crews consisting of 

3/five men. On the road, train crews consisted of an engineer, 
fireman, conductor, flagman, and brakeman. Normally, a 
person would begin work as a brakeman, at the head of the 
train near the engineer, then progress to flagman, a higher 
paying job at the rear of the train, and finally to conductor.

2/ See Rule 201 (b), F.R.Ev.

Aff.ida7 it of Mike Sellers, Volume II, Exhibit C, paragraph 5 [hereinafter cited as "Sellers, Exhibit C, paragraph .]

FIVE



r

In the cab, one started as a fireman and progressed to engineer.— 
In the switching yards, the five man crew consisted of the
engineer, fireman, footboard man (switchman helper) at the
head of the train, and field man (switchman) at the rear of
the train. Unlike the braking and flagging arrangement on
the road, there was no difference in pay between the footboard

5/and the field man.-
By 1880, the organizational efforts of the unions had 

resulted in the entire operating force of most of the nation's 
railroads being organized. There were five operating unions: 
the Brotherhood of Locomotive Engineers, the Brother­
hood of Locomotive Firemen, the Brotherhood of Railroad 
Trainmen, the Order of Railway Conductors, and the Switchmen's 
Union of North America. Each of them had provisions in 
their constitutions prohibiting blacks from becoming members.
The latter four groups merged in 1969 to form the United

6/Transportation Union.-
In the northeast, railroad employment was almost 

exclusively the province of white workers. Although white 
workers were also the predominant force in the south, large 
numbers of blacks were employed by the railroads, not only in 
common laboring jobs but in some skilled positions as well.
Most of the positions they held were in the operating jobs 
such as firemen, switchmen and brakemen, with a great majority 
of those being firemen. They were paid substantially lower 
wages that whites performing the same jobs.- Blacks, however, 
were excluded by formal rule of the railroad from the engineer,

4/ Affidavit of Dr. Robert C. Weaver, Volume II, Exhibit B, 
paragraph 7 [hereinafter cited as "Weaver, Exhibit B, 
paragraph ___."]
5/ Sellers , Exhibit C , paragraph 6
£/ Weaver, Exhibit B, paragraph 5.
7/ Weaver, Exhibit B, paragraph 4.

SIX

\



conductor, flagman and baggageman's job. In 1896, the Plant •
System of Railways, a predecessor of SCL, —  ̂ instructed
its train masters that "none but intelligent and reliable

9 /white men" should be selected for flagmen.-
B. Development of the Seniority System - 1900 to 1917 
As they organized the railroads, the unions began to 

bargain for a systematic method of job selection among persons 
available for work. They chose a method based upon length 
of service within a particular job. When a choice of jobs was 
available, the man who had worked in that job the longest 
time for that railroad got the job. This system of choosing 
the senior man put whites in direct competition with the lower 
paid black trainmen. Soon after this effect became apparent,
the unions began a systematic campaign to clear the railroad
c 10/ of Negroes.—

In 1910, the Brotherhood of Locomotive Firemen negotiated
an agreement with SCL railroads— ^ limiting the percentage of
Negroes who could be hired in a given geographic area. Thus,
even if a Negro switchman had the requisite seniority, he could
be excluded from working in an area if there were already
more than the set percentage of Negroes working there. He
could not hold his job even though he was senior to a white 

12/person.—  In that same year, the Brotherhood of Railroad

8/ SCL trains now run on Plant System tracks. See Rule 201(b), F.R.Ev.
Rule 134, Revised Rules for the Government of Employes of 

the Plant System of Railways, attached in Volume II, Exhibit A, page 31.
10/ Weaver, Exhibit B, paragraph 6.
.yV SCL is made up of a number of lines which have merged 
throughout the years, the two principal ones being Atlantic 
Coast Line and Seaboard Air Line. Where the evidence or its 
reasonable inference indicate like conduct on the part of all 
of the predecessor lines, they are referred to as the "SCL 
railroads." Where the evidence is clear as to only one line, that line is called by its name.
1_2/ Weaver, Exhibit B, paragraph 8.

SEVEN



Trainmen signed agreements with the same railroads providing
that seniority would be used to select from among brakemen
who would perform the flagmen's duties, but that Negroes were
not to be used as baggagemen, flagmen or conductors. Thus,
while the white brakeman's seniority would let him be promoted
to the higher paying flagman or conductor job, the already
lower paid black brakeman's seniority was good only for the
brakeman's job.— ^ In yard service, the seniority system was
manipulated to give whites the choice of work assignments over

14/senior blacks of the same rank.— ■
C. Simple Justice - World War I And The Depression
Because they could pay Negroes less money— ^ for more

work,^/ railroads continued to hire black workers in great
17/numbers in the decade before the first World War.— ■ The 

outbreak of the war changed that. The United States government 
found it necessary to nationalize all the railroads in 1918.
William McAdoo, a southerner, was appointed "Director General"
. 18/ to run them.—

In his General Order Number 27, which established the 
basic work rules and rates of pay for the roads, General 
McAdoo issued requirements that henceforth, wages, which had 
never depended on seniority, would be paid to black and white 
workers on an equal basis. On the other hand, General Order 
Number 27 left the unions' racially exclusionary membership 
policies intact, and solidified the power of the union by 
encouraging collective bargaining and placing the impramatur

13/ Id.
14/ Sellers , Exhibit C , paragraph 7
15/ Weaver, Exhibit B, paragraph 6.
16/ Sellers , Exhibit C , paragraphs
17/ Weaver, Exhibit B, pargaraph 7.
18/ Weaver, Exhibit B, paragraph 9.

EIGHT



of the National government on the racially weighted seniority 
systems. Implicitly included in the Order was the government's 
endorsement of the geographic and percentage limiting clauses 
and the clauses excluding blacks from all but the switchman 
and brakeman jobs.— ^

Although General McAdoo described his wage equalization 
order as "an act of simple justice," that provision had an 
unexpectedly harsh effect. With blacks now competing on an 
equal pay basis with their members, the unions were prompted 
to seek further restrictions on the entry of black workers 
into their crafts. In 1919, the Brotherhood of Railroad 
Trainmen entered into an agreement with the Southern Carriers' 
Association which provided that, in cases of reduction in 
force, the men involved would displaced in order of their 
seniority regardless of color. With regard to new vacancies, 
however, or the creation of new runs, only the senior white 
man had preference in choice of runs or vacancies as flagmen,
baggagemen or conductors. Negroes were specifically excluded
 ̂ 20/ from use as conductors, flagmen or yard conductors.—

The result of the 1919 agreement was that seniority
prevailed on the front of the train - older whites displaced
junior blacks - but the displaced blacks could not fill a
vacancy as flagman at the rear end of the train - the seniority
system prohibited it. The purpose of this rule, according to
the Brotherhood of Railroad Trainmen, was to "put an end to
the discrimination against white trainmen." Although the
explicit racial references have since disappeared, Seaboard
Coast Line and United Transportation use this same seniority

21/system today, virtually unchanged.—

19/ Weaver, Exhibit B, paragraphs 9, 10.
20/ Weaver, Exhibit B, paragraphs 11, 12.
21/ Affidavit of William Seymour, Assistant Vice President,
SCL Railroad, paragraph 5, attached to SCL's response to 
plaintiffs' Post Judgment Motion [hereinafter cited as "Seymour, paragraph ___

NINE



The unions' efforts against blacks continued during the
Depression. In the years 1937 through 1940, The Brotherhood
of Locomotive Firemen negotiated agreements with the SCL
railroads providing that future firemen vacancies should
be awarded only to "promotable"firemen. Since only white
persons were promoted from firemen to engineer, the effect
was to foreclose any further hiring of blacks into firemen 

2?/positions.— The unions were not entirely successful,
however, in keeping blacks off the railroad. In 1939,
plaintiff J. W. Jones was hired as a brakeman on Atlantic
Coast Line's Waycross Division, Old Savannah Side. In 1940,
plaintiff Horace Thomas transferred to a switchman's job

2 3/in ACL's Waycross Yard.— ■ Both of them were prevented, of
24/course, by the seniority agreements then in effect—  between

the United Transportation Unions and the railroad from becoming
25/conductors, baggagemasters, flagmen or yard foremen.—

The unions maintained their constitutional provisions against 
Negro membership.

D. A United Front - World War II and the Fifties 
In the summer of 1941, A. Phillip Randolph, President 

of the Brotherhood of Sleeping Car Porters, threatened a mass 
march on Washington to protest job discrimination against 
Negroes. In response, President Roosevelt promulgated 
Executive Order 8802, which established the Fair Employment 
Practices Committee. The Committee was to receive and investigate 
allegations of racial discrimination, conduct hearings, make 
findings of fact and to take appropriate steps to eliminate

22/ Weaver, Exhibit B, paragraphs 13, 14.
2_3/ SCL answer to complaint, paragraph 9.
2_4/ Weaver, Exhibit B, paragraphs 15, 16.
2_5/ See Appendix C, attached hereto.

TEN



discrimination. The first Committee was a failure, and was 
2 6/disbanded in 1943.— ■

In the meantime war broke out. Manpower became scarce, 
and the war effort put a premium on the movement of troops 
and material. Blacks found themselves once again courted by 
the railroads for switchmen and brakemen jobs.— ^ In 1943 , 
plaintiff Dave Rood was hired as a switchman in the Waycross 

* The following year, plaintiffs H. B. Starkes and Oliver 
Scarlett transferred from other railroad to switchman jobs 
at SCL's Jacksonville and Moncrief Yards, respectively.

Also during 1943, President Roosevelt issued Executive 
Order 9346, reviving the Fair Employment Practices Committee. 
I'his time the Committee's mandate, while including its 
earli-er authority, had as its broader purpose the expedition 
of the war effort. Nonetheless, "the case against 23 rail­
roads and 14 labor unions was the first taken by FEPC after its 
reorganization under Executive Order 9346. It must be counted 
among the Committee's outstanding failures."— The remainder 
of the Committee's railroad report shows why:

For 6 months in 1942 the first FEPC 
investigated hundreds of complaints of 
refusal by more than 30 railroads to 
employ Negroes in certain jobs, and 
agreements between more than 20 railroads 
and several labor unions sanctioning 
such discrimination. The hearing on 
these issues was ordered postponed in 
January 1943 by Chairman McNutt of the 
War Manpower Commission, to which the 
Committee was attached. The new Commi­
ttee, then under the chairmanship of 
Msgr. Francis J . Haas, held 4 days of 
hearings in September 1943 against 20

26/ First Report of the Committee on Fair Employment 
paragraph 5, attached in Volume II, Exhibit E. Practice,

27/ Deposition of H. B. Starkes, paragraph 3.
_28/ SCL Answer to Complaint, paragraph 9.
2_9/ Final Report, Fair Employment Practice Committee, 
paragraph 12, attached hereto in Volume II, Exhibit F.

ELEVEN



railroads and 13 unions. Ten carriers 
and one union had made prior settlements.

The 20 carriers appeared at the 
hearing through counsel; the unions boy­
cotted the hearings. Witnesses produced 
unrefuted evidence of discrimination 
practiced by the railroads and the unions.
On the basis of this testimony the Com­
mittee issued findings of refusal to 
employ Negroes as locomotive firemen, 
trainmen, switchmen, yardmen, dining 
car stewards, mechanics, machinists, 
and helpers. Although at one time a 
majority of the firemen on southern rail­
roads had been Negroes, agreements be­
tween the carriers and the unions had 
set quotas on their employment, restricted 
their seniority rights, and denied them 
the right to fill new runs and vacancies, 
leading to ultimate elimination of Negro 
firemen on southern locomotives. Similar 
restrictions were found in the cases of 
Negro trainmen and shop and yard employees.

The Southeastern Carriers’ Conference 
Agreement, entered into February 18, 1941, 
between 20 southern railroad and terminal 
companies and the Brotherhood of Locomotive 
Firemen and Enginemen, was found to be a 
master agreement designed to restrict 
and eliminate Negro firemen and trainmen.

The Committee issued directives calling 
upon the carriers and unions to end 
discrimination and to abandon the South­
eastern Carriers' Conference Agreement.
The Committee provided a 7-day period during 
which the railroad companies and the unions 
were invited to confer on compliance.
Public issuance of directives was with­
held in the case of some carriers who 
agreed to negotiate.

The self-elected division of the carriers 
and the unions into two groups -- one which 
agreed to negotiate and the other which 
defied the Committee -- provides a re­
vealing contrast between the two attitudes 
and resulting outcome of the hearings.

The first group of six carriers (one of 
them southern) and one union spent several 
months with FEPC representatives ironing 
our the difficulties raised by the complaints. 
The results on the whole were satisfactory.
The parties were cleared of charges of 
discrimination and the Negroes and Mexican- 
Americans benefited by better employment 
opportunities.

The 14 southern railroads on December 
13, 1943, made public a letter to the 
Committee denying its jurisdiction and 
stating that it was utterly unrealistic 
to suppose that problems of such delicacy



r. i .mi <sa 3BM?«gQB»iaMa5agBa>iaae asiaa nr.--?sta .-gtv ;,v .y a ; a - M a m  asas - iM «a*.

can "be solved out-of-hand by the fiat 
of your Committee’s directives." The 
unions involved remained silent. The 
cases of the 14 railroads and 7 unions were 
accordingly certified to the President.

Early in January 1944, the President 
appointed a special committee to deal with 
the issues. The committee consisted of 
Chief Justice Walter P. Stacy of the Supreme 
Court of North Carolina, Judge William H.
Holly of the United States district court,
Chicago, 111,, and Mayor Frank J. Lausche 
of Cleveland (now Governor of Ohio). This 
committee met several times with the railroads, 
the unions, and FEPC. It was not successful 
in bringing about compliance with the Committee's 
directives, and no report of its progress was 
made other than an interim statement in May 1944. 
Thus the situation respecting the 14 railroads 
and 7 unions remains today what it was when the 
Committee referred the case to the President.— /

While black trainmen were getting nowhere with the 
President's Committee, they made apparently great strides in
the Supreme Court. On December 18, 1944, the Court decided

31/the cases of Steele v. L. & N. Railroad—  and Tunstall v .
32/Brotherhood of Locomotive Firemen and Enginemen—  , holding 

that the union could not use its bargaining rights to negotiate
an agreement which was preferential to union members and 
discriminated against other employees because of race.

It was false hope. The returning Negro veteran, who 
had seen his brothers hired into train service while he was
on his way to war, found that SCL had stopped hiring black
trainmen altogether in May 1945. All that was available to him
now were nigger jobs: train porter, chair car attendant, cook,

33/air bleeder.

While the failure to hire blacks in the first five years 
after the war is doubtless attributable to the plentitude of

30/ Id., pp. 12-14.
31/ Steele, 323 U.S. 192 (1944)
32/ Tunstall, 323 U.S. 210 (1944)
33/ See depositions of plaintiff David Jones, 
deposition of Godfrey Davis, p. 4, attached in 
Exhibit I; deposition of B. T. Snowden, pp. 9, in Volume II, Exhibit H.

p . 6 ;
Volume II, 
27, attached

THIRTEEN



/ ' ■ ' N

returning servicemen who were entitled to their old jobs under 
veteran's preference laws, by 1950 the railroad was again in 
need of skilled trainmen and once again turned to its black 
labor force. In a one month period in Waycross, SCL hired 
three black switchmen.—  Soon after the names of these 
men were admitted to the roster, hiring of black trainmen 
stopped. While the railroad continued to use porters and air 
bleeders for trainmen's work, it refused, for the first time 
in its history, to give them any seniority in that craft. —  ̂

Although UTU today contends that this phenomenon was 
solely the act of the railroad, the result was entirely con­
sistent with the earlier expressed aims of the Brotherhoods.
All the United Transportation Unions at that time continued to 
exclude blacks from membership. Further, they were waging

tting legal war in defense of the 1941 seniority agree —
3 6/ments. in any event, the black porters themselves understood

that the reason the railroad was not granting seniority was
pursuant to a tacit agreement with the Brotherhood of Railroad
Trainmen 37/ It was during this period that SCL hired plaintiffs
F. D. R. Bell, David Jones, W. J. Odol, Sr., L. A. Waters and 
W. K. Lindsey, as cooks, waiters and chair car attendants.— ^

34/ Waycross Yard Seniority list, p. 2, attached hereto as Appendix C.

S°e 9enerally excerpts from depositions of B. T. Snowden Godfrey M. Davis and Uley Hamilton, attached in Volume II, Exhibits H , I & j .
36/ Richardson v. Texas & N.O.R.R. 
1957); Central of Ga. Ry. v. Jones, 
1956), cert. 186 F.2d 473 (4th Cir.

242 F .2d 230 (5th Cir. 
229 F .2d 648 (5th Cir. 1951).

37/ Deposition of B. T. Snowden, Volume II, Exhibit H, p. 9. 
38/ SCL Answer to the Complaint, paragraph 5.

FOURTEEN



E. Civil Rights, Consolidation, and Merger —  Recent History
Another march on Washington in 1963 and the tragic and

unforseen change in the country's leadership later that year
provided the impetus for the passage of the Civil Rights Act
of 1964. Its Title VII, prohibiting discrimination on account
of race, was to become effective one year later. At last,
black trainmen had real hope. Several of them immediately

39/sought promotions or seniority adjustments.—  Plaintiff Horace
Thomas describes the result: "After the 1964 Civil Rights
law passed and the President Executive Order 10925 came in, 
all whites were promoted to Switch-Foreman. The SCL Company 
made no explanation for such action " (sic; emphasis added). 
Just before this wholesale promotion in 1965, Thomas had asked 
Terminal Superintendent A. A. Karle if he and other blacks 
were going to be promoted to conductor. Karle's reply, as 
recalled by Thomas, was, "He said yes, I think all of you
fellows...and he named all of the senior blacks, would make 
very good conductors. But he say look like the timing ain't 
right!'— /

Although the seniority agreements still provided, as 
they always had, that trainmen should be called for promotion 
to conductor in order of their seniority, no blacks were called 
until 1967, when plaintiff Scarlett was called for promotion 
in Jacksonville. His trainmaster told him that the shouldn't 
take the exam, since he would lose his seniority and "only be 
able to hold a third trick job." Scarlett took it anyway.— '/

3_9/ Depositions of plaintiff Horace Thomas, p. 20; deposition 
of B. T. Snowden, Volume II, Exhibit H., pp. 17-18, 25; 
deposiiton of Uley Hamilton, Volume II, Exhibit J., pp. 44, 56.
4°/ Deposition of plaintiff Horace Thomas, Id.
41/ Deposition of plaintiff 0. W. Scarlett, p. 26.

FIFTEEN



The passage of the Civil Rights Act did persuade SCL 
to return to its former practice of allowing blacks to accum­
ulate trainman's seniority. Plaintiff David Jones, a dining 
car cook, was the first black to be admitted to the SCL-UTU 
switchmen seniority roster in Jacksonville since World War II 
ended. When Jones went to work, it was still the custom to 
allow seniority to be manipulated by whites for choice of 
assignment.

The union made no move to comply with Title VII. Jones 
applied immediately- for union membership. After several 
months, he was summarily notified that his application had 
been rejected. He was not able to join the union until three

i „ 42/years later.—
About this time, the merger between the Atlantic Coast

Line and Seaboard Air Line railroads was taking place. The
Jacksonvilie-to-Waycross, Jacksonville-to-Savannah and
Savannah-to-Waycross road seniority districts were consolidated

43/into a single large district, Number 2.—  The road and yard 
rosters were "topped and bottomed", giving yardmen rights on 
the road and roadmen rights in the yards for the first time.
In 1969, four of the five operating unions merged to form 
United Transportation Union. With the merger, the union 
finally dropped its barriers against black membership.— ^

None of those changes, however, altered the basic 
structure of the seniority system or its use by defendants. 
Plaintiff Thomas was not called for conductor examination until 
1970. When he asked if the railroad was going to give him 
his rightful seniority, Mr. Karle told him, "No." He asked

42/ Deposition of plaintiff David Jones, pp. 7, 22; affidavit 
of Jones, Volume II, Exhibit K.
43/ Map attached hereto as Appendix B.
44/ Deposition of plaintiff David Jones, p. 7.

SIXTEEN



the union to help; the local chairman said he would but did 
45/

not. Thomas
decided it was hopeless to fight the 
system that was set up so long ago to try 
to obtain justice in the thing that should 
have been done voluntarily, and decided -
[Reporter:] Speak louder.
decided to live out our lives working and 
trying to do the best we can for the 
company in the capacity that we were 
hired. There's talent in this room com­
bined thirty-seven, thirty-five and 
thirty-seven years with the railroad, 
with the greatest portion of it has gone 
to waste because they didn't tap the 
resources to find out just how good 
they could be for the railroad. But 
the thing that I would - I don't 
have any kicks about - what - and all 
I ask them is to do what is right. If we 
can get them to do what is right, that's 
all I would want.46/

Oliver Scarlett filed his EEOC charge in 1973. The following
year, David Jones applied for a trainmaster's job. When he
asked why a junior white had been promoted over him, he
was told, "you just keep your nose clean and everything will

£7/
be all right."

45/ Deposition of plaintiff 
46/ Id., p . 9.
47/ Deposition of plaintiff

Horace Thomas, p

David Jones, pp.

8 .

26-28.

SEVENTEEN



ARGUMENT
Summary of the Argument

"A line has to be drawn somewhere." That recent ad­
mission by a Justice of the United States Supreme Court in

48/a case holding a Georgia statute unconstitutional—  is 
an equally apt description of that Court's ruling in International
Brotherhood of Teamsters v. United States, 431 U.S. ___, 45
USLW 4506 (1977). [Teamsters.] In that case, the Court drew 
the line on lower court judges who had been unanimous in 
holding that seniority systems violate Title VII by the simple 
vice of extending no retroactive seniority to victims of 
earlier discrimination. The fact that a seniority system, 
otherwise lawful, perpetuate the injury of an earlier wrong, 
does not on that account alone prove that the system is 
"the result of an intent to discriminate" within the meaning 
of § 703 (h) of the Civil Rights Act of 1964.— ^

Although few courts have had the opportunity to address 
the distinction between job inequities which are the result 
of an intent to discriminate and those which are the result only 
of a bona fide seniority system, the distinctions are not hard 
to find in this case. If the job differences that Oliver 
Scarlett and David Jones are complaining about are not the 
result of an intent to discriminate, then discrimination 
never happened in this country. This seniority system is the 
definition of intentional race discrimination.

Evans v. United Air Lines, ___ U.S. ___, 45 USLW 4566
(1977) [Evans], does not apply to this case. Evans was fired 
from her job and failed to complain about it. These men have 
been laboring under the same old system for forty years, and

48/ Ballew v. Georgia, U.S. , 46 USLW 4217, 4223
(March 21, 1978) , (Mr. Just ice Powell, concurring in the judgment).
49/ Teamsters, 45 USLW at 4513

EIGHTEEN



they have complained to anyone who would listen. So far, no 
one has. Again, the facts of this case supply the definition 
of "continuing discrimination". The Title VII action of 
Oliver Scarlett is therefore timely filed. Further, under a 
recent decision of this Court, the other plaintiffs are 
properly joined in the Title VII action.— ^

Plaintiffs will demonstrate that the premises upon which 
the railroad seeks to have the Court apply the Florida 
statute of limitations to the claims of the plaintiffs who 
live in Florida are palpably false. The proper statute of 
limitations for all claims under section 1981 is the Georgia 
statute, and this Court has jurisdiction under that section.

Although there is obviously much more that could be said 
if this case went to trial, there is no more that needs be 
said to decide it. The evidence that has been offered on 
both sides stands uncontroverted. There are of course 
questions of "ultimate fact"— ^ and law to be decided, but 
that is the purpose of the summary judgment device. On the 
question of liability, summary judgment should be granted to 
plaintiffs.

I.
PLAINTIFFS' INJURIES ARE THE RESULT OF AN INTENTION

TO DISCRIMINATE
"Seniority" means, literally, length of service. As 

a device for measuring entitlement to job benefits, it has few 
equals. It is acceptable to the employer, for he generally 
wants his employees at their jobs as long as possible. It is 
acceptable to the employee because it gives him security now 
and predictability for the future. It is not suprising, then,

50/ Jackson v. Brotherhood Railway Carmen, No. CV576-54 
(October 29, 1977).
51/ See, East v. Romine, 518 F.2d 332, 339 (5th Cir. 1975).

NINETEEN



that employers and employees who bargain about the allocation 
of job benefits choose seniority as one systematic way to 
measure it.

When it passed the Civil Rights Act of 1964, Congress 
judged that such systems form an important part of our national 
labor policy, and decreed that, if they are genuine, seniority 
systems may be used to allocate job benefits even if they do 
have a discriminatory effect. Section 703(h) of the Civil 
Rights Act of 1964, 42 USC § 2000e-(h), provides in part:

Notwithstanding any other provision of 
this subchapter, it shall not be an unlawful 
employment practice for an employer to ap­
ply different standards of compensation, or 
different terms, conditions, or privileges 
of employment pursuant to a bona fide 
seniority... system,...provided that such 
differences are not the result of an in­
tention to discriminate because of race....

Defendants in this case have moved for summary judgment,
claiming that plaintiffs' injuries are the result of a bona
fide seniority system rather than a result of an intention
to discriminate. As the statement of facts indicates, the
argument is utterly without merit.

A. The Teamsters Criteria
In International Brotherhood of Teamsters v. United 

States, 431 U.S. ___, 45 USLW 4506 (1977) , the Supreme Court
held that proof that a neutral system perpetuates the effect 
of an earleir discrimination does not provide enough evidence 
of intentional discrimination to make the seniority system 
unlawful under Title VII. After examining the Teamster's 
seniority system and finding no other indicators of intentional 
discrimination, the Court explained the analysis it used to 
reach its conclusion:

The seniority system in this case is 
entirely bona fide. It applies equally to 
all races and ethnic groups. To the ex­
tent that it "locks" employees into nonline- 
driver jobs, it does so for all. The city 
drivers and servicemen who are discouraged 
from transferring to line-driver jobs are 
not all Negroes or Spanish-surnamed Americans;

TWENTY



to the contrary; the overwhelming majority 
are white. The placing of line drivers in 
a separate bargaining unit from other em­
ployees is rational, in accord with the 
industry practice, and consistent with NLRB 
precedents. It is conceded that the 
seniority system did not have its genesis 
in racial discrimination, and that it was 
negotiated and has been maintained free from 
any illegal purpose. In these circumstances, 
the single fact that the system extends no 
retroactive seniority to pre-Act discrim- 
inatees does not make it unlawful.

Teamsters, 45 USLW at 4514. When this case is judged by 
those criteria, it immediately becomes evident that the 
differences in the treatment of plaintiffs and white trainmen 
are indisputably the result of an intention to discriminate.
It is true, as it will be in all cases, that this seniority 
system carries some of the indicia of a bona fide system. 
Nonetheless, the evidence of historical intentional discrimina­
tion is so profound as to satisfy the most traditional equity 
standards. Cf. Albermarle Paper Company v. Moody, 422 U.S.405,
450 (1975) (Mr. Chief Justice Burger concurring in part and 
dissenting in part).

This system has its genesis in racial discrimination. —
The gestation period for the trainmen's seniority system was
the fifty-odd years from the close of the Civil War until World
War I. The first important codification of the system provided
that "seniority shall be used to select from among brakemen,
baggagemen and flagmen who shall serve as conductors, except
that Negroes are not to be used as baggagemen, flagmen, conduct-

52/ors or yard foreman."—  The union which devised and negotiat­
ed it was calling on other unions in 1898 to "clear the rail­
road of Negroes." No more about the genesis of this system 
need be said.

Seaboard Coast Line says that the system's approval by 
General McAdoo in 1918 as a way to keep the railroads running

52/ Weaver, Exhibit B, paragraph 8.

TWENTY-ONE



during wartime, is irrefutable pr.oof that it could not have 
its genesis in racial discrimination. As we demonstrate 
below, the fact that the government approved it is, in the 
circumstances of this case, positive evidence of racial 
motivation. United Transportation Union takes a broader view, 
conceding that the question should be answered by looking at 
the entire gestation period. But that is the union's only 
concession to reality. The union says that since there were 
very few blacks on the railroad, there was nobody around to 
discriminate against. Further, since the system is a rational 
means of slicing the white pie, it must be bona fide. The 
undisputed evidence, however, shows that during the early 
1900's, SCL was hiring blacks as switchmen and firemen exclusive 
The Union's argument, viewed against the true facts, makes 
crystal clear that a seniority system, while appearing to be 
both rational and neutral, can nonetheless be the direct 
product of an intention to discriminate. If it still produces 
the same discriminatory result, as this one does, it is 
illegal.

2- The system has not been maintained free from any 
id-legal purpose. —  No matter whether "illegal" as used 
by the Court in Teamsters means "violated an existing law" or 
"was used to discriminate," the seniority rules here are il­
legal, and have been so used. If the term means that its 
users violated an existing law, the wealth of litigation in 
which UTU and SCL found themselves following Steele— ^ is 
proof enough of the true purpose of the seniority rules. If, 
as plaintiffs urge, it means that the system has been manip-

53/ Steel v. 
RTchardson v. 
Central of Ga 
cert, denied, 
Line R.R. 186

Louisville & N. R.R., 323 U.S. 192 (1944). See 
Texas & N.O.R.R., 242 F2d 230 (5th Cir. 1957); 
Ry. v. Jones, 229 F .2d 648 (5th Cir. 1956)

^ 8U (1956); Rolax v. Atlantic Coast F•2d 473 (4th Cir. 1951).

TWENTY-TWO



-T 5353 Q B I B B S S B I

ulated to perpetuate discrimination, then one only need to
54/compare the "facially neutral" seniority rules—  with the 

1961 results of their operation.— / Something was keeping 
these blacks from being promoted.

The union says it was the company who did it. If that 
were true, and if the union had the duty to represent these 
black trainmen (it did) and if the agreement on its face 
said they should be promoted (it did), and if they were not 
promoted (they were not), why did the union never file a 
grievance to protect the integrity of its "bona fide" 
seniority rules? The only conclusion possible is that 
the union that persuaded the railroad not to promote conductors, 
and it was the union that persuaded the railroad not to hire 
blacks after World War II. The union's policy in this regard 
was so open that even the black train porters know about it.— ^

3• In the railroad industry, the federal government 
sanctioned discrimination. -- The Teamsters Court found that 
the seniority system was "consistent with NLRB precedents."
The National Labor Relations Board does not, of course, have 
jurisidiction over the union and the railroad here. Rather, 
they are governed by the Railroad Adjustment Board, which is 
substantially different in aims, makeup, and operation.
To be sure, the practices attacked here met the approval of 
General McAdoo, and the later approval of the Railroad

54/ See Volume II, Exhibit G. "Trainmen shall be called for 
promotion to conductor in order of their seniority."
55/ See Waycross Yard Seniority List, attached to this brief 
as Appendix C. Of 76 promotable yardmen on the list, 13 were 
black (c). None of them had been promoted. Only seven of the whites had not been promoted.
5_6/ Deposition of B. T. Snowden, Volume II, Exhibit H, p. 9. 
57/ See 45 USC § 151 et seq.

TWENTY-THREE



Adjustment Board. It is just for that reason that the 
system cannot come under the protection of section 703(h).

The Railroad Adjustment Board has approved every bargain­
ing agreement at issue in this case since 1918, including those
with explicit racial clauses. Its decisions on questions of

53/race have been set aside in the courts.—  It never had as
one of its aims to end racial discrimination as the NLRB 

59/has.—  Its sole purpose is to keep the railroads runnxng.
It has always done so by keeping labor peace. It has kept the 
peace by acceeding to the demands of unions like the Brotherhood 
of Railroad Trainmen. If government approval is the same 
thing as no discrimination, why did the Board unfailingly 
continue to certify the BRT as the "exclusive" bargaining 
agent when it excluded blacks until 1969, and stopped exclud­
ing them then only because it ceased to exist? If Railroad 
Board approval means no discrimination, why did President 
Roosevelt's Committee find the going so hard? Defendants were 
under the jurisdiction of the Board then. Yes, the seniority 
system here was approved by the "government", just as SCL 
says it was.

4. The system does not apply equally to the races. -- The 
seniority provisions here require that trainmen take promotion 
on the date of their first eligibility for it. If they do not, 
and do not have a good excuse, they cannot establish seniority 
until they do take the test. The conductor plaintiffs, who 
have been switching and braking for an average of over 35 
years each, cannot be admitted to the roster because of this 
"rule." The UTU and SCL say that their having been denied

58/ Hunter v. Atchison, T.&S.F.Ry., 171 F.2d 594 (7th Cir. 
1948), cert, denied, 337 U.S. 916 (1949).
59/ See, e.g., Emporium Capswell Co. v. W.A.C.O., 420 U.S. 
50 (1975).

TWENTY-FOUR



promotion because of skin color is not a good enough excuse.
That excuse is just about the only one which the railroad and 
the union will not accept.

Almost any other excuse will allow a white trainmen to 
keep his place on the conductor's seniority roster even though 
he does not take or pass the test at the first opportunity.
Indeed, trainmen who fail the test the first time but pass 
it the next time are given seniority retroactive to the date of 
the first test. Other "bona fide11 excuses for getting retroactive 
seniority include leaving for train service for salaried positions 
with the company, leaving the railroad altogether to go to work 
for the union, being ill or being on leave of absence. If 
white trainmen (or black ones, now that the Civil Rights Act 
is law) miss the conductors' examination for any of those reasons, 
they may nonetheless be admitted to the seniority roster "in 
their relative standing on the roster"— ^ —  two years after 
they were hired no matter how long they have been away nor 
how little what they have been doing has to do with running 
trains.

Plaintiffs could not have failed the test when they
were first eligible because, under the terms of the "bona
fide" seniority agreement, which is "virtually unchanged, 
they couldn t take it at all. They cannot have been promoted
to official positons because neither the company nor the unions
used black persons in those jobs. The truth is that this
seniority system is and has been applied to whomever and in
whatever way is or was expedient for defendants at the time.
For example, by the terms of the agreement, the railroad
calls trainmen to take the promotional exam. Yet SCL

60/ Agreement between SCL and UTU, Volume II, Exhibit L pp. 53-54.
61/ Seymour affidavit, paragraph 1.

TWENTY-FIVE



defends its failure to promote the conductor plaintiffs 
because they didn't apply for promotion.— ^ The conductor's 
agreement says that if you fail the examination the first time 
you get to take it again with no loss of seniority. But SCL 
defends this suit by saying that plaintiff David Jones is 
"estopped to assert any claim for earlier conductors seniority" 
because he once failed the test.—

David Jones and the trainmen plaintiffs do not deny, 
of course, that the cross-craft, no transfer rule looks neutral 
on its face, and to that extent "applies equally to all races 
and ethnic groups." The application of the seniority system, 
however, has ben radically different for blacks than for 
white persons. Before 1965, blacks were treated differently 
because they were black. Now they are treated differently for 
3 different reason. But, the treatment is the same. From 
plaintiffs' end of the stick, it looks like the same old’ thing. 
It is the same old thing.

5. This system's similarity with others in the industry 
indicates its racial heritage. —  Plaintiffs agree that this 
system is in use on every railroad in the country, and that it 
is virtually unchanged since 1918. Seaboard Coast Line argues 
that this similarity and age exculpates the system because 
the Court found in Teamsters that those factors were relevant. 
Plaintiffs agree that those factors are relevant. But here, 
identity with other systems is proof of discrimination. If 
ever an entire industry could be charged with racial discrimina­
tion, the railroad industry can. That this system is identical 
to all others condemns it. It is not lawful under § 703(h).

62/ SCL Answer to Complaint, paragraph 16. 
63_/ SCL Answer to Complaint, paragraph 18.

TWENTY-SIX



6. The system is not rational. -- Plaintiffs also agree 
that the trainman's seniority system provides a rational means 
of allocation of job benefits based on seniority, but the 
system is not, and has not been being applied rationally. The 
provision that trainmen are to be promoted to conductor in 
seniority order after two years service is a typical example.
If it had been applied rationally, that is according to its 
terms, plaintiff J.W. Jones would have become a conductor at 
least by 1952. Twenty-five years later, he is still waiting.

B . Other Evidence of a Racial System
Two other courts have had the post-Teamsters occasion 

to examine seniority practices to determine whether they were 
the result of an intention to discriminate. Both courts reach­
ed the result urged by plaintiffs here. In James v. Stockham 
VaIves, 559 F .2d 310 (5th Cir. 1977), the Fifth Circuit, while 
noting that the facts would necessarily be different for each 
case, 559 F.2d at 351-52, held the following factors to be 
relevant in making the determination: (1) Whether plaintiffs
concede that the seniority system did not have its genesis 
in racial discrimination, or whether it was negotiated and 
maintained free from any illegal purpose; (2) Whether the period 
in which the agreement was first entered was one in which 
segregation was the custom; (3) Whether the employer has in­
stituted changes in the seniority system to include plant­
wide seniority; and (4) Whether the same collective bargaining 
unit had jurisdiction of all the jobs in issue. Of course, 
all of those elements are present in this case.

Plaintiffs have not conceded that the seniority system is 
bona fide. The system developed not only during a period of 
segregation, but when Klansmen roamed free and when the official 
policy of the federal government sanctioned racial

TWENTY-SEVEN



discrimination.64/ Here both the Union and the Company have
steadfastly refused to treat with plaintiffs' request for 
seniority adjustments, despite the fact that the bargaining 
agreement between them makes numerous provisions for such ad­
justments for others. And, the fact that all of the jobs in 
question are under the jurisdiction of one union, which 
excluded all plaintiffs from membership until 1969, should be 
dispositive of the issue. Under James v. Stockham Valves, 
this system must fall.

In Chrapliwy v. Uniroyal, Inc., ___F.Supp. ___, 15
6 5/FEP cases 822 (N.D.Ind., 1977) [Chrapliwy II], the district 

court had occasion to reconsider an earlier order— ^ in which 
it had granted summary judgment to plaintiffs on the seniority 
question. On reconsideration, the district court found that 
section 703(h) did not protect Uniroyal's seniority system.
The Court found that the employer: (1) kept seniority lists
segregated according to sex, (2) used its current system of 
employment as a disguise of the former segregated system, and
(3) excluded women from some jobs altogether. Those factors, 
the court said, removed the system from the protection of 
section 703(h). All of those factors appear in this case.

Although the names of plaintiffs appear on the same lists 
with whites, those lists are "segregated" in the truest sense 
of that word.— ^ Also, the system has not changed -- SCL 
has conceded as much —  from when it was openly racist. Now 
it is only segregation wearing another guise. Finally, here,

64/ See Plessy v. Ferguson, 163 U.S. 537 (1896).
65/ Attached hereto as Appendix E.
66/ Attached hereto as Appendix D.
67/ Sec Appendix C, attahced hereto.

TWENTY-EIGHT



as at Uniroyal, blacks were excluded from same jobs s'pecifically 
on account of their race.

The Supreme Court has spoken to the quality of the evidence 
necessary to support a finding of intentional segregationist 
intent. In Keyes v. School District No. 1, 413 U.S. 189, 207 
(1973), the Court found that, because a school board had 
segregated schools in one part of the system, such facts 
are probative on whether other schools in the system were also 
intentionally segregated. That principle has equal application 
here, particularly with reference to the railroad's failure to 
hire blacks following World War II. The union now says that 
whatever happened then was solely the company's doing, and 
it had no part in it. But, the union was openly advocating 
exclusion of blacks from train service just before the War.
After the war, that is precisely what happened. The inevitable 
conclusion, especially when viewed in light of the post- 
Steele litigation, is that the unions had substantially more 
to do with the railroad's hiring practices than they are now 
willing to concede.

The application of the well-settled evidentiary principle 
that the prior doing of other similar acts, whether clearly 
a part of the scheme or not, is useful as reducing the 
possibility that the act in question was done with innocent 
intent," Keyes v. School District No. 1, 413 U.S. at 207 208 . 
[citation committed.] "Evidence that similar and related 
offences were committed...tend[s] to show a consistent pattern 
of conduct highly relevant to the issue of intent Id." To 
plaintiffs, this seniority system looks just as it looked in 
1918. If it is the same now as it was then, under the Keves 
analysis it inevitably follows that the differences in treatment 
accorded are "the result of an intent to discriminate" and 
are not protected by § 703(h) of the Act. Accordingly, the 
Court should grant plaintiffs partial summary judgment on 
that issue.

TWENTY-NINE



II
THE ACTION IS TIMELY

A . The Court Has Jurisdiction Under Title VII
1. Oliver W. Scarlett. —  In United Airlines v. Evans/

341 U.S. ___, 45 U.S. Law Week 4566 (1977) plaintiff, a woman,
was discharged for violating a company rule against getting 
married. Shortly after her discharge in 1968, the Company 
changed its rule, following decisions holding that such a 
practice is unlawful under Title VII. Four years later, Mrs. 
Evans was reemployed and given a new seniority date. She 
sought an adjustment of her seniority to take account for the 
time she was out. When that failed, she filed, in 1973, an EEOC 
charge, claiming as the sole unlawful practice the defendant's 
failure to credit her with seniority.

The Supreme Court held that, where a plaintiff does not 
file a timely charge in response to a single act of discrim­
ination, the employer is entitled to treat that as a lawful act. 
The Court then held that the simple failure to credit seniority, 
where the seniority system itself is bona fide, and where no 
one else in plaintiff's circumstances has been awarded retro­
active seniority, is not a violation of Title VII.

Defendants say that the decision in Evans is so self- 
evidently applicable to this one that it requires the Court to 
hold that Oliver Scarlett's 1973 charge of discrimination was 
untimely. The reason, says the railroad, is that the "last 
act of discrimination" against Scarlett was his promotion to 
conductor in 1967. Plaintiffs say that argument is self- 
evidently wrong.

In addition to the apparent differences in the cases, 
there are also the following: (1) prior to the discharge,
United Airlines had never committed one discriminatory act 
against plaintiff. In this case, defendants discriminate against

THIRTY



plaintiffs every time one of them marks up for work.
(2) Ms. Evans sought seniority credit for four years during
which she was not connected in any way with the company.
These plaintiffs have never left the employment of the company,
and some of them are doing the same jobs they have been doing

68/
for 40 years. (3) the "operative fact" was plaintiff's 
marriage. Although it is unfair to penalize one for being 
married, at least one has a theoretical chance of avoiding 
that status. No black person cannot be black. (4) after it 
discharged her, United committed no further acts of discrimi­
nation against Ms. Evans. Here, plaintiffs are in the same 
relative positions on the roster that they were before the 
discrimination "stopped." To them, at least, nothing has 
changed.

The cosmetic face lift that defendants gave to their
seniority svstem, which, as SCL concedes, is "virtually un-

69/
changed" from the 1918 system, did not end the discrimination 
against these plaintiffs. Truly, this is continuing dis­
crimination, and is subject to an EEOC charge for as long as 
it lasts. Oliver Scarlett's charge, then, was timely filed.
It would be timely filed tomorrow. This court has jurisdiction 
of his Title VII claim.

2. The other plaintiffs. -- Defendants say that in any 
event the other plaintiffs who have not filed EEOC charges are 
not entitled to join as plaintiffs, and their Title VII claims 
should be dismissed. In a recent decision on this issue, this 
Court held that, where the question is whether "the... 
plaintiffs should be allowed to assert claims for relief under

68/ Cf. Quotation at Appendix B, attached hereto. 
69/ Seymour affidavit, paragraph 1.

THIRTY-ONE



Title VII when, admittedly, only Jackson filed a complaint 
with the EEOC," Jackson v. Brotherhood of Railway Carmen of 
America, No. CV576-54, Waycross Division, October 29, 1977, 
the claims should be allowed. The appropriate test, this 
Court said, is whether the addition of the parties would 
"frustrate the policy of conciliation emphasized by Title 
VII." Under that test, all plaintiffs are entitled to join 
with Scarlett. Had his charge been conciliated by EEOC, the 
relief granted would likely have been relief for all. Further 
neither defendant can be in any way prejudiced, since these 
plaintiffs have been in the suit from the beginning. The 
remaining plaintiffs should be allowed to assert their Title 
VII claims on the basis of Scarlett's EEOC charge.

B . The Court Has Jurisdiction Under 42 U.S.C. § 1981
In its order of December 19, 1977, the Court ruled that 

the seniority system, because it was bona fide within the 
meaning of § 703(h), "also passes muster under 42 U.S.C. § 
1981." Whether that is necessarily true, cf. Johnson v. 
Railway Express Agency, 421 U.S. 454 (1975), the question 
need not be decided here. Plaintiffs have demonstrated that 
the seniority system was the result of an intention to dis­
criminate, and is therefore not entitled to protection under 
§ 703(h). Thus, the Court should vacate its judgment as to 
section 1981. Seaboard Coast Line, however, has moved to 
apply the Florida statute of limitations, rather than the 
law of Georgia, the forum state, to the section 1981 claims 
of the plaintiffs who reside in Florida. The railroad says 
this is proper for several reasons.

The railroad characterizes the question as a "false con­
flict," there being no significant contact by SCL with the 
State of Georgia, and She having no interest in protecting

THIRTY-TWO



the employment claims of Florida residents. This assertion 
that SCL has no significant contact with the State of Georgia 
is patently absurd.

The claims of the plaintiffs who reside in Florida are
for seniority in SCL-UTU Seniority District II. As the attach- 

70/
ed map shows, District II covers the entire State of Georgia, 
but only a small portion of Florida. The geographic center of 
the district appears to be in Dublin, Georgia, within the 
jurisdiction of this Court.

Further, Georgia has a paramount interest in the subject
matter of this suit. She has enacted a comprehensive scheme

7JL/
of regulation of railroads operating within her boundaries,
including the power to examine the railroads' employees and 

72/
agents. Her Public Service Commission has the power to
issue rules and regulations requiring the railroad to treat

73/
all persons equally without unjust discrimination toward any. 
That is Georgia's interest in this suit.

The railroad's interest, and its motive, can be ascer­
tained when the consequences of its motion are examined. If 
SCL is sustained, the Florida statute of limitations would 
apply to Oliver Scarlett, who has been working in Georgia since 
1973. But, if the Court makes an exception for Scarlett, what 
would happen to plaintiff Henry Starkes, who went to work in 
Jacksonville before Scarlett went to work there? If the except­
ion were made, Scarlett would have his conductor seniority

74/
while Starkes, a senior man of the same race, would not.

70/ See Appendix B.
71/ Ga. Code Ann. § 94-101, et seq.
72/ Ga. Code Ann.§§ 94-901, 902.
73/ Ga. Code Ann. § 93-309.
74/ "From its inception, seniority in the operating crafts 
was fully explicable only by reference to the race of persons 
holding the seniority. Weaver, Exhibit B, paragraph 7.

THIRTY-THREE



The railroad has always been this way: the hopes of one black 
man are set against the hopes of other black men, all to the 
benefit of the railroad's profits and the union's white 
majority. SCL's motion should be denied.

Ill
PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT

AS A MATTER OF LAW

Under Rule 56, Federal Rules of Civil Procedure, a
party moving for summary judgment is entitled to have it granted
if there are no material facts in dispute and he is entitled
to judgment as a matter of law. The material facts in this

75/
case are not in dispute. To that, all parties subscribe.
Those undisputed facts show that plaintiffs are entitled to a 
judgment that defendants have discriminated against them on 
the basis of their race.

Plaintiffs have shown, indisputably, that defendants 
failed to hire and otherwise discriminated againts them. They 
have shown that defendants 'limit, segregate, and classify them 
in ways that deprive and tend to deprive them of employment 
opportunities. Plaintiffs have shown that the unions have 
excluded plaintiffs from its membership because of their race. 
Plaintiffs have further shown that defendant union has limited, 
segregated, and classified them in ways which have deprived 
them and is depriving them of employment opportunities because 
of their race. The evidence is also conclusive that the unions 
have caused and attempted to cause the employer railroad to 
discriminate against plaintiffs on the basis of their race.
All of that conduct violates the very terms of Title VII.

75/ At least all parties allege it in their pleadings •

THIRTY-FOUR



Further, plaintiffs have shown, indisputably, that they 
are persons within the jurisdiction of the United States, and 
that they have been deprived of the same rights as are enjoyed 
by white citizens, to make and enforce contracts and to have 
the full and equal benefit of all laws and proceedings for 
the security of property. They have shown, indisputably, 
that they have been subject to different punishments, pains, 
penalties, and exactions of every kind. All of that conduct 
violates § 1981. Plaintiffs are entitled to judgment under 
both statutes.

Plaintiffs have shown that the discrimination against 
them is continuing and that they are being injured by it.
Under controlling legal principles, they are entitled to judg­
ment .

In Teamsters, the Supreme Court easily distinguished the 
long line of lower court cases which had held that the per­
petuation of early discrimination by an otherwise bona fide 
seniority system takes it outside the protection of 703(h): 
"Insofar as the result in Quarles and in the cases that followed 
it depended upon findings that the seniority systems were 
themselves 'racially discriminatory' or had their 'genesis in 
racial discrimination,' 279 F.Supp. at 517, the decisions 
can be viewed as resting upon the proposition that a seniority 
system which perpetuates the effect of pre-Act discrimination 
cannot be bona fide if an intent to discriminate entered into 
its very adoption." 45 U.S.L.W. at 4511, n. 28.

History cannot be denied. Racial exclusion was the corner­
stone of the organizations that were progenitors of this system. 
It is therefore subject to all of the rulings in Franks v.
Bowman Transportation Company, 424 U.S. 747 (1976); Johnson v.

THIRTY-FIVE



Goodyear Tire and Rubber Company, 491 F.2d 1364 (5th Cir. 1974);
and Pettway v. American Cast Iron Pipe Company, 494 F.2d 211 
(5th Cir. 1974) . The mandate of those cases is clear: plain­
tiffs must be accorded their full seniority rights; that is, 
those rights they would have enjoyed had they been white.

In an almost identical situation, Judge Grant of the 
Northern District of Indiana gave plaintiffs summary judgment 
on the question of seniority, and after reexamining the decis­
ion in light of Teamsters, let the judgment stand.— / This 
Court should also grant summary judgment to plaintiffs.

CONCLUSION
The Teamsters decision took counsel on both sides of this 

case by suprise, as it did virtually all our colleagues at the 
labor and civil rights bars. In retrospect, we should have 
seen it coming. Justice Burger's concern that "seniority 
relief at the expense of wholly innocent employees can 
rarely, if ever, be equitable if that term retains traditional 
meaning,"— ^ and the Court's decision in Washington v. Davis— / 
were trumpet calls to halt what the Court undoubtedly views 
as a deadly threat to its effectiveness -- the unbearable 
burden of cases, many of them seeking use of the judicial 
branch as an agent for social change, which all federal judges 
must contend with. The Court is saying that if the perpetrator 
is neutral, cf. Teamsters, or if the wrong is remote, cf.
Evans, or if the victims are not themselves before the Court,—  
then the wrong cannot be righted in a federal court. There 
is too much else to be done.

76/ Both cases are attached.
77/ Franks v. Bowman Transp. Co., 424 U.S. 780 (1976) (Mr. Chief Justice Burger, dissenting).
78/ Washington v. Davis, 426 U.S. 229 (1976).
79/ Cf., Watkins v. United Steel Workers, Local 2369, 516F.2d 41 (1975).

THIRTY-SIX



This basic change in the attitude of the Supreme Court is 
an open embrace of our frontier heritage, a return to the "eye 
for an eye" theory of equitable relief. Going back requires 
that we acknowledge our history. When we do, these plaintiffs 
positively benefit. If the issue is original hurt, Oliver 
Scarlett and his colleagues have been grievously hurt. If 
the issue is continuing wrong, they are still being wronged.
If the issue is the identity of the perpetrator, the parties 
who did it are before the bar of this court. If the issue is 
defendant's good faith, let plaintiffs have judgment.

Respectfully submitted,

Fletcher Farrington & Associates 
Post Office Box 9378 
Savannah, Georgia 31402 
(912)233-0111

Of Counsel:
O.PETER SHERWOOD 

Suite 2030 
10 Columbus Circle 
New York, New York 10019



"Prior to 1965, there were very few black trainmen 
on the defendant railroad. Therefore, whites bid against 
whites for the trainman jobs and needed no seniority system 
to 'protect' them." U.T.U. Memorandum in Opposition to Motion 
to Alter or Amend Judgment. February 7, 1978.

i
ATLANTIC .COAST LINE 
SOUTILEkH S>IVI3KII, 

SENIORITY LIST

illLROAB COL PAH Y 
at fCROCS DISTRICT
c? TiLij h.-ikh

OLD SA/A'INAl DISTRICT 
JULY 1, 19*54.

:u .1? DATE EMPLOYED ; HALE DATE T *. . \

l . E . Porter (o) Doo. ID, 1908 ■— ,51. Josin.h ‘Toodr. bar. 15, 1948
2 . P. Echrardo (c) Sop. a, 1900 — 52. R. H. Hendrick Juno 1, 19 VS
3 , T . >7. S ins Hot . 15, 1 9 1 0 ---- 6 3. 8. ii. V 'i l l i s iiov. o. 1342
4 . Joe Brown (o ) Doo. 19, 1D1G — 54. G. Howsoiru M ov. 9, 1342
5 . Churlio Loo (o) Doo. 23, 1916 — ,55. John r. McKinney Hew . 23, 194 2

' 6 . U. A . Blitch Doc . 4, 1918'— 56 , Y . Fj. Crnvou Ilcrv, 30, 1942
. 7 . T . Jolmcon (o) Jan. 13, 1919 — .67. Clarence daoon(o) Doc, 1L, 1:’42
8.. C . P. C laxton Jun. 21, 1920 — 50 . C. J . , 0 * Guinn Doc. lu , 1312
9 . Ttaltor Brooks (c ) Doo . 1, 1983 — ^59. T. R. ’Yi I lia n s Doc. 16, 1942

10 . E . P-. Cald'TO 11 Doc . 23. 1923 — b o . J . L., Kd'vards ( o ) Jan, 13, 1943
11. U. L. ' fatf ord Aug. 2, 132 5 -  

192 5 
1325 —

,61. <»., L, .lull Jan, 15, 194 3
' 12 . H. 4 . LlcC la l la n Aug. 7, 62 . 0 . C, / i  I lians Jan. 15, 194 5

13. Jos.'.o Byrd Aug. 15 , .63. L. H. lieimeto (a) J an, 19, 1943
14. F. L. Dixon Aug. 15, 1925 — 64. E l i ja h  ^o'.uig (c ) Jun. 24, 1343
15. Kermit Curtor —ug. 22, 1925A- 65. J .  8. drovm (o) Jun. 25, 1943
16. £+9 O « Duckwith Doc. 3, 19 36-— 66 . A , C . Joirnr Jan. 30, 1943
17. frlorucu Cox Doo. 7, 1956 :— 67. T. E, G riffin Fe b. •25, 194 3
18. J. D. Tatum ,r2 Jan. 2, 1957 — - 60 . A . K. dr u nan Fob. 25, 1943
19. i f .  2 . Godfroy Doo . 1, 1957 — 63 . Glon Cabiness (o) nur. 12, 1343

/ 20. W. R. ilurndon Doc, 2, 1937 70. C. Thagard r!ar. 21, 1343

J . 21. 2 .  2 . Lynos Doc. a. 1937 71. U. 3. ,»vant Ear. 21, 1943
22. B. A . TTaetborry, 72 . n .  E. Poarco, Jr. Apr. 13, 104 3

J r . (A) Doc. 4 , 1937 — • 73. C. W. G r i f f in (c ) -Lay 11, 1345 •
Jj 25. R. 0 . Pallor Doc . 6, 1937 74. F. W. Talker Aug. ** 9 194 3

24. I .  E. Liullard (A) Doo . 7 , 1 9 5 7 -----• 75. J. W. Bragg j.Ug. 25, 194 3

4
25 . v. c . Johnson Dec. 11, 1937 — 76. J. E .  Godfroy Sop. 15, 134 3
26. W. J. .'iorr is Doo. 12, 1957 77. F. L. Sanders Oof. 16, 194 3
27. vr. ‘-i. O’ Stoon. (;i) Doc. 13, 1357— 70. J . R. -Lorrin Hov . 3, 134 5
20. * •  ̂• Rcj.ard,  J r . Jan. 9 , 1939 » 79. J . C, Car tor a CJ, . l,tJ 9 134 5

z* 29. J • o , J. Colson(A) Oct. 1, 1959 SO. r . i ) s t u-r.. 1, 1344
■50. j .  H. Thomas (a) Bov . 11, 1939—r 81. Tlio o S ipp ( c ) Jun. 5, 1944

h 51. J. L. Luxuroll (A) 11 O'/. 12, 1959 82 . A . E. B arfield ,
. 0• J. c . Loody (a ) 'lev. 14, 1 9 3 9 -— Jr , Jan. 7, 1944

7 33. j . vr. Jonas (c ) Per/. 15, 1339 83 . Occur R. Spivey JiiTl p 11, 1944-
34. h . .1. Goguo , J r .  (a ) Go L. 10, 13 40-— • 84. L. B, Cowart Fob. 17, 1944
•35. 0 .  J. V irdon Oct. 21, 1340 — 85. C . a .  Holt Fb b . 21, 1344

£ 56. T. J. HcGinn Hov. O 1940 <16 . Jos.so Crons Feb. • 5 , 13 4 L
7 57. J . d. Horton Do o . 2, 1940 87. J, f.-Rainoy i ur. 4, 13'-4

30. G . . Davis (A) Deo. 28 , 1940 — 00. E. D. Crcnby ‘■<ur. 21, 1944
/o 39. 2 .  L. i.cDilda -- j u / /# '941. 89 . • w 9 J JTi J :i (c ) Apr. 15, 1944

40. J . 2 . Harvey, Jr. AlU*. 1, 1341 — 90. C'mrliu F. Hrcr.rn upr 9 •21, 1944
/ / 41. II. r.. i.spinv.nll (2r) Sop. 1, 1941 91 . F. Dogutj u p r . 25, 1344

/  a 42. ii» L0 Thomas, JrCu) Sop. Ô 9 ! 9 4 !
1 9 4 1 - /3

9 2. "7. 3. tLjr.ry ^ p r . 83, 1344
4 5. 3 .  L. Knight ( a ) So p. 5, 93. D. F. Camp i .uy •>, :1344
4 1. r . i a to So p. 4 , 1341 — 94. David L .-K eel Juru 25, 134 4
43 . H. 0 . iu r c o l l  (A) Sop. 13, 1941 — 95. ..i, S . Cairo r on Juno ‘-J , 1944
40.
47.

J .  K. 
F. ’ .

Da.is (A) 
Thigpon (A)

Sen.
Oct.

25,o
°  1

v-.n  —  
1941 _ L ^

/3 40. J. c. ' riIlianscn Jan. 7, 194 2

49. C. F. Johnson ( H) Par. 5, 134 2 — C . I. Vo a lo _ j ic *:in,g <r i i ;iniar.t'j
50 . Rolwrt Croon. ear . 12, 194 2 .— -
Original list is in the possession ofi Plaintiff J.W. Jones, whose
name appears hereon at No. 33.

APPENDIX A



"The 'center of gravity' of the operative facts in the 
instant case is clearly the State of Florida rather than 
Georgia." S.C.L. Brief in Support of its Motion to Apply the 
Florida Statute of Limitations, November 9, 1977, p. 3.

TRAINMEN'S CONSOLIDATED SENIORITY 
DISTRICT NO. 2

Extra Board and or Supp ly  Po in ts ' Jurisdiction

" Florence (INDICATED BY
------  Aûust.i DARK LINES)

■ S avann ah  
A lb any

’ """ """ """ ~ Montgom ery 
Manchester 

1 Fi Ureri i l d 
Am ericus

" A b b ev ille . S. C
B m m n p h a m  
Ja c k s o n v illeU.T.U. Exhibit, Horton, et al U.T.U. , S , f f i  Brunswii

APPENDIX B



✓

' /
V

A tla n tic  Const Ljne Railroad Company
Kayoi nfi.i D ivision  

S en iority  Lint of  Trniiimon 
Wayeroan Yard

July Ini, 1961

NAME n\ JTMT’T, DYED DATE PROMOTED
1. T. I.. McCrary No vend t c' y •»lClJ ft Do comher 30; 1918
2, n. C. O'Qvlnn Co 'Conor * l'r  y 1-L33 Do c°r ,bor 2, 1925*2> • Harry Outdo (c) Never Of r U, no’* - *0
4. J, '■■!., Crows Fob: ttar̂' 7, V'25 November l, 1930
5. J. P. Dennett Onto he v 1:7. i ''25 January 1 0, 1941
6, H, H, Laughorty (R) Won ■ fpibei *>, -
7. I*. Fowler Ya,iun: y 91, 19f>C Mn r ch l, 1942
ft. R. E, Piuidorburk December 1 0 , 19..0 March 1A, 1942
9. Horace V, 7r 0:ian (0) Doeon ear 20, 191J —
10. C. L. Thompson Jnnunry 12, 1-VL May 3, 1942
11. W. Wheelor Juno 1 0 , 19 At Owcober 31, 1942
12. 3. I. Godwin October 19, 19.+1 Januaiy 1, 1943
13. E. Y, Sh ...f.pn Dec enrol’ 9, 1911 Mai oh 30, 1943
14. L, V. Drl^gora Doconbor 13, 1941 November 16, 1943
15. E .  w. Docon her 20, 1941 November 19, 1943
16. J. L, SffSflit April 25, *• O “>- - H *- Dr-cam bar 23, 1943
17. W. D. StJod (0) November 3, 1942 —
IS, E. C. Ray (0) Decenter 19, 19/2 - l
19. C. V. RjlllB (c) January 2, 19/3 - l
20„ 0. D. Th«a«3 (c) May 23, 19:3 -
21, and row CUfto? (n) February 27, 19 4A -
22. J. M. Myrififc CJ Apr il 18, 1944 -
23, Vh, Hondersoa (c) J\ jr.o 13, 10/.A -
24. T. N. FulftjkJ

(c)
March 2, 19/ 5 May 25, 19/5

25, E. E. Robo**sn April 21, 19/ 5 —
2 6 . F, J, Lar.o Docomber 1 6, 19/6 January 10, IQ 47
27 0 J. B, Livingston January 7, 194t November 15, 1948
28, S. E. Dnvig Januniy ft, 19/6 January 13, 1947
29. C, C. William3 Arril 25, 19/6 November 16„ 194S
30. H, E, Rosier Kay •) *•1 I'-v+o November 17, 1948
31. W. V. Cantor Docomber H. /a 46 July 2, IQ 50
32. K. R. FuT.fold Do comber 12, 12/6 Saptombor 1, 1950
33. W. S. Anderson F00renvy j>. 4 7 -
3A. T. F. Daniels March 12, -9.v7 July 3, 1950
35. F, J. Fairloy 9, 19 47 July 7, 1950
36, J. R. Herrin September 24, 1947 Novomber 1ft, 1948
37, J, E. Pi >rco October re

1 , 19/7 July 15, 1950
3«. C, H. Smith Juno A, 19 Aft Karcfc 10, 1951
39. R. L. McDaniel Docomher 15, 1948 u>

M

• • • * • •

. p : - v

■ v V:V> .
r  ORIGINAL .list is in the possession of Plaintiff Horace

Thomas, whose name appears hereon at No. 9.

APPENDIX C, Page 1



on iority  l i s t  of Yard Trainmen)

1
i

4 1 . K. L. P a r r is October
42. W. A., 7 ,  Penton November
4 3 . J. D. Smith Novonbar
44. J, W, Jomigen Do con 0 xr
4.5. F. L. Wlldoa Fcoruary
46. J. W. Taylor February
47. H. Ry W;mn Fob'.'ua r-y
43. D. R. Smith February
49. E, R. Fitch ott Ka~ eh
60, 7. T. Penglor, Jr 0 March
51. S. G„ Johns (R) March
52. W, M. Kcm Juno
53. T. E. McGowan Juno
54. F. A,. McDju^ild

(=)
December

25, Alfred Cooper December
56. Alvin Gordon, Jr, (c) Do coai be r
57. F. T. Jetoagn Do comber
53. C. E. Miron,

(c)
January

59, Harp r Myrick January
60. J, G. Strickland Fobru-.ry
61. A. C. Ohoseor April
6 2 . E, Lloyd April
63. Fred Smith Juno
64. R. T. L ytle, Jr. August
65. R, L. Carter November
66. 3. D. Rlttonhouso January
67. v . I .  Hlckox Janua ry
68. N. L. Crawford February
69. B, J. O'Quinn March
7 0 . B, S. Joyco March
71. 3 , 4. Dowling March
72, J . V. Harris April
73. Dewey Walkor April
7 4 , D, T, Jacobs January
7 5.- A. P. Leggett March
76. Milton Craft September
77. J. E. Hycr3 Novomoer
7 8 , J. H. MeSwain Docomber
79. N„ C. Spoonor Fobiuary
80. S. L. Herrin April
81. V, V, Goodman May
82. W. A. Stewart October
83, S. R. Wright November
84. R. G. Villinmson November
S5. Jamo3 Hall November

&?<•
Leonard M, Courson
Jnhn W. Hall

Novonbor
November

t i g  l .  Uoyd Do comber
• . «

23, V M V —

2; 19/+9 * Novonbor 2, 1949
12, 1943 Mill eh 16, 1961

9 , l'V > Koj cn 1 * , 19 61
1 , 1950 Api 11 17, 195i
2, 19 to Am i 1 18, 1951

10, 19 to November 4 f 1961
28 , 19 50 July 23, 19 54
9 , 19 tO July 30, 1954

14, ■|9;0 July 31, 1954
17, l -  50 Augus t 7 , 1954

1. 19 50 August 8, 1954
15, 19 tO Aux uau 9, 1954

6; 19 "9 November 27, 1955
12. 19 5C -

19, 19' 0 -

24 j 19 tO -
6. id 'l December 1, 1955
24', 19 >1 -
2, 1951 December 3, 19 55
10, 1961 Docomber 10, 1955 AM
21, lt5I Docombor 10, 1955 FM
5, l'ol —

17, 1*51 March 17, 1956
29, l'6l March 18, 19 56
9 , V j 2 March 24, 1956

29, £62 March 30, 1956
3, ^32 April 3, 1956

10, '952 April 7 , 1956
21, 9 62 July 1, 1967
21, 962 July 2, 1957
6, L952 Mo vnmbor 24, 1967

13, L962 November 25, 1967
2, 1953 —
6, 1953 AugU3t 2 6 , I960

17, 1954 August 27, I960
11, 1964 —
30, L954 -
7 , 1955 -

22, 1955 —
20, L955 —
8, 1955 —

18, 1955 -
2 6 , 1955 AM —
2 6 , 1955 PM
28, 1955 -
29, 1955 -

5, 1955 -

APPENDIX C Page 2



%  ( S e n io r i t y  H i t  o f  Y- rd Tmirjnon)

89. Rayncmd E. C arter
9C . Re v C . Loo
« . Andrew T, Courson
9 3 . H, P. R ob o rts
9 3 . H. 3, Younnnn
9 4 , T. w. Mougent
9 5 . M, D. R iy
96 . T. E, M o d ify
97 . E. R. Law hcm
98 , J  irony E. Jo y co
99 o A T • Coun ts

100 . 0‘ . c . W ild  ’3, J r ,
10 1 , • G. W ild .->3
102. E. c . Gordon
103 , J . R. Jon^3
104. c . v . R a tta n  —
105 , R, TT ' • Pud Ina
106, 3, T?—1. R obb in s
1C7, M l i t c n  D1H 3
108 . H„ J . M urphy
109 . w. E. T a y io r
n o . M. A T u m o r
1 1 1 . J . 3?• S o w a ll

Docnnbor 1965
Doecjibor 15, 19 a 5
Do con bo r 16 , 1965
January 1 , 19* 6
JnUUaiy A, l V ;6
Jnnuaiy 1 2 , 19 a 6
March O-> » 1966 —
March 5, 19 ao
March 15, 11156
March 16, 19 56
D ocenter 80, 1966
J uno 16, 1967 tmk
Aupu.it

2S,
J 9 .3

Octob r ]9a8
Do c <n bar 27. 3 9 68
Api 11 22] 19 >;
Juno 22, 19 69 .
K a r eh 12 , 19' :0 _
Mai oh 19, 19-0
March 30, 19n0 _
March .91, 1 )11) mm
A p ril 11 19 an _
A p ril 1 6 , XritO —

A. A, K erin ,

Suporintondont Tomir.als.

APPENDIX C, Page 3



Excerpts, Chrapliwy v. Uniroyal,
___ F. Supp. ___, 15 FEP Cases

(N.D. Ind., May 31, 1977) 
[Chrapliwy I]

Inc. ,
795

APPENDIX D



A J—ti- v̂ UÔ J * f t ltLi'D ̂ rw u.nu.mh. w^rUKlUMiV ATLANTA
his new position as the Director of Con­sumer Services. Nor does the court find that the reason offered to Mrs. Reeb as the basis for her termination misled the plaintiff to such an extent as to extend the tolling of the filing period past No­vember 10, 1969, the date Mr. Popwell was appointed to fill the plaintiff's posi­tion. The plaintiff was notified that she was being terminated because of the "limitation of EOA funds.” She testified that this explanation seemed plausible and that she did not question it because her prior employment with EOA had been terminated for the same reason.1 his court finds, however, that the facts supporting the plaintiffs charge of dis­crimination should have been apparent to a person with a reasonably prudent regard for his rights similarly situated to the plaintiff,” substantially prior to Jan­uary 29, 1970, the date which is 90 days prior to the filing of the EEOC charge The evidence reveals that Mrs. Reeb knew that it was only her position and not the entire consumer services pro­gram that had been terminated. From this knowledge, a person with her experi­ence in government programs should have surmised that another director would be appointed or her duties trans­ferred to another officer. After all, all government programs must have some­one to operate them. In addition to these facts, it is also important to note that Mrs. Reeb testified that after her ter­mination she "continued to do many things with EOA on a volunteer basis.” All of these factors convince this court that a reasonably prudent person in Mrs Reeb’s situation should have become aware of the facts supporting this charge d̂iscrimination prior to January 29,
Accordingly, treating the statutory fil­ing time limits in the nature of statutes of limitations, this case is hereby DISMISSED for plaintiffs failure to timely file her charges with the EEOC IT IS SO ORDERED this 31st day of March, 1976. J

Order
The court has before it for considera­tion the plaintiffs motion to alter or amend judgment entered by the court on April 1, 1976.
This action, which was filed in Decem­ber of 1972, was tried and judgment en­

tered in September. 1974. On appeal, that judgment was reversed. On April 1,1976, the court entered new findings and a judgment disposing of the case as not hav­ing been timely filed. Normally when the court lacks jurisdiction, it will not reach the merits. In this action counsel for the plaintiff has requested the court to alter or amend the judgment dismissing the action for failure to timely file the charge with the EEOC and enter a decision on the merits. This court is convinced that its findings of April 1, 1976, are correct and should not be set aside; however, be­cause of the age of this case and its possi­ble return to the court of appeals with the threat of future litigation, this court will make further findings on the merits.[3] The facts are undisputed as to the periods of employment of the plaintiff by the defendant, and the court will not reit­erate all these facts and hourly rates in­volved. It is sufficient for the court to state that it finds that the plaintiff was terminated as a regular employee of the defendant in August, 1969, at her request in order that she could enter into a con­sultant contract. The basis of this request was to enhance her position financially. At about the same time there was a change in management of the defendant entity, and in an effort to cut costs a re­organization was begun which resulted in the termination of the plaintiffs con­sulting contract. At a later date Mr. Pop- well was made the director of the Con­sumer Services Project, the position previously held by the plaintiff. This was not a new hiring but was a lateral transfer for Mr. Popwell. He in turn was replaced by a female, none of which resulted in new hiring and was totally consistent with the reorganization aimed at cutting costs. The court finds that the decision not to renew the plaintiff’s con- suiting contract was made for economic reasons and that sex discrimination was not invoh ed in the actions taken by the defendant.In order that this case may be finally terminated, the court has made these ad­ditional findings and concludes that even if the complaint had been timely filed with the EEOC, the plaintiff would not prevail on the merits.In view of the foregoing, plaintiffs mot­ion to amend the judgment is denied.IF lb SO ORDERED this 30th day of March, 1977.

CHRAPLIWY v. UNIROYAL, INC. 15 FEP Cases 795
CHRAPLIWY v. UNIROYAL, INC.

U.S. District Court,
Northern District of Indiana

CHRAPLIWY, et al. v. UNIROYAL, INC., No. 72 S 243, May 31, 1977
CIVIL RIGHTS ACT OF 196-4
1. Discovery — Partial summary judgment —  Prima facie case► 108.8162 ► 108.7209 ► 108.7333
Federal district court’s prior entry of partial summary judgment that em­ployer laid off and paid female employees on basis of sex and has refused to consider female employees for certain jobs that were restricted to men only, which was based upon employer’s failure to respond to requests for admission in accordance with Rule 36ofFederal RulesofCivil Pro­cedure, merely establishes prima facie case in female employees’ favor and is not dispositive of these issues unless no via­ble defense is presented by employer.
2. Duty of affirmative action► 108.01
Employer’s contention that it has no obligation under Title VII to fashion and implement affirmative action program unless so ordered by judicial decree has no merit.

FAIR REPRESENTATION
3. Sex discrimination ► 108.2271 ► 108.2161
Duty of fair representation is not limit­ed to unions that have historically refused membership to blacks, but in­stead extends to all unions; duty is de­signed to eliminate all irrelevant and in­vidious classification schemes, including discrimination on basis of sex.

CIVIL RIGHTS ACT OF 1964
4. Evidence — Pre-Act practices ► 108.8112
Employer’s employment practices and policies that were in effect before 1965 are relevant in female employees’ Title VII action against employer, since em­ployer’s failure to remove voluntarily dis­criminatory effects of its pre-Act prac­tices is Title VII violation if there is caus­al nexus between past discrimination and present conditions of employment.

5. Sex discrimination — Job classi­fication system ► 108.4137
Employer discriminated on basis of sex before 1965 by maintaining "male-fe­male” job classification scheme, not­withstanding its contention that scheme resulted from personal preferences of fe­male employees to perform less physi­cally demanding "female” jobs as op­posed to more strenuous tasks of "male” job, since employer deliberately con­structed system of classifying jobs in which determinative factor was sex, and there is no indication that sexual charac­teristics of an employee are crucial tosuc; cessful performance of "male” job.
6. Sex discrimination — Job classi­fication system ► 108.4137
Employer that had maintained segre­gated "male-female” job classification system before effective date of Title VII did not abolish this system after effective date of Act when it reclassified "male” jobs as "Class A” jobs and "female” jobs as "Class B” jobs, where it began categorizing all employees on basis of sex, and it assigned all male workers to Class A jobs and all female workers to Class B jobs.
7. Sex discrimination —  Transfer — Bidding —  Bumping ► 108.4165 ► 108.4164 ► 108.4120
Employer that had maintained segre­gated "male-female” job classification system before effective date of Title VII maintained discriminatory bidding, bumping, and promotion rules after ef­fective date of Act, even though collective bargaining contract permitted qualified employees to bid or bump on jobs without limitation as to sex; vacancies were clas­sified as Class A (formerly "male"! jobs or Class B (formerly "female”) jobs, female employee who sought Class A job would have to obtain it through office of Super­visor of Male Employment, and this rule — which imposed risk on female employ­ees who would have to challenge em­ployer’s employment system to obtain Class A job —  had discriminatory impact on such employees.
8. Sex discrimination —  Job assign­ments ► 108.4135
Employer that had maintained segre­gated "male-female” job classification system before effective date of Title VII wrongfully restricted female employees to particular departments and jobs after



15 FEP Cases 796 CHRAPLIWY v. UNIROYAL, INC. 15 FEP Cases 797
effective date of Act solely on basis of sex, where it designated almost three times as many jobs as Class A (formerly "male”) jobs as Class B (formerly "female") jobs.
9. Sex discrimination —  Wage rates► 108.4142
Employer that continued, after effec­tive date of Title VII, to limit female em­ployees to certain jobs on basis of sex did not violate Act’s prohibition against sex discrimination in wage rates, where there is no allegation that female em­ployees performed tasks substantially similar to those performed by male em­ployees.
10. Sex discrimination —  Transfer—  Layoff ► 108.4165 ► 108.4120
Employer discriminated against fe­male employees who worked in divisions that it was closing out by permitting such employees to transfer only into jobs that were held by women, where as a result employer laid off female employees while it retained junior male workers and hired 92 new male employees to fill openings in various jobs that were limited to men.
11. Sex discrimination —  Transfer—  I-ayoff —  Experience requirement► 108.4165 ► 108.4120 ► 108.4124
Employer discriminated against fe­male employees who worked in divisions that it was closing down when it agreed with union to permit such employees to bump only into jobs in which they had previous experience, where because most jobs were held by male workers and only males could possibly have had experience needed to transfer into them, agreement had effect of increasing female employ­ee’s chance of layoff.
12. Business necessity ► 108.736
Business necessity defense to Title VII violation must be narrowly construed and confined to those unusual circum­stances in policy being challenged is ab­solutely essential to achievement of legit­imate business need.
13. Business necessity — Burden of proof ► 108.736 ► 108.7331
Individuals bringing Title VII action against employer that has shown that challenged practice is compelling and ef­fectively carries out business purpose have burden of demonstrating that there is acceptable alternative policy that would carry out business purpose with less discriminatory impact.

14. Sex discrimination —  Transfer—  Business necessity ► 108.4165► 108.736
Employer’s argument that implemen­tation of nondiscriminatory transfer rules at time that it closed out its foot­wear divisions would have resulted in prohibitively large training costs does not raise cognizable defense of business necessity to claim that it discriminated against women by limiting their opportu­nity for transfer and forcing dispropor­tionate number on layoff, where argu­ment is premised upon assumption that each affected worker would bump aver­age of 2.8 times, but costs could have been reduced significantly by permitting all employees only one opportunity to bump and by requiring bumping into jobs where average costs were low, and, in any event, cost is no defense.
15. Sex discrimination —  Recall► 108.4120
Employer discriminated against laid- off female employees by segregating job opportunities on basis of sex, where they were recalled only to fill vacancies in traditionally female jobs and where em­ployer recalled junior male employees while senior female employees remained laid off.
16. Sex discrimination —  Benefits—  Termination of supplemental unemployment benefits ► 108.4141
Employer that had extended supple­mental unemployment benefits to cer­tain employees who had been laid off at time it phased out certain divisions dis­criminated against women on layoff status when, in revoking these benefits, it sent letter to disproportionate number of women advising them of termination of benefits and giving them election be­tween termination allowance and reten­tion on layoff status, where as result 93 women decided to quit before first male employee on layoff status received simi­lar letter; although greater percentage of men on layoff status chose to quit than women on layoff status, employer did not send letter to any man on layoff status until after charge had been filed with EEOC.
17. Sex discrimination —  Construc­tive discharge ► 108.4112
Doctrine of constructive discharge may apply to female employees on layoff status who disproportionately were sent

letters by employer advising them of ter­mination of layoff benefits and giving them election between termination al­lowance and retention on layoff status and who chose to quit, notwithstanding employer’s contention that doctrine is in­applicable because there is no evidence that termination of benefits actually "caused” or "forced” any worker to quit his job, since termination of benefits had discriminatory consequences against fe­male employees in question.
18. Sex discrimination —  Job clas­sification ► 108.4137
Employer discriminated on basis of sex by classifying certain jobs as those that "should not be performed by females.”
19. Sex discrimination —  Recall► 108.4120
Employer that began using single se­niority date for recall of laid-off employ­ees nevertheless discriminated against laid-off female employees by not re­calling them to job that was considered as one that "should not be performed by fe­male employees,” since in many in­stances a woman’s sex rather than her relative seniority and individual capa­bilities is determinative factor with re­spect to recalls.
20. Sex discrimination —  Transfer► 108.4165
Employer that had limited women to formerly designated "female” or "Class B” jobs is deterring such women from transferring to other jobs by maintaining rules that deprive employee who is dis­qualified from job of right to bump junior employees, permit disqualified employee only to bid "posted” job vacancy or agree to accept "open” job through plant em­ployment office, and limit each employee to two voluntary job transters through bidding within one year, where rules ex­pose female employee who bids for posi­tion traditionally held by male employ­ees to possibility of layoff and unemploy­ment should she fail to perform her new duties satisfactorily.
21. Sex discrimination —  Bumping► 108.4120.
Employer that had limited women to formerly designated "female” or "Class B” jobs is violating Title VII by maintain­ing rules providing that employee who bumps into job and who is later disquali­fied because of inability to do the work can stay in active employment only by

CHRAPLIWY v. UNTROYAL. INC____
bidding on "posted” job vacancy or being placed on "open job” and that if such jobs are unavailable, employee is laid off, since these rules deter female employees from bumping into traditionally male jobs.
LABOR MANAGEMENT RELA­TIONS ACT
22. Fair representation ► 108.2271
Union violated its duty of fair repre­sentation by negotiating collective bar­gaining contract containing facially neutral provisions that had effect of segregating job opportunities on basis of sex and by acquiescing in employer’s poli­cies that discriminated against female employees because of their sex.

CIVIL RIGHTS ACT OF 1964
23. Union discrimination —  Sex —  Working conditions ► 108.2170
Union violated Title VII by negotiating bidding, bumping, apd disqualification rules with employer that have effect of restricting job opportunities of female employees and by acquiescing in em­ployer’s discriminatory policies and pro­cedures.
24. Remedy —  Preliminary injunc­tion ► 205.201
Female employees who have brought Title VII action against employer and union are entitled to issuance of prelimi­nary injunction, where employees have established liability and injury, neither employer nor union alleges that employ­ees’ request will have injurious impact upon it, and importance of public interest at stake is evident from statute.
25. Remedy ► 200.01
Section 706(g) of Civil Rights Act of 1964, which authorizes court to "order such affirmative action as may be appro­priate,” must be broadly construed so that discriminatory practices are effec­tively terminated and aggrieved parties made whole.
26. Remedy —  Transfer ► 215.401
Employer is preliminarily enjoined from following its discriminatory rules for bidding, bumping, and disqualifica­tion from job, and it shall permit any fe­male employee who wrongfully was dis­qualified from traditionally designated "male" job to return to last job that she held and that is still being operated, to



CHRAPLIWY v. UNIROYAL. IN'C. 15 FEP Cases 799
M E M O R A N D U M  

I - INTRODUCTION

15 FEP Cases 798
bid on any posted job without restriction, or to accept placement by employer's em­ployment office on "open” job,

27. Remedy — Notice to employees 
► 250.401
Employer that maintains job classifi­cation system that discriminates against female employees at certain plant is or­dered to announce to all of its manage­ment, supervisory, and wage personnel at that plant that (1) it has abolished seg­regated employment system at plant, (2) it has discontinued classifying any of jobs there as "male” jobs or "female” jobs or as "Class A” or "Class B” jobs, (3) it no longer classifies its employees as "Class A employees or "Class B” employees, (4) there no longer are any jobs in plant that should not be performed by female em­ployees and all jobs are available to all employees on basis of seniority and abili­ty, (5) it encourages female employees to bid and bump into traditionally "male” jobs as well as into other jobs, (6) any fe­male employee who is wrongfully dis­qualified from any traditionally "male” job shall be allowed to bump back into last job that she held successfully and that is still being operated, to bid on any posted job without restriction, or to ac­cept placement by plant employment of­fice in open job, and (7) it guarantees full equality of employment opportunity to every employee regardless of sex.

28. Remedy — Union — Notice to 
employees ► 235.011
Union that is ordered to make same an­nouncement of nondiscriminatory treat­ment to its members that employer has been ordered to make to its employees also is directed to state that it encourages female employees to bring any com­plaints of employment discrimination at employer's plant to attention of its of­ficers.
29. Remedy — Reports ► 245.601
Employer is ordered to file monthly re­ports (1) recording details of every in­stance during preceding month in which it disqualified any female employee from any job other than traditionally "female” job, (2) showing number of male and fe­male employees in each department at plant during preceding month, and (3) containing chronological list showing name, sex, and seniority date of each em­ployee laid off and each employee re-

called from layoff during preceding month. 6
___CHRAPLIWY v UNIROYAL, INC.

Action under Title VII of Civil Rights Act of 1964 by female employees against employer and union, wherein employees moved for partial summary judgment and preliminary injunction, and em­ployer cross-moved for summary judg­ment. Employees’ motion for prelimi­nary injunction granted, their motion for partial summary judgment granted in part and denied in part, and employer’s motion denied.See also 5 FEP Cases 806, 808, and 949- 6 FEP Cases 98; 7 FEP Cases 343; 12 FEP Cases 1657, 1660, and 1661; and 12 FEP Cases 1664, 71 F.R.D. 461.Thomas R. Ewald, Washington, D.C Thomas R. Fette (Ryan, McQuillan, Van- derPloeg & Fette), St. Joseph, Mich., and R. Wyatt Mick, Jr. (Bingham, Loughlin, Means, Mick & Myers), Mishawaka, Ind., for plaintiffs.
Don G. Blackmond and Timothy Woods (Jones, Obenchain, Johnson, Ford, Pankow & Link), South Bend, Ind.[ Rody P. Biggert and Gerald D. Skoning (Seyfarth, Shaw, Fairweather & Gerald- son), Chicago, 111., and Harry Turk (Ar­thur, Dry & Kalish), New York, N.Y., for defendant employer.James Olson, Mishawaka, Ind., and Harley M. Kastner and Charles Arm­strong, Akron, Ohio, for defendant union.

F u ll  T ex t o f  O rd er

ROBERT A. GRANT, Senior District Judge: —  On 4 September 1974, plaintiffs filed a Motion for Summary Judgment and Preliminary Injunction pursuant to Rules 56 and 65, F.R.C.P. On 6 August 1976, Defendant Uniroyal filed a Cross- Motion for Summary Judgment. After due consideration,IT IS THE ORDER OF THIS COURT that defendant’s Motion be DENIED IT IS FURTHER ORDERED that plaintiffs Motion for Partial Summary Judgment be GRANTED in part, and DE­NIED in part, as explained in the follow­ing Memorandum.IT IS FURTHER ORDERED that plaintiffs’ Motion for Preliminary In­junction be GRANTED. The specific provisions of the Injunction are set forth on Pages 49-51 of the Memorandum.

On 28 November 1972, twenty-six named plaintiffs brought this suit under 42 U.S.C. §2000e, [the "Act”),1 individual­ly and on behalf of other female employ­ees, against the Uniroyal Corporation and their collective bargaining represen­tative, Local union No. 65, alleging vari­ous discriminatory employment prac­tices on the basis of sex. Jurisdiction is founded upon 42 U.S.C. §2000e-5(f)(l).On 4 September 1974, plaintiffs filed a motion for summary judgment on all is­sues of class liability and a motion for a preliminary injunction. Approximately two years later, Uniroyal filed a cross­motion seeking summary judgment with respect to four specific matters at issue. All motions and supporting briefs have been timely filed with the court.
1. Motions for Summary Judgment
Summary judgment should only be en­tered when the pleadings, dispositions, answers to interrogatories, affidavits, and admissions filed in the case "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”. Rule 56 F.R.C.P. Under this rule the movant bears the heavy burden of demonstrating the absence of all materi­al factual issues; furthermore, all factual uncertainties shall be resolved in favor of the non-moving party. Rose v. Bridgeport Brass Co., 487 F.2d 804, 808, 6 FEP Cases 837, 840 (7th Cir. 1973); Albert Dickinson Co. v. Mellos Peanut Co., 179 F.2d 265, 268 (7th Cir. 1950). As for cross-motions for summary judgment, see 10 Wright & Miller, F e d era l P r a c tic e  & P roced u re , §2720 p.459 (1973).[1] This court, however, does not begin with a clean slate. On 5 July 1973, the late Judge Beamer2 entered partial sum­mary judgment against Uniroyal on the following matters:

1 The Act, or Title VII, was enacted as part of the 
Civil Rights Act of 1964. The legislative history of 
this statute may be found at 1964 U S. Code Congres­
sional and Administrative News, p 2355. and 1972 
U.S. Code Congressional and Administrative News, 
p. 2137: cf. Willingham v Macon Telegraph Publish­
ing C o .507 F.2d 1084,1090- 9 1 .9  FE P Cases 189. 193 
(5th Cir. 1975).

2 Judge George N. Beamer of this United States 
District Court died in October, 1974 This case was 
left pending for some time following his death

11) The company has conducted layoffs in the 
Mishawaka plant on a segregated basis accord­
ing to sex;
(2) At all times up to and including 1970, de­
fendant company paid new employees at the 
plant according to discriminatory starting pay 
rates on the basis of sex, and 
(31 Defendant company refuses to consider fe­
male employees for assignment, transfer, or 
promotion to jobs which were restricted to 
male employees only, regardless of the seniori­
ty or qualifications of the female employees.
Those jobs are listed in plaintiffs’ requests to admit facts filed 2 March 1973.3
[SIGNIFICANCE OF ORDER]
This order was based upon the Com­pany’s failure to respond to plaintiffs’ requests for admissions in accordance with Rule 36, F.R.C.P. There has been much discussion by the parties concern­ing the significance of this order. Having considered the respective arguments, the court concludes that Judge Beamer’s findings merely establish in plaintiffs’ favor a prima facie case of sex discrimina­tion which defendant may seek to now justify. The 5 July 1973 order, therefore, will not be considered dispositive of the above issues unless no viable defense is presented by the Company. See, Griggs v. Duke Power Co., 401 U.S. 424, 3 FEP Cases 175 (1971).This being a motion for summary judg­ment with respect to the issue of class lia­bility, the court’s inquiry must be limited to a comparison between the disparate ef­fects, if any, that a particular employ­ment practice has upon two groups or classes of individuals. The focus during the first stage of this bifurcated class ac­tion is "inter-class” as opposed to "intra­class” which, of course, is the proper in­quiry during the second, or individual re­lief stage. The distinction must be clearly drawn at the outset since Uniroyal has, in many instances, raised arguments that would have the court ex­amine the merits of individual claims. See, Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437, 443-44, 8 FEP Cases 84, 88-89 (5th Cir. 1974). Before examin­ing plaintiffs’ motion for summary judg­ment, the court shall first examine sever­al preliminary issues raised by Defend­ant Uniroyal and Defendant Local No. 65.

2 See, 6 FEP Cases 98 <N D Ind 1973). Judge 
Beamer later refused to set aside this order at 7 FEP
Cases 343 <N D Ind. 1973)

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15 FEP Cases 800 CHRAPL1WY v. UNIROYAL, INC.
II - UNIROYAL’S CROSS-MOTION 

FOR SUMMARY JUDGMENT

1. Alleged Discriminatory Layoffs
The Company first seeks a ruling that this court lacks subject matter jurisdic­tion with respect to claims of discrimina­tory layoffs occurring more than ninety days prior4 to the filing of charges with the Equal Employment Opportunity Commission.Beginning in November 1968, the Com­pany began laying off several hundred employees over a two-year period as the p ant’s footwear divisions (which em­ployed approximately 42% of the work force at the Mishawaka facility) were being closed and transferred to locations in the East. On 13 January 1970 plain­tiffs filed charges with the EEOC specifi­cally complaining that the layoffs were conducted in a discriminatory fashion to the detriment of female employees' therefore, the applicable cut-off date is 15 October 1969 (ninety days prior to the fil­ing of charges with the EEOC).Generally, Title VII provides that to present a cognizable claim in federal court, an aggrieved party must first file a complaint with the EEOC within ninety days after the alleged unlawful employ- ment practice has occurred. This basic limitation, however, may be extended (or tolled) in those instances where the al­leged discriminatory conduct is consid- ®red *° Be a "continuing violation” of the Act. Robinson v. Lorillard Corp., 444 F.2d 791 3 FEP Cases 653 (4th Cir. 1971); Cox v. United States Gypsum Co., 409 F.2d 289,1 FEP Cases 714, 70 LRRM 3278 (7th Cir. 1969).

Here, Uniroyal contends that individu- al claims which allege discriminatory layoffs prior to 15 October 1969 should now be dismissed. It is defendant’s con­tention that such layoffs are not "con­tinuing violations” of Title VII.This is the second time Uniroyal has advanced this argument before the court. On 23 March 1973, Judge Beamer, in an order denying Uniroyal’s motion to . ®^iss and/or strike portions of plain­tiffs complaint, rejected the Company’s position:
Finally, defendant contends that the claims of discriminatory layoffs . . . are not continuing
, '  T ûs l**riod was laler enlarged to 180 da vs by the 
ly /Z  Amendments to Title VII; see 42 U.S C.’ §2000t>- 
5(e) (1912).

violations and, therefore, only eleven of the 
plaintiffs have made a timely presentation of 
this claim to the EEOC. As noted above 
the court must assume that this is a proper 
class action and, accordingly, all of the plain­
tiffs need not have made a timely presentation 
of this charge. Oatis v. Crown Fellerback 
Corp , 398 F.2d 496,1 FEP Cases 328,68 LRRM 
-782 (5th Cir. 1968); Bowe v. Colgate-Pal­
molive Co., 416 F 2d 711,2  FEP Cases 223 (7th 
Cir. 1969). Therefore, we need not reach the 
question of whether such charges constitute 
continuing violations.5The court refuses to set aside Judge Beamer’s earlier determination. How­ever, the court is unable to agree with plaintiffs that the issue raised by the Company is wholly immaterial to this case. Whether or not the tardy claims are barred by the statutory limitation is a question which the March 23rd order and cases cited therein, did not reach! Consequently, the court must reserve judgment on this matter until the indi­vidual relief stage of this case when it shall be appropriate for the court to con­duct an "intra-class” examination of in­dividual claims.

2. Duty of Affirmative Action
Uniroyal next asks for a ruling that it did not violate Title VII with respect to plaintiffs’ allegations that subsequent to November 1971 the Company failed to adopt a credible policy of equal employ­ment opportunity.[2] The Company maintains that an employer has no obligation under the Civil Rights Act of 1964 to fashion and implement an affirmative action pro­gram unless so ordered by a judicial decree. Defendant’s claim has no merit. See, Local 189, United Papermakers & Paperworkers, A.F.L.-C.I.O., C.L.C. v. United States, 416 F.2d 980, 987-91 1 FEP Cases 875, 880-883, 71 LRRM 3070 (5(h Cir. 1969); Myers v. Gilman Paper Go., 392 F.Supp. 413, 420, 10 FEP Cases 220, 225 (S.D.Ga.1975); Stevenson v. In­ternational Paper Co., 352 F.Supp. 230, 5 FEP Cases 449 (S.D.Ala.1972); United States v. Central Motor Lines, Inc., 338 F.Supp. 532, 4 FEP Cases 216(W.D.N.C.1971); United States v. Virgin­ia Electric & Power Co., 327 F.Supp. 1034,3 FEP Cases 529 (E D. Va. 1971); and Irvin v. Mohawk Rubber Co., 308 F.Supp. 152,2 FEP Cases 349 (E.D.Ark. 1970). The more difficult question now facing the court is

5 Court Order of 23 March 1973 at 6, 5 FEP Cases
806 at 808.

CHRAPLIWY v. UNIROYAL, INC. 15 FEP Cases 801
whether Uniroyal breached its duty of af­firmative action. As a practical matter, that issue cannot be determined until the full extent of Uniroyal’s discriminatory- practices before November 1971, if any, is established. The matter shall be exam­ined with respect to plaintiffs’ motion for summary judgment.

Ill - UNION’S BRIEF IN 
OPPOSITION TO 

PLAINTIFF’S MOTION FOR 
SUMMARY JUDGMENT

Apart from alleging the existence of factual issues requiring trial, the Union has set forth various reasons why plain­tiffs, as a matter of law, cannot succeed in their effort. Plaintiffs’ motion states that:
Contrary to its duty the defendant Local No. 

65, United Rubber Workers, in its agreements 
with Uniroyal has discriminated against the 
female members of its collective bargaining 
unit, including all of the dues-paying female 
members of the Local, by negotiating pay rates 
for the Mishawaka plant which discriminate 
against female workers as a class and by agree­
ing to discriminatory bidding, bumping, and 
disqualification rules that perpetuate segrega­
tion and discrimination against the female 
employees it has the duty to represent. The de­
fendant union has acquiesced while Uniroyal 
has maintained a segregated system of em­
ployment that has discriminated against the 
female members of its collective bargaining 
unit as a class with respect to job assignments, 
promotions, transfers, layoffs, recalls, and ter­
minations.The Union’s first defense is that any and all discriminatory employment prac­tices were solely the result of Uniroyal’s policies and procedures. Without citing any authority, the Union submits that ac­quiescence by a union to an employer’s unlawful employment practices is a valid defense in a Title VII action. However, all authorities located by the court have reached the opposite conclusion. For ex­ample, in Myers v. Gilman Paper Co., supra, the court’s memorandum reads as follows:

In general, the defendant Unions argue that 
they took no part in any discriminatory prac­
tices prior to or after 1965, and that Gilman 
Paper Corporation was solely responsible for 
all racial discrimination in employment, as­
signments, promotions, and transfers . . .

Assuming, without finding, that Gilman 
was solely responsible for all racial discrimina­
tion in employment, assignments, promotions, 
and transfers prior to and after 1965, that fact 
raises no defense for the Unions. The essence 
of the plaintiffs’ claim against the Unions is

that the collective bargaining agreements 
tended to perpetuate and, in fact, perpetuated 
past discrimination, thus constituting present 
discrimination.

Recent decisions by the Court of Appeals for 
the Fifth Circuit leave this Court with the 
clear understanding that Title VII, as con­
strued in this circuit, places an affirmative 
duty on labor unions, as well as employers, to 
take corrective steps to prevent present dis­
criminatory practices, to remove impediments 
that perpetuate past discrimination, and to 
place discriminatees into their "rightful 
pluce” . (Citations omitted.)
Id. at 419-420, 10 FEP Cases at 224-225; see also, Johnson v. Goodyear Tire & Rubber Co., Synthetic Rubber Plant, 491 F.2d 1364, 1381-82, 7 FEP Cases 627, 639-640 (5th Cir. 1974); and Macklin v. Spector Freight Systems, Inc., 478 F.2d at 979, 989, 5 FEP Cases 994, at 1000-1001 (D.C.Cir.1973). Furthermore, the Union’s implication that it acted at all times in good faith is inconsequential under the Act. Griggs v. Duke Power Co., supra, at 432, 3 FEP Cases at 178.
[NEXT CHALLENGE]
The Union next challenges on three grounds the plaintiffs' allegation that the Local failed to represent its membership in a fair manner as mandated by the Na­tional Labor Relations Act, 29 U.S.C. §158 (1970). See, Steele v. Louisville & N. R. Co.. 323 U.S. 192, 15 LRRM 708(1944). Relying upon Miranda Fuel Co., 140 NLRB 181, 51 LRRM 1584 (1962) and Local Union No. 12 United Rubber Wor­kers v. N.L.R.B., 368 F.2d 12, 63 LRRM 2395 (5th Cir. 1966), the Local first argues that plaintiffs’ claim should be presented before the National Labor Relations Board rather than this court. In other words, the Union maintains that the Board’s jurisdiction pre-empts this court of the authority needed to entertain the instant matter.However, after Miranda Fuel and Local Union No. 12 were decided, the Supreme Court, in Vaca v. Sipes, 386 U.S. 171,64 LRRM 2369 (1967), had this to say about the pre-emption doctrine:
A primary justification for the pre-emption 

doctrine —  the need to avoid conflicting rules 
of substantive law in the labor relations area 
and the desirability of leaving the develop­
ment of such rules to the administrative agen­
cy created by Congress for that purpose —  is 
not applicable to cases involving alleged 
breaches of the union’s duty of fair representa­
tion. The doctrine was judicially developed in 
Steele and its progeny, and suits alleging 
breach of the duty remained judicially cogni-



15 FEP Cases 802 15 FEP Cases 803
zable long after the NLRB was given unfair 
labor practice jurisdiction over union activi­
ties by the L. M. R. A. Moreover, when the 
Board declared in Miranda Fuel that a union’s 
breach of its duty of fair representation would 
henceforth be treated as an unfair labor prac­
tice, the Board adopted and applied the doc­
trine as it had been developed by the federal 
courts.

Thus, the court has the power to adjudi­cate the §158 claim.[3] The Union further argues, without supporting authority, that the represen­tational duty is in some way limited to unions w'hich have historically refused membership to black individuals. The court is unable to discern any such limi­tation. While many of the reported cases have involved racially segregated unions, the Steele decision makes clear that the statutory duty extends to all labor or­ganizations defined by N.L.R.A., and is designed to eliminate all irrelevant and invidious classification schemes, includ­ing discrimination on the basis of sex. Cf. Adkinson v. Owens-Illinois Glass Co., Inc., 10 FEP Cases 710 (N.D.Ga 1975)' and Glus v. Murphy Co., 3 FEP Cases 1094 i W.D. Pa. 1971).
Lastly, the Union contends that plain­tiffs’ claim must fail since plaintiffs did not exhaust their intra-union remedies before commencing this suit. As a gener­al rule, an aggrieved party must first resort to such remedies before his claim may be adjudicated in federal court. The purpose of this rule is well stated in Ru- zicka v. General Motors Corp., 523 F 2d 306, 311, 90 LRRM 2497 (6th Cir. 1975): The reason for this requirement is that intra­union remedies are part and parcel of the in­dustrial in-house procedure for settling labor disputes. The primary benefit of requiring ini­tial submission of employee complaints against a union . is that the internal ma­chinery can settle difficulties short of court ac­tion.
It is quite apparent in this case that to find in defendant’s favor would not effec­tuate the purpose of the exhaustion requirement. The conciliatory mecha­nisms of Title VII have failed to produce amiable results. To now separate the N.L.R.A. claim and return the plaintiffs to their union remedies in hope of reaching an accord would certainly be a fruitless endeavor. Therefore, the court shall now consider the instant claim, to­gether with those arising under Title VII. See, Jones v. Trans-World Airlines, Inc 495 F.2d 790, 86 LRRM 2086 (2d Cir

IV-PLAINTIFFS’ MOTION FOR 
SUMMARY JUDGMENT

L Pre-Act Employment Practices
Plaintiffs begin their motion and brief arguing that prior to the effective date of Title \ II, 2 July 1965, Uniroval openly segregated job opportunities according to an individual’s sex. Specifically, plain­tiffs maintain that Uniroyal (1) classified each job within the plant as a "male” or female job; (2) operated a segregated personnel office on the basis of sex; (3) paid male employees a higher wage rate than female employees, and (4) kept se­niority lists for each department within the plant on a segregated basis according to sex.[4] It is today well settled that the provisions of Title VII are not retroactive in effect; discriminatory employment practices happening prior to 2 July 1965 and ending thereafter will not, when standing alone, give rise to a cause of ac­tion. See, e g., James v. Stockham Valves & Fittings Co., 394 F.Supp. 434, 493, 13 FEP Cases 908 (D.Ala.1975). However, Title VII places an affirmative duty upon an employer to rectify the current effects of wrongful discrimination which existed before passage of the Act. See, e g., Unit­ed Papermakers & Paperworkers, A.F.L.-C.L.C. v. United States, supra, at 420 Subsequent to 2 July 1965, then, failure on the part of an employer to voluntarily remove the discriminatory effects of its pre-Act employment practices will con­stitute an encroachment of Title VII, pro­vided the aggrieved party can establish a causal nexus between past discrimina­tion and present conditions of employ­ment. James v. Stockham Valves & Fittings Co., supra, at 493, 13 FEP Cases at 952-953. For this reason, the Com­pany’s employment practices and poli­cies in effect before 1965 are relevant to this case.

When discrimination in employment practices and conditions is alleged, the plaintiff must first establish a prima facie case by showing disparate treat­ment between two classes of individuals. Generally, statistical evidence is used to accomplish this task. Ibid, at 492,13 FEP Cases at 951-952. Assuming the plaintiff meets this challenge, the burden then shifts to the defendant to justify its ac­tions. Unintentional discriminatory practices as well as discrimination founded upon a compelling "business

____ CHRAPLIWY v. UNTROYAL, INC.
purpose” are viable defenses under the Act. See, Kober v. Westinghouse Electric Corp., 480 F.2d 240, 5 FEP Cases 1166 (3d Cir. 1973); and Griggs v. Duke Power Co., supra, at 432, 3 FEP Cases at 178, respec­tively.
[JUSTIFICATION]
In the present case, Uniroyal does not dispute plaintiffs’ allegations of discrimi­natory conduct described above; it does, however, seek to justify the "male”-"fe- male” job classification scheme. Accord­ing to the Company, the scheme resulted from the personal preferences of female employees to perform the less physically demanding "female” jobs as opposed to the more strenuous tasks of a "male” job. Defendant has submitted several af­fidavits of employees which state, in es­sence, that no female worker ever ex­pressed a willingness to hold a tradi­tionally designated male position. The Company, therefore, concludes that the "concentration” of female workers in cer­tain departments within the plant was the result of factors other than Uniroyal’s employment practices and policies.[5] The question which immediately arises is whether an employer, whose fe­male employees prefer to hold the lower paying and less strenuous positions, is in violation of federal law. The obvious an­swer to this question is no, provided all qualified employees possess the unfet­tered right to seek any job available with­in the plant. That situation did not exist at Uniroyal prior to 1965. The record clearly shows that defendant deliberate­ly constructed a system of classifying jobs in which the determinative factor was an individual’s sex and not his or her abili­ties. Although ostensibly based upon good faith, Uniroyal’s presumption that 

a ll female workers could perform n on e of the male jobs because of their supposed physical limitations is precisely the evil Congress had in mind when it enacted Title VII. See, e g., Phillips v. Martin Marietta Corp., 400 U.S. 542,3 FEP Cases 40 (1972); Willingham v. Macon Tele­graph Publishing Co . 50, F.2d 1084, 9 FEP Cases 189 (5th Cir. 1975); and Sprogis v. United Air Lines, 444 I 2d 1194, 3 FEP Cases 621 )7th Cir. 19711.Uniroyal’s conduct is clearly outside the purview of 42 U.S.C. §2000e-2(e) which provides an exception to the gener­al prohibitions of Title VII when "sex. .is a bona fide occupational qualification”

CHRAPLIWY v. UNIROYAL. INC. __
(BFOQ). Recently, the same defense came before the Ninth Circuit Court of Appeals in Rosenfeld v. Southern Pacific Co., 444 F.2d 1219, 3 FEP Cases 604 (9th Cir. 1971). In that case the court rejected de­fendant’s BFOQ argument, stating at pages 1224-25, 3 FEP Cases at 608:
. . .  on the basis of a general assumption re­
garding the physical capabilities of female em­
ployees, the company attempts to raise a com­
monly accepted characterization of women as 
the "weaker sex” to the level of a BFOQ . . 
Based on the legislative intent and on the 
Commission’s interpretation, sexual charac­
teristics, rather than characteristics that 
might, to one degree or another, correlate with 
a particular sex, must be the basis for the ap­
plication of the BFOQ exception. See Develop 
ments in the la w  —  Title VII. 64 Harv.L Rev. 
1109, 1178-1179 (1971). Southern Pacific has 
not, and could not allege such a basis here, and 
section 703(e) thus could not exempt its policy 
from the impact of Title VII. There was no 
error in the granting of summary judgment on 
this issue.There being no indication in the present case that the sexual characteristics of an employee are crucial to the successful performance of a "male” job (as would be the case, for example, with the need for an actor or actress) the court must similarly reject defendant’s contention. See, 29 C.F.R. §1604.1(a). The Company’s position is strengthened neither by the allegation that it did not intentionally discriminate on the basis of sex, Griggs v. Duke Power Co., supra, at 432, 3 FEP Cases at 177, nor the fact that no female employee ever challenged the system by trying to obtain a male job. See, Sagers v. Yellow Freight System, Inc., 388 F.Supp. 507, 515, 6 FEP Cases 1215, 1220 (N.D.Ga.1973); Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Rela­tions, 4 FEP Cases 325, 329(Pa.Cmwth.1972). Rodriguez v. East Texas Motor Freight Co., 505 F.2d 40, 58, 8 FEP Cases 1246 (5th Cir. 1974); Ostapowicz v. Johnson Bronze Co., 369 F Supp. 522, 7 FEP Cases 14 7(W.D.Pa.1973).Defendant has not challenged the remaining allegations of discriminatory conduct. Consequently, the court finds that prior to 2 July 1975, Uniroyal segre­gated jobs at the Mishawaka facility on the basis of sex; maintained a segregated personnel office on the basis of sex; kept segregated seniority lists according to sex; and paid male employees a higher wage rate than female employees. As stated above, however, such findings do not constitute violations of Title VII uti-



less plaintiffs establish a nexus between the discriminatory practices just de­scribed and post July 1965 employment conditions. To that matter the court now turns.
2. 1965-1970
Although the Civil Rights Act of 196-1 became effective July 2nd of that year, the provisions of Title VII did not take ef­fect until 2 July 1965. The enforcement delay was permitted so that employers would have sufficient time in which to fa­miliarize themselves with the new legislation as well as to remove from their employment systems all unjustified forms of segregation. In this case, plain­tiffs claim that from the effective date of Title VII until the end of 1970, Uniroyal maintained the same segregated employ­ment system which existed before pas­sage of the Act. In their brief, plaintiffs have enumerated eight specific instances in which Uniroyal allegedly continued to discriminate against the class of female employees throughout the first five years of Tit le VII. Each allegation will be exam­ined s er ia t im .A-T h e  A ll e g e d  S e g reg a ted  " A - B "  S ys tem[6] The first issue before the court is whether the Company abolished the seg­regated "male-female” job classification system following the enactment of Title VII. Having considered the evidence, the court finds that Uniroyal’s action had the effect of merely disguishing the former discriminatory system. The only change discernable to the court is one of form; the traditionally designated "male” jobs were reclassified as "Class A” jobs, and the traditional "female” positions were reclassified as "Class B” jobs. Of signifi­cance is the fact that Uniroyal also began categorizing all employees on the basis of sex. All male workers were known as "A” workers and assigned to Class A jobs, and all female workers were known as "B” workers and assigned to Class B jobs.Unsurprisingly, the statistical evi­dence overwhelmingly indicates that the new "A-B” system operated to restrict an employee’s job opportunities to the same extent as before the enactment of Title Vll.** Such evidence establishes for plain­

15 FEP Cases 804

6 The evidence shows that no female employee 
held a traditionally designated "m a le” job until 1971 
However, in March 1906, the Company did reclassify 
four "fem ale” jolis as Class A  positions. Thus, some 
females did ho d Class A jobs. But the fact remains 
that from I960 to 1970, females held essentially the

tiffs a prima facie case which defendant has not attempted to justify other than to say that the system was not intentionally designed with discriminatory conse­quences in mind, and that no female em­ployee outwardly expressed a desire to hold a Class A job. However, as we have indicated before, such arguments do not present tenable defenses in a Title VII suit. See p.ll, infra. Plaintiffs are there­fore entitled to a decree that Uniroyal’s dual system of designating both employ­ees and jobs within the plant was discrim­inatory on the basis of sex.
R-A lle g e d  D is c r im in a to r y Practices R e ­
g a r d in g  J o b  B id d in g , B u m p in g and 
P r o m o tio n[7] Plaintiffs next seek a judgment that Uniroyal maintained unlawful bidding, bumping and promotion rules from 1965 through 1970. It appears that very little actually changed at the Mishawaka facility after Title VII went into effect. Under the Company’s "A-B” system, no female employee ever held a traditionally designated "male” job dur­ing this period of time.6 * 7

B id d in g  R u le s

The terms of the labor agreement then in force (1965-1970), provided that qualified employees were permitted to bid on jobs located anywhere in the plant; the agreement contained no reference to an individual’s sex. Although seemingly innocuous, in operation this proviso pre­sented an obstacle to female employees wishing to enter the Class A job market.8When a particular job became avail­able in his department, a plant foreman was required to categorize each vacancy as a Class A or Class B job. Employees desiring to bid on the job would have to act according to those designations since "A” jobs were filled by Mr. Edgar Kavanaugh, Supervisor of Male Employ­ment, and the ”B” jobs were filled by Mrs. Elizabeth Hoffer, Supervisor of Female Employment. See Part IV, 2-E. Thus, if a female worker wanted to bid on an "A” job, she would have to obtain that job through an office which has traditionally

CHRAPLIWY v. UNIROYAL, INC.

same jobs as they did prior to the Act.
7 Ibid.
8 Under Title V ll. neutral employment practices

and policies which ojjerate to "freeze" the status quo 
of prior discriminatory conduct cannot be main­
tained by an employer. Griggs v. Duke PowerCo.,401
U S. 424, 3 FEP Cases 175 (1971); United States v. 
Bethlehem Steel Corp . 446 F 2d 652 ,3  FEPCases 589 
(2d Cir. 1971)

placed male workers in the plant and which, by its very name, gave the appear­ance of continued preferential treat­ment. Female workers, therefore, would have to challenge Uniroyal’s employ­ment system in order to successfully bid on jobs historically held by men. The rules posed an uncertain risk to females, which members of the opposite sex —  solely because of their sex —  did not have to encounter. The graph below shows the discriminatory impact that the bidding rules had in the plant.
JOB BIDDING 

1968-1970
Bids by Bids by

Jobs Total Male Female
Posted Bids Employees Employees

"Class
A ” 1,869 1,868 1

"Class
B” 1,197 2 1,195

CHRAPLIWY v. UNIROYAL. INC.___

B u m p in g  R u les

From 1965 through 1968,9 the labor agreements at Uniroyal also provided that each employee affected by the shut­down of a product line or division had the option, regardless of sex, of (1) bumping a less senior employee on a job which the affected worker could perform within a reasonably short training period; (2) bumping a less senior employee on a job in which the former employee had previ­ous experience; or (3) by accepting an "open” job located anywhere in the plant. When considered in isolation, the con­tractual bumping rules appear to be con­sonant with the demands of Title VII. However, when set against the discrimi­natory "A-B” system, the provisions also had the effect of restricting job opportu­nities on the basis of sex.Before 1971, an incumbent employee seeking to bump into a Class A job did so by going through Mr. Kavanaugh’s of­fice. If, on the other hand, a worker wanted to bump into a Class B job, the request was channeled through Mrs. Hof- fer’s office. By its very nature, this sys­tem of filling different jobs and job oppor­tunities through different offices labeled "male” and "female” is presumptively invalid. Cypress v. Newport News, 375 F.2d 648, 9 FEP Cases 1065 (4th Cir. 1967). Once again, in order to move into a higher paying Class A job, a female work-
9 In 1968 the Company changed its rules with re­

spect to bumping The validity of those rules are ex­
amined in Part IV, (i, infra.

15 FEP Cases 805
er would have to break precedent and challenge the traditional employment practices of Uniroyal. Male employees, on the other hand, did not have to un­dertake such a task (at least with respect to the "A” jobs). It is not surprising then, that no female employee successfully bumped into a Class A job until Frances Klaer did so in 1971.For these reasons, the same result must also obtain in connection with Uniroyal’s practice of promoting employ­ees within the plant. Consequently, the court finds as a matter of law, that Uniroyal maintained discriminatory bidding and promotion rules from 1965 until and including 1970, and discrimina­tory bumping rules from 1965 to 1968, in violation of the Act’s prohibition against sex discrimination.10 C - A lle g e d  E x c lu s io n  o f  F e m a le  E m p lo y ­
ees  fr o m  M o s t o f  th e  D ep a r tm en ts  a n d  
J ob s  in  th e  P la n tIt is plaintiffs’ contention that follow­ing the enactment of Title VII, Uniroyal continued to exclude female employees from most of the departments in the plant. In June 1970, for example, defend­ant operated 89 departments of which 61 were restricted to male employees. Four departments were restricted to females; the remaining 24 departments contained both Class A and Class B jobs. The graph below portrays a prima facie case of dis­crimination.

June 1970
Department Employment Statistics 

by Sex
Departments........ 61 4 24

Male Female Male
&

Female
Male Employees.. 
Female

782 0 268

Employees......... 0 25 370
Total Employees.. 782 25 638[8] Plaintiffs further maintain that defendant excluded female employees from most of the jobs in the plant. In

10 Uni royal’s efforts to raise a material issue of 
fact bused upon statements contained in the af­
fidavits of Mr. Kavanaugh and Ellen A. Seltzer, a fe­
male worker, must fail. Kavanaugh’s conclusory 
statement that the "A -B ” system was nondiscrimina- 
tory is clearly insufficient when evidence establish­
ing a prima facie case is presented before the court 
See, Jones v. I^ee Way Motor Freight, Inc., 431 F 2d 
245, 247, 2 FEP Cases 895, 897 (10th Cir. 1970) and 
cases therein cited. Seltzer’s contention that she was 
never discriminated against by the Company is irrel­
evant to the issue of class liability. Whether or not 
individual members of the plaintiff class were wrong­
fully denied equal employment opportunities is a 
matter properly raised during Stage II.

%■

l



15 FEP Cases 806
1969, for instance, the Company designa­ted 1,251 jobs as "A” jobs and only 460 jobs as ”B” jobs. Thus, female workers were restricted to one-fourth of the avail­able jobs. Having advanced no justifica­tion for this statistical disparity (other than those resolved earlier in plaintiffs' favor), the court finds that due to discrim­inatory employment practices described above, Uniroyal wrongfully restricted fe­male employees to particular depart­ments and jobs solely on the basis of sex. 
D - A lle g a t io n s  th a t U n iro y a l P a id  F e ­
m a le  E m p lo y e e s  L ess  th a n  M a le  E m p lo y ­
ees[9] Plaintiffs next seek a determina­tion that Uniroyal paid female workers with Class B jobs a lower wage rate than male workers with Class A jobs, and that the reason for this differentiation was based solely upon sex. Evidence sub­mitted by the plaintiffs for the year 1969, for example, clearly shows that in eight of Uniroyal’s 14 plant divisions, the lowest paid male workers holding an "A” job received a higher wage rate than the highest paid female worker with a "B” job. Thus, in many instances, male em­ployees, including new male employees, were paid a higher wage rate than their female counterparts.Section 2000e(h) of the Act provides in pertinent part:It shall not be an unlawful employment prac­tice under this subchapter for any employer to differentiate upon the basis of sex in determin­ing the amount of the wages or compensation paid or to be paid to employees of such em­ployer if such differentiation is authorized by the provisions of section 206(d) of Title 29. 
Section 206(d), or the Equal Pay Act, for­bids wage discrimination "between em­ployees on the basis of sex” when employ­ees perform "equal work on jobs, the per­formance of which requires equal skill, effort, and responsibility, and which are performed under similar circum­stances.” Under this section, the court’s initial inquiry is always: Are the jobs held by a male and a female substantially equal? Walker v. Columbia University, 407 F.Supp. 1370, 1374, 14 FEP Cases 1649, 1651-1652 (S.D.N.Y. 1976); Shultz v. Kimberly-Clark Corp., 315 F.Supp. 1323, 1326, 9 FEP Cases 553, 555 (W -D.Tenn. 1970). The statute requires an aggrieved party to demonstrate to the court that all factors other than sex are constant, such that the only variable which can possibly explain the wage dif­ferential is sex.

In this case, plaintiffs have failed to meet this threshhold burden since there is no allegation that females performed tasks substantially similar to those of males. Because "... Congress did not in­tend to put. . . the courts in the business of evaluating jobs and determining what constitutes a proper differential for une­qual work,” movants’ request for a decree in their favor must be denied at this time. Hodgson v. Corning Glass Works, 474 F 2d 226, 231, 9 FEP Cases 806, 809 (2d Cir. 1973). This conclusion, however, does not preclude plaintiffs from showing that Uniroyal unlawfully prevented women from obtaining the higher paying posi­tions. Hodgson v. Golden Isles Con­valescent Home, Inc., 468 F.2d 1256, 9 FEP Cases 791 (5th Cir. 1972) (per cu­riam).
E - T h e  A lle g e d  S e g reg a ted  P e r s o n n e l  O f­
f ic eThe court further finds that during the years 1965 through 1970, the Company continued to maintain a segregated em­ployment office in the plant. Mr. Kavanaugh continued to serve as Super­visor of Male Employment and Mrs. Hoffer continued to serve as Supervisor of Female Employment. The Supervisor of Male Employment had personnel of­fice responsibility for "A” workers and Class A jobs; Kavanaugh continued to conduct recruiting, hiring, job assign­ment, job bidding, promotions, transfers, layoffs, and recalls of all male employees with respect to the Class A jobs. On the other hand, the Supervisor of Female Employment was responsible for "B” workers and Class B jobs; Hoffer con­tinued to conduct recruiting, hiring, job assignment, job bidding, promotions, transfers, layoffs and recalls of all female workers with respect to the Class B jobs. 
F - T h e  S e g reg a ted  S e n io r ity  S ys temUnder the "A-B” System existent in the plant from 1965 through 1970, Uniroyal continued to maintain seniori­ty lists for each department on a segre­gated basis according to sex. Such a prac- tice, when used to the detriment of a par­ticular class of employees, will be viola­tive of federal law unless sufficiently justified. It has often been repeated that: [e]mp!oyers which lay off female employees while retaining male employees with less se­niority than the females commit unlawful em­ployment practices if the discrimination against such females is on the basis of their 
sex

CHRAPL1WY v. UNIROYAL, INC. CHRAPLIWY % UNIROYAL. INC. 15 FEP Cases 807
See Trivett v. Tri-State Container Corp., 368 F.Supp. 137, 141, 7 FEP Cases 1292, 1295 (E.D.Tenn.1973) and cases cited therein. Allegations respecting illegal use of this seniority system will be exam­ined in more detail below.G - T h e  1 9 6 8 -1 9 7 0  C lo s e -D o u n  o f  th e  
F o o tw e a r  D iv is io n s ; A l l e g e d  D is c r im in a ­
to r y  L a y o ffs  a n d  R e c a lls  on  th e  B a s is  o f  
S e i

(i) L a y o ffs

On 22 March 1968, Uniroyal publicly announced plans to transfer the produc­tion of waterproof and canvas footwear from Mishawaka to the Company’s plants in Naugatuck, Connecticut, and Woonsocket, Rhode Island. The decision, calling for a phaseout of footwear produc­tion over a two-year period, was expected to have a direct and substantive impact upon Uniroyal’s operations and employ­ees. The employment picture at Uniroyal before the shutdown was as follows:
EMPLO YMENT BE W E E  

SHUT D OW S

Employees in
Male Female Total

Footwear D iv... 
Employees in 

Non-Footwear

562 802 1,364

Div........................ 1,152 529 1,681
TO TA LS.... 1,714 1,331 3,045

The move, therefore, came at a time when 42% of Uniroyal’s work force was employed in the footwear divisions and was expected to have a disproportionate impact on female employees since ap­proximately 59% of all females working in the plant were assigned to footwear jobs, compared to only 30% of all male workers.Plaintiffs maintain that female em­ployees were discriminatorily laid off by the Company as the footwear divisions were in the process of being closed down. They claim that female employees hav­ing more seniority than males were laid off while junior male employees were retained in active employment; and at the same time new male employees were hired to fill Class A jobs. The crux of plaintiffs' claim is that female employees who were affected by the shutdown could not avail themselves of the many Class A job opportunities that were available to the junior men. Plaintiffs conclude that with fewer opportunities of active em­ployment available to them, the plaintiff
„ l , . ,,----- nt

being laid off than were male employ­ees.11A determination as to the validity of this claim requires examination of the labor agreement then in effect, particu­larly the provisions respecting the discontinuation of a product line or divi­sion. Under the 1968 agreement, an em­ployee who was affected by such events had several alternative courses of action available to him or her. Each employee, depending upon individual circum­stances, could elect to (1) retire under provisions of the Pension, Insurance, and Severance Pay Agreement; (2) terminate employment with the Company; (3) go on layoff and, if eligible, collect supplemen­tal unemployment benefits,12 (4) bid on a "posted” job; (5) accept an "open” job; or (6) bump a less senior employee in accord­ance with Articles VII and VIII of the Wage Employee Agreement. However, considering the significant number of employees to be affected by the footwear shutdown —  and the fact that many wor­kers would undoubtedly try to bump in order to remain actively employed — there was great concern among Company officials that the bumping rules of Arti­cles VII and VIII would seriously impair the overall operations of the plant. Based upon these fears, the Company and the Union mutually agreed upon a new set of bumping rules designed to minimize bumping by encouraging affected em­ployees to go on layoff, quit, or retire; the determinative factor was "previous expe­rience”. The modified rules permitted employees having two or more years of seniority to bump less senior employees located anywhere in the plant, provided the affected worker had "previous expe­rience” in the job then held by the junior employee.13 *Thus, upon learning that his job would be affected by the footwear shutdown, a male employee met with Mr. Kavanaugh and a Union representative to discuss the various options available to him. It will be recalled that Kavanaugh’s duties at
n Plaintiff* also contend that female employees 

were also cxpu&ed to a greater risk of having to quit 
See Part IV' -2. H, infra

12 These benefits provided the employee with an 
amount equal to 80f<- of his or her weekly wage rate

13 Additionally, un uffected employee having at
least two years of Company service had the right to 
bump le>s senior employees in the department pro­
vided the employee could qualify within a reasonably 
short training period. Also, an affected employee 
w ith two or more years of experience could bump the 
least senior employees in the division These provi 
sions had only short-term affects however, since all 
footwear departments and divisions were hv



15 FEP Cases 808 CHRAPLIWY v. UNIROYAL, INC.
this time included the selection and placement of all male employees for the Class A jobs. Thus, an affected male em­ployee could elect to retire, quit, go on layoff, or try to stay actively employed by- bidding, bumping into, or accepting an­other Class A job.[10] On the other hand, a female work­er affected by the shutdown met with Mrs. Hoffer and a Union representative. Hoffer’s duties under the "A-B” system complemented those of Kavanaugh; her responsibilities included the selection and placement of female employees for the Class B jobs. Thus, like her male co­workers, a female could choose to retire, quit, or go on layoff. But unlike the male worker, a female wishing to stay actively employed in the plant was restricted to seeki ng the "B” designated jobs. In short, Uniroyal’s "A-B” employment system — without regard to the bumping require­ment of previous experience — discouraged female employees from mov­ing into 1,252 Class A jobs then present in the non-footwear divisions, thereby ex­posing the plaintiff class to a greater risk of layoff, termination, or retirement. As a result, female workers were being laid off by the Company while it retained junior male workers in the plant and hired 92 new male employees to fill openings in various Class A jobs.14[11] Additionally, the court finds that the modified bumping requirement of "previous experience” also had a discrim­inatory impact. Because of the fact that Class A jobs were held by male workers, only males could possibly have had expe­rience needed to transfer into the remaining "A” jobs. The clause therefore had the effect of increasing a female’s chance of layoff, etc., for now, in order to bump into an "A” job, she had to over­come not only the "A-B” designations, but also the requirement of previous ex­perience.

(a ) B u s in e s s  N e c e s s ity

Uniroyal maintains that during the phaseout of the footwear divisions, con­tinuation of its discriminatory transfer
14 While il may be true that female employees 

couhi have remained in active employment by mov­
ing into another C lass B job, their chances of doing so 
w ere significant ly less than a male's chances of mov­
ing into a Class A job As the graph on page 18 in­
dicates, 15 FKPCases at 807. the 802 affected females 
had only 520 ' B 'jobs in which to move, whereas the 
5fi2 affected males had 1,252 " A ” jobs available to 
them.

rules was required as a matter of "busi­ness necessity”. If that be true, then plaintiffs’ claims with respect to such dis­criminatory practices from 1968 to 1970 cannot stand. Griggs v. Duke Power Co supra at 431, 3 FEP Cases at 178. Our first task is to define the proper standard by which to measure the Company's con­tentions.
[TRIVETT CASE]
Defendant urges the court to adopt the rationale espoused in Trivett v. Tri-State Container Corp., 368 F.Supp. 137, 7 FEP Cases 1292 (E.D.Tenn. 1973). In that sex discrimination case, demand for defend­ant’s products was reduced to the extent that layoffs were required. Although Tri- State maintained a plant-wide system of seniority, Class B female folders, who were senior to some of the male general floor helpers, were laid off while the men remained in the plant. Also, at this time, the Company hired new male workers as general floor helpers. The court rejected the women’s claim that Tri-State’s prac­tices infringed upon their Title VII rights:

It appears to the Court that Tri-State had a 
valid judgmental decision to make concerning 
which employees should be laid off during 
such slack periods. The lack of work occurred 
in the A&P department. General floor helpers 
could do whatever work of the class B folders 
as might be required, although management 
would be required to pay the general floor 
helpers 15? an hour more for services therein 
than would have been paid class B folders for 
the same work. On the other hand, class B fol­
ders were not qualified to do some of the heavi­
er and higher classification work required of 
general floor helpers, if the latter were laid off. 
The Court finds, therefore, that the decision of 
Tri-State's management to lay off class B fol­
ders rather than general floor helpers with 
less seniority was for reasons other than the 
sex of the class B folders, and hence that there 
was no violation of the Civil Rights Act of 1964, 
Title VII, in the instance described.
Id. at 141, 7 FEP Cases at 1295.[12] The Trivett analysis is entirely too broad a standard for purposes of justi­fying discriminatory actions. Its holding would ostensibly exempt from the Act all employment decisions having a business purpose; but n ecess ity , not p u rp ose , is the proper test. United States v. N. L. Indus­tries, 479 F.2d 354, 5 FEP Cases 823 (8th Cir. 19731. The sweeping definition sug­gested in Trivett would seriously un­dermine the policy of Title VII, which today represents the principal means of ensuring that an individual’s ability will

15 FEP Cases 809
be the determinative factor in employ­ment opportunities. If the Act is to remain a potent force against discrimina­tory employment practices, the defense must be narrowly construed and confined to those unusual instances where a segregative policy is absolutely essential to the achievement of a legitimate busi­ness need.This is the rationale which underlies the test announced by the Fourth Circuit in Robinson v. Lorillard Corp., 444 F.2d 791, 3 FEP Cases 653 (4th Cir. 1971). There the court stated that:

The test is whether there exists an overrid­
ing legitimate business purpose such that the 
practice is necessary to the safe and efficient 
operation of the business. Thus, the business 
purpose must be sufficiently compelling to 
override any racial impact; the challenged 
practice must effectively carry out the business 
purpose it is alleged to serve; and there must be 
available no acceptable alternative policies or 
practices which would better accomplish the 
business purpose advanced, or accomplish it 
equally well with a lesser differential racial 
impact.Id. at 798, 3 FEP Cases at 657-658 (em­phasis added);15 see also, United States v. St. Louis-San Francisco Ry. Co., 464 F.2d 301, 4 FEP Cases 853 (8th Cir. 1972); United States v. Jacksonville Terminal Co., 451 F.2d 418, 3 FEP Cases 862 (5th Cir. 1971); and United States v. Bethle­hem Steel Corp., 446 F.2d 652, 662,3 FEP Cases 589, 596 (2nd Cir. 1971).There can be no doubt that Robinson’s three-pronged test represents the better view; however, a problem arises with re­spect to the burden of establishing the final portion of the defense (no acceptable alternative policy). The difficulty was ex­plained and resolved fairly in Crockett v.

CHRAPLIWY v. UNI ROYAL. INC.
Green, 388 F.Supp. 912.10 FEPCases 165 (ED Wise. 1975).
Literally applied, the "no alternative” ap­
proach to "business necessity" in the case law 
and the E E O C. Guidelines, 29C.F.R. §1607.3, 
places upon an employer the practically im­
possible burden of proving an absolute nega­
tive, i.e., the nonexistence of any alternative 
procedures. A fair and preferable allocation of 
the burden of proof on the existence of alterna­
tives would place upon the plaintiff the burden 
of initially proposing or suggesting reasonable 
alternative practices while leaving to the em­
ployer the ultimate burden of demonstrating 
that any suggested alternatives are not ade­
quate substitutes for its present practices.
Id. at 920, 10 FEP Cases at 172.[13] Since the court is now considering plaintiffs’ motion for summary judg­ment, however, the ultimate burden of demonstrating the adequacy of a sug­gested alternative must also be shoul­dered by plaintiffs.16 Rule 56, F.R.C.P. It is with these factors in mind that we turn to the allegations presented in this case.The Company maintains that if em­ployees affected by the footwear close­down had bumped in accordance with the pre-1968 transfer rules os w ritten , the ef­fect would have been the loss of business, severe economic losses, and consequently the loss of more jobs.

(b ) T ra in in g  C osts

[14] Defendant's initial contention is that the implementation of nondis- criminatory transfer rules during the footwear shutdown would have been prohibitively expensive. The following graph is taken from the affidavit of Uniroyal’s Manager of Industrial Engi­neering, William T. Bailey.
GRAPH NO. 1

Adhesives
Automats
Coated Fabrics (Incl. Knitting)
Custom Processing
Auto Foam & Foam Specialties
Engineered Systems (Incl. Filatex)
ENSOLITE

Weighted Average Loss (NIAT)

1968 1969 1970
NS* NS NS
5. 3% 4.2% 2.8%
4 . 5 3.2 . 4

No Sales No Sales NS
20.9 19.1 2 . 3*
17.2 752.6** 2.4*
6.0 2.4 ■ 3

9.2% 8.2% 2 . 5%
* - Not Significant 

** - Increased Losses
15 Although Robinson involved racial discrimina­

tion. the business necessity exception in a racial con­
text has been said to apply with equal force in a sex­
ual context. See. Chnstuni; v Flvnn & Enrich Co . 365

F Supp 957, 966, 6 FEP Cases 357, 363 (D M 19731, 
affirmed 541 F 2d 1040 ,10 42-43 ,1 2  FEP Cases 1533, 
1535 (4th Cir. 1976'.

16 The Crockett decision is mentioned by the court



15 FEP Cases 810 CHRAPLIVVY v. UNIROYAL, INC.
These projections are based upon the an­ticipated cost of having to train affected employees for their new positions; train­ing costs for each commodity are set forth on the following page.Defendant’s first "business necessity” argument fails to raise a cognizable de­fense. Uniroyal’s expectation of an addi­tional $ 1,885,658.CH3 in expenses is premised upon the assumption that each affected worker would bump on the aver­age of 2.8 times. Graph No. 2, Column III. As plaintiffs suggest, however, these ex­penses could have been significantly reduced without discriminating on the basis of sex by permitting all employees only one opportunity to bump. Such a plan would have reduced costs by an esti­mated $1,212,209.00. Training costs could have been further minimized by requiring employees to bump into those jobs where the average costs were low, and prohibiting employees from bump­ing into jobs where costs were high. Graph No. 2, Column V.Using defendant’s data, it appears that the adoption of a nondiscriminating bumping policy would have cost the Com­pany less than $600,000, thereby reduc­ing NIAT by roughly 3% in 1968, 28% in 1969, and 8% in 1970. The question, therefore, is whether Title VII may require an employer to withstand a 2.2% (.03 + .028 + .008/3) average reduction in NIAT over a three-year period in order that both male and female workers have the same employment opportunity avail­able to them.The court has examined many cases wherein defendants have similarly raised the cost factor as a defense. What evolves from these cases is the notion that dollar cost alone is an immaterial consideration under the business necessi­ty doctrine, except when expenditures of monies may curtail operations to the ex­tent that incumbent employees may lose their jobs.
[JOHNSON CASE]
The principle that employers who wrongfully discriminate must bear the cost of remedying that discrimination is exemplified in Johnson v. Pike Corp. of

in response to defendant’s concern about the burden 
of proof imposed upon an employer under the "no- 
alternative” approach. Crockett’s allocation of bur

America, 332 F.Supp. 490, 3 FEP Cases 1025 (C D.Cal. 1971). There the court noted that:
The sole permissible reason for discriminating 
against actual or prospective employees in­
volves the individual’s capability to perform 
the job effectively. This approach leaves no 
room for arguments regarding inconvenience, 
annoyance or even expense to the employer.
Id. at 495, 3 FEP Cases at 1029. (Empha­sis added.)Similarly, the Robinson court held "that avoidance of the expense of changing em­ployment practices is not a business pur­pose that will validate the [discrimina­tory] effects of an otherwise unlawful practice”. 444 F.2d at 800,3 FEP Cases at 659. See also, United States v. N. L. In­dustries, supra, at 366, 5 FEP Cases at 832; and United States v. St. Louis-San Francisco Ry. Co., 464 F.2d 301, 310, 311, 4 FEP Cases 853 (8th Cir. 1972), Cf. 84 Ilarv. L. Rev., supra, at 1149-50. In the case at bar there is no claim that incum­bent employees would lose their jobs as a consequence of the additional expenses; hence, the court must reject the Com­pany’s initial contention.

(c )  D e c r e a s in g  S a les  a n d  th e  P o s s ib le  
L o ss  o f  J ob s

The record does show that in 1968 Com­pany officials feared the consequences that mass bumping might have upon the sales of non-footwear products as hun­dreds of inexperienced laborers trans­ferred into those divisions. Donald Frey, the Company’s Manager of Industrial Relations, testified that:
. . .  In the business we’re in today it’s a highly 
competitive business. And we deal a great deal 
with the motor industry. And the motor indus­
try is notorious for not having a single source 
for parts for their cars. And you either supply 
them what they want at the time they want it 
or they'll go to another source. It can mean loss 
of business to you.* • •
Well, at the time we started the Footwear 
phaseout, approximately fifty per cent of the 
membership in Local 65 were in Footwear 
Operations, which would have meant that we 
would have affected every commodity in the 
plant adversely.• • •
Better than fifty per cent of our business was 
automotive at the time of the Footwear 
phaseout . . . .  discounting the Footwear. 
(Deposition of Donald Frey, pp.18, 137-

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CHRAPLIWY v. UNIROYAL, INC. 15 FEP Cases 811

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to r ibi'teases 012 CHRAPLIWY v. UNIROYAL, INC.
Frey also testified that more jobs may have been lost as a result of the pre-1968 bumping rules.Although additional expenses and a de­cline in sales may, at least for accounting purposes, reduce NIAT by the same amount, a court must be sensitive to the differing impacts the two transactions may have. Depending upon the nature of a particular employer and his customers, plummeting sales may have weightier af­fects than extraordinary expenses. For example, if, because of a sudden drop in the efficiency of his workers, an employer is unable to supply the demands of his buyers, product sales will immediately fall and customers may be permanently lost. If the reduction in sales is substan­tial, it may mean a similar reduction in the size of the existing work force. Unlike extraordinary expenses, the impact of which is generally limited to the year in which it is paid or incurred, a decrease in sales volume may likely have more se­vere short-term and long-term affects and should, therefore, be accorded more significance under the business necessity defense.
[PREDICAMENT]
The above scenario closely describes Uniroyal’s predicament in 1968. With ap­proximately 600 persons expected to transfer into jobs which they never be­fore held, inefficiency was expected to seriously hamper production and sales. The need for maximum efficiency at Uniroyal appears to be especially acute in view of the fact that greater than 50% of the company's business was then derived from the "highly competitive” auto industry. Frey’s affidavit states that if Uniroyal was unable to meet a buyer’s mmediate demands, another manufac- 1 urer would be most willing to do so.It will be recalled that the first part of Robinson’s test, requiring the challenged practice to effectively carry out the pur­pose it is alleged to serve, is undoubtedly satisfied in this case. Certainly, mainte­nance of the discriminatory transfer rules kept inefficiency in the non-foot- wear divisions to an absolute minimum.However, as for the second part of the test, that the alleged business purpose must be sufficiently compelling to over­ride its discriminatory impact, a material issue of fact exists. Here, the court must judicially balance the competing in­terests of the litigants; in other words, the adverse impact that less discrimina­

tory transfer rules would have had from 1968 through 1970 upon production, sales, and workers in the plant, must be measured against the degree of sex dis­crimination experienced in the plant. Al­though the latter factor has been pre­sented to the court, plaintiffs have failed to show, as they must on a motion for summary judgment, the full extent that nondiscriminatory rules would have had on the enterprise. Defendant has shown that such a program could have meant the loss of business and possibly jobs. The evidence, which plaintiffs do not chal­lenge, presents an argument which may 
a t s o m e  p o in t constitute a compelling reason for not implementing a nondis­criminatory employment system. To now conclude as a matter of law that defend­ant’s argument cannot prevail would contravene the narrow purpose of Rule 56, F.R.C.P. Therefore, without adequate information to place on both sides of the scale, the court is unable to properly eval­uate the business necessity defense. Since there is not sufficient information before the court to resolve the matter, each party shall submit such evidence as it deems necessary to support its respec­tive position. Plaintiffs shall file their in­formation within 60 days of this Order, and defendant shall have 30 days from the filing of such data to respond.

Likew ise, an issue requiring additional 
evidence also exists in connection with 
the final portion o f the business necessity  
test, i.e., that no acceptable policy or 
practice would accom plish the business 
purpose equally well w ith a lesser dis­
crim inatory im pact. P laintiffs have sug­
gested that U niroyal could have lim ited  
each em ployee to one opportunity to 
bum p into any job in the plant; also, effi­
ciency m ay have been preserved by 
prohibiting em ployees from  m oving into 
jobs requiring long training periods.17 
Perhaps the affects o f the proposed slow­
down could have been furth er mitigated  
by having experienced em ployees work 
overtim e or by building inventories prior

' 'T h e  average training periods per commodity were 
as follows:
(ornnioJitv Average Number of Pays
Knit Fabrics— 13
Coated Fabrics— \ 1
Automats— 7
Ensolite— 5
Koylon—  jo
Fuel Cells— 30
Filatex—  30

CHRAPLIWY v. UNIROYAL, INC 15 FEP Cases 813
to the footwear shut-down. Whether such steps were either practical or feasible in 1968 is a matter not ascertainable from the record now before the court. Alterna­tive policies must be framed in more precise terms in order to satisfy movants’ burden of proof. See, Crockett v. Green, supra, at 920, 10 FEP Cases at 172. The parties shall provide the court with the necessary information in the manner prescribed in the preceding paragraph.

(Hi R e c a lls

[15] The Company’s admissions to plaintiffs’ requests to admit facts show that from June to December 1969, and again from June to August 1970, the Company recalled some of its laid-off em­ployees to active employment. In making these recalls, Uniroyal unlawfully segre­gated job opportunities on the basis of sex in at least two respects. First, the Super­visor of Male Employment recalled male employees to fill vacancies in tradi­tionally "male” or "A” jobs; the Super­visor of Female Employment recalled fe­male employees to fill vacancies in "fe­male” or "B” jobs. Once again, females did not have equal access to the many Class A jobs. Irrespective of an individu­al’s present wishes and abilities, employ­ees were considered for certain jobs and not others based upon his or her sex.Secondly, recalls were made using dif­ferent seniority dates for male and fe­male workers. Because the female senior­ity date was always earlier than the male seniority date, the Company recalled jun­ior male employees in active employment while senior female employees remained laid off. See Part IV, 2, F. Defendant does not and, indeed, cannot rely upon the business necessity defense discussed above.H - A lle g a t io n s  th a t U n iro y a l D is- 
c r im in a to r i ly  C a u sed  Its  F e m a le  W ork ers  
to  Q u it

(i) T e r m in a tio n s  D u e to  A lle g e d  
D is c r im in a to r y  C u t o f f  o f  S u p p le m e n ta l  

U n em p lo y m en t B e n e f its

[16] The Supplemental Unemploy­ment Benefit Agreement of 1967 pro­vided that employees who are laid off as the result of an operation or plant shut­down and who have more than one but less than five years seniority are eligible to receive 80% of his or her weekly

straight-time rate.18 In March 1968 the Company decided to extend this privilege to employees with five or more years of service who had been laid off out of line of seniority as the footwear phaseout began These workers were "gratuitously” deemed by the Company to be on "tempo­rary layoff’ within the meaning of §4<a» of the S.U.B. agreement. The affidavit of Donald L. Frey states:
[t]he reason for this decision was that ill the 
Company was anticipating new business 
which might entail recalling the laid-off em­
ployees, and (2) the S U B. would soften the 
economic impact of the layoff in regard to the 
seven employees.By November 1969, however, product sales indicated that it would be "highly unlikely” that persons laid off would be recalled. Uniroyal therefore decided to change its previous position by revoking the economic largess it had bestowed upon employees with five or more years of experience. A letter19 * * * * w'as drafted by Company officials and mailed to affected workers, advising each employee that S.U.B. had been terminated and that he or she could elect to take a termination allowance and lose all service and senior­ity writh the Company, or elect to stay on layoff and hope to some day be recalled to active employment. Plaintiffs maintain that these notices were delivered to a dis­proportionate number of female employ­ees and that the letters caused a greater proportion of females to terminate their employment relationship with Uniroyal.

18 On the other hand, employees possessing five or 
more years of Company service are eligible for a ter­
mination allowance as provided by the Pension, In­
surance and Severance Pay Agreement That Agree­
ment also provides that persons with at least ien 
years of seniority and 62 years of age are eligible for 
certain pension benefits.

19 The letter reads in pertinent part:
Dear Fellow Employee:

As a result of analyzing our employment needs in the 
foreseeable future, the probability of your being re­
called from layoff is very remote Based on this infor 
mation, together with the recent closing dow n of the 
Footwear section of the Plant, it has been determined 
that you are eligible for a benefit in the form of a ter­
mination allowance under the provisions of the Pen­
sion, Insurance and Severance Pay Agreement. 
Since you are eligible for this t*?nefit, under the 
terms of the Supplemental Unemployment Benefits 
Plan you are no longer eligible for S.U.B. after No­
vember 21, 1969. You have the right to exercise the 
following options:

A. You may elect to take a termination allowance, 
in which case your service and seniority with the 
company will be terminated, or

B. You may elect to remain on the recall list and 
take your chances that someday you may be recalled



15 FEP Cases 814 CHRAPLIWY v. UNIROYAL, INC. CHRAPLIWY v. UNIROYAL. INC. 15 FEP Cases 815
The Company also seeks a decree in its favor with respect to this claim.
[LETTERS]
The S.U.B. termination letters were mailed on three different occasions; the first was 12 November 1969. The record shows that these letters were first sent to employees on layoff having seniority dates ranging fron 1959 to 1963 inclusive ("Group I”). Despite the fact that on No­vember 12th the Company had 92 male and 171 female workers in active employ­ment or on layoff status with such senior­ity dates, all 157 letters sent that day by the Company were delivered to female employees.20On 26 December 1969, a second wave of notices were mailed to a group of laid-off workers with seniority dates ranging from 7 September 1955 to 29 August 1959 ("Group II”). Once again, only female workers had their benefits discontinued even though the Company had 140 males and 236 females in active employment or on layoff status with the appropriate time of company service.21On 13 January 1970, plaintiffs filed a complaint with the E.E.O.C., charging Uniroyal with various discriminatory practices on the basis of sex, including complaints concerning the Company’s cutoff of S.U.B. payments. Shortly there­after, on 6 February 1970, Uniroyal released a final wave of letters. These no­tices were sent not only to the oldest se­niority group of employees (1952-1955, "Group III”), but also to workers with dates ranging from 1955 to 1963. For the first time Uniroyal terminated the bene­fits of male workers. In February the Company delivered the last letters to 159 men and 192 women at a time when it had 534 males and 216 females in active employment or on layoff with seniority dates from 1952 to 1963.It is clear that both the November and December letters were mailed to a dispro- portionate number of females in Groups I and II. It is equally clear that a greater

The court is primarily interested in the sex and 
number of employees on layoff status having seniori­
ty dutes from 1959 to 1963. Plaintiffs’ evidence, how­
ever, includes the number of employees who were 
also actively working in the plant. Although the 
Figures may be somewhat misleading, they do not 
require the court to deny plaintiffs’ claim. The statis­
tical disparity would exist so long as 3omc males and 
some females were on layoff when the notices were 
delivered only to members of the latter group.

21 Ibid

proportion of said females terminated their employment relationship soon after receiving the S.U.B. letters. The evidence shows that 169 females having their S.U.B. payments cut off in 1969 decided to quit; at least 93 of these women did so before the first male worker received a similar notice.Uniroyal, however, looks to the overall statistical results of its policy to show that it was not discriminatory. The Com­pany maintains that when the impact of the third wave of letters are considered, plaintiffs’ case must fail. Uniroyal points out that 57.23% (91/159)22 of the males receiving a S.U.B. letter chose to quit as compared to only 36.21% (201/555)23 of the women.Defendant’s argument fails to raise a valid defense. Action taken by an em­ployer subsequent to the filing ofE. E.O.C. changes cannot moot issues of discrimination occurring prior to that time. To hold otherwise would permit a potential defendant to simply manipu­late the statistical evidence in order to avoid liability under Title VII. Although Title VII encourages conciliatory action, it does not condone concealment. Thus, once having restricted an employee’s job opportunities on the basis of sex, it is no excuse that members of another group were subjected to similar limitations after E.E.O.C. changes were filed. See, McCoy v. Safeway Stores, Inc., 5 FEP Cases 628 (D.C. 1973). See, also, Jenkins v. United Gas Corp., 400 F.2d 28, 1 FEP Cases 364, 69 LRRM 2152 (5th Cir. 1969) (corrective action taken subsequent to fil­ing of lawsuit in federal court considered irrelevant).
[ANOTHER ARGUMENT]
The Company also argues that since it voluntarily and gratuitously, extended S.U.B. payments to employees with five or more years of experience, it may revoke its largess in any manner and at any time as it sees fit. The court is unable to agree. Section 2000e-2, which is enti­tled to "broad construction”, Sale v. Waverly Shell Rock Bd. of Educ., 390F. Supp. 784, 788, 9 FEP Cases 138 (N.D.Ia. 1975), is in no way limited to con­tractual duties; rather, it is designed to prohibit all practices which "in any way”

22 O f the 159 men receiving a S.U.B. letter, 91 later 
quit.

23 O f the 555 women receiving a S.U.B. letter, 201 
later quit.

limit or restrict an individual's employ­ment opportunities. Focus must be placed upon the consequences of a partic­ular policy in contradistinction to the na­ture or source of that activity. Griggs v. Duke Power Co., supra, at pp. 429-30, 3 FEP Cases at 175-176.* 2 24[17] Next, Uniioyal submits that the instant claim is without merit because the resignations which eventually en­sued do not fall within the strict defini­tion of a "constructive discharge.” This concept, which was originally developed under the National Labor Relations Act and later extended to Title VII actions, is explained in Young v. Southwestern Savings & Loan Ass’n., 509 F.2d 140,144, 10 FEP Cases 522, 524 (5th Cir. 1975):
[l]f the employer deliberately makes an em­
ployee’s working conditions so intolerable that 
the employee is forced into an involuntary res­
ignation, then the employer has encompassed 
a constructive discharge and is liable for any 
illegal conduct involved therein as if it for­
mally discharged the aggrieved employee.
Here, defendant reasons that because working conditions at the Mishawaka plant are not at issue, and because there is no evidence that S.U.B. letters forced any female worker to quit her job, the doctrine of constructive discharge is in­applicable. The court, however, is uncon­vinced.Whenever a legal concept is taken from its original context and applied in another, it must adapt itself to the many different nuances encountered in the new environment. A court must stand ready to refine the general principles un­derlying the doctrine without losing sight of its intended purpose.25 In the present case, at least one factor of a constructive discharge, which appears to be an essen­tial ingredient in N.L.R.A. cases, loses much of its significance when placed

24 The foregoing conclusion is analogous to the 
Supreme Court’s construction of the Due Process 
Clause of the Fifth and Fourteenth Amendments to 
the Constitution. The Court has made it clear that 
once the government gratuitously bestows some ben­
efit or privilege upon its citizenry, that benefit or 
privilege may be revoked, but only in accordance 
with the Due Process Clause. See, e g., (loldberg v. 
Kelly, 397 U S. 254 (1970); Note, Reputation as a Con­
stitutionally Protectible Interest, 52 Notre Dame Law 
290, 300-302 (1976». It does not, therefore, appear to 
be too onerous a task to require an employer, when 
withdrawing its largess, to do so within the parame­
ters of Title VII.

2* In Young v. Southeastern Savings & Loan 
Ass’n., supra, it was the district court’s failure to rec­
ognize this important factor that required the Circuit 
Court to reverse the lower ruling See, 509 F 2d 140, 
10 FEP Cases 522 (5th Cir. 1975)

alongside the "well-settled” principles of Title VII.To illustrate, Uniroyal urges the court to dismiss plaintiffs’ claim since there are no allegations of oppressive or unbeara­ble working conditions. However, the at­mosphere in which an employee must perform his assignments represent just one means or form of coercion. In a case such as this, the nature and form of de­fendant's conduct is immaterial. The Supreme Court recently stated that "in enacting Title VII. . . Congress intended to prohibit all practices w h a te v e r  fo rm  which create in inequality in employ- opportunity." Franks v. Bowman, Inc., 44 LW 4356, 4360, 12 FEP Cases 549, 555 (March 29, 1976). (Emphasis added.) The Act, then, directs the court to examine the substance and affect of a challenged practice, rather than the form in which it appears. Cf, Griggs v. Duke Power Co., supra, at 432, 3 FEP Cases at 178.Additionally, Uniroyal maintains that dismissal is warranted since there is no evidence that termination of S.U.B. pay­ments actually "caused” or "forced” any worker to quit his or her job. But plain­tiffs’ burden is not that great, at least for purposes of this motion. The court has determined that termination of S.U.B. payments in 1969 had discriminatory consequences against the class members of Groups I and II. That is the only ques­tion that may be resolved at this junc­ture. Whether an individual member of the class was forced to resign as a result of Uniroval’s actions, or whether her deci­sion to quit was voluntary will present a series of factual issues for the trier of fact.
[NO BUSINESS NECESSITY]
Similarly, defendant cannot rely upon the defense of business necessity. Al­though it appears that sound business reasons supported the decision to cut off S.U.B. payments, there is no explanation as to why the policy had to be conducted in a manner such that only women with seniority dates ranging from 7 Septem­ber 1955 to 28 June 1963 received S.U.B. letters, while male workers with similar dates remained unaffected until Febru­ary 1970.Lastly, with respect to the class mem­bers of Group III, summary judgment must be denied both parties. In order to ruleon this matter, it is essential to know the number of male and female employ­ees on layoff status as of 6 February 1970 having seniority dates from 1952 to 1955;



15 FEP Cases 816
the number of S.U.B. letters sent to mem­bers of both sexes; and the number of em­ployees who later resigned. That infor­mation, although given with respect to Groups I and II, is not available for the third group. Thus, whether females hav­ing the 1952-1955 seniority dates were also discriminated against is a question the court is unable to answer at this junc­ture. The court invites each side to sub­mit, in the manner prescribed above, all information needed to resolve this ques­tion. (If it so desires, defendant may also move for summary judgment on this point when it responds to plaintiffs’ brief.)

(ii> T e r m in a tio n s  D u e  to  A lle g e d
D is c r im in a to r y  L a y o ffs  a n d  R e ca lIs

It is plaintiffs’ contention that during the footwear phaseout discussed above, the Company wrongfully laid off female employees with more seniority than men who remained working in the plant. The record shqws that many of these women on layoff subsequently decided to quit by accepting early pensions, by taking severance pay, or otherwise. Plaintiffs therefore conclude that Uniroyal unlaw­fully caused senior female employees to quit by first conducting discriminatory layoffs and then by preventing them from reentering the plant by conducting segregative recalls.The instance claim, of course, hinges in part upon a finding that the Company conducted illegal layoffs from 1968 through 1970. As noted, however, addi­tional evidence is needed to finally resolve the matter. Thus, plaintiffs’ claim cannot be decided until the layoff issue has been determined. 3
3. 1971-Present
A - A l l e g e d  D is c r im in a to r y  C la s s i f ic a tio n  
o f  J obsDefendant’s admissions to plaintiffs’ requests to admit facts established the following: In January 1971, Company of­ficials requested its Manager of Safety and Security, Mr. Von G. Cork, and its plant physician, Dr. N. C. Johns, to ob­serve certain traditional "male” jobs in the plant to determine whether those jobs should be performed by female em­ployees. Cork and Johns toured the facili­ty once each week from 13 January through 30 June 1970, observing the vari­ous tasks performed. From January through July 1971, Dr. Johns issued to E.

L. Kavanaugh and Elizabeth Hoffer 14 lists of jobs that, in his opinion, "should not be performed by female employees”. The Company notified the Union of Dr. Johns’ recommendations and in March 1971 Uniroyal incorporated the doctor’s observations into its regular procedure of writing job descriptions.[18] Plaintiffs maintain that U n iroya 1 ’s classification of certain jobs as those which "should not be performed by females” unlawfully descriminates on the basis of sex. The court agrees. In Rosenfeld v. Southern Pacific Co., 444 F.2d 1219, 3 FEP Cases 604 (9th Cir. 1971), the Ninth Circuit considered the question of whether strenuous physical demands and long working hours consti­tuted a "bona fide occupational qualifica­tion”. 42 U.S.C. §2000e-2(e) (1974). The court replied in the negative, explaining at page 1225, 3 FEP Cases at page 608:
The premise of Title VII, the wisdom of 

which is not in question here, is that women 
are now to be on equal footing with men. 
Weeks v. Southern Bell Tel. & Tel. Co., 403 
F.2d 228,236 ,1  FEP Cases 656,70 LRRM 2843 
(5th Cir. 1969). The footing is not equal if  a 
male employee may be appointed to a particu­
lar position on a showing that he is physically 
qualified, but a female employee is denied an 
opportunity to demonstrate personal physical 
qualification. Equality of footing is estab­
lished only if employees otherwise entitled to 
the position, whether male or female, are ex­
cluded only upon a showing of individual in­
capacity. See Bowe v. Colgate-Palmolive Co., 
416 F.2d 711, 718, 2 FEP Cases 121 (7th Cir. 
1969). This alone accords with the Congres­
sional purpose to eliminate subjective assump­
tions and traditional stereotyped conceptions 
regarding the physical ability of women to do 
particular work See W’eeks v. Southern Bell 
Tel. & Tel. Co., 408 F.2d 228, 235-236, 1 FEP 
Cases 656,70 LRRM 2843(5th Cir. 1969); Bowe 
v. Colgate-Palmolive Co., 416 F.2d 711, 717, 2 
FEP Cases 121 (7th Cir. 1969). See also, Shultz 
v. First Victoria Nat’l Bank, 420 F.2d 648,656,
9 FEP Cases 496 (5th Cir. 1969), (interpreting 
the Equal Pay Act of 1963, 29 U.S.C. §206(dX 1). (Emphasis supplied.)An employer may not, therefore, ex­clude females from particular jobs on the grounds they involve laborious tasks and long hours of work. Title VII rights are individual rights; they are not lost or for­feited because some members of a group having similar sex, racial or religious characteristics are unable or unwilling to perform certain jobs. Defendant presents nothing to remove the instant claim from Rosenfeld’s holding. Consequently, the ' court finds that Uniroyal’s classification of jobs as those which "should not be per-

__ CURAPL1WY v. UNI ROYAL, INC. CHRAPLIWY v. UNIROYAL, INC. 15 FEP Cases 817
formed by females” is violative of Title VII. The inherent danger of such classifi­cation scheme can be seen in the case of Frances Klaer, a female employee who, in 1971, tried to exercise her seniority by transferring into a job designated as one that "should not be performed by female employees”. In November 1971, Uniroyal had Dr. Johns reexamine the job that Klaer wanted and to discuss it with her. Johns’ conclusion was that Klaer "could not qualify physically for the job”. The Company relied upon Johns’ opinion in its defense before an arbitrator. The arbi­trator rejected the company’s defense and ordered Uniroyal to award Klaer her job together with back pay. She had worked regularly on the job since 1972. 
B- A lle g e d  D is c r im in a to r y  R e c a l ls  o f  E m ­
p lo y e e s  S u b seq u e n t to  D ec e m b e r  1970[19] In December 1970 the Company abandoned its practice of using separate seniority dates for purposes of recalling laid-off male and female employees and began using a single seniority date for all employees. Although at first blush the new system appears to be nondiscrimina- tory, in operation it is detrimental to fe­male employees. Under the new system, employees on layoff were considered for job vacancies on the basis of company service. However, the Company solely determined whether or not the most senior employees were capable of per­forming a particular job based upon the job’s description and the physical attrib­utes of the employee, including sex.It will be recalled that beginning in 1971, descriptions of many traditionally "male” jobs were designated as jobs that "should not be performed by female em­ployees”. The Employment Office used the job descriptions when recalling em­ployees, placing only male workers in those jobs which Dr. Johns had found to be injurious to a woman’s health.26 Thus, a female who is senior to a male employee would first be considered to fill a job va­cancy but she would not be recalled if the

26 In an intra-office memorandum dated 16 March 
1971, E. L. Kavanaugh. Uniroyal’s current Employ­
ment Manager, stated:
Although we have only one seniority layoff date, we 
operate with a more "realistic” date as fur as men are 
concerned, in order to:

B. Keep jobs manned where the plant physician and 
safety department recommend should not be per­
formed by females as they would be injurious to their 
health

job was one that "should not be per­formed by female employees". In many instances then, a female’s sex, rather than her relative seniority and individu­al capabilities, is the determinative fac­tor with respect to recalls occurring sub­sequent to December 1970.Furthermore, in 1971 the Company hired 45 males as new employees and as­signed them to traditional "A” jobs without considering any of its 130 female employees who were on layoff throughout the entire year.27 Many of these jobs have since been successfully held by members of both sexes.2*
C - A lle g e d  D is c r im in a to r y  B id d in g  a n d  
D is q u a li f ic a t io n  R u les[20] Since 1964 the collective bargain­ing agreement between the defendants has contained the following rules: (1) an employee who is disqualified from a job has no right to bump junior employees; (2) a disqualified worker may only bid on a "posted” job vacancy or agree to accept an "open” job through the Employment Office; and (3) each employee is limited to two voluntary job transfers through bidding within one year. It is required that thirty days must elapse between transfers by bidding.Plaintiffs interpret these provisions to mean that an employee who successfully bids on a job but is disqualified within thirty days can remain in active employ­ment only by accepting an "open” job through the Employment Office. If there are no such jobs available, the employee is laid off. Once laid off, the employee can­not bid on a "posted” job vacancy even when the 30-day period following the worker’s last bid has elapsed. It is plain­tiffs’ contention that the rules operate so as to perpetrate the effects of Uniroyal’s

27 The following chart shows the number and sex 
of workers hired by Uniroyal as new employees from 
1968 to 1973:

Y e a r M a le F e m a le
l^ o k 9 T 6
1 % 9 0 0
1 9 '0 11 0
1471 45 0
1972 158 0
1973 4 0

28 During 1971 the defendant Uniroyal assigned 
12 of its 45 newly hired male employees to the follow­
ing jobs and departments w ithout considering senior 
female employees for them: Janitor 1197), inspect and 
pack (234), roller die operator (255), clean molds (264), 
pour and control (264), demold (265), and clean molds 
1265). Thereafter, as the defendant Company opened 
those iobs to female employees gradually during the 
period 1971-1973, fiftv-seven senior female employ­
ees obtained those jobs and worked them success­
fully.



15 FEP Cases 818 CHRAPLIWY v. UNIROYAL, INC. CHRAPLIWY v. UNIROYAL. INC. 15 FEP Cases 819
prior discriminatory practices in viola­tion of Title VII. While not disputing plaintiffs’ interpretation of the bargain­ing agreement, defendant does challenge the legal conclusions which they have been drawn. Defendant says that because the same bidding rules apply with equal force to both males and females, they are valid under the Act. Each party moves the court for an order in its favor.Without question, the provisions of the bargaining agreement apply equally with respect to members of both sexes. But, contrary to defendant’s contention, that factor alone does not end the inquiry for neutral employment practices which tend to "lock in” the affects of prior dis­crimination are also unlawful. See, e.g., Griggs v. Duke Power Co., supra: United States v. Georgia Power Co., 474 F.2d 906,5 FEP Cases 587 (5th Cir. 1973); and Unit­ed States v. Bethlehem Steel Corp., supra.
[LOCK-IN EFFECT]
The bidding and disqualification rules now under consideration have the prohibited affect of "locking” female em­ployees to the formerly designated "fe­male” or "Class B” jobs. To illustrate, suppose that M and F were hired by the Company prior to 1972 and assigned to positions on the basis of sex —  M being assigned to a "male” or "Class A” job, and F to a "female” or "Class B” job. Suppose further that F now seeks to voluntarily transfer into a position traditionally held by male employees. To do this, she must bid in accordance with the above rules which, as seen, expose her to the possibili­ty of layoff and possibly unemployment, should she fail to satisfactorily perform her new duties.Undoubtedly, the serious penalties which lurk beneath the rules can only discourage F and other females from vol­untarily transferring within the plant. Although clearly permitted to do so, a transfer may ultimately cost the employ­ee active employment with the Company. Irrespective of their intended results, the rules help to "immobilize” defendant’s work force by encouraging F to remain in her original job. The rules therefore tend to "freeze” the segregative effects of de­fendant’s prior discriminatory practices and permit them to continue into the pre­sent. For that reason the Company’s bidding and disqualification rules are un- 

lnwfnl Notp 0

The following chart shows the virtual standstill which has existed under Uniroyal’s bidding rules from 1970 to 1974:
Number o f  Departments 

Year A ll Male A ll Male & 
Female Female 

1970 61 4 24
1974 51 1 23It is inconsequential that male employ­ees are also subject to the possibilities of layoff and unemployment when con­sidering a voluntary transfer. The deter­minative factor here is not whether the employment practice applies equally to both sexes, but whether it tends to per­petrate the effects of prior discriminato­ry conduct.

See, Ibid.D - A lle g e d  D is c r im in a to r y  B u m p in g  an d  
D is q u a l i f i c a t io n  R u les[21] Both parties next seek a determi­nation of whether the bumping and disqualification rules contained in the 1970 collective bargaining agreement en­croach federal law. The agreement pro­vides penalties for bumping which track those respecting job bidding. That is, an employee who bumps into a job but is later disqualified because of his or her in­ability to do the work, can stay in active employment only by bidding on a "posted” job vacancy or being placed on an "open” job by the Employment Office. If such jobs are unavailable, the employ­ee is laid off. For reasons stated in the preceding section, these rules are found to be violative of Title VII.The parties are also at odds concerning the bumping requirement that an em­ployee have "previous experience” in the job which he or she desires to hold. The applicable portion of the agreement reads as follows:

Where an employee’s job is eliminated ei­
ther due to method and equipment changes, or 
where a product or a division is permanently 
discontinued, said employee may -

1. Accept open jobs within the plant,
2. Replace less senior employees on jobs 

within the plant for which they can qualify by 
precious experience,

3. Replace less senior employees on jobs 
within the plant for which they can qualify 
within a reasonably short training period.

The qualifications of the employee and the 
length of training periods for various jobs shall 
be subject to negotiation.

4 Any person replaced by an employee enti­
tled to job elimination rights shall be entitled
to the same degree of replacement rights as

was actually exercised by the preceding em­
ployee.

Whenever new products are established in 
production and changes are made in the first 
six (61 months of the products manufacture 
which result in what would normally involve 
job elimination rights, any individual so af­
fected shall have surplus labor rights and not 
elimination rights.

Where employees with over two (2) years se­
niority who are surplus labor on any job in any 
department for reasons other than noted in 
Paragraph B above, they shall be subject to the 
following provisions:

1. Accept "open” jobs within the plant.
2. Senior employees may bump less senior 

employees on jobs anywhere in the plant pro­
vided they can qualify by reason o f  previous ex­
perience.

3. They may remain in the department by 
bumping less senior employees provided they 
can qualify within a reasonably short training 
period.

4. If not qualified by previous experience or 
cannot qualify within a reasonably short 
training period, they shall replace the least 
senior employee in the division. The least 
senior employee thereby affected shall replace 
least senior employees in the plant.

Such a proviso has already been found by the court to be discriminatory on the basis of sex. See Part IV, 2-G. In short, the reason for this conclusion is that only male employees have the experience needed to bump into the formerly desig­nated "male” or "Class A" jobs. As a con­sequence, female employees are "locked” into their original assignments. There being no tenable explanation for restrict­ing one’s privilege to bump on the basis of previous experience, the court finds the requirement invalid under Title VII.

•s Defendant states that the discriminatory 
requirement of "previous experience is valid he- 
a temale employee can bump into jobs traditionally 
reserved for male workers by following one of the al­
ternative nondiscriminatory routes. Uniroyal’s posi­
tion, if accepted, would produce anomalous results 
under Title VII It would permit an employer to 
retain and implement discriminatory provisions in a 
collective bargaining contract so long as nondis­
criminatory alternatives existed Such an outcome 
directly contravenes the intent of Congress to allevi­
ate all employment preferences based on sex, except 
those grounded upon bona fide occupations qualifica­
tions or mandated by business necessity. See Note 1, 
infra.

V - PLAINTIFFS’ MOTION FOR 
SUMMARY JUDGMENT AGAINST 
DEFENDANT LOCAL UNION 

NO. 65
Defendant Local Union No. 65, United Rubber Workers, is the exclusive collec­tive bargaining representative of all pro­duction and maintenance employees at the plant. Plaintiffs claim that the Union discriminated against female employees on the basis of sex in contravention of Title VII and the National Labor Rela­tions Act, 29 U.S.C. §151 et seq. (19701*With regard to the National Labor Relations Act, the plaintiff class main­tains that Local No. 65 failed to represent fairly the female membership of the col­lective bargaining unit when negotiating with the Company. This representative duty is not expressly provided for in the N.L.R.A. Its existence stems from a series of decisions by the Supreme Court which have construed Sections 157 and 158(bXlXA) of Title 29 as impliedly plac­ing an obligation upon a labor represen­tative to represent fairly the interests of its membership. Clark, T h e  D u ty o/ F a ir  

R e p r e s e n ta tio n : A  T h e o r e t ic a l  S tru ctu re , 51 Tex.L.Rev.1119 (1973). The Court has stated that "[a] breach of the statutory duty of fair representation occurs only when a union’s conduct towards a mem­ber of the collective bargaining unit is ar­bitrary, d is c r im in a to r y , or in bad faith”. Vaca v. Sipes, 386 U.S. at 190, 64 LRRM at 2376. (Emphasis supplied.) Although the court was silent with respect to the "type” of discrimination it intended to prohibit, the duty has been held to require equal treatment on the basis of sex. Glus v. Murphy Co., supra. Thus, where a labor representative negotiates a contract which in operation discrimi­nates among its members according to their sex, it will have failed to meet the dictates of the N.L.R.A. Ibid.; cf. Macklin v. Spector Freight Systems, Inc., 478 F.2d 977, 989-990, 5 FEP Cases 994, 1000- 1001 (D.C.Cir. 1973). 30

30 Plaintiffs may pursue both causes of action 
since the doctrine of election of remedies does not bar 
an a ^ i e ^  party from simultaneously seeking re­
lief under the N L H A and Title VII. Alexander v 
Gardner-Denver Co., 415 U.S. 36, 7 FEP Cases 81 
(1974). However, if certain employment practices are 
violative of Title VII, it does necessarily follow that 
such conduct is also violative of the N L R A. Empori­
um Capwell Co v Western Addition Community Or­
ganization. 420 U S .50, 9 FEP Cases 195 119< 5)



15 FEP Cases 820 CHRAPLIWY v. UNIROYAL, INC.
Plaintiffs have divided their claims into three categories, the first of which involves allegations that the Union maintained discriminatory wage rates for both new and incumbent employees on the basis of sex. It will be recalled that this claim cannot prevail on motion for summary judgment unless the evidence shows that jobs performed by male and female employees "required equal skill, effort, and responsibility”. 29 U.S.C. §206<d). Having failed to adduce such evi­dence, plaintiffs' request must be denied. See Part IV, 2, D.

[SECOND CATEGORY]
[22] Second, plaintiffs contend that Local No. 65 negotiated rules for bidding, pumping, and disqualification which dis­criminate against female employees be­cause of their sex. These rules have been examined by the court and, although fa­cially neutral, were found to operate in a discriminatory fashion.31 In large part, this is due to Uniroyal’s classification and restriction of jobs according to sex. The question, therefore, is whether a union violates its representation duty when it negotiates a labor contract which is fair in form, but which operates to the detriment of female employees. Al­though the cases referred to the court in­volve labor contracts containing facially discriminatory provisions, this court is unable to discern any meaningful distinc­tion between a labor contract which, on its face, is discriminatory, and one which has the appearance of fairness but dis­criminates nonetheless. See, Glus v. Murphy, supra. Thus, the court con­cludes t hat Local No. 65 failed to meet its duty of fair representation by negotiat­ing rules which had the effect of segregat­ing job opportunities on the basis of sex.32

31 The validity of the rules from 1968 to 1970, how­
ever, cannot be determined at this time.

32 Contrary to Defendant Union’s contention, this
result is not inconsistent with the principle of majori­
ty rule which is such an important part of an employ­
ee’s rights under the N.L.H.A. See, Emporium Cap- 
well v. Western Addition Community Organization, 
420 U S. 50, 61-65 , 9 FEP Cases 195, 199-201 < 1975). 
That is, a labor representative may not defend a bar­
gaining agreement which in operation discriminates 
according to sex on the grounds that a majority o f  its 
members approved of such provisions. Although Con­
gress has given unions broad discretion to select their 
own policies and rules, it did not "authorize a tyran­
ny of the majority over minority rights". Ibid at 6 4 ,9  
FEP Cases at 206-206. Consequently, a union may 
not choose a position which interferes with a "policy 
Congress had imbedded in the labor laws ” Scofield v. 
N L R B ,  394 U.S. 423, 430, 70 LRRM 3105 (1969). 
Clearly, the elimination of sex discrimination is one

Finally, plaintiffs contend that De­fendant Union breached its representa­tional duty by acquiescing in Uniroyal’s practice of discriminating against its members according to sex with respect to job assignments, promotions, transfers, recalls and terminations.33 The issue to be resolved is whether a union’s acquies­cence in an employer’s wrongful prac­tices is grounds for a violation of duty of fair representation. Although the case law is not in total agreement, this court is convinced that the conclusion reached in Macklin v. Spector Freight, Inc., 478 F.2d 977, 5 FEP Cases 994 (D.C.Cir. 1973) represents the better view. There, Judge J. Skelly Wright, speaking for the undi­vided court stated.
A union’s duty, in representing its members 

and protecting them from invidious treat­
ment, must certainly be broader than simply 
refusing to sign overtly discriminatory agree­
ments. Where blacks are in a minority, as they 
so often are in large industrial unions like the 
Teamsters, tacit union acquiescence in an em­
ployer’s discriminatory practices effectively 
produces the same end result that was con­
demned in Steele. One means of avoiding this 
outcome, short of forcing the individual mem­
ber to the recourse of time-consuming litiga­
tion against the employer, is for the union, in 
its vital role as bargaining agent, to negotiate 
actively for nondiscriminatory treatment in 
aid of its black members.
Id. at 989, 5 FEP Cases at 1001; see also, Peters v. Missouri-Pacific R.R. Co., 483 F.2d 490, 498, 6 FEP Cases 163, 168 (5th Cir. 1973); but see, Atkinson v. Owens-Il­linois Glass Co., 10 FEP Cases 710 (N.D.Ga.1975). Macklin therefore requires a labor representative to resort to the bargaining table to obtain nondis­criminatory treatment of its female membership. The onus is placed upon the union rather than its constituents to obs tain equal treatment.This court has already determined that since 2 July 1965 Uniroyal has main­tained a variety of employment policies which discriminated against the female class because of sex. Acquiescence by
such policy. The Supreme Court has remarked that 
"(i)n enacting the Civil Rights Act of 1964 . . . Con­
gress intended that it considered the policy against 
discrimination to be of the 'highest priority’.” Alex­
ander v Gardner-Denver Co., 415 U.S. 36, 47, 7 FEP 
Cases 81, 85 (1973); See, Bowe v. Colgate-Palmolive 
Corp , 416 F.2d 7 1 1 ,7 1 9 -2 0 ,2  FEP Cases 121,126 (7th 
Cir. 1669). A union is therefore not free to negotiate 
terms which operate unequally on the basis of sex 
merely to please the majority of its members.

33 The court’s remarks are, of course, limited to 
those practices found to be discriminatory as a mat­
ter of law

CHRAPLIWY v. UNIROYAL. INC. 15 FEP Cases 821
Local No. 65 in those unlawful policies, therefore, constitutes an encroachment of its duty of fair representation.
[LAST CATEGORY]
[23] Lastly, plaintiffs content that by negotiating bidding, bumping and disqualification rules which have the ef­fect of restricting a female’s job opportu­nities in the plant, the Union also vio­lated Title VII. In Johnson v. Goodyear Tire & Rubber Co., Synthetic Rubber Plant, 491 F.2d 1364, 7 FEP Cases 627 (5th Cir. 1974), the court stated that "it would be difficult to fasten liability on one party to the labor contract which was a substantial cause of the discriminatory employment practices and grant total immunity from such liability to the other party.” Id. at 1381, 7 FEP Cases at 640. It is clear then, that each participant to the various agreements now at issue must bear the same responsibility under Title VII for the ultimate consequences of their joint efforts. Therefore, liability against the Union may also be estab­lished pursuant to 42 U.S C. §2000 et seq. (1970).The same result must similarly obtain with respect to allegations of union acqui­escence in Uniroyal's discriminatory pol­icies and procedures. The Act clearly places an affirmative duty upon a labor organization to alleviate sex discrimina­tion in employment. Such action must be initiated whether or not a female employ­ee complains to the Union of discrimina­tory conduct. See, e g., Myers v. Gilman Paper Co., 392 F.Supp. 413, 420, 10 FEP Cases 220, 226 (S.D.Ga.1975).

VI - MOTION FOR PRELIMINARY 
INJUNCTION

Section 2000e-5igi reads in pertinent part:
If the court finds that the respondent has in­

tentionally engaged in or is intentionally en­
gaging34 in an unlawful employment practice 
charged in the complaint, the court may en­
join the respondent from engaging in such un­
lawful employment practice, and order such 
affirmative action as may lx- appropriate .
Issuance of a preliminary injunction is a matter which lies within the sound dis-

34 "Intentionally engaging" in an unlawful em ­
ployment practice is defined as conduct w hich is de­
liberate rather than accidental. Sprogis v. United 
Airlines, Inc., 44-1 F.2d 1194. 3 KEP Cases 621 i,7th 
Cir. 1971V

cretion of the trial judge; thus, a court's decision to grant or deny a preliminary injunction'may be reversed on appeal only when the decision is tantamount to an abuse of discretion. The factors to be considered by a district court are men­tioned by Professor Wright in his trea­tise, F e d era l P r a c tic e  & P roced u re , §2948 pp. 430-3111973); they include:(1) the significance of the threat of ir­reparable harm to plaintiff if the injunc­tion is not granted;(21 the state of the balance between this barm and the injury that granting the injunction would inflict on defend­ant;(3) the probability that plaintiff will succeed on the merits; and(4) the public interest.[24] Having considered the criteria in the context of this case, the court con­cludes that issuance of a preliminary in­junction is proper. The requisite injury has been demonstrated; United States v. Hayes International Corp., 415 F.2d 1038, 1045, 2 FEP Cases 67, 71-72 (5th Cir. 1969) and United States v. Virginia Elec. & Power Co., 327 F.Supp. 1034, 3 FEP Cases 529 (E D.Va. 1971); neither de­fendant alleges that plaintiffs’ request will have an injurious impact upon them; liability with respect to the plaintiff class has been established; and the importance of the public interest at stake is evident from the statute itself.
[TERMS OF ORDER]
[25] The remaining issue, therefore, concerns the terms of the order. Section 2000&-5(g), which authorizes a court to enjoin and "order such affirmative action as may be appropriate,” must be broadly construed so that discriminatory employ­ment practices may be effectively ter­minated and aggrieved parties made whole. Rosen v. Public Service Elec. & Gas Co., 477 F.2d 90, 5 FEP Cases 709 (3d Cir.1973); Bowe v. Colgate-Palmolive Corp. 416 F.2d 711, 719-20, 2 FEP Cases 121 (7th Cir. 1969). It is the court’s conclu­sion that the following provisions will ef­fectuate the purpose of the Act without imposing an undue burden upon either defendant:[26] A - Defendant Uniroyal is hereby enjoined from continuing to follow its dis­criminatory rules for bidding, bumping, and disqualification during the pendency of this case. The Company shall permit any female hereinafter determined by



15 FEP Cases 822 CHRAPLIWY v. UNIROYAL. INC.
the trier of fact to have been wrongfully disqualified from a traditionally designa­ted "male” job (1) to return to the last job she held successfully and which is still being operated within the plant, or (2) to bid on any posted job without restriction, or (3 • to accept placement by the Employ­ment Office on an "open” job.[27] B - Defendant Uniroyal is hereby- ordered to make the following announce­ment immediately to all of its manage­ment, supervisory, and wage personnel at the Mishawaka plant:1. The Company today has abolished its segregated and discriminatory em­ployment system at the Mishawaka plant.2. The Company has discontinued classifying any of the jobs at the plant as "male” jobs or "female” jobs or as "Class A” jobs or "Class B" jobs.3. The Company no longer classifies its employees as "Class A” employees or "Class B” employees.4. There no longer are any jobs in the plant that should not be performed by fe­male employees.5. All jobs in the plant are equally available to all employees on the basis of their seniority and ability to do the work, without regard to sex.6. The Company encourages female employees to exercise their seniority to bid and bump into traditionally "male” jobs as well as traditionally "female” jobs and new jobs.7. Any female employee who is wrong­fully disqualified from any traditionally "male” job shall be allowed (a) to bump back into the last job she held success­fully and which is still being operated in the plant, or (b) to bid on any posted job without restriction, or (c) to accept place­ment by the Employment Office in an "open” job.8. The Company guarantees full equality of employment opportunity at the plant to every employee on the basis of seniority and ability, regardless of sex.[28] C - Defendant Union is hereby or­dered to make the same announcement to its members, together with the state­ments that the Union encourages female employees to bring any complaints of em­ployment discrimination at the plant to the attention of the officers of the Local.[29] D - Defendant Uniroyal is hereby- ordered to file with the court by the tenth (10th) day of each month during the pend­ency of this case, the following informa­tion:

1. A report of every instance during the preceding month in which the De­fendant Company has disqualified any fe­male employee from any job other than a traditionally "female” job or "Class B” job and containing la) the female employ­ee’s name, (b) the date she applied for the job, (c) the date she entered the job and the manner (whether by bid, bump, placement, or otherwise, (dt the date and reason she was disqualified, (3) the name of the management or supervisory em­ployee who disqualified her, and (f) her present job.2. A report showing the number of male and female employees in each de­partment at the plant during the preced­ing month.3. A chronological list showing the name, sex, and seniority date of each em­ployee laid off and each employee re­called from layoff during the preceding month.The first report shall be filed with the court on or before 10 July 1977. Defend­ant Uniroyal shall serve copies of said re­port on all other parties to this suit.

CHRAPLIWY v. UNIROYAL, INC.

U.S. District Court,
Northern District of Indiana

CHRAPLIWY, et al. v. UNIROYAL, INC., et al., No. 72 S 243, September 9, 1977
CIVIL RIGHTS ACT OF 1964

1. Bona fide seniority system 
► 108.3310
Seniority system maintained by em­ployer and union is not bona fide within meaning of Section 703(h) of Civil Rights Act of 1964 as interpreted by U.S. Supreme Court in Teamsters v. U.S. (14 FEP Cases 1514), where employer kept seniority lists segregated according to sex before passage of Title VII, it maintained employment system for five years after effective date of Act that was only disguise to former segregated system, and it thereafter unlawfully classified certain jobs as those that "should not be performed by females”; employer’s em­ployment system has had as its genesis

CHRAPLIWY v. UNIROYAL. INC 15 FEP Cases 823
discriminatory conduct both before and after passage of Act.
FAIR REPRESENTATION

2. Breach of duty ► 108.2271
Union breached duty of fair represen­tation that it owed to female employees by negotiating seniority system with em­ployer that is not bona fide within mean­ing ofSection 703< h) of Civil Rights Act of 

1964.

On motion by employer for reconsider­ation of 15 FEP Cases 795. Motion denied, nied.See also 5 FEP Cases 806, 808, and 949; 6 FEP Cases 98; 7 FEP Cases 343; 12 FEP Cases 1657, 1660, and 1661; and 12 FEP Cases 1664, 71 F.R.D. 461.Thomas R. Ewald, Washington, D C., Thomas R. Fette (Ryan, McQuillan, Van- derPloeg & Fette), St. Joseph, Mich., and R. Wyatt Mick, Jr. (Bingham, Loughlin, Means & Mick), Mishawaka, Ind., for plaintiffs.Don G. Blackmond and Timothy Woods (Jones, Obenchain, Johnson, Ford, Pankow & Link), South Bend, Ind., Rody P. Biggert and Gerald D Skoning (Seyfarth, Shaw, Fairweather & Gerald- son), Chicago, 111., and Harry Turk I Ar­thur, Dry & Kalish), New York, N.Y.. for defendant employer.James Olson, Mishawaka, Ind., and Harley M. Kastner, Akron, Ohio, for de­fendant union.
F u ll  T ex t o f  O rd er

ROBERT A. GRANT, Senior District Judge: —  On 7 July 1977, Defendant- Union filed a Motion for Reconsideration of Partial Summary Judgment. On 8 July- 1977, Defendant-Uniroyal filed its Mot­ion for Reconsideration of Partial Sum­mary Judgment. After thorough recon­sideration,IT IS THE ORDER OF THIS COURT that defendants’ aforesaid Motions should be, and the same are hereby DE­NIED for the reasons stated in the Memo­randum below.On 22 June 1977, Defendant-Uniroyal filed a Motion for Protective Order, and the reasons in support thereof.IT IS THE ORDER OF THIS COURT that defendant's June 22nd Motion should be, and the same is hereby DE­

NIED for the reasons stated in the Memo­randum below.IT IS THE FURTHER ORDER OF THIS COURT that Defendant-lJniroyal shall answer plaintiffs’ interrogatories filed 8 June 1977 within thirty (30) days after the issuance of this Order.On 2 August 1977. plaintiffs filed a Motion for Declaratory Judgment and Permanent Injunction. Both defendants have filed Motions to Defer Considera­tion of Plaintiffs’ Motion pending resolu­tion of defendants’ Motions for Reconsid­eration. Having decided those issues,IT IS THE ORDER OF THIS COURT that defendants’ Motions to Defer should be, and the same are hereby DENIED.IT IS THE FURTHER ORDER OF THIS COURT that defendants shall have sixty (60) days after the issuance of this Order in which to file responsive pleadings to plaintiffs’ Motion.
MEMORANDUM

I - The Motions for Reconsideration
On 7 July 1977, Defendant-Union filed a Motion for Reconsideration of Partial Summary Judgment On 8 July 1977, De­fendant-Uniroyal filed a similar Motion. Uniroyal's Motion for Reconsideration talks in terms of three general areas: (a) statistical arguments; (b) material fact arguments; and 'cl TI M E.-DC. argu­ments. The statistical arguments deal with Uniroyal’s position that this court entered its 31 May 1977 Order without the necessary support from the evidence. The material fact arguments deal with the assertion that the court ruled on is­sues where Uniroyal claims a material fact still exists. The claims of Llniroyal in both of these areas goes to the propriety of the Summary Judgment entered on 31 May 1977. At the 6 July 1977 hearing, this court stated specifically that it would only consider the 31 May 1977 Order in terms of the new case law handed down by the Supreme Court. In keeping with that statement, the analysis of the Mo­tions for Reconsideration will deal only with the T I M E.-D C. arguments. In this way, the issues presented by the new case law can be dealt with in a more orderly- fashion

II - The Case Law
Although most of the discussion by the parties deals with International Brother­hood of Teamsters v. United States, et al., 431 U.S.--, 45 LW 4506, 14 FEP Cases



mmMm H U M I M a W

Chrapliwy v. Uniroyal 
15 FEP Cases 822 

9, 1977)
, Inc., ___ F. Supp.
(N.D. Ind., September 
[Chrapliwy II]

9

APPENDIX E



15 FEP Cases 822 CHRAPLIWY v UNIROYAL, INC.
the trier of fact to have been wrongfully disqualified from a traditionally designa­ted "male” job (1) to return to the last job she held successfully and which is still being operated within the plant, or (2) to bid on any posted job without restriction, or (3) to accept placement by the Employ­ment Office on an "open" job.[27] B - Defendant Uniroyal is hereby ordered to make the following announce­ment immediately to all of its manage­ment, supervisory, and wage personnel at the Mishawaka plant:1. The Company today has abolished its segregated and discriminatory em­ployment system at the Mishawaka plant.2. The Company has discontinued classifying any of the jobs at the plant as "male” jobs or "female” jobs or as "Class A” jobs or "Class B” jobs.3. The Company no longer classifies its employees as "Class A” employees or "Class B” employees.4. There no longer are any jobs in the plant that should not be performed by fe­male employees.5. All jobs in the plant are equally available to all employees on the basis of their seniority and ability to do the work, without regard to sex.6. The Company encourages female employees to exercise their seniority to bid and bump into traditionally "male” jobs as well as traditionally "female” jobs and new jobs.7. Any female employee who is wrong­fully disqualified from any traditionally "male” job shall be allowed (a) to bump back into the last job she held success­fully and which is still being operated in the plant, or lb) to bid on any posted job without restriction, or (c) to accept place­ment by the Employment Office in an "open” job.8. The Company guarantees full equality of employment opportunity at the plant to every employee on the basis of seniority and ability, regardless of sex.[28] C - Defendant Union is hereby or­dered to make the same announcement to its members, together with the state­ments that the Union encourages female employees to bring any complaints of em­ployment discrimination at the plant to the attention of the officers of the Local.[29] D - Defendant Uniroyal is hereby ordered to file with the court by the tenth (10th) day of each month during the pend­ency of this case, the following informa­tion:

1. A report of every instance during the preceding month in which the De­fendant Company has disqualified any fe­male employee from any job other than a traditionally "female” job or "Class B” job and containing (a) the female employ­ee’s name, (b) the date she applied for the job, (c) the date she entered the job and the manner (whether by bid, bump, placement, or otherwise, (d) the date and reason she was disqualified, (3) the name of the management or supervisory em­ployee who disqualified her, and (f) her present job2. A report showing the number of male and female employees in each de­partment at the plant during the preced­ing month.3. A chronological list showing the name, sex, and seniority date of each em­ployee laid off and each employee re­called from layoff during the preceding month.The first report shall be filed with the court on or before 10 July 1977. Defend­ant Uniroyal shall serve copies of said re­port on all other parties to this suit.

CHRAPLIWY v. UNIROYAL, INC.

U.S. District Court,
Northern District of Indiana

CHRAPLIWY, et al. v. UNIROYAL, INC., et al.. No. 72 S 243, September 9, 1977
CIVIL RIGHTS ACT OF 1964

1. Bona fide seniority system 
► 108.3310
Seniority system maintained by em­ployer and union is not bona fide within meaning of Section 703(h) of Civil Rights Act of 1964 as interpreted by U.S. Supreme Court in Teamsters v. U.S. (14 FEP Cases 1514), where employer kept seniority lists segregated according to sex before passage of Title VII, it maintained employment system for five years after effective date of Act that was only disguise to former segregated system, and it thereafter unlawfully classified certain jobs as those that "should not be performed by females”; employer’s em­ployment system has had as its genesis

CHRAPLIWY v. UNIROYAL. INC. 15 FEP Cases 823
discriminatory conduct both before and after passage of Act.
FAIR REPRESENTATION

2. Breach of duty ► 108.2271
Union breached duty of fair represen­tation that it owed to female employees by negotiating seniority system with em­ployer that is not bona fide within mean­ing of Section 703(h) of Civil Rights Act of 1964.

On motion by employer for reconsider­ation of 15 FEP Cases 795. Motion denied, nied.See also 5 FEP Cases 806, 808, and 949; 6 FEP Cases 98; 7 FEP Cases 343; 12 FEP Cases 1657, 1660, and 1661; and 12 FEP Cases 1664, 71 F.R.D. 461.Thomas R. Ewald, Washington, D C., Thomas R. Fette (Ryan, McQuillan, Van- derPloeg & Fette), St. Joseph, Mich., and R. Wyatt Mick, Jr. (Bingham, Loughlin, Means & Mick), Mishawaka, Ind., for plaintiffs.Don G. Blackmond and Timothy Woods (Jones, Obenchain, Johnson, Ford, Pankow & Link), South Bend, Ind., Rody P. Biggert and Gerald D. Skoning (Seyfarth, Shaw, Fainveather & Gerald- son), Chicago, 111., and Harry Turk (Ar­thur, Dry & Kalish), New York, N.Y., for defendant employer.James Olson, Mishawaka, Ind., and Harley M. Kastner, Akron, Ohio, for de­fendant union.
F u ll  T ex t o f  O rd er

ROBERT A. GRANT, Senior District Judge: —  On 7 July 1977, Defendant- Union filed a Motion for Reconsideration of Partial Summary Judgment. On 8 July 1977, Defendant-llniroyal filed its Mot­ion for Reconsideration of Partial Sum­mary Judgment. After thorough recon­sideration,IT IS THE ORDER OF THIS COURT that defendants’ aforesaid Motions should be, and the same are hereby DE­NIED for the reasons stated in the Memo­randum below.On 22 June 1977, Defendant-Uniroyal filed a Motion for Protective Order, and the reasons in support thereof.IT IS THE ORDER OF THIS COURT that defendant’s June 22nd Motion should be, and the same is hereby DE­

NIED for the reasons stated in the Memo­randum below.IT IS THE FURTHER ORDER OF THIS COURT that Defendant-Uniroyal shall answer plaintiffs’ interrogatories filed 8 June 1977 within thirty (30) days after the issuance of this Order.On 2 August 1977, plaintiffs filed a Motion for Declaratory Judgment and Permanent Injunction. Both defendants have filed Motions to Defer Considera­tion of Plaintiffs’ Motion pending resolu­tion of defendants’ Motions for Reconsid­eration. Having decided those issues,IT IS THE ORDER OF THIS COURT that defendants’ Motions to Defer should be, and the same are herebv DENIED.IT IS THE FURTHER ORDER OF THIS COURT that defendants shall have sixty (60) days after the issuance of this Order in which to file responsive pleadings to plaintiffs’ Motion.
MEMORANDUM

I • The Motions for Reconsideration
On 7 July 1977, Defendant-Union filed a Motion for Reconsideration of Partial Summary Judgment. On 8 July 1977, De­fendant-Uniroyal filed a similar Motion. Uniroyal’s Motion for Reconsideration talks in terms of three general areas: (a) statistical arguments; (b) material fact arguments; and (c) T.I.M.E.-D.C. argu­ments. The statistical arguments deal with Uniroyal’s position that this court entered its 31 May 1977 Order without the necessary support from the evidence. The material fact arguments deal with the assertion that the court ruled on is­sues where Uniroyal claims a material fact still exists. The claims of Uniroyal in both of these areas goes to the propriety of the Summary Judgment entered on 31 May 1977. At the 6 July 1977 hearing, this court stated specifically that it would only consider the 31 May 1977 Order in terms of the new case law handed down by the Supreme Court. In keeping with that statement, the analysis of the Mo­tions for Reconsideration will deal only with the T.I M.E.-D.C. arguments. In this way, the issues presented by the new case law can be dealt with in a more orderly fashion.

II - The Case Law
Although most of the discussion by the parties deals with International Brother­hood of Teamsters v. United States, et al., 431 U.S.--, 45 LW 4506,14 FEP Cases



15 FEP Cases 824 CHRAPL1WY v UNIROYAL, INC. CHRAPLIWY v UNIROYAL. INC 15 FEP Cases 825
1514 (1977) (hereinafter cited as T.I.M.E.-D.C.), the case of United Air Lines, Inc. v.' Evans, 431 U S. —  . 45 LW 4566, 14 FEP Cases 1510 (1977) (hereinafter cited as Evans), was also decided by the Supreme Court on 31 May 1977 and must be reconciled with our Summary Judg­ment Order. Cases dealing with the T.I.M.E.-D.C. decision are E.E.O.C. v. United Air Lines, Inc., 7th Cir. Slip Op. No. 76-1769, 15 FEP Cases 310 (June 28, 1977); Swint v. Pullman-Standard, — —F.Supp.--, 15 FEPCases 144 (N.D.Ala.July 5, 1977); and Croker v. Boeing Co.,-- F.Supp. ——  , 15 FEP Cases 165(E.D.Pa. June 30, 1977).T.I.M.E.-D.C. is a case involving a simi­lar factual situation to the Uniroyal case. The government brought an action against T.I.M.E.-D.C. for alleged discrim­inatory hiring, assignment, and promo­tion policies against Blacks and Spanish- surnamed persons. The specific claim was that the company followed a pattern of discrimination against minorities in hiring "line-drivers”. In connection with this, the Government challenged the se­niority system established by the collec­tive-bargaining agreement between T.I.M.E.-D.C. and the Union. See general­ly, 45 LW at 4507, 14 FEPCases at 1517.
[MATERIAL HOLDING]
T.I.M.E.-D.C. discusses and deals with many Title VII matters, but its material holding is a simple one. Section 703(h) protects a bona fide seniority system, ap­plied fairly, which perpetuates the ef­fects of "pre-Act” discrimination. The court stated:

Because the company discriminated both be­
fore and after the enactment of Title VII, the 
seniority system is said to have operated to 
perpetuate the effects of both pre-act and post- 
act discrimination. Post-act discriminatees, 
however, may obtain full "make whole” relief, 
including retroactive seniority under Franks 
v. Bowman, supra, without attacking the le­
gality of the seniority system as applied to 
them.
45 LW at 4512, 14 FEP Cases at 1524. The court further stated:
Accordingly, we hold that an otherwise 
neutral, legitimate seniority system does not 
become unlawful under Title VII simply be­
cause it may perpetuate pre-Act discrimina­
tion Congress did not intend to make it illegal 
for employees with vested seniority rights to 
continue to exercise those rights, even at the 
expense of pre-Act discriminatees.
45 LW at 4513, 14 FEP Cases at 1526.

Thus, the case makes clear that a pre-Act discriminatee cannot recover for the ef­fect a seniority system has unless he can prove that the system is not bona fide. To be bona fide, a seniority system cannot have, "Its genesis in racial [or sexual] dis­crimination and that it was negotiated and has been maintained free from any illegal purpose.” T.I.M.E.-D.C., 45 LW at 4514,14 FEP Cases at 1527. But, any post- Act discriminatee is entitled to "make whole” relief including retroactive se­niority to the date of the Act; July 2,1965. T.I.M.E.-D.C., 45 LW at 4514, 14 FEP Cases at 1527. The 7th Circuit Court of Appeals, in the recent decision ofE.E.O.C. v. United Air Lines, Inc., supra, (hereinafter cited as United), confirmed this view when it stated:
Teamsters now requires that discrimination 

imposed after the effective date of the Civil 
Rights Act of 19(54 cannot engender a remedy 
which grants retroactive seniority which an­
tedates the Act. If a seniority system "did not 
have its genesis in racial discrimination * * ’  
[and] was negotiated and has been maintained 
free from any illegal purpose,” those "em ­
ployees who suffered only pre-Act discrimina­
tion are not entitled to relief, and no person 
may be given retroactive seniority to a date 
earlier than the effective date of the Act.”
7th Cir. Slip Op. P.15 (June 28, 1977), 15 FEP Cases at 318.The other new Supreme Court decision is United Air Lines, Inc. v. Evans, 431U S. -- , 45 LW 4566, 14 FEP Cases1510 also decided May 31, 1977. In that case, Ms. Evans was rehired in February, 1972, after a termination in 1968 which she alleged to be violative of Title VII. The Supreme Court, assuming her to be correct on her Title VII assertion, was presented with the question of whether a second violation occurred when United Air Lines refused to credit her seniority for the period prior to February, 1972. 45 LW 4566, 14 FEP Cases 1510. The Court held that her claim was barred because at the time she filed her complaint (1972), the employment system was neutral in its operation with respect to her employ­ment opportunities. 45 LW 4567, 14 FEP Cases 1512. The Court pointed out that its holding did not effect the decision in Franks v. Bowman Transportation Co., 424 U S. 747, 12 FEP Cases 549 (1976), where it was held that a retroactive rem­edy was proper once an illegal discrimi­natory act or practice had been proved. 424 U S. at 762-68, 12 FEP Cases at 555- 558.

Ill - The Case Law Applied to the
5/31/77 Order
The cases of Croker v. Boeing Co., supra, and Swint v. Pullman-Standard, supra, have both dealt with the T.I.M.E.- D.C. and Evans cases. In Croker, the court stated that:
[1] Reading Evans and Teamsters together 

establishes that a neutral and bona fide senior­
ity system cannot be the basis of a Title VII 
violation. A person discriminated against in 
hiring or job placement must challenge the 
hiring or placement discrimination directly. If 
he proves such discrimination, he will be enti­
tled to full relief, including his rightful place 
in the seniority system. See Franks v. Bowman 
Transportation Co., 424 U S. 747, 12 FEP 
Cases 549 (1976).
--F.Supp.---, 15 FEP Cases 165, at205 (E.D.Pa. June 20, 1977).In Swint, the court stated that:

The Supreme Court decisions in the Team­
sters and United Air Lines cases require, how­
ever, this court to place primary attention 
upon a later period of time —  starting ninety 
days before the filing of the first EEOC charge 
reasonably related thereto. These cases, in 
conjunction with the Franks case, teach that a 
"valid” seniority system does not violate Title 
VII even if it perpetuates the effects of past dis­
crimination, although such a system may have 
to yield, subject to considerations of equity, to 
remedial measures ordered for persons in­
jured by discriminatory acts timely chal­
lenged and pursued under Title VII.
--F.Supp.---, 15 FEP Cases 144, at146 (N.D.Ala. July 5,1977). The eventual holding in both of the above cases was for the defendant based upon evidence that the seniority plans were bona fide in terms of Title VII (42 U.S.C. §2000e-2(h)J.While the Croker and Swint decisions appear to bar recovery by any plaintiff who does not file a complaint within 90 days of the alleged discriminatory act, the holdings are not entirely applicable because the Evans decision is distin­guishable from the case currently before this court. As plaintiffs correctly point out at Page 25 of their Answer to Defend­ants’ Motions for Reconsideration, in the Evans case:
The Supreme Court held that her [Plaintiff] 
claim was barred because the employment sys­
tem at the time she filed the charge was 
neutral in its operation with respect to her em­
ployment opportunities.
In this case, in January, 1970, the time when plaintiffs’ initial complaint was filed, the system at the Uniroyal plant has already been found not to have been "neutral”. This court, in its 31 May 1977 Order and Memorandum, found that

from 1965 through 1970, Uniroyal's dual system of designating both employees and jobs within the plant was discrimina­tory on the basis of sex (Mem. Op. p. 12); that Uniroyal maintained discriminato­ry bidding and promotion rules (Mem. Op p. 15); that Uniroyal discriminatorily restricted female employees to particular jobs and departments solely on the basis of sex (Mem. Op. p. 16); that Uniroyal maintained a segregated employment of­fice (Mem. Op. p. 17); that Uniroyal con­tinued to maintain seniority lists for each department on a segregated basis accord­ing to sex (Mem. Op. p.17); that Uniroyal conducted recalls on a segregated basis according to sex (Mem. Op. p.30>; and that termination of S.U.B. payments in 1969 had discriminatory consequences against the class members of Groups I and II (Mem. Op. p.36). Those findings must now stand. The purpose of this reconsidera­tion was not to "re-argue” the findings of this court. Its only purpose was, and still is, to determine if the Order of 31 May 1977 can be read in harmony with the recent Supreme Court case law.
[EVANS CASE]
In Evans, the court dealt with a ter­minated employee who sought retroac­tive seniority under a presently neutral system. The court simply held that the employee’s failure to properly raise the violation in 1968 could not, in 1972, be the basis for a Title VII violation. Here, we are faced with a system which has al­ready been held to have been discrimina­tory at the time the complaint was filed. Evans does not change this result. The dictates of Franks v. Bowman are appli­cable. The plaintiffs are entitled to the re­lief necessary for them to exercise their seniority rights without discrimination by the defendants on the basis of sex.Thus, the only matter left for this court is to examine defendants’ Motions for Re­consideration in light of the holding in T.I.M.E.-D.C. That rule, simply stated, is that a bona fide seniority system, applied fairly, does not violate Title VII even though it perpetuates pre-Act discrimi­nation. 45 LW at 4513. 14 FEP Cases at 1526.The first step then must be to deter­mine whether a "bona fide” system is here involved. This can be seen by the recent cases dealing with T.I.M.E.-D.C. In Croker, the court held:

[15] In this case, the plaintiffs’ evidence in 
no way establishes that Boeing Vertol’s job



15 FEP Cases 8:26 CHRAI’I.IWY \ UNIROYAL. INC.
family system is other than bona fide and fa- I 
dally neutral . . . To the extent the restric- I
tions of the job family system lock employees \ 
in undesirable jobs, the system affects blacks 
and whites in such jobs equally. Consequently, 
the job family system is not itself unlawful 
under Title VII See International Brother­
hood of Teamsters, supra at 29
— — F.Supp.--, 15 FEP Cases 165, at205, 206 (E.D.Pa. June 20, 1977).In Swint, the court held:

Suffice it to say. that the court finds that the 
seniority system does not discriminate against 
blacks and, at least on an attack made by 
blacks, is "valid " under 42 U.S.C.A. §2000e- 
2 'hi.
— — F Supp.--, 15 FEP Cases 144, at147 iN D Ala July 5, 1977). The T I M.E, D.C. case itself found that:

The seniority system in this case is entirely 
bona fide. It applies equally to all races and 
ethnic groups. To the extent that it ' locks" em­
ployees into nonline-driver jobs, it does so for 
all The city drivers and servicemen who are 
discouraged from transferring to line-driver 
jobs are not all Negroes or Spanish-surnamed 
Americans; to the contrary, the overwhelming 
majority are white. The placing of line-drivers 
in a separate bargaining unit from other em­
ployees is rational, in accord with the industry 
practice, and consistent with NLRB 
precedents. It is conceded that the seniority 
system did not have its genesis in racial dis­
crimination. and that it was negotiated and 
has been maintained free from any illegal pur­
pose.
45 I.VV at 4514. 14 FEP Cases at 1527. Finally, in United, the recent 7th Circuit case, the court stated:

The seniority system here is neutral on its 
face and Judge Will did not find a taint in its 
genesis or maintenance Thus, the teachings of 
Teamsters [T I M E D C ] is directly applica­
ble.
--F.2d---, 15 FEP Cases at 318, (7thCir. Slip Op. p. 151 i7th Cir. June 28, 1977).
[DISCRIMINATORY GENESIS]
[1] As the above cases clearly show, "the teachings of Teamsters” become ap­plicable only when the seniority system is found to be bona fide. T I M E.-D C. it­self establishes that this means the sys­tem cannot have its genesis in racial lor sexual) discrimination. 45 L\V at 4514,14 FEP Cases at 1527. In this case, we need go no further. The 31 May 1977 Memo­randum and Order establishes that be­fore the passage of the Act, LIniroyal ”, . . kept segregated seniority lists ac­cording to sex . . . .” (Mem. Op. p.ll) From 1965 through 1970 it was found that the A ll system of employment was

only a disguise to the former segregated system. (Mem. Op. p. 12•. Finally, from J970 to the present, this court found that the classification of certain jobs as those which "should not be performed bv fe­males” unlawfully discriminates on the basis of sex. (Mem. Op. p.38). In short, it is clear that the employment system at Uniroyal has had as its genesis discrimi­natory conduct both before and after pas­sage of the Act. Accordingly, the teachings of T I M E.-D C. do not here apply. After thorough reconsideration, the 31 May 1977 Order and Memoran­dum stand as originally entered.[2] The Defendant-Union deferred to Uniroyal the questions raised by the T I M E.-DC. decision. (Union’s Motion for Reconsideration p.2). The Union does urge that T.I.M.E.-D.C. requires this court to find that their acquiescence in Lfniroyal’s wrongful practices is not a violation of their duty of fair representa­tion. It is also urged that the negotiation of a "fair in form” labor contract which operates to the detriment of female em­ployees does not violate the representa­tional duty (Union’s Motion for Recon­sideration p.4). In T.I.M.E.-D.C. the court stated:Because the seniority system was protected by §703<h), the union's conduct in agreeing to and maintaining the system did not violate Title VII. On remand, the District Court’s in­junction against the union must be vacated. 45 LW at 4514, 14 FEP Cases at 1527. Here, it has already been found that the seniority system was not "protected” by §703(h) since it was in no way bona fide. As a result, this court cannot accept the contentions of the Union. The 31 May 1977 Order pertaining to the Union stand as entered.
IV - Motion for Protective Order
On 22 June 1977, the Defendant- Uniroyal entered a Motion for Protective Order which was taken under advise­ment at a hearing held 6 July 1977. The basis of the Motion was to delay further discovery in this case until the Motions for Reconsideration were decided. Hav­ing now decided those issues, discovery should go forward In accordance withF.R.C.P. 33, the Defendant-Uniroyal shall answer plaintiffs' interrogatories filed 8 June 1977 within thirty (30) days after the issuance of this Memorandum. The plaintiffs’ depositions and request for production of documents shall also proceed accordingly.

JAMES v. STOCK HAM VALVES & FITTINGS CO 82715 FEP Cases

V - Plaintiffs’ Motion for Declaratory 
Judgment and Permanent Injunc­
tion
Both defendants have filed Motions asking the court to defer consideration of plaintiffs’ Motion pending resolution of the Motions for Reconsideration. Having now decided those issues, the defendants will have sixty (60) days in which to file responsive pleadings to plaintiffs' Mot­ion.

JAMES v. STOCKHAM VALVES
&  FITTINGS CO.

U.S. Court of Appeals,
Fifth Circuit (New Orleans)

JAMES, et al. v. STOCKHAM VALVES AND FITTINGS COMPANY, et al.. No. 75-2176, September 19. 1977
CIVIL RIGHTS ACTS OF 1866 AND

1964
1. Racial discrimination — Job as­

signments ► 108.3115
Federal district court committed plain error in finding that employer at no time made initial job assignments either to de­partments or to specific jobs on basis of race, where (1) there was established "custom" of job assignments by race until at least 1965. (2) there were relatively few integrated jobs in 1973, (3) blacks are con­centrated in lower job classes of both in­centive and non-incentive jobs, and < 4 > white employees earn higher wages than black employees even though blacks have greater seniority on average than whites.
2. Testing requirement — Aptitude 

test — Disparate impact 108.1982 
► 108.1968
Black employees bringing employment discrimination action against employer established that Wonderlic Personnel Test used by employer bad disparate im­pact on blacks, where lit they showed that while Wonderlic Test was in use. blacks were totally excluded from ap­prenticeship program, were substan­tially excluded from clerical jobs, and were disproportionately excluded from

jobs in high job classifications,_ (2» em­ployer's statistician found that black em­ployees scored lower than white employ­ees on Wonderlic Test. (3) developers of Wonderlic Test found that blacks score approximately eight points lower than whites, and (4i there was expert testimo­ny that general intelligence tests such as Wonderlic Test have disparate impact on blacks.
3. Testing requirement ► 108.1982
Employer’s dual scoring system for Wonderlic Personnel Test, under which employees transferring to jobs within their department must achieve min­imum" score designated for job they seek and employees transferring between de­partments must achieve higher norm score for position, tended to restrict blacks to departments to which they had been discriminatorily assigned and therefore was illegal, since black employ­ees who had been excluded from certain departments on basis of race were required to score higher on test than whites who never suffered such discrimi­nation. and this requirement was arbi­trary in that employee who achieved "minimum" score was deemed qualified to perform job.
4. Apprenticeship ► 108.3115

► 108.2305
Finding that employer has never had poliev of excluding blacks from crait jobs and apprenticeship program is clearly er­roneous.
5. Apprenticeship — High school 

education requirement ► 108.2325
Unrebutted evidence that fewer of em­ployer's black employees than its white employees proportionately have attained high school education and that only nine percent of employees chosen for ap­prenticeship program were black al­though two-thirds of work force is black demonstrates that employer's high school education requirement tor entry into apprenticeship program is discrimi­natory.
6. Apprenticeship — Age require­

ment ► 108.2330
Employer that did not admit blacks into its apprenticeship program until 1971 acted unlawfully when it adopted requirement in 1970 that entrant into program be no older than 30. despite em­ployer’s contention that age limit is nec-



CERTIFICATE OF SERVICE

This is to certify that I have this date served 
counsel for defendants herein with the foregoing Volume I 
of Plaintiffs' Motion For Partial Summary Judgment by placing 
copies of same in the United States mail, with adequate postage 
affixed, and addressed to: Mr. Malcolm Maclean, Post Office
Box 9848, Savannah, Georgia 31402, and Mr. Clarence Small,
800 1st National Southern Natural Building, Birmingham, Alabama 
35202.

This 27th day of March, 1978.