Pullman-Standard, Inc. v. Swint Appendix to Petition for a Writ of Certiorari

    Bitpmtie (Enurt nf tlje Bnitefc Elates
October Term, 1988

P ullman-Standard, Inc ., A Subsidiary of The Pullman Company,
Petitioner,

Louis Swint, and Willie J ames Johnson, on behalf of . 
themselves and others similarly situated.

Respondents.

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

O f Counsel.

C.V. Stelzenmuller 
Burr & Forman 
3000 SouthTrus: Tower 
Birmingham, Alabama 35203 
(205)251-3000

‘ Floyd Abrams 
Thomas J. Kavaler 
Samuel Esireicher 
Taryn V. Shelton 
Peter Phillips
C ah hi  Gordon & Reindei 
(a partnership including 
professional corporations)
80 Pine Street
New York, New York 10005 
(212) 701-3000

*Counsel o f Record for  
Petitioner



In rut

Supreme (fiuurt of tlje lUnttefc States
October Tlrm, 1988 

No. 88-____

Pullman-Standard, Inc.,
A SUBSIDIARY Ol Till PULLMAN COMPANY,Petitioner,

Louis SW1NT, and WlLi.lt Jamls JOHNSON, on behalf of 
themselves and others similarly situated,

Respondents.

a p p e n d i x  t o  p e t i t i o n  f o r  a w r i t  o f
CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE ELEVENTH CIRCUIT

TABLE OF CONTENTS
PAGE

I. Opinion Delivered upon the Rendering of the 
Judgment Sought to be Reviewed: Larkin v. 
Pullman-Standard, 854 F.2d 1549 (11th Cir.
1988) (“ Swint XI” )..............................................  la

II. Other Opinions Rendered in the Case...............  62a
a. Swint v. Pullman-Standard, 11 FEP

Cas. (BNA) 943 (N.D. Ala. 1974) 
(“ Swint I” ) ..............................................  62a

b. Swint v. Pullman-Standard, 539 F.2d 77
(5th Cir. 1976) (“ Swint II” ) .............. 104a



PAGE
c. Swint v. Pullman-Standard, 15 FEP

Cas. (BNA) 144 (N.D. Ala. 1977) 
(“ Swint III” ) ........................................... 156a

d. Swint v. Pullman-Standard, 15 FEP
Cas. (BNA) 1638 (N.D. Ala. 1977) 
(“ Swint IV” ) ........................................... 178a

e. Swint v. Pullman-Standard, 17 FEP
Cas. (BNA) 730 (N.D. Ala. 1978) 
(“ Swint V” ) ............................................. 182a

f. Swint v. PullmamStandard, 624 F.2d
525 (5th Cir. 1980) (“ Swint VI” ) .......... 207a

g. Pullman-Standard v. Swint, 456 U.S.
273 (1982) (“ Swint VII” ) .......................  231a

h. Swint v. Pullman-Standard, 692 F.2d
1031 (5th Cir. 1983) (“ Swint VIII” ) .. . 259a

i. Swint v. Pullman-Standard, No. CV 71-
P-0955-S (N.D. Ala. Sept. 8, 1986) 
(“ Swint IX” ) ........................................... 262a

j. Swint v. Pullman-Standard, No. CV 71-
P-0955-S (N.D. Ala. Nov. 26, 1986) 
(“ Swint X” ) ............................................  278a

III. The Judgment Sought to be Reviewed and Order
Denying Rehearing................... , ......................... 286a

IV. Other Appended Materials.................................  292a

a. Applicable Constitutional Provisions 
and Statutes
i. U.S. Const, art. Ill .........................  292a
ii. Title Vll of Civil Rights Act of 1964

§ 703, 42 U.S.C. § 2000e-2 (1982). . 293a

ii m

lii. 42 U.S.C. § 1981. . . .
iv. Fed.R.Civ.P. 23(a) . .
v. Fed.R.Civ.P. 52(a) . .

b. Selected Record Extracts

PAGE
297a
297a f*
298a (-'
298a

H
I i;
t-'i

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4  '
la

I. Opinion IH-livcrcd upon (he Rendering of the 
Judgment Sought to be Reviewed

S H I M  XI
U S. C ourt of Appeals 

Eleventh Circuit

United States C ourt of Appeals,
1'leventh Circuit.

Nos. 84-7119, 86-7886 and 87-7057.
Sept. 21, 1988.

William 1$. 1 AKKIN; Louise Seals, as personal representative 
o! Spurgeon Seals, deceased; Lillie Lofton, as personal rep­
resentative of Ldward Lofton, deceased; Jesse B. Terry, on 
behalf of himself and others similarly situated, Plaintiffs- 
Appellants,

PULLMAN-STANDARD DIVISION, 
PULLMAN, INC., a corporation,

Defendant-Appellee

Louis SW1NT and Willie James Johnson, on behalf of them­
selves and other similarly situated; Clyde Humphrey, 
Plaint if Is-Appel lants,

PULLMAN-STANDARD, Bessemer, Alabama; United Steel­
workers of America Local 1466; and United Steelworkers of 
America, ALL-CIO, International Association of Machin­
ists, Defendants-Appellees.

Louis SW1NT, and Willie James Johnson, on behalf of them­
selves and others similarly situated; Clyde Humphrey, 
Plaint if Is-Appellees,

PU1 I MAN-STANDARD, Bessemer,
Alabama, Defendant-Appellant,



2a

United Steelworkers of America Local 1466; and United Steel­
workers of America, AFL-CIO, International Association 
of Machinists, Defendants.

O. William Adams, 111, Birmingham, Ala., Elaine R. Jones, 
Washington, D.C., James U. Blacksher, Birmingham, Ala., 
Eric Schnapper, NAACP Legal Defense Fund, New York City, 
for plaintiffs-appellants in No. 84-7319.

C.V. Stelzenmuller, Burr & Forman, Birmingham, Ala., for 
defendant-appellee in No. 84-7319.

James U. Blacksher, Mobile, Ala., Oscar W. Adams, III, 
Birmingham, Ala., Elaine R. Jones, NAACP Legal Defense 
Educational Fund, Washington, D.C., Julius L. Chambers, 
Pamela S. Karlan, Eric Schnapper, NAACP Legal Defense 
Fund, New York City, for plaintiffs-appellants in No. 86-7886.

Jerome A. Cooper, Cooper, Mitch & Crawford, Birming­
ham, Ala., for defendants-appellants in No. 86-7886.

C.V. Stelzenmuller, Burr & Forman, Birmingham, Ala., for 
defendant-appellant in No. 87-7057.

Appeals from the United States District Court for the North­
ern District of Alabama.

Before JOHNSON and CLARK, Circuit Judges, and 
DUMBAULD*, Senior District Judge.

CLARK, Circuit Judge:
Few cases better represent the idea that the road to justice can 

be a long and tortured one. The class action giving rise to two of 
these three consolidated appeals was filed in 1971. The named 
plaintiffs, Louis Swim and Willie Johnson (the “Swim plain­
tiffs” ), alleged that Pullman-Standard, Inc. (Pullman), the 
United Steelworkers, and United Steelworkers Local 1466 (col-

* Honorable Ldwatd Dumbauld, Senior U.S. District Judge lor the 
Western District ol Pennsylvania, sitting by designation.

Icciivelv USW) had engaged in a number of racially discrimina- 
ior> employment practices in violation of Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. 5 2(KM)e-2 (1982),' and 42 U.S.C. 
§ 1981 (1982).' Since the complaint was t iled, many members of 
the plaintiff class have died, and our consideration of the case 
marks its lourth appearance before this court. Both sides have 
appealed certain aspects ol the district court’s decision.

A related suit, Irom which the remaining appeal arises, was 
tiled in 1975. I lie plaintiffs in that suit —William Larkin, Spur­
geon Seals, Edward I olton, and Jesse Terry (the “Larkin 
plaint ills )—brought similar charges against Pullman, and our 
consideration ol tlicit case marks its second appearance here.
I he Larkin plaintiI Is appeal a separate district court’s decision 
m favor of Pullman.

Regretting that we cannot resolve the case in its entirety, we 
altirm in part and reverse in part the Swim district court deci­
sion, and altirm the Larkin district court decision.

1 I itlc V11 pio\ iiles iluii
(;i) It shall be an unlaw Iul employment practice lor an employer—

(1) to tail oi let use to hire or to discharge any individual, or other­
wise to discriminate against any individual with respect to his compen­
sation, terms, conditions, or pro ileges ol employment, because of such 
individual's race, color, religion, sex, or national origin; or

(2) to limit, segregate, or ciassily Ins employees or applicants lor 
employment in any vvay which would deprive or tend to deprive any 
individual ol employment opportunities or otherwise adversely aflect 
Ins status as an employee, because of such individual's race, color, reli­
gion, sex, or national origin.

42 U.S.C. $ 2<KM)e-2(al (I9K2).

2 Section 19K1 pi ov ides that
All persons within (lie 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 proceedings lor the security ol persons and property as is 
enjoyed by white cili/ens, and shall be subject to like punishment, 
Pams, penalties, taxes, licenses, and exactions of every kind, and to no 
othet



4a

Both the Swint and Larkin lawsuits challenge employment 
practices at Pullman’s Bessemer, Alabama plant before it 
closed in 1980. Employees at the plant during the general' time 
frame covered by the complaints were drawn from twenty-eight 
departments, each department covering roughly a particular 
phase ol Pullman’s manufacture of railroad cars. Pursuant to 
collective bargaining agreements with the two unions, two of 
the departments were represented by the International Associa­
tion of Machinists (1AM); and the remaining twenty-six by 
USW.3 4 5 The agreements were different, but they had one impor­
tant. provision in common: seniority, the primary factor upon 
which promotions were based, was not transferable between the 
various departments,s at least prior to 1972.6 If an employee 
transferred to anothei department, he7 * * lost his seniority.

1. The Factual Background

3 It is necessary to icier to the general time period because, as will 
become apparent later, the lime period covered by the complaints is very 
much at issue.

4 Because 1AM was not named in any of the EEOC charges or in 
Swim’s complaint, the union is in the case as a defendant only to the extent 
that some ol the relief sought by the plaintiffs might entail modification of 
its contract with Pullman. Eor this reason, any further references to “ the 
union” will be to USW unless otherwise specifically noted.l

5 USW’s agreement provided that seniority meant continuous service 
in a single department. lAM’s seniority system was even more restricted. 
Seniority meant continuous service in the same type of job, i.e., millw rights 
got credit only for the time they had been millwrights. Because the agree­
ments dillered with respect to what constituted seniority, we shall reler to 
Pullman’s overall seniority system as “ nontranslerable” rather than 
“ departmental.”

6 Pullman entered into an agreement with the Department of Labor’s 
Office of federal Contract Compliance in 1972 that permitted certain blacks 
to transfer to certain other departments without losing their seniority. See 
infra part I.A.

7 There were twenty or so women working at the Bessemer plant in the
late sixtiex-early seventies. However, because the workforce was predomi­
nantly male, and to prevent the reader’s distraction, the masculine gender of 
pronouns will be used in this opinion.

A. Assignments and Promotions

There is little dispute that, prior to 1965, there were both seg­
regated departments and mixed-race departments. Four USW 
departments—Die & lool, Janitor, Steel Miscellaneous, and 
Truck—were all black, l ive USW departments—Air Brake, 
Inspection, Plant Protection, Powerhouse, and Template—and 
the two 1AM departments—Die <V Tool and Maintenance— 
were all white.'' I here were also, within each mixed-race depart­
ment, “ white” jobs and “ black” jobs, meaning that when a 
particular job was vacated, it was necessarily filled with an 
employee ol the same race. I he “ white” jobs tended to be the 
higher-paying, and the “ black" jobs the lower-paying. Within 
the USW departments, in addition to the racial division of job 
assignments, there were specific pay-skill levels, each repre­
sented by a job class (JC) number. The JC number reflected the 
highest level ol skill at which an employee had demonstrated he 
could work, and it determined what the employee’s base pay 
would be.

Both belore and alter 1965, when a person was hired, he was 
assigned to both a department and a particular job. The job 
assignment would set the employee’s JC level. Under the collec­
tive bargaining agreement, promotions to higher JC-level jobs 
were to be awarded on the basis of seniority (which in effect 
meant they were intradepartmental only), provided that the 
employee could actually perform the work and that the position 
was not tilled Irom the outside. The highest JC level an 
employee could achieve within his department varied with the 
department. In the all-black departments, the maximum JC 
level varied I rom 1-9; in the mixed-race departments, the maxi­
mum varied from 8-18; and in the all-white departments, the 
maximum varied from 8-20.' .Vacancies were not announced 
or posted. Pullman supervisors would choose the employee to

K Although the two unions' reasons lor doing so.are disputed, it is not 
disputed that agreements between I AM and USW’s predecessor, the Steel 
Woi kei s Organizing Committee (SWOC), in the 1940’s resulted in I AM trad­
ing its twents -lour black members lor two ol SWOC s white members.

9 Fhese l( level figures reler exclusively to the USW departments.



6a

fill the position or make the determination to hire from the out­
side.

In 1965, after an arbitration decision had opened up the pre­
viously all-white riveter job to blacks, some changes began to 
take place. The system of nontransferable seniority and promo­
tions remained in place,10 * but a reporting system of hires and 
promotions was developed, and Pullman expressed its desire to 
recruit blacks for the highly-skilled positions. Unfortunately, at 
the same time, Pullman terminated its practice of offering on- 
the-job training and began to require that employees wanting to 
move to a higher skill level demonstrate they they had formal 
outside training or experience.

In January 1969, Pullman entered a conditional memoran­
dum of understanding with the Department of Labor’s Office 
of federal Contract Compliance (OFCC) that it would encour­
age blacks to move from “ low-ceiling” departments (where the 
highest JC level available was still quite low) to higher-ceiling 
ones. Pullman also agreed to offer at the company’s expense, 
and encourage black employees to take part in, a program of 
outside vocational education. The memorandum, however, did 
not officially become effective because the union did not 
approve it. In May 1972, Pullman entered another agreement 
with OFCC that allowed blacks who were hired into the four 
traditionally black departments prior to April 30, 1965 to trans­
fer into any department without losing their seniority. Addi­
tionally, any black whatsoever hired prior to April 30, 1965 was 
permitted to transfer to one of the five traditionally white 
departments without losing his seniority. The transfers, of 
course, were dependent on there being a vacancy in the depart­
ment to which an employee wished to transfer. Seventeen 
blacks used this agreement to transfer, though it, like the 1969 
memorandum, was not formally adopted by the unions.

10 As will be discussed in more detail later, see infra part V, the parties 
dispute whether the pi act ice of reserving certain iniradeparttnental jobs for
whites and others lore blacks continued after 1965.

H. Selection o f Supervisors

The selection ot supervisors, both before and after 1965, was 
not based on seniority. I here were (our levels of supervisors: 

hourly foremen, who alternated between regular and super­
visory work; “ A foremen,” the lowest-level salaried employees;

If foremen ; and Department Heads. These positions were 
considered within Pullman’s (rather than USW’s) purview. The 
IJ foremen would select the hourly and A foremen, and the 
Department Head would select the U foremen. The selections 
wetc based on the relevant supervisor’s subjective evaluations 
ol the employees, which were in turn based on what Pullman 
calls objective criteria, such as the ability to get along with 
other employees and knowledge ol the particular department’s 
operations. Foremen were not necessarily drawn from the 
department they would ultimately supervise.

11 The Litigation

A. 1 he EEOC Proceedings

Alter Title VII became effective in June of 1965, the Equal 
Employment Opportunity Commission (EEOC) received sev­
eral charges complaining that Pullman had engaged in racially 
discriminatory employment practices. Five of these charges are 
relevant here. On November 4, 1966," Spurgeon Seals, a 
Larkin plaintiff, tiled a charge alleging that he had been passed 
over lor a better paying job in spite of his seniority. On March 
27, 1967, EEOC Commissioner Stephen Shulman filed a charge 
alleging that Pullman discriminated against blacks in its hiring 
and promotional practices. On April 11, 1967, Spurgeon Seals, 
Edward Lolton and Jesse Terry filed a document that they 
styled an “ amendment” to Seals’ 1966 charge. To Seals’ spe-

11 1 heie is some confusion about litis date The copy of the charge that
appears in the record indicates that it was signed October 30, 1966, but there 
is no indication ol the liling date. Because documents filed by Pullman with 
the I l:()C argue that ltic charge was tiled on November 4, and, at least at 
one point, the plaintiMs' briel so indicates, we will assume that November 4 
is the actual lilmg date. In anyesenl, our disposition of this charge renders 
any dispute over the date insignificant. See infra note 32.



8a

cific complaint that he was passed over, they added allegations 
that white employees in their department were (1) dispropor­
tionately assigned to those jobs that would lead to the higher­
paying positions, (2) disproportionately selected for temporary 
assignments that would prove an employee’s ability to perform 
in a higher position, and (3) given the easier and cleaner work. 
On October 13, 1967, William Larkin filed a charge alleging 
that Pullman discriminated in its hiring and promotional prac­
tices. Finally, on October 15, 1969, Louis Swint filed a charge 
alleging that Pullman discriminated in its training and promo­
tional practices.12 *

The LLOC consolidated all of the charges other than Swint’s, 
and on April 26, 1972, issued its decision. The Commission 
concluded that there was reasonable cause to believe that Pull­
man had discriminated in “ hiring, promotion, job assignments, 
terms and conditions of employment and the operation of an 
unlawful seniority system.” Swint’s charge appears not to.have 
been similarly resolved. On September 22, 1971, before dispos­
ing of the case and at the request of Swint’s attorney, the Com­
mission issued Swint a letter advising him that he could institute 
a civil action within thirty days.

B. The Swint Case

Swim did so, seeking injunctive, declaratory, and monetary 
relief on behalf of himself and all other similarly situated black 
Pullman employees. His complaint, as amended, alleged that 
Pullman and USW (to the extent that the latter participated in a 
particular practice or was a party to a discriminatory practice 
because it was embodied in the collective bargaining agreement) 
had practiced racial discrimination in hiring, training, tempo­
rary assignments, promotions, and the maintenance of the sen-

12 I his summary ol the EEOC charges does not include any claim that 
the parlies have agreed are no longer in the case, e.g., the claims that Pull­
man physicians maintained racially segregated facilities. Nor does it include
later charges tiled by Sssmt, because those charges are not relevant to the 
issues before the court.

ioriiy system.1 On June 4, 1974, in an order following the 
second pretrial conlerence, the district court certified the class 
Swim sought to represent:

| I |lie court tinds and concludes that the prerequisites of 
Pule 23(a) and Rule 23(b)(2) are satisfied and that this 
action may herealter be maintained on behalf of all black 
persons who are now or have (within one year prior to the 
tiling ol any charges under Title VII) been employed by 
defendant ( ompany as production or maintenance 
employees represented by the United Steelworkers.

Record, Vol. II, lab IS at I. According to the court, the parties 
had “ made known certain facts to the court and . . . agreed 
that such I acts may be considered by the court without formal 
hearing otherwise required under Rule 23.” Id.

After sixteen days ol trial testimony and the submission of 
numerous exhibits, the district court concluded that the plain- 
titls had not proven that the seniority system of promotions 
was unlawful or that the selection ol supervisors was discrimi­
natory. See Swint v. Pullman-Standard (Swint I), II F.E.P. 
943, 954, 959 (NT).Ala. 1974) (available on WESTLAW, 1974 
WL 2621. However, in the course of its discussion of the senior­
ity system, the court lound that, insolar as Pullman had main­
tained some single-race departments, it had discriminated in its 
assignments ol new employees until as late as 1972. See id. at 
953-54. Hie district court held that the proper remedy for this 
discrimination was to expand the transfer eligibility made avail­
able by the OFCC agreement.14 See id. at 954.

D with the summary ol the PECK.' charges, this summary of Swint’s
allegations omits certain allegations that have no bearing on the issues before 
the court.

14 As noted above, the O K I  agreement provided that any black hired 
prior to April JO, 1065 and assigned to one ol tour all-black departments 
could trattsler to any department without losing his seniority. The district 
court directed Pullman to set the eligibility dates (dates ol employment) later 
with respect to three ol the lout black departments, so that the eligibility



10a

On appeal, this court reversed the district court’s conclusions 
on the seniority system and the selection of supervisors. See 
Swim v. Pullman-Standard (Swint II), 539 F.2d 77, 93, 104 (5th 
Cir.1976). With respect to the seniority system, the court found 
that the district court had erroneously required the plaintiffs to 
prove that the discriminatory initial assignments caused 
classwidc economic harm. See id. at 93. Segregation in and of 
itself, the court held, constituted discrimination in violation of 
Title VII, and if the seniority system perpetuated such discrimi­
nation,1' it, and promotions pursuant to it, also would violate 
Title VII. See id. at 91. With respect to the selection of supervi­
sors, the court found that two of the four grounds for the dis­
trict court’s decision were invalid.15 16 See id. at 104. The case was 
remanded for whatever proceedings the district court fell were 
“ appropriate or necessary” to comply with the opinion. Id. at 
105.

On remand, a two-day hearing was held, at which additional 
evidence and briefs were submitted. While the district court was 
considering its decision, the Supreme Court issued its decision

dales would correspond with the dale on which discriminatory assignments 
to each of those three departmente ended. The OFCC agreement also pro­
vided that any black employee hired prior to April 30, 1965 could transfer to 
one of the four all-white departments without losing his seniority. The dis­
trict court directed Pullman to again move the eligibility dales later insofar as 
a black employee wanted to transfer to one of three departments that 
remained all white until well after 1965.

15 Swim II was decided prior to the Supreme Court’s decision in Inter­
national Brotherhood o f Teamsters v. United States, 431 U.S. 324, 97 S.Cl. 
1843, 52 L.Ed. 396 (1977). As will be discussed, Teamsters reversed this cir­
cuit’s holdings that any seniority system that perpetuated past discrimination 
could not be bona fide and thus protected under 42 U.S.C. § 2000e-2(h) 
(1982).

16 The court held that the district court should not have treated literacy 
as the explanation for (he racial discrepancy unless it had been proven a busi­
ness necessity. The court also rejected the district court’s reliance on his con­
clusion that pre-1965 discrimination had prevented blacks from gaining the 
skill and experience they needed to be able to supervise. That justification 
would have been valid, the court held, only if Pullman had shown that the 
skills were a business necessity and that blacks did in fact lack them. See 
Swint II, 539 F.2d at 104.

in International Brotherhood o f Teamsters v. United Stales, 
431 U.S. 324, 97 S.Ct. 1843, 52 I .Lid.2d 396 (1977). The Court 
rejected what had become this circuit’s standard approach to 
seniority systems. See, e.g., United States v. T.I.M.E.-D.C., 
517 I 2d 299, 320 (5th ( it. 1975) (collecting cases), rev'd sub 
nom. International Brotherhood oj Teamsters v. United Slates, 
431 U.S. at 324, 97 S.Ct. at 1843; Local 189, United Papermak- 
ers& Puperworkers t . United States, 416 F.2d 980, 987-88 (5th 
Cir.1969), cert, denied, .397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 
100(1970). Plaint ills could not prevail, the Court held, simply 
by showing that a seniority system perpetuated the effects of 
pre-Title VII discrimination. See Teamsters, 431 U.S. at 353-54, 
97 S.( i. at 1864. To overcome the bona fide seniority system 
exception, see 42 U.S.C. $ 2000e-2(h) (1982), plaintiffs had to 
show that a seniority system was established or maintained with 
discriminatory intent. See Teamsters, 431 U.S. at 356, 97 S.Ct. 
at 1865; see also Trans W orld Airlines v. Hardison, 432 U.S. 
63, 82, 97 S.Ct. 2264, 2275, 5.3 L.Ed.2d 1 13 (1977).

Relying on Teamsters, the district court again held for Full- 
man on the promotions issue. See Swint v. Pullman-Standard 
(Swim HI), 15 F.E.P. 144, 147 (N.D.Ala. 1977) [available on 
WESTLAW , 1977 V\ 1 888|. Realizing that it would have to 
locus on post-Act discrimination, the court assumed that the 
liability period should be dated from December 27, 1966: “ To 
give plaintiffs [sic] the benefit ol the doubt, the court has in 
this opinion used the earliest possible date, i.e., 90 days before 
the March 27, 1967 Commissioner’s charge, while nevertheless 
having substantial reservations that such a date is proper.” Id. 
at 146 n. 5. it then found that by December 1966 the company 
was no longer making assignments to departments based on 
race. 1 lie court acknowledged that this finding conflicted with 
its findings in Swint /, but concluded that its original decision, 

based largely upon a mechanical application of statistical data 
respecting a lew departments, was incorrect.” Id. at 149. The 
court also held that Pullman had not discriminated in its selec­
tion of supervisors. Uie court’s calculations revealed no statisti­
cally significant disparity in the number of blacks and whites

I la



12a

chosen,17 and, in any event, Pullman had demonstrated that 
experience as a temporary foreman—which, due to pre-Ac! dis­
crimination blacks were less likely to have—was a bona fide 
occupational qualification. See id. at 150-52.

The plaintiffs filed a motion to amend the judgment with 
respect to the court’s language on the date from which Pull­
man’s liability was measured. They argued that the liability 
period should have been backdated from the Commissioner’s 
charge 180 rather than 90 days, due to a 1972 amendment to 
Title VII that extended the time for filing. The court wrote that 
“ (p)laintiffs are probably correct,” but found that even if a 
September date were used, its finding that Pullman had not dis­
criminated during the liability period would stand. Swim v. 
Pullman Standard (Swim IV), 15 F.E.P. 1638, 1639 (N.l). 
Ala. 1977) (available on WEST LAW, 1977 WL 40(. I he plain- 
tills also asked for a new trial on the seniority system on the 
ground that they had proceeded to trial on an accepted theory 
that Teamsters reversed. The court granted that motion. See id. 
at 1640.

The evidence presented at the third trial did not alter the dis­
trict court’s conclusion. Operating under the four-factor frame­
work this court had set forth (after Teamsters) in James v. 
Stock ham Valve & Fittings Co., 559 F.2d 310 (5th Cir. 1977), 
cert, denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 
(1978), the court held that three of the factors as well as the 
totality of the circumstances indicated that the seniority system 
did not reflect an intent to discrimnate. See Swim v. Pullman- 
Standard (Swim V), 17 F.E.P. 730, 739 (N.D.Ala. 1978) (avail­
able on WESTLAW, 1978 WL 115]. The court was 
unimpressed with the plaintiffs’ showing that blacks appeared 
to be locked into the least economically desirable departments, 
asserting that this court had precluded any consideration of 
economic unfairness:

17 The court louml that "the number ol blacks appointed to salaried 
supervisory positions is less than two standard deviations from the number 
expected front the composition of temporary foremen.” Swim III, 15 I.L.P. 
at 151. The court acknowledged that there was a disparity of “ some 2.54 
standard deviations” in the Welding department, by far the largest depart­
ment at the plant.

( I |hc rationale ol the filth ( ircuit in Pullman-Standard 11 
indicates that such a study ol relative economic desirability 
would be inappropriate. II one is to measure inequality 
without reference to economic desirability, it would seem 
logical to measure its opposite—equality or neutrality— 
without reference to such desirability.

Id. at 734.
On appeal, this court reversed and remanded ‘‘for proceed­

ings necessary to render appropriate relief.” Swim v. Pullman- 
Standard (Swim I I), 624 I .2d 525, 526 (5th Cir. 1980). In 
independent sections ol its opinion, the court held that Pullman 
had violated I itle VII in its assignments to departments, its sys­
tem ol nontranslerable seniority, and its selection of supervi­
sors. With respect to departmental assignments, the court cited 
several numerical mistakes in the district court’s calculations 
and concluded that the district court’s ruling was ‘‘factually 
unsubstantiated.” See id. at 529. With respect to the seniority 
system, the court found several errors in the district court’s 
analysis, first, the district court had been unreasonable in con­
struing Swim II to preclude any consideration of the fact that 
blacks were relegated to the economically undesirable depart­
ments; Swim II merely held that discrimination could take a 
non economic torm as well as an economic one. See id. at 530- 
31. Second, the district court had no basis on which to find the 
seniority system rational: *‘|n)o credible explanation has been 
advanced to sufficiently justify the separate seniority units.” 
Id. at 531, 533. Third, the district court improperly rejected any 
consideration of lAM’s role in the creation of nontranslerable 
seniority, given lAM’s undisputed past efforts to exclude blacks 
Irom its bargaining units. Id. ; see supra note 8. On the last 
issue, the selection of supervisors, the court found that Pullman 
had tailed to show that requiring salaried supervisors to come 
lrom the ranks ol the temporary supervisors was a business 
necessity. Fhe court noted further that Pullman had not articu­
lated any particular skills necessary to performing as either a



14a

temporary or salaried supervisor.18 * See Swim VI, 624 F.2d at 
535-36.

The Supreme Court granted certiorari to consider the senior­
ity system issue and reversed. See Pullman-Standard v. Swim 
(Swim VII), 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 
(1982). The majority held that this court, despite stating that it 
was applying a clearly erroneous standard to the district court’s 
finding of no intentional discrimination, had improperly 
weighed the evidence and entered factual findings of its own. 
The proper procedure would have been to review the record 
only for clear error and then remand to the district court for 
reconsideration. Id. at 292, 102 S.Ct. at 1792. The Court did 
not specify the aspects of Swim VI that it considered factfind­
ing.

The opinion remanding the case to the district court directed 
it to conduct whatever proceedings it felt necessary to comply 
with Swim VI and Swim VII and “ to determine what impact 
the ‘locking-in’ of blacks to the least remunerative departments 
had on discouraging transfer between seniority units, and the 
significance of the discriminatory motivation of 1AM with 
respect to the institution of USW’s seniority system.” Swim v. 
Pullman-Standard (Swim VIII), 692 F.2d 1031, 1031-32 (5th 
Cir. 1982). A fourth trial was held, and the district court

18 Despile holding that ihe plaintiffs were entitled to judgment in their 
favor on all three liability issues, the court did not specify the time period for 
which Pullman was liable. Its only discussion of the EEOC charges was as 
follows:

Although the first primary charge directly bringing into question the 
company’s assignment policies was filed on May II, 1970, a charge 
had been previously filed by an EEOC Commissioner on March 27, 
1967 questioning the hiring and promotion practices of Pullman. 
Because the district court found this earlier charge to be susceptible to 
the interpretation that it related also to assignment and transfer mat­
ters, the court used the date 90 days before the March 27, 1967 Com­
mission charge for ns analysis.

The 1972 amendment to Title VII extended the time for filing charges to 
180 days, and this extension has been considered to be effective 
retroactively. . . . But, the district court asserts that it finds there was no 
practice of discriminatory assignments to departments after September 28, 
1966 anymore than there was after December 27, 1966. The 180 day statutory 
period is inconsequential to this analysis. Swim VI, 624 F.2d at 528 n. I.

entered the decisions that ease rise to two ol these appeals. See 
Swim v. Pullman-Standard (Swim IX), No. CV71-P-0955-S, 
slip op. (NT).Ala. Sept. 8, 1986), Record, Vol. II, Tab. 133; 
Swmt v. Pullman-Standard (Swim X), No. CV71-P-0955-S, slip 
op. (NT).AlaNov. 26, 1986), Record, Vol. II, Tab 136. With­
out discussion, the court concluded that it was bound by Swint 
I / to litul Pullman liable for discriminating both in its depart­
mental assignments and in ils selection of supervisors. Swint 
/A, slip op. at 8, II Ihe court rejected Pullman’s argument 
that Swim did not have standing to represent the class on the 
departmental assignment claim. On the promotions issue, how­
ever, the court lound the seniority system bona fide and entered 
judgment in lav or of Pullman and USW. See id. at II.

In view ol its ruling that there had been discrimination in 
departmental assignments and the selection of supervisors, the 
court was laced squarely with delining the temporal scope of 
Pullman’s liability Relying on Payne v. Travenul Laboratories, 
673 1 2d 798 (5th Cir.), cert, denied, 459 U.S. 1038, 103 S.Ct. 
451, 74 l..Fd.2d 605 (1982), the court held that the liability 
period should be dated trom ninety days prior to the date of 
Swim s lirst PT-.OC charge, i.e., Pullman would not be liable 
lor any discrimination occurring prior to July 17, 1969.19 See 
Swmt /A, slip op. til 6. I he court then found that any discrimi­
nation in departmental assignments ended prior-to February 
1969. See id. at 13. Ihe bottom line was that there was no dis­
crimination in departmental assignments for which Pullman 
would have to pay damages. Ihe date on which discrimination 
in the selection of supervisors ended, the court held, had in 
ellect been set by Swim VI. Pullman would be liable for dis-

19 I Ik- plaintills tiled a motion to alter or amend the judgment asking 
the comi to apply Alabama's six-year trespass statute of limitations to the 
section 19,SI claims in their ease I his would have, at least to the extent that 
the plaintills were able to show intentional discrimination (which section 
1981 claims icquirc), worked to extend the liability period backward to 1965.
I he court refused to alter ns prev ions application of the one-year trespass on 
the case statute, citing I'ullman's reliance throughout the litigation on that 
decision Swim i Pullman Standard (Swim A j, No. C V7I -P-0955-S, slip op. 
at .1 (N I) Ala. Nov. 2<>, I9M>), Record, Vol II. Tab 136 at 3.



16a

crimination in the selection of supervisors from July 16, 1969 to 
August 16, 1974.20 See id. at 8.

The plaintiffs appeal the rulings against them on the seniority 
system, the date from which Pullman’s liability was measured, 
and the date that discrimination in departmental assignments 
ended. Pullman, having been granted leave to appeal immedi­
ately under 28 U.S.C. § 1292 (1982), appeals the rulings against 
it on the selection of supervisors and on Louis Swint’s standing 
to represent the class with respect to departmental assign­
ments.21

C. The Larkin Case
Some four years alter Louis Swint filed suit against Pullman 

and USW, on December 9, 1975, the Larkin plaintiffs filed a 
class action against Pullman alone. The complaint alleged that 
Pullman had excluded blacks from its more desirable jobs and 
departments and its salaried foremen jobs. On January 20, 
1976, the district court dismissed the Larkin case with preju­
dice, finding “ that all issues presented by the complaint are 
presently on appeal to the Fifth Circuit Court ot Appeals in the 
case of Louis Swint, . . . and that plaintiffs herein are included 
in the putative class of plaintiffs on whose behalf said appeal 
was taken.” Larkin v. Pullman-Standard Division, Pullman, 
Inc. (Larkin I), No. 75-G-2266-S, slip op. at 1 (N.D.Ala. Jan. 
20, 1976), Record, Vol. I, Tab 4, at 1. The Larkin plaintiffs 
appealed, but the appeal was ultimately dismissed for failure to 
prosecute. Larkin v. Pullman-Standard Division, Pullman, Inc. 
(Larkin 11), No. 76-1538, slip op. at 1 (5th Cir. Apr. 15, 1976), 
Record, Vol. 1, Tab 6, at 1.

20 il is unclear how the district court arrived at the August 16 date. 
1974 appears to have been chosen because the plaintiffs had presented statis­
tical evidence through that date and this court did not distinguish periods ol 
time when, in Swim 17, it found that there had been discrimination. ,S'«' 
S wim IX,  slip op. at X.

21 USW remains in the case only as an appellee, because the only issue 
still disputed and involving USW is whether or not the seniority system was 
bona fide rather than intentionally discriminatory. For that reason, the bulk 
of this opinion will reler to Pullman alone.

17a

Nothing further happened in the Larkin case for several 
years. In June 1983, however, after this court in Swint VIII 
remanded the Swint litigation to the district court, Pullman 
began urging the Swim district court to consider running the lia­
bility period from a later dale, as of 1969 rather than 1966. 
Pullman argued that the beginning of the liability period could 
be based only on the charge of a named plaintiff, i.e., on Louis 
Swint’s October 1969 charge. Concerned that such a decision 
would preclude consideration of claims that the Larkin court 
had dismissed precisely because they were to be considered in 
Swim, the Swim plaintiffs moved, in February 1984, to add 
Spurgeon Seals (a Larkin plaintiff who had filed his EEOC 
charge on November 4, 1966) as an additional named plaintiff. 
A motion to add all of the Larkin plaintiffs a,s named Swint 
plaintiffs was filed on June 4, 1984.

Pullman allegedly2" opposed the motions to add the Larkin 
plaintiffs on the ground that Larkin /, which included the lan­
guage, “ dismissed with prejudice,” constituted an adjudication 
on the merits that prevented the Larkin plaintiffs from pursuing 
any of their claims against Pullman in Swint. The Larkin plain­
tiffs responded by returning to the Larkin court and filing a 
motion for relief from judgment under Fed.R.Civ.P. 60(a) or 
60(b)(6). The plaintiffs asked the court to delete the words 
“ with prejudice” from the Larkin / order. “ (Rjeluctant to alter 
in any way an order of judgment which is over eight years old,” 
the Larkin court denied the motion. Larkin v. Pullman- 
Standard Division, Pullman, Inc. (Larkin III), No. 75-G-2266- 
S, slip op. at I (N.D.Ala., Apr. 16, 1984), Record, Vol. 1, Tab 
8, at 1. The court made clear, however, that Larkin I consti­
tuted “ no opinion as to the rights which these plaintiffs might 
have as unnamed members of the Swim class.” Id. at 2.

Soon thereafter, without opinion, the Swim court denied 
both of the motions to add the Larkin plaintiffs. See Swint v. 
Pullman-Standard, No. CV-71-P-0955-S, slip op. (N.D.Ala. 
Sept. 4, 1984). In Swim IX, the court explained the grounds for 
the denial: the delay in filing the motions was unreasonable,

22' li appears i hat Pullman did not file a writ ten response to the plain- 
tills’ motions to add the Larkin plaintills, so we have been unable to verily 
that Pullman actually made this argument.



18a

permitting the intervention would prejudice Pullman, and the 
Larkin plaintilfs would not suffer any prejudice if not permit­
ted to intervene. See Swim IX, slip op. at 3-4. The court 
acknowledged, however, that Larkin /  did not preclude the 
Larkiri plaintiffs’ membership in the Swinr class. See id. at 4.

The Larkin plaintiffs timely appealed from the judgment in 
Larkin III. This court stayed the appeal pending the outcome 
on remand in Swim. After Swim IX and Swim X  were 
appealed, the court consolidated the Swim and Larkin cases.

Ill The Liability Period

The lirst dispute we must resolve concerns the date from 
which Pullman’s liability2’ must be measured. With respect to 
the plaintiffs’ Title VII claims, the district court held that only 
the charge of a named plaintiff could be used to start the liabil­
ity period running and that the period would begin 90, rather 
than 180, days before Louis Swim’s charge was filed. See Swim 
IX, slip op. at 6. With respect to the plaintiffs’ section 1981 
claims, the court held that liability had to be measured from 
one year prior to the plaintiffs’ filing suit, because Alabama’s 
one-year, trespass on the case statute of limitations was the 
most appropriate to section 1981 claims. See Swim X,  slip op. 
at 3; supra note 19.

We will discuss both of these holdings separately. In certain 
cases, it is necessary only to address whichever approach yields 
the earliest date of potential liability. Unfortunately, we are 
unable to do so here. On one of the substantive claims—that 
involving the selection of supervisors—the plaintiffs appear to 
have proceeded not on a theory of intentional discrimination 
but on a theory of disparate impact. Because section 1981 
requires a showing ol intentional discrimination, see Stallworth 
v. Shuler, 111 F.2d 1431, 1433 (11th Cir. 1985), the plaintiffs 
are potentially entitled to relief on this claim only under Title

23 Wc i,ddress only Pullman’s liability. As will become dear laler in ihe 
opinion, we affirm (lie district court’s ruling that USW has not violated Title
VII or § 1981.

19a

VII, and will not lx- able to benefit from the longer liability 
period we adopt for the section 1981 claims.

A. Dating the Title I'll Claims

Title VII requires that an employee file an EEOC charge 
within 180 days 4 of an allegedly illegal employment practice if 
te intends to bring a enil suit based on that practice. See 42 

s ^r)00e-5(c) (1982). In addition to operating as statute 
ol limitations, this requirement has been interpreted to shield a 

'He * V11 defendant from damages tor any like conduct he may 
have engaged in prior to 180 days before the filing of a charge.25 
See United An Lines e. Leans, 431 U.S. 553, 558 97 S Ct 
l«85, 1889, 52 I Ed.2d 571 (1977); Usher v. Proctor & Gamble 
Manujaeturinf> Co., 613 I 2d 527, 540 & n. 25 (5th Cir. 1980), 
cert, denied, 449 U.S. 1115, 101 S.Ct. 929, 66 L.Ed.2d 845 
(1981). flic issue here involves the latter aspect of the 180-day 
period: selecting the appropriate EEOC charge to establish the 
date Pullman’s liability commences.

Ihe plaintiffs argue that dating the liability period from the 
fust EEOC charge complaining of like practices, regardless of 
whether the charge was filed by a named plaintiff, is the correct 
approach. They also contend that by dating Pullman’s Title VII 
liability from Louis Swim’s October 1969 charge, the district 
court violated the law ol the case. They point to the court’s 
1974 certification of the class, which included “ all black per-

-9 On March 24, I ‘>72. lulc \ 11 was amended lo extend the filing 
period Iron, 9.1 days to 180 days See Lqual tin,ploy,,,ent Opportunity Ac. of 
1972, Pub I No. 92-261, * 4(a), 86 Stal. 103, 105 (1972) (codified at 42 
l .S.t S 2(MK,c-5(e) (1982)). I lie retroactivity of this amendment will be dis­
cussed m connection will, (he district court’s backdating Swim’s charge 90 
rather than 180 days.

75 At lirsl blush, ihe siaiement m the text may seen, (autologous. It is 
conceivable, however, that, in (he continuing violation context, a plaintiff 
could (tie a charge within ISOdass ol the violation, thereby meeting (he stat­
ute ol limitations, and still attempt lo recover damages lor harmful effects 
sulleted well before 180 days pnoi to the ILOC charge. In addition, it is 
important to distinguish the two concepts in class actions, where class mem­
bers who did not themselves 1,1c I IOC charges will be bound, and may be 
foreclosed lion, recovery, In the I,ability period that someone else’s charge
creates.



20a

sons who are now or have (within one year prior to the filing of 
any charges under Title VII) been employed by defendant Com­
pany.” Record, Vol. II, Tab 18 at 1 (emphasis added). In the 
plaintiffs’ view, this constituted a holding that liability would 
be measured from Seals’ November 1966 charge. The plaintiffs 
also cite the court’s discussion in Swint III, where the court 
assumed that liability should be dated from 90 days prior to 
Commissioner Shulman’s March 1967 charge. 15 F.E.P. at 146 
n. 5. Finally, the plaintiffs direct us to the pretrial order entered 
prior to the last trial, in 1984. The district court there instructed 
the parties to prepare for trial on the assumption that the ante­
rior cutoff date would be 180 days prior to Seals’ EEOC charge. 
Record, Vol. II, Tab 96 at 1; see supra note 25.

The plaintiffs maintain further that despite all these sugges­
tions, if not holdings, that the liability period would be dated 
from 1966, it was not until 1983 and the rulings against it in 
Swim VI that Pullman raised .any objection to a 1966 cutoff 
date. Thus, even if Swint’s charge should have been the one 
from which liability was dated, Pullman waived any objection it 
might have had. To find otherwise, the plaintiffs contend, 
would be-especially inequitable given the decision in Larkin l 
that the Larkin plaintiffs’ claims were precluded because they 
were adequately covered by the Swim litigation: the Larkin 
court surely would not have so decided had it been aware that 
three years of the plaintiffs’ claims were going to be severed 
from Swint on the fourth trial of the case.

Pullman asserts that the plaintiffs’ representation of the dis­
trict court’s decisions is inaccurate and that none of the district 
court’s discussions constituted a holding on the liability period. 
As a result, the law of the case did not preclude the district 
court’s setting the July 17, 1969 date, and under Kilgo v. Bow­
man Transportation Inc., 789 F.2d 859 (11th Cir. 1986), and 
Payne v. Travenol / aboratories, 673 F.2d 798 (5th Cir.), cert, 
denied, 459 U.S. 1038, 103 S.Ct. 451,74 L.Ed.2d 605 (1982), a 
Title Vll liability period can be dated only from a named plain­
tif f’s charge. Pullman also insists that the standing principles 
enunciated in General Telephone Co. o f the Southwest v. Fal­
con, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982), dic-

!la

late that a named plaintiff cannot represent class members on 
claims that accrued before his own.

We hold that the district court erred in dating Pullman’s 
potential liability from 90 days prior to Swint’s EEOC charge. 
The circumstances of this case, when combined with Title VII’s 
role as remedial legislation, convince us that the district court 
improperly narrowed the Swint litigation after the fourth trial 
of the case. Pullman’s potential Title Vll liability should have 
been dated from September 28, 1966, 180 days prior to Com­
missioner Shulman’s charge alleging that Pullman had discrimi­
nated in its hiring and promotional practices.

It is apparent that Pullman waived any objection it might 
have had to such a date. The district court discussed the case 
from the very beginning as if Pullman’s potential liability might 
be dated from 1966. Due to us various dispositions of the case, 
the district court stopped short of so holding', for that reason, 
the law of the case does not require us to accept a 1966 date. See 
Signal Oil <£ Gas Co. v. Barge M -701, 654 I .2d 1164, 1169 (5th 
Cir. Unit A Sept. 1981) (“ law of the case does not operate to 
bar subsequent consideration of matters that could have been, 
but were not, raised and resolved in the earlier proceeding” ), 
cert, denial, 455 U.S. 944, 102 S.Ct. 1441, 71 L.Ed.2d 656 
(1982); see also Robinson v. Parrish, 720 F.2d 1548, 1550 (11th 
Cir. 1983) (district court need not “ rigidly adhere to its own rul­
ings in an earlier stage of a case” ). Even so, the 180-day filing 
requirement, “ like a statute of limitations, is subject to waiver, 
estoppel, and equitable tolling.” Zipes v. Trans World Airlines, 
Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 
(1982). Insofar as the liability period is simply the inverse of the 
filing requirement, it too must be subject to waiver and estop­
pel. By failing before 1983 to raise any objection to the numer­
ous suggestions that 1966 might be set as the anterior cutoff 
date for its liability, as well as arguing in the Larkin case that 
the Lurkin plaintiffs’ claims—which indisputably dated back to 
1966—were being litigated in the Swint case, Pullman waived 
any objection it might otherwise have had.26

26 There is a strategic reason why a class action defendant might waive 
objections to the si/e or inclusiveness of a class: a favorable decision against 
an all-inclusive class of plaintiffs will in many instances bar Iurttier suits.



22a

In any event, in this case dating liability from 1966 is the most 
appropriate and logical holding. In considering this issue, it is 
important to look at the purposes of the 180-day filing require­
ment, insofar as that requirement dictates the liability period. It 
is well-established that potential plaintiffs are required to file an 
EEOC charge within 180 days of an allegedly illegal act or prac­
tice so that employers will be given prompt notice of the com­
plaints against them, and the EEOC sufficient time to attempt 
the conciliation process before a civil action is filed. See Zipes 
v. Trans World Airlines, Inc., 455 U.S. at 398, 102 S.Ct. at 
1135; Kilgo v. Bowman Transportation, Inc., 789 F.2d at 877; 
Crawford v. United Slates Steel Corp., 660 F.2d 663, 666 (5th 
Cir. Unit B Nov. 1981). Neither of these purposes would be 
defeated by permitting the charge of the Commission to estab­
lish the temporal scope of this action. Spurgeon Seals filed an 
EEOC charge in November 1966 complaining that the seniority 
system was being misapplied on account of his race, and less 
than six months later, an EEOC Commissioner filed a charge 
launching a broad-based challenge to Pullman’s hiring and pro­
motional practices. By the time Louis Swint filed his 1969 
charge, Pullman was well aware that its hiring and promotional 
practices were under scrutiny, and the EEOC had been given 
ample time to attempt conciliation. To ignore this and restrict 
Pullman’s liability to 180 days prior to Swim’s charge would be 
nothing more than a technical reading of Title VII, which is 
“ particularly inappropriate in a statutory scheme in which lay- 
ment, unassisted by trained lawyers, initiate the process.’’ Love 
v. Pullman Co., 404 U.S. 522, 527, 92 S.Ct. 616, 619, 30 
L.Ed.2d 679 (1972).

Indeed, one case from this circuit (cited, oddly, by Pullman) 
has already held that, in appropriate circumstances, liability 
may be dated from the EEOC charge of a person other than one 
of the named plaint ills.2 In Kilgo v. Bowman Transportation, 
Inc., Edna Kilgo, who had filed an EEOC charge earlier than

27 The Seventh Circuit and several district courts have so decided as 
well. See McDonald v. United Airlines, 587 F.2d 357, 361 (7th Cir. 1978) (lia­
bility could be dated from charge filed by two class members who were not
named plaintiffs where their charges gave the employer sufficient notice that

any other member ol the class, died before the class was certi­
fied. Her husband was permitted to substitute for her as a class 
member, but was found an inadequate class representative to 
serve as a named plaintiff. Alter concluding that the purposes 
ol the 180-day filing requirement had been met by Kilgo’s 
charge—the employer had notice of the claim and the EEOC 
was given an opportunity to settle the grievance—this court 
held that the date of her EEOC filing could be used to deter­
mine the temporal scope of the action. See Kilgo, 789 F.2d at 
877. Not only was this result fair to the employer, in that it 
turned on his receiving adequate notice, but it advanced judicial 
economy by ensuring that all the claims of employees discrimi­
nated against in similar fashion were heard in a single action.27 28 * 
I he same can be said of our decision to permit the charge of a 
nonnamed plaintiff to establish the temporal scope of the 
action.'"'

Pullman asserts that General Telephone Co. o f the Southwest 
v. Falcon, 457 U.S. at 147, 102 S.Ct. at 2364, 72 L.Ed.2d at 
740, prevents using a non-named plaintiff’s charge to date lia-

ccnain practices were challenged), cere denied. 492 U.S. 934, 99 S.Ct. 2869, 
61 L.Ld.2d 303 (1979); Allen e. Isuuc, 99 I K.D. 45, 50 (N.D.III. 1983); Wil­
liamson v. Bethlehem Sleet Corp., 488 I Supp. 827, 830-35 (W'.D.N.Y. 
1980); Petty v. Peoples (ias Liylu 4 Coke C'o., 86 f-'.R.D. 336, 342 (N.D.III. 
1979); see also Indu v. United Airlines, 83 I R D I, 7-8 (N.D.Cal. 1979).

28 to  insist that liability be dated only Irom a named plaintiff’s charge 
would essentially lorce whomever in a class of employees filed the earliest 
UhOC charge to do one ol three things: act as the class representative, file a 
separate action covering the period ot time that would not he covered by the 
class suit, or give up altogether a portion of his claim. Noting that there are 
many reasons a class member might not wish or be able to act as his class’ 
representative, we reject the opportunity to fashion a per se rule that would 
have this effect.

29 We do not, ol course, address the situation when a class member 
liles an LF.OC charge and receives a righl-lo-sue letter, and then no suit is 
tiled within the period specified by the letter. The situation here is quite dif- 
ferem, The charges tiled by the l.arkm plaintiffs and Commissioner Shulman 
were still pending belore the Commission when Swint filed suit, so there was 
no indication that those who tiled the earliest charges intended to abandon 
then causes ol action.



24a

bility. In Falcon, the Supreme Court held that a person who has 
not himself suffered a particular type of discrimination does 
not have Rule 23(a) standing to bring a class action for those 
who have, simply because he and the class have both suffered 
forms of racial discrimination. See id. at 158, 102 S.Ct. at 2371. 
Pullman apparently reasons from this that a class representative 
also cannot represent class members on portions of their claims 
for which the representative would not, due to the 180-day fil­
ing requirement, have been able to sue; reasoning backward 
from this proposition, Pullman concludes that liability must be 
dated Irom the named plaintiff’s charge. The company also 
argues that it could not have waived any objections to a 1966 
date because standing is a jurisdictional and thus non-waivable 
issue.

We do not agree, f irst, the Court made clear in Falcon that 
its decision was based on the commonality and typicality 
requirements of Fed.R.Civ.P. 23(a), and there is no reference in 
the opinion to the constitutional requirement of standing.30 See 
id. at 160, 102 S.Ct. at 2372 (“ The District Court’s error in this 
case, and the error inherent in the across-the-board rule, is the 
failure to evaluate carefully the legitimacy of the named plain­
tiff’s plea that he is a proper class representative under Rule 
23(a).’’). Because Rule 23’s requirements have never been 
regarded as jurisdictional,31 Pullman’s argument that it cannot 
have waived any objections to a 1966 date is without merit. See,

30 Indeed, the word “ standing” appears only one time in the entire 
opinion, in a footnote: “ The mere fact that an aggrieved private plaintiff is a 
member ol an identifiable class ol persons of the same race or national origin 
is insufficient to establish his standing to litigate on their behalf all possible 
claims ol discrimination against a common employer.” Falcon, 457 U.S. at 
159 n. 15, 102 S.Ct. at 2371 n. 15. We do not read this statement as a refer­
ence to constitutional, jurisdictional standing.

31 The Supreme Court has recognized that the Congress that enacted 
Federal Rule 23 was advised that it would neither expand nor constrict sub­
ject matter jurisdiction. See Snyder v. Harris, 394 U.S. 332, 341, 89 S.Ct. 
1053, 1059, 22 L.Ed.2d 319 (1969). It follows that the requirements of Rule 
23 are not jurisdictional requirements that cannot be waived. See also Franks 
v. Bowman Transportation Co., 424 U.S. 747, 752-57, 96 S.Ct. 1251, 1258- 
60, 47 L.Ed.2d 444 (1976) (class retains standing despite mooting of named 
plaintiff’s Title VII claim).

c.k., Reynolds v. Sheet Metal Workers, Local 102, 702 F.2d 
221, 224 (D.C. Cir. 1981) (“ (a| claim that the district court 
erred in its class certification decision does not go to the court’s 
subject matter jurisdiction” ); Harris v. Faint Springs Alpine 
Estates, Inc., 329 1 2d 909, 912-13 (9th Cir. 1964) (the require­
ments ol Federal Rule 23(a) are not jurisdictional). This seems 
all the more apparent when one remembers that the liability 
period derives directly Irom the 180-day filing requirement, 
which the Supreme Court Inis expressly held is in the nature of a 
statute ol limitations and waivable. See Zipes v. Trans World 
Airlines, Inc., 455 U.S. at 398, 102 S.Ct. at 1135.

Second, even il we were to read halcon as a case involving a 
jurisdictional type ol standing, it does not necessarily follow 
Irom a requirement that a named plaintiff have suffered the 
same type ol injury as those he represents that he is also 
required to have suffered it (and liled an EEOC charge) at pre­
cisely the same time. Cf. Domingo v. New England Fish Co., 
727 I-.2d 1429, 1442 (9th Cir. 1984) (named plaintiff may repre­
sent all class members whose claims were not already time- 
barred at the time he liled his charge); Spalitla v. National 
American Bank o f New Orleans, 444 F.2d 291, 294 (5th Cir.) 
(named plaintiff could represent stockholders on certain fraud 
claims even il the frauds did not occur while the plaintiff was a 
stockholder), cert, denied, 404 U.S. 883, 92 S.Ct. 212, 30 
L.Ed.2d 164 (1971). The commonality and typicality require­
ments ol Federal Rule 23(a) are phrased in substantive terms: a 
party may sue on beliall ol a class only if “ (2) there are ques­
tions of law or fact common to the class, (and) (3) the claims or 
defenses of the representative parties are typical of the claims or 
defenses of the class.” Fed.R.Civ.V. 23(a)(2), (3). A disparity 
in the lorms ol discrimination sullered will cause the questions 
of law and fact and the claims and defenses of the named plain­
tiff and the class members to be different. In contrast, a dispar­
ity in the dates on which the named plaintiff and other class 
members filed EEOC charges does not mean that the legal ques­
tions or the claims will be different.

Our holdings that Pullman waived any objection to a 1966 
date and that a non-named plaintiff’s charge may govern do not 
end our inquiry. We must still determine which of the EEOC



I

charges could give rise to the class claims that were ultimately t
brought. Unless a charge alleges practices “ like or related to’’ 
the practices alleged in the complaint, it cannot serve as the i

basis for a civil action. See Evans v. U.S. Pipe & Foundry Co.,
696 F.2d 925, 928 (11th Cir. 1983); Sanchez v. Standard 
Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970). The Supreme 
Court has elaborated on this “ like or related to” test: “ Any 
violations that the EEOC ascertains in the course of a reason­
able investigation of the charging party’s complaint are action­
able.” General Telephone Co. v. EEOC, 446 U.S. 318, 331, 100 
S.Ct. 1698, 1706, 64 l..Ed.2d 319 (1980).

Having considered these principles, we conclude that Com­
missioner Shulman’s March 1967 charge is the earliest charge 
including allegations sufficiently like or related to those in the 
complaint.32 The charge alleged that Pullman had discriminated 
in its hiring and promotional practices. The investigation that 
followed addressed every practice that would ultimately be 
challenged in Swint’s complaint: initial assignments to depart­
ments and jobs, temporary assignments, opportunities for 
training, promotions, the seniority system, and the selection of 
supervisors. Pullman thus received more than sufficient notice 
that several of its plantwide policies and practices were under 
attack.

Pullman argues that the Commissioner’s charge cannot be 
used as a basis for Swint’s suit because certain statutory 
requirements were not met. The language on which the Com­
pany relies is as follows:

26a

32 The plaintiffs’ brief (o this court suggests that Spurgeon Seals’ 
November 1966 charge could be used to date the liability period. On June 6, 
1983, the plaintiffs filed a motion expressly asking the district court to date 
Pullman's liability front C ommissioner’s Shulman’s March 1967 charge. In 
light of the numerous allegations already in the case that given arguments 
have been waived or are foreclosed by the law of the case, we find the plain­
tiffs’ failure to acknowledge that they made this argument very irritating. In 
any event, we are not convinced that Seals’ charge was sufficiently like or 
related to the charges in Swint’s complaint. It alleged that the seniority sys­
tem was discriminatorily mis applied, not that the seniority or assignment sys­
tems were in themselves discriminatory.

27a

It a charge tiled with the Commission pursuant to subsec­
tion (b) of this section is dismissed by the Commission, or 
it within one hundred and eighty days from the filing of 
such charge0or the expiration of any period of reference 
under subsection (d) of this section, whichever is later, the 
Commission has not filed a civil action under this section 
. . . , or the Commission has not entered into a concilia­
tion agreement to which the person aggrieved is a party, 
the Commission . . . shall so notify the person aggrieved 
and within ninety days after the giving of such notice a 
civil action may be brought against the respondent named 
in the charge (A) by the person claiming to be aggrieved or 
(B) if such charge was filed by a member of the Commis­
sion, by any person whom the charge alleges was aggrieved 
by the alleged unlawful employment practice.

42 U.S.C. § 2000e-5(f)(l) (1982) (emphasis added). Directing us 
to the emphasized language, the company complains that Swint 
was not named in the charge and that the Commission did not 
issue Swint a right-to-suc letter in connection with the proceed­
ing involving the Commissioner’s charge. We reject this argu­
ment for several reasons. First, Pullman presents this challenge 
for the first time on appeal and we can perceive no miscarriage 
of justice that might result front following the general rule that 
such challenges will not be considered. See Sanders' v. United 
States, 740 F.2d 886, 888 (11th Cir. 1984); Roofing & Sheet 
Metal Services, Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 
982, 989-90 (11th Cir. 1982). Pullman had adequate opportu­
nity to raise these arguments before the district court, especially 
after the plaintiffs filed a specific written request that the court 
date liability from the Commissioner’s charge. Second, Pull­
man’s claim that Swint had to be expressly named in the Com­
missioner’s charge to qualify as an “ aggrieved” individual 
under the statute is specious. The statute expresses a clear con­
gressional intent that private suits be permitted to proceed on 
Commissioner’s charges. Pullman’s interpretation conflicts 
with that intent because it would essentially prohibit suits where 
a Commissioner acts on behalf of a class so large—such as 
“ black employees of Pullman-Standard’s Bessemer, Alabama



28a

plant” —that every member cannot be named. Finally, assum­
ing without deciding that the statute required Swint to obtain a 
separate right-to-sue letter in connection with the Commission­
er’s charge—he did obtain one in connection with his own 
EEOC charge—any such defect was cured when the plaintiffs 
introduced the EEOC decision concerning the Commissioner’s 
charge into evidence. See Pinkard v. Pullman-Standard, 678 
F.2d 1211, 1219 (11th Cir. 1982) (‘‘the receipt of a right-to-sue 
letter subsequent to the commencement of a Title VII action, 
but while the action remains pending, satisfies the precondition 
that a plaintiff obtain statutory notice of the right to sue before 
filing a civil action” ), cert, denied, 459 U.S. 1105, 103 S.Ct. 
729, 74 L.Ed.2d 954 (1983). It is well-settled that the require­
ment that a plaintiff receive a right-to-sue letter is subject to 
equitable modification. See id. at 1218-19. It is also clear that 
the purpose of the requirement is to provide the employee with 
notice that his administrative remedies with the Commission 
have been exhausted, see Beverly v. Lone Star Lead Construc­
tion Corp., 437 F.2d 1136, 1140 (5th Cir. 1971), and in turn 
ensure that the employee has given the EEOC time to take 
action on the case. The EEOC’s written decision finding that 
there was reasonable cause to believe that Pullman had violated 
Title VII served this purpose as well as any right-to-sue letter 
would have.

Pullman’s potential liability on the plaintiffs’ Title VII claims 
dates from September 28, 1966, 180 days prior to Commis­
sioner Shulman’s charge. At the time the Commissioner’s 
charge'was filed, the period within which a charge had to be 
filed—and thus the liability period—was 90 days, see 42 U.S.C. 
§ 2000e(5)(e) (1970), but an amendment to Title VII in 1972 
increased the period to 180 days. The amending legislation 
stated that it was to apply to anyone whose charges were pend­
ing before the Commission when the legislation was passed. See 
Equal Employment Opportunity Act of 1972, Pub.L. No. 92- 
261, § 14, 86 Stat. 103, 113. The amendment was enacted on 
March 24, 1972, and the Commission’s final decision on Com­
missioner Shulman’s charge issued on April 26, 1972. 
Shulman’s charge should thus be backdated 180, rather than 
90, days.

29a

B. Dating the Section I9NI Claims

Although section 1981 provides a federal cause of action, 
claims under it must be brought within the period set by the 
most appropriate statute of limitations of the state in which the 
court sits. Johnson v. Railway Express Agency, Inc., 421 U.S. 
454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975); Whatley 
v. Department o f Education, 673 F.2d 873, 874 (5th Cir. 1982). 
The length of the statute of limitations will in turn establish 
how far back from the filing of the complaint the liability 
period will reach. See Bernard v. Gulf Oil Co., 596 F.2d 1249, 
1255 (5th Cir. 1979), aff'd on rehearing, 619 F.2d 459, 463 (5th 
Cir. 1980), a ff’d on other grounds, 452 U.S. 89, 101 S.Ct. 2193, 
68 L.Ed.2d 693 (1981). Since the racial discrimination section 
1981 prohibits is ‘‘a fundamental injury to the individual rights 
of a person,” the applicable statute of limitations will be one 
governing personal injury, as opposed to contract, actions.
Goodman v. Lukens Steel C o . ,____U.S. _____, ____ , 107
S.Ct. 2617, 2621, 96 L..Ed.2d 572 (1987); see also Wilson v. 
Garcia, 471 U.S. 261, 275, 105 S.Ct. 1938, 1947, 85 L.Ed.2d 
254 (1985) (section 1983 actions should be treated as if for per­
sonal injury). The problem here is that when Swint filed suit, 
Alabama had two statutes of limitations that applied to per­
sonal injury actions. Sections 6-2-34( 1) provided that ‘‘(a)ctions 
for any trespass to person or liberty” must be brought within 
six years. Ala.Code § 6-2-34( 1) (1977). Section 6-2-39(a)(5) pro­
vided that ‘‘[ajctions for any injury to the person or rights of 
another not arising from contract” must be brought within one 
year. Id. § 6-2-39(a)(5) (repealed 1984).

The plaintiffs argue that the six-year statute, section 6-2- 
34(1), applies. They cite this court’s 1985 decision in Jones v. 
Preuit <£ Mauldin, 763 1 2d 1250, 1256 (11th Cir. 1985), that 
the six-year statute applies to section 1983 claims. They then 
rely on Goodman v. Lukens Steel, 107 S.Ct. at 2621, for the 
proposition that the same statute of limitations should be 
applied to section 1981 actions as is applied to those under sec­
tion 1983.

Pullman insists that the one-year statute, section 6-2-39(a)(5), 
applies. The company likens this employment discrimination



30a

case to a tort action for interference with contractual relations 
and cites Alabama cases holding that such actions are governed 
by section 6-2-39(a)(5). See, e.g., Teng v. Saha, 477 So.2d 378, 
379 (Ala. 1985). Pullman also contends that even if we now 
deem the six-year statute applicable, presumably on the author­
ity of recent cases, those cases should not be applied retro­
actively because the company has relied throughout the 
litigation on the one-year period.

We agree with the plaintiffs that the six-year statute should 
be applied. Goodman directs us to adopt the same state statute 
of limitations for both section 1983 and section 1981 actions, 
and this court has already adopted the six-year statute lor sec­
tion 1983 claims brought in Alabama. See Jones v. Preuit cf 
Mauldin, 763 F.2d at 1256. We also conclude that retroactive 
application of the six-year statute is appropriate on the facts of 
this case.

In Goodman, 107 S.Ct. at 2621, the Supreme Court held that 
the employees’ section 1981 action was subject to Pennsylva­
nia’s two-year statute of limitations governing personal injury 
actions. The employees had argued that the six-year stale stat­
ute of limitations applicable to interference with contractual 
relations was the most appropriate. See id. The employees rec­
ognized that, under Wilson v. Garcia, 471 U.S. at 268, 105 
S.Ct. at 1943, section 1983 actions were to be treated as per­
sonal injury actions, but they argued that section 1981 actions 
should be characterized differently under federal law because 
the paradigmatic section 1981 claim involved economic, rather 
than personal, rights. See Goodman, 107 S.Ct. at 2621. The 
Court disagreed. Justice White, writing for the Court, stated:

Wilson’s characterization of § 1983 claims is . . . equally 
appropriate here, particularly since § 1983 would reach 
state action that encroaches on the rights protected by 
§ 1981. That § 1981 has far-reaching economic conse­
quences does not change this conclusion, since such impact 
flows from guaranteeing the personal right to engage in 
economically significant activity free from racially dis­
criminatory interference.

31a

Id. (emphasis added). We ate convinced Irom this language that 
the Court intended that the same statute ol limitations be 
applied to all section 1983 and section 1981 actions in a given 
state. The Court’s reference to the overlap between the two civil 
rights statutes suggests that it would not approve a characteriza­
tion of section 1983 claims as one type ol personal injury and a 
characterization of section 1981 claims as another type ol per­
sonal injury.

We are additionally persuaded that this conclusion is correct 
by the history of Goodman before it reached the Supreme 
Court. The Third Circuit had taken the case under en banc con­
sideration, and had concluded not only that the employees’ 
claims were governed by Pennsylvania's general personal injury 
statute of limitations, but that the lederal interests in uniform­
ity and certainty were “ best served by applying the same statute 
of limitations to all ol the Reconstruction Civil Rights C ases. 
Goodman v. 1.likens Steel Corp., I l l  F.2d 113, 120 (3d Cir. 
1985). In affirming, the Supreme Court apparently was not 
troubled by the latter proposition. Justice White stated flatly: 
“ The Court of Appeals properly rejected [the plaintif fs’) sub­
mission.” Goodman v. Lukens Steel, 107 S.Ct. at 2621.

Even without the language in Goodman, we would consider 
this a sound result as a policy matter. In Wilson v. Garcia, the 
Court recognized that, although section 1988 mandates refer­
ence to state law when choosing a statute ol limitations in a civil 
rights action, “ federal interests in uniformity, certainty, and 
the minimization of unnecessary litigation” dictate that the 
same statute of limitations be applied to all section 1983 actions 
in a given state. 471 U.S. at 275, 105 S.Ct. at 1947. These same 
interests are implicated when the choice is whether to apply one 
statute of limitation to a section 1983 claim and another statute 
to a section 1981 claim, particularly since both types of claims 
are often brought together in a single action. See Goodman v. 
Lukens Steel Corp., I l l  I 2d 113, 120 (3d Cir. 1985) (“ Appli­
cation of Pennsylvania’s six year statute of limitations where 
the same claim [as is brought under section 1983) is brought 
under § 1981 would lead to a bizarre result.’’), a ff’d , ------U.S.
____107 S.Ct. 2617, 96 1 .Ed.2d 572 (1987); accord Friedlan-
der v. Troutman, Sanders, Lockerman & Ashmore, 788 F.2d



32a

1500, 1503 n. 2 (11th Cir. 1986) (dictum) (“ The same single lim­
itations period should apply to § 1981 claims [as applies to 
§ 1983 claims].” ). Applying a single limitations period to sec­
tion 1981 and section 1983 claims should make it easier for civil 
rights plaintiffs in Alabama to determine the dates by which 
they must assert their rights, and will prevent excessive litiga­
tion when both a private (section 1981) defendant and a govern­
ment (section 1983) defendant are involved.

In view of our holding that the same state limitations period 
applies to both section 1981 and section 1983 claims, and in 
view of this court’s earlier decision that section 1983 claims in 
Alabama are governed by the state’s six-year personal injury 
statute, see Jones v. Preuil & Mauldin, 763 F.2d at 1256, I ull- 
man’s liability on the plaintiffs’ section 1981 claims should be 
dated from October 19, 1965, six years prior to the filing of 
Swint’s complaint. We recognize that this decision conflicts 
with earlier circuit decisions in Dumas v. Town oj Mount 
Vernon, 612 F.2d 974, 977 (5th Cir. 1980), Ingram v. Steven 
Robert Corp., 547 F.2d 1260, 1263 (5th Cir. 1977), and Buck­
ner v. Goodyear Tire & Rubber Co., 476 F.2d 1287, 1287 (5th 
Cir. 1973) (adopting district court opinion in Buckner v. Good­
year Tire & Rubber Co., 339 F.Supp. 1108 (N.D.Ala. 1972)), 
but it seems plain that the Supreme Court’s decisions in H i/son 
and Goodman discussing the nature of section 1983 and section 
1981 claims have rendered the analysis of those earlier cases 
obsolete. When the rationale of our earlier cases is substantially 
undercut, we are not only free but required to revisit the issue 
involved. See Leach v. Pan American World Airways, 842 F.2d 
285, 286, 288 (11th Cir. 1988); Gresham Park Community 
Organization v. Howell, 652 F.2d 1227, 1234-35 (5th Cir. Unit
B. Aug. 1981).

Pullman insists that, notwithstanding our holding today that 
the six-year statute applies, our decision should not be applied 
retroactively. In Chevron Oil Co. v. Huson, 404 U.S. 97, 92 
S.Ct. 349, 30 L.Ed.2d 296 (1971), the Supreme Court held that 
although retroactive application of judicial decisions was the 
general rule, three factors must be considered in determining 
whether it is proper in a giVen case: (1) whether the new limita­
tions period has been occasioned by a change in the substantive

33a

law the purpose of which would not be served by retroactivity;
(2) whether the decision overruled clear past precedent on which 
the complaining party was entitled to rely; and (3) whether 
retroactive application would be inequitable. Id. at 106-07, 92 
S Ct. at 355. Pullman makes no argument with respect to the 
first factor, and admits, with respect to the second factor, that 
there was no clear precedent establishing a one-year limitation 
period in Alabama until Buckner v. Goodyear Tire & Rubber 
Co., 476 F .2d at 1287, came out in 1973, over a year after the 
complaint was filed. The company argues, however, that the 
strength of the third Huson factor dictates what Wilson and 
Goodman no. be applied retroactively. According to Pullman, 
it would be inequitable lo apply the six-year statute given that 
the company has relied on the one-year statute for so long^ 

Under the circumstances, this argument is more than slightly 
ironic, and we reject it. First, it cannot be said that any aspect 
of the liability period—either the appropriate section 1981 stat­
ute of limitations or the relevant EEOC charge-was ever clari­
fied, in those terms. Indeed, if anything regarding the period 
was made clear, it was that liability would be dated from some- 
time in 1966,” see supra part 111A, only a few months alter the 
October 19, 1965 date that the six-year statute would prescribe. 33 *

33 Pullman makes a raiher remarkable argument ihai the six-year stat­
ure cannot be applied, because the final pretrial order of September 19, 1983 
'•defined .he scope of .be a e o n  and anterior cut-off dale in such a way as to 
be clearly inconsistent with a six-year Statute,” and .he company prepared 
lor .rial on that basis. Uriel of IJelendan.-Appellee Pullman-Standard-1̂ 61 
(Sept 8, 1987). Apart from the fact that the pretrial order lo which I ullman 
refers did not address the sect,on 1981. as opposed to ihe I .lie VII, statute o 
limitations, .he order specifically instructed the company to prepare for a 
period dating from May 4, 1966, only six and one-hall months short of th
six years.

The court has not decided the issue of which EEOC charge will con- 
irol Plaintiffs indicated that a charge was filed against 'he Company 

. by one Spurgeon Seals, a member of the pla.nt.fl class on October 3 
1966 and that this charge was still pending on March 24, 197., This 
court has not deeded whether, absent amendment of the complaint to 
add Seals as a named plaintiff, his charge is fully transferable to 
class Hu, tor the purposes oj mat preparation, counsel should asu 
,hu, the anterior eutojj dale ,s ISO days poor lo October 30, 1966.



34a

Second, assuming that (he class definition was (he direct 
court’s indication of the appropriate section 1981 statute of lim­
itations, it must be acknowledged that the definition read, “ all 
black persons who are now or have (within one year prior to the 
filing o f any charges under Title VI1) been employed by defen­
dant Company.” Record, Vol. II, Tab 18 at 1 (emphasis 
added). The emphasized language reflects the district court’s 
reliance on then-pre\ ailing law holding that an EEOC charge 
tolled the applicable section 1981 statute of limitations. See 
Johnson v. Goodyear Tire & Rubber Co., 491 E.2d 1364, 1378 
(5th Cir. 1974) (decided March 27, 1974, two months before the 
district court’s certification of the class); Boudreaux v. Baton 
Rouge Marine Contracting Co., 437 F.2d 1011, 1017 n. 16 (5lh 
Cir. 1971). That principle stood until the Supreme Court over­
ruled it in Johnson v. Railway Express, Inc., 421 U.S. 454, 465, 
95 S.Ct. 1716, 1722, 44 L.Ed.2d 295 (1975). Thus, by arguing 
that we should apply Alabama’s one-year statute of limitations 
and run it backward from the date of the complaint (rather than 
any EEOC charge, as the class certification suggests),14 Pullman 
essentially urges us to apply only Johnson, the case in its favor, 
retroactively.

We decline to do so. Nothing definite was said about the lia­
bility period until the district court’s 1986 decisions in Swint IX  
and Swint X, and neither side has demonstrated that it adopted 
a prejudicial position in reliance on the law prevailing prior to 
the Johnson, Wilson, and Goodman decisons. Indeed, when

Record, Vol. II, Tab 96 al 1 (emphasis added). Perhaps ibis is why Pullman 
prepared exhibits relating not only to the 1969-1974 period, as its briel to this 
court suggests, but also to the 1964-1969 period, as the district court’s order 
makes quite clear. See Swim IX, slip op. at 12. In any event, we find that 
Pullman did not meaningfully rely on any holding that the one-year statute 
was applicable.

34 It might be possible for the one-year statute to be applied but run 
backward from the Commissioner’s EEOC charge, but Pullman appears to 
find any compromise on this score unacceptable. The discussion in its briel 
of the liability period is entitled, ‘‘The Court Below Correctly Held that All 
Liability for Periods Before July 17, 1969 Is Barred,” and the company 
makes no mention of the fact that such a finding would require us to apply 
Johnson v. Railway Express retroactively.

35a

Pullman filed its original answer, n pled the six-year statute.'' 
When the law was clarified in 1973, dictating that the one-year 
statute should be applied, Pullman did not move for leave to 
amend its answer, and we Imd nothing else in the record to sup­
port the district court’s apparent shift to the one-year statute in 
the pretrial class certification. Under most circumstances, this 
failure to replead would constitute a waiver of the shorter stat­
ute. See, e.g., Paelz v. United Slates, 795 1 .2d 1533, 1536 (11th 
Cir. 1986); Johnson-Munville Sales Corp. v. Mitchell Enter­
prises, Inc., 417 1 .2d 129, 131 (5th Cir. 1969). We find it unnec­
essary, however, to go that far: suffice it to say that Pullman 
cannot claim for retroactivity purposes that it relied on the one- 
year statute.

In sum, the most equitable result is to apply retroactively all 
of the Supreme Court decisions pertaining to the liability 
period. Cf. Zenith Radio Corp. v. Hazelline Research, Inc., 
401 U.S. 321, 335, 91 S.Ct. 795, 804, 28 L.Ed.2d 77 (1971) 
(interests of justice required that if counterdefendant’s belated 
limitation defense was to be considered on its merits then coun- 
terclaimant’s belated tolling argument must be dealt with as 
well.) Alabama’s six-year statute of limitations should therefore 
be applied, and Pullman’s potential liability should be dated 
from October 19, 1965, six years prior to the filing of Swint’s 
complaint.

IV. Departmental Assignments

Both Pullman and the plaintiffs have appealed certain 
aspects of the district court’s decision that Pullman’s depart- 35 36

35 Pullman's answer read: " Ibis defendant avers that the applicable 
statutes of limitations, Alabama Code, Title 7, Sections 21 and 22, bar all 
claims made in the complaint, based on 42 U.S.C.A., Section 1981, arising 
more than six years prior to the filing o f complaint." Record, Vol. I, Tab 5 
at I I (emphasis added)

36 As indicated earlier, this ruling will apply only to the plaintiffs’ 
claim of discrimination in initial assignments, as section 1981 requires prool 
of intentional discrimination, and the plaintiffs succeeded on their claim con­
cerning the selection ol supervisors only on a disparate impact, and thus Title 
VII, basis.



36a

mental assignments of new hires were racially discriminatory. 
Pullman complains that the departmental assignments of new 
hires were never in the case as an independent issue, and, rela- 
tedly, that Louis Swint has no standing to represent the class on 
the issue because he was hired prior to the effective date of Title 
VII. The plaintiffs contend that the district court’s finding that 
all discrimination in assignments ended by February 1969 was 
in error. We will address these arguments in turn.

A. Departmental Assignments as an Independent Issue

Pullman argues that the evidence pertaining to the depart­
mental assignments of new hires came into the case only as cir­
cumstantial evidence that the nontransferable seniority system 
was intended to lock blacks into the departments with consist­
ently lower JC-level jobs. In Pullman’s view, this means that 
the plaintiffs are not entitled to relief on the assignments as a 
separate claim. We disagree.

The plaintiffs here alleged that they had worked for the com­
pany for years without the upward mobility of younger, less 
senior whites in other departments. They attributed this dispar­
ity primarily to the seniority system, reasoning that the 
departmental-only seniority had the effect of locking blacks 
into the low-ceiling and often segregated departments to which 
they were assigned on a discriminatory basis prior to the enact­
ment of Title VII. When the suit was filed, the Supreme Court 
had not yet decided Teamsters, and the plaintiffs had to show 
only that a seniority system perpetuated past discrimination— 
here, the departmental assignments of new hires—to prove that 
it was not bona tide. In the course of trying to prove this, it 
became apparent that the discriminatory departmental assign­
ments did not end with the enactment of Title VII. Pullman 
would have us ignore this fact because, as the case was first con­
ceived, discriminatory departmental assignments were merely 
an element of the larger claim that the nontransferable seniority 
system was discriminatory and were not cast as an independent 
claim.

F6r two reasons, we decline to construe the plaintiffs’ case so 
narrowly. First, precisely because the issue of departmental

37a

assignments was at all points integral to the plaintiffs’ attack on 
the seniority system, Pullman has had full opportunity through­
out the proceeding to defend against the plaintiffs’ claim that 
•he assignments were discriminatory. The company does not 
claim otherwise. Second, a rule requiring plaintiffs to identify 
precisely what has caused the disparity in their treatment, and 
to sutler the loss ol a claim should they be ignorant of hidden 
practices or mistaken in their emphasis, would lead us away 
from the truth, not toward it. In GriJ/m v. Carlin, 755 F.2d 
1516, 1525 (11th Cir. 1985), tor example, the plaintiffs levied a 
general challenge to their employer’s promotional practices. 
I he employer responded by attacking the plaintiffs’ statistics, 
asserting that the statistical pool the plaintiffs used included 
employees that had not yet made it onto a supervisory register. 
I he district court dismissed the case primarily for this reason. 
Id. at 1521. On appeal, this court reversed, specifically holding 
that il the procedures used to quality employees for the supervi­
sory register were themselves discriminatory, those procedures 
could serve as the basis for relief. See id. at 1525. In discussing 
the way an employment discrimination action usually unfolds, 
the court lound that it did not matter that the plaintiffs had not 
initially identified or challenged the procedures for reaching the 
register:

| r)he purpose ol I itle VII is the removal of artificial, arbi­
trary and unnecessary barriers to employment which oper­
ate invidiously to discriminate on the basis of race or other 
impermissible classifications. . . . “This purpose is not 
well-served by a requirement that the plaintiff in every case 
pinpoint at the outset the employment practices that cause 
an observed disparity between those who appear to be 
comparably qualified.”

Id. at 1528 (quoting Segar v. Smith, 738 F.2d 1249, 1271
(I).C.Cir. 1984), cert, denied, 471 U.S. 1115, 105 S.Ct. 2357, 86 
L.Fd.2d 258 (1985)). I his case is analogous, in that the plain­
tiffs challenged the promotional system generally, and eventu­
ally it appeared that the disparity could have resulted as much 
from post-Title VII discrimination in assignments as from such 
discrimination .prior to Title VII.



38a

B. Swim’s Representation o f the Class on the Issue o f
Discriminatory Assignments

Pullman makes a related claim that Louis Swint and Willie 
Johnson are without standing to represent the class on the issue 
of departmental assignments of new hires because they were 
hired—and assigned to the Steel Erection Department prior to 
July 2, 1965, the effective date of Title Vll.37 As in its argument 
concerning the dating ol the liability period, Pullman relies on 
General Telephone Co. o f the Southwest v. Falcon, 457 U.S. at 
147, 102 S.Ct. at 2364, 72 L.Ed.2d at 740, which requires that a 
named plaintiff have actually suffered a specific discriminatory 
practice if he is to represent the class in challenging that prac­
tice. The company defends its failure to challenge the named 
plaintiffs’ standing earlier on the ground that Falcon consti­
tuted new law.

Pullman’s argument that it had no basis on which to raise a 
standing claim earlier in the proceeding is persuasive. Talcon 
was new law; in fact, the decision reversed a ruling from this 
circuit. See General Telephone Co. o f the Southwest v. Falcon, 
626 F.2d 369, 375 (5th Cir. 1980). Until Falcon was handed 
down, this circuit required only that a named plaintiff have suf­
fered some form of discrimination on the same general basis- 
race, sex, religion—as the members ol his class. See, e.g., 
Payne v. Travenol Laboratories, Inc., 565 F.2d 895, 900 (5th 
Cir.), cert, denied, 439 U.S. 835, 99 S.Ct. 118, 58 L.Ed.2d 131 
(1978); Johnson v. Georgia Highway Express, Inc., 417 F.2d 
1122 (5th Cir. 1969).

We are not persuaded, however, by Pullman’s argument on 
the merits of its objection. As we noted earlier, Falcon was con­
cerned with whether the commonality and typicality require­
ments of Fed.R.Civ.P. 23, governing class actions, were met. 
The case involved a named plaintiff complaining that he had 
been passed over for promotion and yet attempting to represent 
other Mexican-Americans who had not been hired. The Court 
found that Rule 23 standing could not be based solely on the

\ i VitmllMM i«» Pii l lmmi.  Suiii i  \ \«s I t iml  on N o v n n h n  2*1, l % 4 .  «nul 
Itiluiatiii \\a* litiitl on  Itiiuiui) 12,

fact that the named plainti11 and the elass members had both 
suffered discrimination based on their national origin. See Tal­
con, 457 U.S. at 158, 102 S.C t. at 2371.

The Court acknowledged, however, that provided he is 
attacking the same discriminatory practice, a named plaintiff 
may have standing even though he is challenging its effects on 
an aspect of his employment dillerent Irom that ol some ol the 
class members: an employee denied promotions because of a 
discriminatory test may represent persons who were not hired 
because ol the same test. Sir id. at 159 n. 15, 102 S.C t. at 2371 
n. 15. I he C ourt also stated that “ |s|ignifieant proof that an 
employer operated under a general policy ol discrimination 
conceivably could justify a class of both applicants and employ­
ees if the discrimination manifested ilselt in hiring and promo­
tion practices in the same general lashion.” Id. This court has 
since recognized these “ exceptions to the general rule” and 
emphasized that they are exceptions precisely because they are 
circumstances in which the commonality and typicality require­
ments of Rule 23 are satislied. Griffin v. Dugger, 823 F.2d 
1476, 1487 (1 1th Cir. 1987).

We believe that the commonality and typicality requirements 
of Rule 23 are satisfied by Swim’s and Johnson’s representation 
of the class on the issue of discriminatory assignments ol new 
hires even though, because ol the date they were hired, they per­
sonally may not recover on the assignments as an independent 
claim. See Last Texas Motor Treight System, Inc. v. Rodrigue*., 
431 U.S. 395, 406 n. 12, 97 S.Ct. 1891, 1898 n. 12, 52 L.Ed.2d 
453 (1977) (where class claims have already been tried and ini­
tial certification was proper, elass members’ claims ” |do] not 
need to be mooted or destroyed because subsequent events or 
the proof at trial had undermined the named plaintiffs’ individ­
ual claims” ). As we noted earlier, see supra part lll.A, Rule 23 
requires that there be “ questions of law or fact common to the 
class, [and that) the claims or defenses ol the representative 
parties [be] typical of the claims or defenses ol the class. 
Fed.R.Civ.P. 23(a)(2), (3). from the start, the plaintiffs’ basic 
complaint has been that Pullman prevented black employees 
Horn moving into its higher-level positions through a combina­
tion of discriminatory initial assignments and a departmental-



40a

only seniority system. At the time of certification, this claim 
was legally identical to that of every other member of the class.

The fact that the plaintiffs’ claim was ultimately broken up 
into two components—the assignments of new hires and the 
seniority system itself—because the Teamsters decision changed 
the law to require that a seniority system be analyzed separately 
and invalidated only if maintained with discriminatory intent, 
does not retroactively dictate that the district court abused its 
discretion in initially determining that the named plaintiffs’ 
claim was typical ol and involved questions of law and fact 
common to the class members’ claims. Cf. Cox v. American 
Cast Iron Pipe Co. , 784 F.2d 1546, 1557 (11th Cir.) (“ To deter­
mine (in evaluating commonality] what legal claims plaintiffs 
allege, a judge must look not to defendant’s interrogatories but 
to plaintiffs’ complaint.’’), cert, denied, 479 U.S. 883, 107 
S.Ct. 274, 93 L.Ed.2d 250 (1986). Nor did this fact require the 
district court to decertify the class on Pullman’s motion. See 
Cox v. American Cast Iron Pipe Co., 784 F.2d at 1557 (“ Rule 
23 does not require that all the questions of law and fact raised 
by the dispute be common” ); Appleyard v. Wallace, 754 F.2d 
955, 958 (11th Cir. 1985) (“ The similarity of the legal theories 
shared by the plaintiffs and the class at large is so strong as to 
override whatever factual differences might exist” ). The same 
injury—being locked into Pullman’s lower-paying jobs—was 
under attack by both the named plaintiffs and the class mem­
bers, and the only real question was whether it was the discrimi­
nation in assignments or the nature of the seniority system, or 
both, that prevented blacks from moving up the job ladder. The 
identity of the named plaintiffs’ and class members’ injuries, 
especially in light of the way the practices challenged were inter­
related, was enough to satisfy the second Falcon exception. It 
indicated that there was a “ general policy of discrimination 
. . . [that] manifested itself in hiring and promotion practices 
in the same general fashion.” Falcon, 457 U.S. at 159 n. 15, 102 
S.Ct. at 2371 n. 15 (emphasis added).

41a

C. 7he Date on Which Discriminatory Assignments Ceased

The plaintiffs argue that the district court erred in determin­
ing that Pullman no longer discriminated in assigning new hires 
alter February 1969. I he plaintiffs complain about what they 
deem the district court’s vacillation on the issue: in Swint /, the 
court found that blacks had been kept out of some departments 
and relegated to others until as late as 1972; in Swint III, the 
court found that all discrimination in assignments ended by 
December 1966; and in Swim I.\, the court found that the dis­
crimination in assignments ended by February 1969. In the 
plaint ills view, it is not possible to find that certain depart­
ments included no blacks or no whites through 1971 and none­
theless conclude that discrimination ended in 1969. The 
plaintitIs also complain that Pullman’s expert, on whom the 
district court expressly relied in Swim IX, used a cumulative fig­
ure tor the 1969-1974 period and consequently admitted that he 
could not pinpoint the date on which discrimination in assign­
ments ended. Finally, the plaintiffs contend that the district 
court relied loo heavily on the 1969 OFCC agreement and con­
spicuously changed its opinion ot the agreement between its 
decisions in Swim / and Swint IX.

We do not find the plaintiffs’ arguments sufficient to disturb 
the district court’s finding ol fact with respect to the date on 
which Pullman stopped discrimination in assignments. The 
plaint ills’ contention that the district court’s Swint I decision 
that discrimination continued until 1972 should be regarded as 
the law of the case is incorrect. As this court pointed out in 
Robinson v. Parrish, 720 F.2d at 1548, a district court need not 
rigidly adhere to its own rulings in an earlier stage of the case. 
Id. at 1550. To require that the district courts do so “ would 
actually thwart the purpose ol the (law of the case] doctrine” 
because it would prevent them from correcting errors that 
would otherwise warrant reversal on appeal and necessitate an 
entirely new trial. Id.

Although finding it ol considerable force, we must also reject 
the plain til I s’ argument that the district court was substantively 
in error. In Swint V'll, the Supreme Court made quitt clear that 
the issue of discriminatory intent is a pure question of fact, sub­



42a

ject, under Fed.R.Civ.P. 52(a), to review only lor clear error. 
Swint VII, 456 U.S. at 287-88, 102 S.Ct. at 1789. Although a 
district court’s finding of discrimination may be set aside if it 
rests on “ an erroneous view of the law,” id. at 287, 102 S.Ct. at 
1789, it may not be set aside simply because the appellate court 
would decide the case differently on the same set of facts. Id. at 
292, 102 S.Ct. at 1792. Because there was some evidence to sup­
port the district court’s conclusion on the date discrimination in 
assignments ceased, and nothing in the opinion reflects an erro­
neous view of the law, the February 1969 date must stand.

It is true that five of Pullman’s twenty-eight departments 
remained all white or all black after February 1969.™ Were this 
the only evidence, the inference of discrimination would be very 
strong. We do not believe, however, that these numbers per sc 
required the district court to find intentional discrimination. 
There was expert testimony that there was a significant differ­
ence between the assignment patterns of the last 1964-1969 and 
1969-1974 periods, and although segregated departments were 
not completely eliminated by February 1969, four of the origi­
nal nine segregated departments were integrated between 1965 
and 1969. There was also evidence pertaining to the changes 
instituted by the January 1969 OFCC agreement: Pullman hired 
a black equal employment officer and began to encourage black 
employees to take advantage of company-financed vocational 
training. The district court was entitled to evaluate all of this 
evidence and assign certain items more weight than others.

In this connection, it makes no difference that Pullman’s 
expert used cumulative data and admitted that he could not 
determine from the data the date on which assignments were no 
longer discriminatory. Unless flaws in statistical evidence are so 
egregious as to completely deprive the evidence of relevance, 
they go to the evidence’s probative value, not to its admissibil­
ity. Busemore v. Friday, 478 U.S. 385, 400, 106 S.Ct. 3000, 
3009, 92 L.Ed.2d 315 (1986). The cumulative nature of the evi-

3K IJSW’s Air Brake and Inspection Department remained all white 
until approximately 1971 and lAM's Die & Tool and Maintenance Depart­
ments remained all white until 1970. See Swim /, II F.E.P. at 953; Swim 17, 
624 I 2d at 529. Conversely, no whites were assigned to USW’s Die & Tool 
Department until 1971. Swim I, II F.E.P. at 953.

43a

deuce here may have rendered n of less value, but it cannot be 
said to have deprived it of all value. The evidence still served to 
show the direction in which assignments at the Bessemer plant 
were moving, and it could not have misled the district court pre­
cisely because of the very admission about which the plaintiffs 
complain: Pullman’s expert was candid enough to admit that a 
particular ending date could not be pinpointed. Finally, the 
plaintiffs overstate the district court’s reliance on the data. The 
court’s opinion merely recites the conclusions of Pullman’s 
expert, as well as the results of the court’s own statistical model, 
and there is nothing to indicate that the court drew more than a 
generalized inference concerning the date from Pullman’s
. . V)data.

Indeed, it seems rather clear to us—from its choice of Febru­
ary 1969—that the district court was not impressed with the 
January 1969 OFCC agreement and the testimony with regard 
to the changes the agreement wrought. We might not have been 
equally impressed, but we cannot say that the court was clearly 
erroneous for relying on the agreement. The plaintiffs’ empha­
sis on the court’s change in terminology respecting the 
agreement—stating in Swint I that the agreement “ never 
became effective,” 11 F.E.P. at 953 n. 32, and in Swint IX  that 
it “ was never termed official,” slip op. at 13 n. 35—is mis­
placed. Even assuming that there is meaningful difference 
between the two phrases, which we very much doubt, both 
descriptions are based on the idea that the union did not accept 39

39 The court wrote:
Tile statistical evidence was generally divided into two time 

periods—1964 to 1969 and 1969 to 1974. As might be expected, the 
defendants’ and plaintiffs’ experts took different statistical approaches 

’ and arrived at somewhat conflicting conclusions. The court carefully 
studied the evidence presented by the parties and at trial presented to 
the parties lor their comment another standard statistical model. Plain- 
tills’ expert acknowledged that a considerable change had taken place 
in the job class distribution by 1969. Defendants’ expert found a statis­
tical difference between the pre-1969 and post-1969 periods, with 
rough parity between the races m terms of job class assignments from 
1969 forward. The alternative study prepared by the court indicated 
that post-1969 assignments were not racially tainted.

Swim IX, slip op. at 12-13



44a

(he agreement, and in measuring Pullman’s intent, the union’s 
position is essentially irrelevant. The court could have con­
cluded, based on the evidence, that the agreement and the pro­
grams pul in place alter its adoption by the company signalled 
Pullman’s intent to change its discriminatory ways.

As should be clear, we affirm the district court’s holdings 
with respect to Pullman’s liability for discriminatory depart­
mental assignments. Louis Swint has Rule 23 standing to con­
tinue his representation of the class on the issue, and Pullman is 
liable for classwide discrimination in assignments dating from 
October 19, 1965 through January 31, 1969.

V. The Nontransferable Seniority System

The plaintiffs appeal from the district court’s decision that 
the nontransferable seniority system under which Pullman and 
USW operated in awarding promotions was a bona fide senior­
ity system protected by section 703(h) of Title VII, 42 U.S.C.
§ 2000e-2(hj (1982). They argue that the district court erred in 
three respects: (1) in refusing to consider whether lAM’s argua­
bly racist motives and membership practices so tainted the sys­
tem that Pullman cannot claim it was bona fide, even if USW 
can, (2) in failing to consider evidence that in 1965, after it 
appeared that all jobs at the plant would have to be opened to 
persons of all races, Pullman abandoned its earlier practice of 
offering on-the-job training in welding,4" and (3) in excluding 
the testimony of over twenty black employees that Pullman dis­
criminated in its job assignments within departments. 
Although, again, we might have weighed the evidence differ­
ently, we are unable to find that the district court’s validation 
of the seniority system was clearly erroneous.40 41 * *

40 A Pullman official admitted that the practice changed because white- 
welders at the Bessemer plant were unwilling to tram black employees.

41 In Pettway v. American Cast Iron Pipe Co., 576 I-.2d 1157, 1191 n. 
37 (5th Cir. 1978), cert, denied, 439 U.S. 1115, 99 S.Cl. 1020, 59 L.Ld.2d 74 
(1979), this court held that the immunity created by section 703(h) extends 
not only to Title Vll claims but to section 1981 claims as well. For that rea­
son, the analysis that follows will not focus on the statute on which the plain-
tifls base their challenge.

45a

In evaluating the seniority system, our primary guide is Inter­
national Brotherhood oj I canisters v. Untied States, 431 U.S. 
at 324, 97 S.Ct. at 1K43, 52 l..Ld.2d at 396. In Teamsters, the 
Supreme Court held that, in light of section 703(h),4' a seniority 
system of promotions cannot be invalidated solely on the basis 
that it perpetuates pre-Title Vll discrimination. See id. at 353- 
54, 97 S.Ct. at 1864. The Teamsters Court also indicated that a 
seniority system cannot be invalidated solely because it perpetu­
ates /w.vf-Title Vll discrimination. Relying on the Court’s con­
current decision in United .Air l ines v. Leans, 431 U.S. 553, 97 
S.Ct. 1885, 52 L .P.d.2d 571 (1977), Justice Stewart wrote:

The legality of the seniority system insofar as it perpetu­
ates post-Act discrimination nonetheless remains at issue 
in this case, in light of the injunction entered against the 
union. . . . Our decision today in United Air Lines v. 
Leans, . . .  is largely dispositive of this issue. Eeans 
holds that the operation ot a seniority system is not unlaw­
ful under Title Vll even though it perpetuates post-Act dis­
crimination that has not been the subject ol a timely 
charge by the discriminatee. Here, of course, the Govern­
ment has sued to remedy the post-Act discrimination 
directly, and there is no claim that any relief would be 
time-barred. But this is simply an additional reason not to 
lurid the seniority system unlawful,43 since such a holding 
would in no way enlarge the relief to be awarded.

431 U.S. at 348 n. 30, 97 S.Ct. at 1861 n. 30 (footnote added) 
(emphasis added) (citations omitted).

42 Section 703(h) provides, in relevant part, that "it shall not be an 
unlawful employment practice lor an employer to apply ditlerent standards 
of compensation, or different terms, conditions, or privileges of employment 
pursuant to a bona title seniority or merit system, . provided that such 
differences are not the result ot an intention to discriminate because ol race, 
color, religion, sex, oi national origin." 42 U.S.C. § 2000e-2(h) (1982).

43 Because Evans dealt only with a situation where the employer’s sepa­
rate discriminatory acts m manipulation ol the seniority system had not been 
the subject of a timely l l  (K charge, we might not have read the opinion as 
covering situations where separate discriminatory acts are independently and 
properly in a case. The 7canisters passage, however, appears to ecjuate the 
two situations.



46a

As this passage demonstrates, the Court has drawn a definite 
distinction between challenges to a seniority system and chal­
lenges to other discriminatory conduct that in turn manipulates 
the system to the detriment of black employees. See also Franks 
v. Bowman Transportation Co., 424 U.S. 747, 758, 96 S.Ct. 
1251, 1257, 47 L.l d.2d 444 (1975) (“ The underlying legal 
wrong affecting [the class) is not the alleged operation of a 
racially discriminatory seniority system but of a racially dis­
criminatory hiring system.” ). For a plaintiff to prevail in a 
challenge to a seniority system, there must be a finding that the 
system itself was negotiated or maintained with an actual intent 
to discriminate.44 See Teamsters, 431 U.S. at 356, 97 S.Ct. at 
1865; see also Swim VII, 456 U.S. at 289, 102 S.Ct. at 1790. 
Just as in an ordinary disparate treatment case, the burden of 
persuading the district court that a system is the product of an 
employer’s discriminatory intent lies with the plaintiff. CJ. 
Trans World Airlines, Inc. v. Hardison, 432 U.S. at 82, 97 
S.Ct. at 2276 (“ [section] 703(h) unequivocally mandates that 
there is no statutory violation in the absence of a showing of a 
discriminatory purpose” ); Harris v. Plastics Manufacturing 
Co., 617 F.2d 438, 440 (5th Cir. 1980) (“ There was no testimony 
indicating that the seniority system was instituted or maintained 
for racially discriminatory reasons.” ); Fisher v. Proctor & 
Gamble Manufacturing Co., 613 F.2d at 542 (“ there is no evi­
dence in the record to show that the seniority system had ‘its 
genesis in racial discrimination’ or that it was negotiated and 
maintained for any ‘illegal purpose’ ” ). Insofar as the decision 
on the bona fides of a system turns on whether it was negotiated 
or maintained with discriminatory intent, it is a question of fact 
subject to review by this court only for clear error. Swim VII, 
456 U.S. at 289-90, 102 S.Ct. at 1790-91.

The district court’s treatment of Pullman’s relationship with 
1AM was not clear error. The plaintiffs appear to be arguing a 
syllogism of sorts: (1) no one can seriously question that 1AM

44 Kvidence that the seniority system has been manipulated can cer­
tainly be considered in evaluating an employer’s intent with respect to the 
creation or maintenance of a seniority system, Evans, 431 U.S. at 558, 97 
S.Ct. at 1889, but a system cannot be invalidated on such evidence standing 
alone. Id. at 560, 97 S.Ct. at 1890.

47a

supported the concepts of departments in general and nontrans- 
lerable seniority in order to keep its local all white; (2) Pullman 
entered into a collective bargaining agreement incorporating 
lAM’s nontranslerable seniority provisions; therefore, (3) Pull­
man adopted lAM’s discriminatory motive. The problem with 
this argument is that the conclusion does not necessarily follow 
f rom the minor premise. W ithout independent evidence of Pull­
man’s intent with respect to the seniority system, the plaintiffs 
are essentially urging us to impute lAM’s motive to Pullman. In 
Swim 1 11, however, the Supreme Court expressly prohibited us 
front doing so:

lAM’s discriminatory motivation, if it existed, cannot be 
imputed to USW. It is relevant only to the extent that it 
may shed some light on the purpose of USW or the Com­
pany in creating and maintaining the separate seniority 
system at issue in these cases. A discriminatory intent on 
the part of 1AM, therefore, does not control the outcome 
of these cases. Neither does the fact, if true, that USW' 
acquiesced in racially discriminatory conduct on the part 
of I AM. Such acquiescence is not the equivalent of a dis­
criminatory purpose on the part of USW.

456 U.S. at 292, 102 S.Ct. at 1792.
By recognizing that the plaintiffs’ argument is in essence one 

of presumption, we are not ignoring the plaintiffs’ insistence 
that there was some independent evidence confirming Pull­
man’s discriminatory intent. As noted above, the plaintiffs do 
cite evidence that Pullman did not assign any blacks to the 1AM 
departments until 1970 and discontinued its practice of on-the- 
job training once the courts began requiring that all jobs at the 
plain be made available to black employees. Still, none of this 
evidence goes directly to Pullman’s intent regarding the system. 
it lends to prove instead that Pullman engaged in a number of 
other, separate discriminatory practices, and, as noted above, 
the Supreme Court has required us to keep such distinctions in 
mind.

In short, we cannot say that the district court attributed 
insufficient significance to the plaintiffs’ circumstantial evi­
dence in the face of considerable direct evidence that the system



48a

was not the product of discriminatory intent. The district court 
carefully analyzed the evidence presented, paying special atten­
tion to the four factors this court emphasized in James v. Stock- 
ham Valves & Fittings Co., 559 F.2d 310, 352 (5th Cir. 1977), 
cert, denied, 434 U S. 1034, 98 S.Cl. 767, 54 L.Ed.2d 781 
(1978): whether the system operates in a neutral fashion, dis­
couraging all employees equally from transferring between 
departments; whether the system of seniority units is rational 
and in accord with industry practice; whether the system had its 
genesis in racial discrimination; and whether the system was 
negotiated and maintained free from any illegal purpose. The 
evidence revealed that whites as well as blacks often desired to 
transfer but were disinclined to do so because they too would 
lose their seniority. The evidence also showed that systems 
including nontransferable seniority between given units are 
quite common not only with manufacturers generally but with 
manufacturers of railroad cars.45 Finally, although there was

45 The plaintiffs argue that the law of the case doctrine prevented the 
district court from deciding that the nontransferable seniority system was 
rational. They cite this court’s holding in Swim VI, 624 F.2d at 531, that 
there was no explanation for the segregated departments other than racial 
discrimination. They (hen point out that the union asked the Supreme Court 
on review of Swim VI to hold expressly that the departmental seniority sys­
tem was rational, but the Court declined to do so. This sequence of events, 
the plaintiffs argue, left in place Swim VTs holding that the system was irra­
tional.

The plaintiffs' argument is without merit. The Swim VI holding with
respect to the rationality of the system was one of the two with which the
Supreme Court most found fault. In discussing how this court had not prop­
erly applied Rule 52(a), Justice White wrote:

In particular, in regard to the second James factor—whether the 
departmental structure was rational or in line with industry practice— 
the Court of Appeals did not focus on the evidentiary basis for any 
particular finding of the District Court. It appeared to make an inde­
pendent examination of the record and arrive at its own conclusion 
contrary to that of the District court.

Swim VII, 456 U.S. at 291 n. 21, 102 S.Cl. at 1791 n. 21. This indicates
rather clearly that the Swim VI holding with respect to the system’s rational­
ity did not survive Swim VII, and it makes no difference that the Court 
rejected the union’s request to hold the system rational. Indeed, that it is not 
an appellate court’s role to enter fact-findings one way or the other was the 
Supreme Court’s whole point.

49a

considerable evidence iluti the system was adopted at a time 
when Pullman was openly discriminatory in other respects—
i.e., the system did have its "genesis” in racial discrimination— 
there was nothing to suggest that Pullman acted with 
discriminatory intent in negotiating or maintaining nontrans­
ferable seniority. Indeed, there was evidence that Pullman 
would have preferred no seniority or the narrowest seniority 
possible so that it could have the greatest flexibility in filling 
vacant positions. There was also evidence that at a meeting of 
primarily black USW employees, a proposal to merge certain 
departments was voted down. Under these circumstances, the 
district court was entitled to accept Pullman’s theory that the 
nontransferable seniority system was a compromise negotiated 
and maintained without discriminatory intent.4h Having thus 
found that three of the four James factors went against a find­
ing of discriminatory intent, the court w as not clearly erroneous 
in concluding that the seniority system was bona fide.

The fact that the district court excluded the plaintiffs’ evi­
dence with respect to Pullman’s allegedly discriminatory job 
assignments within departments does not change our conclu­
sion. We agree with the plaintiffs that the proffered testimony 
would have served as circumstantial evidence that the system 
was maintained with discriminatory intent, but we cannot 
accept the plaintiffs’ failure to introduce the evidence before 
the 1984 proceedings. T he plaintiffs knew, as of 1977 and the 
Teamsters decision, that they would have to prove that the sen­
iority system was intentionally discriminatory, and a post- 
Teamsters trial was held in early 1978 precisely for that 
purpose. It cannot be said that the plaintiffs simply discovered 
late in the proceedings that many of their number had been sub­
jected to intradepaitmental discrimination: Spurgeon Seals’ 
November 1966 EEOC charge specifically complained that he

46 We do not even touch upon much of the evidence USW cites with 
respect to the negotiation of the seniority system, such as the tact that blacks 
were represented on the negotiating committee and USW \s history as a pro­
tector of civil rights, because the plaintifls have recognized that the district 
court’s finding with respect to USW's intent cannot be lound clearly errone­
ous. .Sec Brief for IMaintifls-Appellants W illiam 13 Larkin, Louis Swint, el 
at. at 57.



50a

had been passed over within his department in spite of his sen­
iority. Additionally, the case was returned to the district court 
under a limited remand. The district court was instructed “ to 
determine what impact the Mocking-in’ of blacks to the least 
remunerative departments had on discouraging transfer 
between seniority units, and the significance of the discrimina­
tory motivation of IAM with respect to the institution of 
USW’s seniority system,” and to hold any other proceedings 
that “ may be deemed necessary in view of our prior opinion 
and that of the United States Supreme Court.” Swim VIII, 692 
F.2d at 1031-32. Had it permitted the plaintiffs to embark on a 
new line of proof, the district court might well have violated the 
mandate rule. See International Brotherhood o f Boilermakers 
v. Barber, 841 F.2d 1067, 1071 (11th Cir. 1988). For these rea­
sons, the district court did not abuse its discretion in excluding 
the testimony of the plaintiffs complaining of intradepart- 
mental discrimination.'17

In concluding our discussion of the seniority system, one 
thing should be made clear. By affirming the district court’s rul­
ing, and finding it conceivable that there could have been dis­
crimination in initial assignments but not in maintaining the 
seniority system, we are not denying that the two issues are 
interrelated. Indeed, it is readily apparent that the discrimina­
tory departmental assignments may have caused the seniority 
system to have a discriminatory impact on black employees’ 
ability to move up the job ladder. As a result, during the Phase 
II proceedings, any member of the plaintiff class who suffered

47 Nor did the district court err, as the plaintiffs urge in their brief, in 
tailing to provide a remedy for Pullman’s allegedly discriminatory intrade- 
partmental assignments. The intradepartmental assignments were not a natu­
ral sub-issue of the plaintiffs’ challenge to the seniority system, as were the 
initial departmental assignments we have recognized as a viable independent 
claim. See supra part IVA. And we find no indication whatsoever in the rec­
ord that the plaintiffs ever made clear that they were asserting intradeparl- 
mental assignments as an independent claim. For example, in their 1978 brief 
to this court, the plaintiffs voiced no complaint that the district court over­
looked their claim that intradepartmental assignments were discriminatory. 
In the lace of this complete dearth of argument and evidence, the plaintiffs’ 
claim that the references in pretrial orders and the like to " job” assignments 
prove that they were arguing this all along is simply not persuasive.

51a

actionable discrimination in his initial assignment shall be enti­
tled to a consideration of those jobs within the plant he might 
have gotten had he not been relegated to an all-black depart­
ment or, in any event, kept out of the all-white departments. 
Once this determination has been made, corresponding “ make- 
whole” relief should be awarded.

VI. The Selection of Supervisors

Pullman appeals from the district court’s ruling that our 
holding in Swim VI that the company had discriminated in its 
selection of supervisors is the law of the case. Pullman’s overall 
objection consists of several interrelated arguments. First, in 
the company’s view, the Swim VI holding does not constitute 
the required finding of intentional discrimination. Second, the 
holding must be reconsidered because a number of later cases 
have changed the applicable law : (1) United States Postal Ser­
vice Board o f Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 
1478, 75 l .Ed.2d 403 (1983), makes clear that Swim Vi's refer­
ences to the plaintiffs’ “ prima facie case” and the defendant’s 
“ rebuttal” were inappropriate; (2) Johnson v. Transportation 
Agency, Santa Clara County, 480 U.S. 616, 107 S.Ct. 1442, 94 
L.F.d.2d 615 (1987), indicates that the plaintiffs’ case was erro­
neously based on statistics that did not account for the qualifi­
cations required of Pullman supervisors; and (3) Swim VII, 
although dealing exclusively with the seniority system, reflects 
the Supreme Court’s view that Swim VI, as a whole, was an 
improper exercise of appellate fact-finding. Third, the Swim VI 
holding cannot be the law of the case because this court relied in 
part on its concurrent holding that the seniority system at Pull­
man was not bona fide but intentionally discriminatory, a hold­
ing the Supreme court overturned. We reject these arguments 
and affirm the district court’s ruling.

We must acknowledge from the outset that if they were sub­
stantively correct, Pullman's arguments might warrant a hold­
ing that the decision in Swim VI does not constitute the law of 
the case. Although the law of the case doctrine does dictate that 
a district court is bound by findings of fact and conclusions of



52a

law made by the court of appeals in a prior appeal of the same 
case, Robinson, 690 I:.2d at 872, the doctrine does not apply to 
issues that were not actually decided, either explicitly or implic­
itly. Wheeler v. City o f Pleasant Grove, 746 F.2d 1437, 1440 
(11th Cir. 1984) (“ the doctrine encompasses only those issues 
previously determined” ); Signal Oil & Gas Co., 654 F.2d at 
1169 (“ law of the case does not operate to bar subsequent con­
sideration of matters that could have been, but were not, raised 
and resolved in the earlier proceeding” ). Pullman’s first argu­
ment, that the Swint VI treatment of the supervisors issue was 
not the requisite finding of intentional discrimination, is in 
essence a contention that Swint VI did not actually decide the 
supervisors issue. Likewise, Pullman’s second argument, that 
Supreme Court cases decided after Swint VI require that the 
decision be reconsidered, appears to invoke a well-established 
exception to the law of the case doctrine. The doctrine does not 
bar reconsideration of a legal conclusion when controlling 
authority has since made a contrary decision of applicable law. 
Wheeler, 746 F.2d at 1440; EEOC v. International Longshore­
men’s Ass’n, 623 F.2d 1054, 1058 (5th Cir.1980), cert, denied, 
451 U.S. 917, 101 S.Ct. 1997, 68 L.Ed.2d 310 (1981). Finally, 
Pullman’s third argument, that Swint VI must be reconsidered 
because an aspect of the case on which this court relied was 
overturned by the Supreme Court, implicates yet another excep­
tion to the doctrine. A prior appellate decision may be disre­
garded if it was clearly erroneous and would work a manifest 
injustice. Wheeler, 746 F.2d at 1440; United States v. McClain, 
593 F.2d 658, 664 (5th Cir.), cert, denied, 444 U.S. 918, 100 
S.Ct. 234, 62 L.Ed.2d 173 (1979). We are unable to conclude, 
however, that Pullman’s arguments are meritorious in sub­
stance.

It is true, for example, that Swint IV  does not include a find­
ing that Pullman intentionally discriminated in its selection of 
supervisors. That observation, however, is irrelevant: the plain­
tiffs here clearly proceeded on a disparate impact, rather than 
disparate treatment, theory and thus did not need to prove dis­
criminatory intent. See Connecticut v. Teal, 457 U.S. 440, 446, 
102 S.Ct. 2525, 2530, 73 L.Ed.2d 130 (1982); Griggs v. Duke 
Power Co., 401 U.S. 424, 430-32, 91 S.Ct. 849, 853-54, 28

L.Ed.2d 158 (1971); see also Teamsters, 431 U.S. at 335 n. 15, 
97 S.Ct. at 1854 n. 15 (discussing the distinction between dis­
parate treatment and disparate impact cases). They were 
required, as an initial matter, to show only that a facially neu­
tral practice was operating to exclude blacks from the supervi­
sory positions in a significantly disproportionate fashion. See 
Teal, 457 U.S. at 446, 102 S.Ct. at 2530; Dothard v. Rawlinson, 
433 U.S. 321, 329, 97 S.Ct. 2720, 2726-27, 53 L.Ed.2d 786 
(1977). The burden—not just of production but of 
persuasion—was then on Pullman to show that the practice 
challenged arose from a non-discriminatory business necessity. 
See id. at 329, 97 S.Ct. at 2727; Griggs, 401 U.S. at 432, 91 
S.Ct. at 854. The Swint 11 court found simply that while the 
plaintiffs had met their burden, Pullman had offered no legally 
acceptable evidence that its subjective selection procedure was a 
business necessity. The district court’s decision that Pullman 
was liable was properly based on this conclusion of law.

Pullman similarly confuses disparate treatment and disparate 
impact cases by arguing that United States Postal Service, v. 
Aikens requires a reconsideration of Swint IV  holding. Aikens 
did hold, as Pullman notes, that once a case is fully tried, the 
concepts of plaintiffs’ “ prima facie case” and “ rebuttal” 
should be discarded and the case evaluated to determine solely 
whether the plaintiffs proved intentional discrimination, 460 
U.S. at 711, 715, 103 S.Ct. at 1482, and, as noted above, the 
Swim IV  court did use the prima facie case and rebuttal termi­
nology. Aikens, however, was a disparate treatment case 
requiring a showing of discriminatory intent, and its result was 
inextricably related to the Court’s earlier attempts to make dis­
criminatory intent susceptible of proof. The prima facie case- 
rebuttal-pretext framework for disparate treatment cases was 
developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 
93 S.Ct. 1871, 36 L.Ed.2d 668 (1973), precisely because the 
Court realized that it would seldom be possible for plaintiffs to 
prove intentional discrimination directly and wanted to estab­
lish a series of shifting presumptions to ease that otherwise 
impossible burden. See Texas Department o f  Community 
Affairs v. Burdine, 450 U.S. 248, 255 n. 8, 101 S.Ct. 1089, 1094 
n. 8, 67 L.Ed.2d 207 (1981); see also Furnco Construction



54a

Carp. v. Waters, 458 U.S. 567, 577, 98 S.Ct. 2943, 2950, 57 
L.Ed.2d 957 (1978). Aikens is thus wholly inapplicable to this 
disparate impact case,414 where proof of discriminatory intent 
has never been necessary, and does not require that Swim VI be 
overturned simply because the opinion employed “ prima facie 
case” and “ rebuttal” terminology. Indeed, when one considers 
that a disparate-impact defendant actually carries a responsive 
burden of persuasion, unlike the rebuttal burden of production 
borne by the disparate-treatment defendant, it seems clear that 
the Swim VI court’s references were, in a sense, misnomers 
intended to represent the parties’ respective burdens.

We must also reject Pullman’s argument that Johnson v. 
Transportation Agency reflects a change in the applicable law 
requiring us to reconsider and presumably overturn Swim VI. 
Johnson addressed the proof necessary to establish that a 
“ manifest imbalance” in an employer’s previous hiring or pro­
motional policies justified its giving preference to women or 
minorities. In the court of its discussion, the Court noted that 
any statistics offered to prove such an imbalance must compare 
those actually hired or promoted with “ those in the labor force
who possess the relevant qualifications.” 480 U.S. a t ____, 107
S.Ct. at 1452. The Court also indicated that a plaintiff attempt­
ing to make out a prima facie case under Title VII is subject to 
the same requirement: “ In order to make out a prima facie case

48 Apparemly anticipating that the plaintiffs, and perhaps this court, 
would distinguish Aikens as a disparate treatment case, Pullman argues that 
Bazemore »’. Friday, 478 U.S. at 978, 106 S.Ct. at 3000, indicates that 
Aikens' holding is not limited to disparate treatment cases. Bazemore, how­
ever, was a “ pattern and practice” case requiring the plaintiffs to “ ‘estab­
lish by a preponderance of the evidence that racial discrimination was the 
company’s standard operating procedure—the regular rather the unusual 
practice.’ ” Id. at 3008 (quoting Teamsters, 431 U.S. at 336, 97 S.Ct. at 
1855). Because this burden is so similar to that imposed on the plaintiffs— 
and only on the plaintiffs—in a disparate treatment case, we do not believe 
Bazemore sufficiently akin to a disparate impact case to warrant any further 
extension of Aikens. We are especially comfortable with this conclusion hav­
ing noted now-Chief Justice Rehnquist’s opening footnote in Aikens: “ We 
have consistently distinguished disparate-treatment cases from cases involv­
ing facially neutral employment standard that have disparate impact on 
minority applicants.” 460 U.S. at 713 n. 1, 103 S.Ct. at 1481 n. 1.

55a

on (a Title VII] claim, a piaintill would be required to compare 
the percentage of black skilled workers in the . . . work force 
with the percentage of black skilled cralt workers in the area
labor market.” Johnson. 480 U.S. a t ___  n. 10, 107 S.Ct. at
1452 n. 10 (employing the facts from United Steelworkers v. 
Weber, 443 U.S. 193, 99 S.Ct. 2721,61 L..Ed.2d 480 (1979), in a 
hypothetical). Pullman argues from this observation that the 
plaintiffs here tailed to show that there were any qualified 
blacks denied supervisory positions.

In our view, Pullman overstates the holding ot Johnson. 
Johnson, and Hazelwood School District v. United States, 433 
U.S. 299, 97 S.Ct. 2736, 53 l..bd.2d 768 (1977), upon which the 
Johnson Court relied, represent the Court’s etforts to ensure 
that a Title VII plaintiff’s statistical evidence is sufficiently nar­
row to raise a legitimate inference of discrimination. In other 
words, the cases set forth a relevance threshold that plaintiffs 
must satisfy if tlteir case is to proceed further. Here, the plain­
tiffs compared the percentage of blacks in the Pullman 
workforce, all of whom were theoretically eligible for positions 
at least as temporary supervisors, with the percentage of blacks 
who were actually selected. There was no application process 
for the supervisory positions, so it was not possible tor the 
plaintiffs to compare the percentage actually selected with the 
percentage of applicants. Additionally, even when, in the early 
stages of proceeding, Pullman was under what it would now 
deem the mistaken impression that it was the party responsible 
for identifying the qualifications necessary to become a supervi­
sor, it put forth only generalized criteria47—ability to get along 49

49 In its Swim III ruling that Pullman bad not discriminated in the 
selection of supervisors, its last discussion ol this issue, the district court did 
noi specify a single “ skill" that vsas needed to perlortn as a supervisor, 
despite its conclusion that “ |i|t is clear Iroin the evidence, if not from com­
mon sense, that special skills are needed by supervisors.” 15 F.E.P. at 150. 
The court did not fault the plaintiffs’ statistics for failing to account for the 
higher rate of black illiteracy and lor the time blacks would need, due to pre­
vious discrimination, to develop “ skills uselul to supervisors,”  id. at 150 n. 
15, whatever those were. Both of these observations, however, were in direct 
contravention of this court's holding in Swim II:



56a

.

• 1 
. •

• ^

with other employees, knowledge of particular departments, 
and experience as a temporary foreman—that either would be 
impossible to incorporate into statistical proof or were them­
selves the result of discrimination.

Pul simply, the plaintiffs used the narrowest statistics availa­
ble, and we will not fault them for failing to account for “ quali­
fications” that Pullman has, to this day, been unable to 
definitively articulate. To hold otherwise would be to read 
Johnson and Hazelwood as requiring plaintiffs to identify at 
the outset every criterion employed in a subjective selection pro­
cess, a virtually impossible feat and one this court rejected in 
Griffin v. Carlin, 755 F.2d at 1528.50 We do not believe that the 
Supreme Court intended such a radical result even in disparate 
treatment cases, much less in disparate impact cases. We are 
convinced that if the Court had intended to reassign the burden 
of production to Title Vll plaintiffs, it would have said so. Pull­
man’s final two contentions are based on the Supreme Court’s 
holding in Swim VII. The company first argues that even if the 
Court did not directly review the Swint VI holding on the selec­
tion of supervisors, its opinion makes clear that all of Swint VI

Since no minimum education requirement was proven legal under the 
strict guidelines of Title Vll, the ‘requirement’ may not be used as a 
generalized inference to explain why blacks were not potential supervi­
sors.

. . . The (district court in Swint /) concluded that due to pre-’65 seg­
regation of jobs, it has taken blacks some time to learn the range of 
job skills necessary to perform supervisory duties. This justification 
for not promoting blacks has been uniformly rejected by this court.

539 1 .2d at 104.

50 We must emphasize that our holding is one of degree. We recognize 
fully that Johnson and Hazelwood require plaintiffs to recognize the basic 
qualifications for a position and exclude from their statistical pools persons 
who are obviously unqualified. We simply do not believe that plaintiffs are 
responsible for reading their employers’ minds and culling out those persons 
who do not meet narrow, employer-specific “ qualifications.” Indeed, it is 
often those very qualifications that are causing a discriminatory impact; they 
should be subjected to the light of day and evaluated to see if they are truly 
necessary to the employer’s business.

57a

should be disregarded as improper fact-finding. For two rea­
sons, we find this contention insufficient to require that the 
supervisors issue be reopened.

First, we are not free to reexamine an issue that has been 
finally decided and as to which certiorari has been denied unless 
there has been a clear change in the applicable law or our prior 
decision is tound “ manifestly erroneous.” The holding in Swint 
Vll presents neither of these situations. Swint Vll presents nei­
ther of these situations. Swint Vll did not change the law; it 
held simply that this court had not properly applied the clear 
error standard of Rule 52(a) to the seniority system issue. There 
was no suggestion in Swim I //that this court s treatment of the 
supervisors issue sullered trom the same infirmity.

Second, even if it were appropriate to take a second look at 
Swim Vi's treatment of the issue, we would hold that Rule 52(a) 
was properly applied. Rule 52(a) requires us to refrain from 
reweighing evidence, but it does not prohibit us from correcting 
a district court’s legal errors. See Swint VII, 456 U.S. at 291-92, 
102 S.Ct. at 1791-92. Swint Vi's reversal of the district court on 
the supervisors issue more readily tails into this latter category. 
The court held that the district court had erred because (1) Pull­
man had not put forth “ any evidence sufficient to show that the 
limitation upon which the defendant s business necessity 
defense rests is essential to the safety and efficiency of [its) 
operations,” and (2) Pullman’s rebuttal evidence the slightly 
higher rale at which blacks refused promotions to supervisor 
and the pressure from other black employees that black supervi­
sors suffered—could not be relied upon because the circum­
stances cited themselves resulted from the history of 
discriminatory practices at the Bessemer plant. Swint VI, 624 
F.2d at 536.

51 In some circumstances, this might be considered a fact-finding in 
itself, hut the district court essentially acknowledged that the black rejection 
rate was connected to the racial atmosphere at that plant. When the court 
decided to focus in Swim III on the rejection rate of 1971-1973, the court 
wrote: Prior to 1971 the turndown rate by blacks was higher, and subse-



58a

Both of these grounds reflect legal principles well established 
in this circuit. See, e.g., Giles v. Ireland, 742 F.2d 1366, 1381 
(11th Cir. 1984) (judgment for defendant vacated where there 
was no showing that challenged policy was related to job per­
formance); Watkins v. Scott Paper Co., 530 F.2d 1159, 1192-93 
(5th Cir.) (experience requirement could not justify disparate 
impact where “ [pjast discriminatory practices have either pre­
vented or discouraged many of [defendant’s] employees Irom 
transferring to many lines of progression and from gaining the 
experience [the defendant] deems necessary in a supervisor” ), 
cert, denied, 429 U.S. 861,97 S.Ct. 163, 50 L.Ed.2d 139 (1976); 
Stevenson v. International Paper Co., 516 F.2d 103, 117 (5th 
Cir. 1975) (lack of experience in a particular line of progression 
does not justify disparity in appointments to supervisor where 
blacks were excluded from those lines of progression). Once the 
court addressed these legal errors, it was left only with the 
plaintiffs’ showing that a remarkable disparity existed in the 
selection of supervisors.5* Because this in turn left only one res­
olution of the issue, the court reversed. See Swint VII, 456 U.S. 
at 292, 102 S.Ct. at 1792 (‘‘where findings are infirm because of 
an erroneous view of the law, a remand is the proper course 
unless the record permits only one resolution of the factual 
issue” ). We are thus unable to conclude that Swint VI was man­
ifestly erroneous, and the district court properly regarded its 
holding on the supervisor issue as the law ot the case.

quern to 1972 the rate was probably lower. The 1971-73 figures should be 
(sic) icasoitable approximation for the period as a whole.” 15 F.E.P. at 152 
n. 21. It is hard to imagine why the district court would be willing to specu­
late (hat blacks became more and more likely to accept foreman positions 
unless it had concluded that the rejection rate and the discriminatory prac­
tices at Pullman were related.

52 The court noted that in a workforce ranging from 45ff/'o to 50% 
black, and out of 143 salaried foremen positions, there was not a single black 
salaried foreman until 1966. In 1970, out of 160 salaried positions, blacks 
held nine. Through the time of trial in 1974, there had never been a black 
foreman, temporary or salaried, in thirteen of Pullman s twenty-eight 
departments. From 1966 through the lime of trial, only twelve blacks were 
selected to fill fifty-nine salaried foreman vacancies. Swint VI, 624 I .2d at 
527-28.

59a

Thai Swint VII reversed the court’s holding on the seniority 
system does not change this conclusion. It is true that the court 
in Swint VI referred to the fact that ‘‘black employees were 
locked in the lower paying jobs and departments.” 624 F.2d at 
536. The context in which this reference was made, however, 
was in explaining why blacks had become sufficiently demoral­
ized that they might refuse to serve as supervisors. The lock-in 
effect was not cited as affirmative evidence that Pullman’s 
entirely subjective selection procedure had a disparate impact 
on black employees. Moreover, Swint VII did not reject the 
idea that blacks were locked into the lower paying jobs. It 
merely held, as we do toda\, that the seniority system itself was 
not intentionally discriminatory. Under these circumstances, we 
do not believe the reference to the lock-in effect—which, due to 
the discriminatory post-Act departmental assignments, was no 
doubt a reality at Pullman—renders the Swint VI holding on 
the selection of supervisors manifestly erroneous.

We affirm the district court’s decision that Pullman’s subjec­
tive procedures for selecting supervisors violated Title VII.

VI1. The Larkin Appeal

The Larkin plaintiffs appeal from the district court’s denial 
of their motion under 1 ed.R.Civ.P. 60(b)(6) to transform its 
dismissal with prejudice to a dismissal without prejudice. The 
plaintiffs argue that the Larkin court should have essentially 
reopened their case once it became apparent that the Swint 
court would not hold Pullman liable for any discrimination 
prior to July 17, 1969 and would not hear any evidence concern­
ing discriminatory intradepartmental assignments. These rul­
ings by the Swint court, the plaintiffs contend, render 
erroneous the Larkin court’s 1976 decision that the Larkin 
plaintiffs were barred by res judicata.

We affirm the Larkin court’s denial of the Rule 60(b)(6) 
motion. With respect to the liability period, our decision that 
Pullman should be held liable from October 19, 1965 lor its dis­
criminatory assignments of new hires, see supra part lll.B, 
eliminates the Larkin plaintiffs’ concern that two years ol dis­



60a

crimination against them will not be addressed. With respect to 
the issue of intradepartmental assignments, our ruling that the 
district court did not abuse its discretion in excluding that evi­
dence, see supra part V, must be applied to the Larkin plaintitfs 
just as it is to those in Swim. The Larkin court dismissed the 
Larkin plaintiffs’ case in 1976. From then until 1984, when they 
moved the court to reconsider their case, the Larkin plaintiffs 
were operating on the assumption that they were members of 
the Swim class. Yet at no time during that seven-year period did 
the Swim plaintiffs ever attempt to put on evidence, which pre­
sumably could have come straight from the Larkin plaintitfs, 
that Pullman was continuing its pre-1965, “ white job” - ’’black 
job” practice of discriminatory intradepartmental assignments. 
No meaningful explanations has ever been offered to explain 
this omission. Under these circumstances, the Larkin plaintiffs 
cannot be heard to complain that their claim concerning intra­
departmental promotions was unjustly eliminated. In short, it 
was not the court in Larkin that was under a mistaken impres­
sion; it was the plaintiffs, to the extent that they believed that 
the Swim plaintiffs would properly raise their claim.

VIII. Conclusion

The district court’s judgment in Larkin v. Pullman-Standard, 
No. 84-7319, is affirmed. The court properly denied the Larkin 
plaintiffs’ motion to amend or alter the judgment.

The district court’s judgment in the appeal by Pullman- 
Standard, Swim v. Pullman-Standard, No. 87-7057, is af­
firmed. The plaintiffs proved that the subjective procedures for 
selecting supervisory personnel had a discriminatory impact on 
Pullman’s black employees, and the district court did not abuse 
its discretion in ruling that Louis Swint and Willie Johnson had 
Rule 23 stranding to represent the class on the departmental 
assignments claim.

The district court’s judgment in the appeal on behalf of the 
Swim plaintiffs, Swim v. Pullman-Standard, No. 86-7886, is 
affirmed in part and reversed in part. The district court did not 
err in finding that the seniority system was not created or main­

61a

tained with discriminatory intent or in finding that any discrim­
ination in departmental assignments ended by February 1969. 
The district court did err, however, in determining that Pullman 
could not be liable for any discrimination occurring before July 
17, 1969. Pullman should be held liable for any discrimination 
in departmental assignments, the plaintiffs’ section 1981 claim, 
from October 19, 1965 until January 31, 1969, and for the dis­
criminatory impact of the supervisory selection procedures, the 
plaintiffs’ Title VII claim, from September 28, 1966 until 
August 16, 1974.

Accordingly , we remand No. 86-7886 to the district court for 
further proceedings consistent with this opinion. Phase II pro­
ceedings should be held to determine the relief due the plaintiffs 
on their departmental assignments and selection of supervisors 
claims.

Al l IKMI U in part, Reversed in part and REMANDED.



62a

II. Olher Opinions Rendered 
in (he Case

SW INT I

U.S. District Court,

Northern District of Alabama

SWINT, el al. v. PULLMAN—STANDARD, Bessemer, 
Alabama, UNITED STEELWORKERS OF AMERICA 
LOCAL 1466, UNITED STEELWORKERS OF AMERICA, 
AFL-CIO, INTERNATIONAL ASSOCIATION OF 
MACHINISTS AND AEROSPACE WORKERS, and 1AM, 
LOCAL LODGE 372, No. 71-955-S, September 13, 1974

U.W. demon (Adams, Baker & demon),  Birmingham, 
Ala., and Jack Greenberg and Marilyn Holifield, New York, 
N.Y. for plaintiffs.

C.V. Stelzenmuller (Thomas, Taliaferro, Forman, Burr & 
Murray), Birmingham, Ala., for defendant employer.

John C. Falkenberry (Cooper, Mitch & Crawford), Birm­
ingham, Ala., lor Steelworker defendants.

SAM C. POINTER, Jr., District Judge:—This case involves 
individual and class claims of racial discrimination in certain 
employment practices of Pullman at its Bessemer, Alabama, 
Plant. In part, the claims are also made against the United 
Steelworkers of America, AFL-CIO, and it Local 1466. In­
dividual notice to class members was not required by the court;1 
but company bulletin boards were used to advise employees of

I All footnotes for this section appear at the end of this opin­
ion, pp. 91a to 103a.

the pendency ana nature of the litigation and to explain how 
they could make known to the parties evidence thought to have 
some bearing on the case. While pretrial conferences succeeded, 
with the agreement of counsel, in limiting the issues to live in 
number,' some sixteen days of trial were consumed in the 
presentation ol evidence, in large part due to the leeway permit­
ted in such cases lor introduction of matters having potential 
circumstantial relevance.

Overview

Pullman-Standard, a division of Pullman, Inc., is the world’s 
largest manufacturer of railway freight cars and parts. Opera­
tions at its Bessemer plant are geared to special orders, rather 
than the production of an inventory, and accordingly are con­
ducted much like a custom steel fabricating shop, though on a 
larger scale.' This method of production, coupled with sporadic 
market demands from the railroad industry, results in frequent 
and dramatic fluctuations in the level of employment/ Since the 
early 1940’s, most’ of the production and maintenance workers 
at Bessemer have been represented by the United Steelworkers, 
which also holds representation status at Pullman-Standard’s 
other three plants; and key provisions dealing with seniority 
rights are largely covered by local rules at the individual plants 
rather than by the company-wide triennial collective bargaining 
contracts.

The production and maintenance jobs at Bessemer, over a 
hundred in number," are divided among 25 different depart­
ments of varying sizes.' Each job has a specified job class (JC) 
level, which determines its relative ranking in base pay in com­
parison to other jobs." All but two departments, Janitors and 
Template, have more than one job classification; and most, but 
not all, Gasifications will be worked by more than a single 
employee during peak employment periods. One such job 
(Welder) sometimes is worked by over 500 employees.



64a

Under the local rules at Bessemer, seniority is measured by 
continuous service in a particular department and is exercised in 
competition with all other employees in that department, there 
being no lines of promotion or progression in any department. 
Seniority rosters are maintained by department; and departmen­
tal age is basically the sole criterion used to determine who is 
rolled back or laid-off in the event of reductions, and who is 
recalled or promoted (assuming ability to do the work) in the 
event of force increases or other vacancies, in the department. It 
is somewhat inappropriate to talk about “ permanent jobs" at 
Bessemer, except perhaps with respect to the most senior 
employees in the department; for the constant fluctuations in 
job requirements and employment levels cause frequent move­
ment of employees from one job to another. While the seniority 
rosters do indicate a job classification for each employee, these 
designations do not reflect his* permanent job, but rather con­
stitute a recognition by the company that the employee has 
satisfactorily performed the job and is thereby protected under 
the collective bargaining agreement against rejection in favor of 
a junior employee on the (actor of relative ability. The rosters 
are updated annually as of June 1st; and frequently only the 
highest job class which an employee has satisfactorily perform­
ed is shown for him.

f rom the study of payroll information for the 18 month 
period ending June 1974, it appears that 49.5a/’o of the work 
force is black, a ratio which is comparable to that which existed 
in June 1965.'° Understandably, plaintiffs do not assert that 
Pullman’s initial hiring policies, as such are now or ever have 
been racially discriminatory." Plaintiffs do, however, contend 
that assignment of new hires to the several departments was 
discriminatory, and continued so for several years following the

65a

passage of 1 itle VII further, the plaintiffs contend—with very 
little dispute"—that prior to June 1965 a number of the better 
jobs, including supervisory positions, were “ white only" and a 
number of the lower-paying jobs were “ black only.”

In early 1965, spurred by an arbitration decision which open­
ed up the then all-white Rivet Driver job to blacks," the com­
pany began implementing a program to eliminate barriers to ad­
vancement by blacks and, in general, to conform to the impen­
ding requirements of Title VII where possible infractions were 
detected. Black buckers and welder helpers were given trials to 
ascertain their abilities as rivet drivers and welders, respectively. 
Beginning in June 19n5 black employees were appointed as 
hourly foremen. A reporting system ol hires and promotions 
was undertaken, as were efforts to recruit blacks for the more 
highly skilled positions. In early 1966 an agreement was made 
with the union to utilize seniority in the filling of temporary 
vacancies.1* Negotiations were commenced in 1968 with the 
Department of Labor, which led in January 1969 to a condi­
tional memorandum ol understanding designed t o enhance op­
portunities lor blacks.1' Although this memorandum never 
became lulls ellective due to lack of union acceptance, Pullman 
through its Contract Compliance Officers—one black and one 
white—began encouraging black employees in certain “ low ceil­
ing" departments to transfer to other departments and monitor­
ing the filling of temporary vacancies to assure a fair allotment 
to black employees. Black employees and their families were en­
couraged to participate in vocational education at the 
company’s expense, a program that has been particulary signifi­
cant in the training ol black welders.16

In May 1972 Pullman entered into an agreement with the 
Department of Labor to serve as a corrective action program 
and to bring its employment practices into compliance with Ex­



66a

ecutive Order 11246 as amended.” Of the many provisions in 
the twenty-five page agreement, the most significant to the 
issues in this case are those relating to inter-departmental 
transfers. Black employees with employment dates prior to 
April 30, 1965, are given preference for vacancies arising in the 
five traditionally all-white departments (Template, 
Powerhouse, Airbrake Pipe Shop, Inspection, and Plant Pro­
tection); and those hired before April 30, 1965, who had been 
assigned to four ‘"low-ceiling departments (Janitor, Die <*£. 
Tool, Truck and Steel Miscellaneous) are given preference for 
vacancies arising in any of the departments.” These transfer 
rights are without limit as to time; and, when exercised, the 
employee vies for promotions in the new department using his 
total plant age.” For layoff and recall purposes, the employee is 
given at the time of the transfer the option either to take his 
plant age into the new department or to keep accruing seniority 
in his old department while building new age for such purposes 
in the new department. Retreat rights to the employee’s prior 
job are provided should he fail to qualify for at least a JC 4 job 
or is disqualified for a promotion in the new department; and in 
such event the employee may have the right to go to another 
department rather than return to his original one.

For determination in this cause are four claims of class 
discrimination10 and a claim of individual discrimination by two 
employees. The class issues are as follows:

(1) Does the system of departmental seniority, even with 
the changes made under the agreement with the Depart­
ment of Labor, perpetuate the effects of past discrimina­
tion in the assignment of black employees among the 
various departments?1'

(2) Has there been discrimination in the assignment of 
work to persons having the same job title or in the assign­
ment of jobs having the same JC level to the persons entitl­
ed to jobs of such JC level?

(3) Has there been discrimination in the promotion of
persons to supervisory positions?

(4) Has there been discrimination in the failure to post 
publicly a list of changes in assignments?

One of the named plaintiffs, Louis Swim, and an intervenor- 
plaintiff, Clyde Humphrey, each claim that their discharges by 
the company in May 1971 and November 1972, respectively, 
were racially motivated or were in retaliation lor their having 
earlier filed charges with the EEOC.11

I. Departmental Seniority

Notwithstanding the provisions ol 42 U.S.C.A. § 2000e-2(h), 
exculpating “ bona tide” seniority systems, it is clear that a 
departmental seniority system, "neutral” orr its lace, may yet be 
an impermissible instrument lor discriminating, or perpetuating 
the effects of past discrimination, against employees because of 
race or color. This may result when there is, or has been, 
discrimination in the assignment ol black employees among the 
departments by exclusively or disproportionately assigning 
white hires to higher-paying departments and black hires to 
lower-pay ing jobs. See, e.g., Franks v. Bowman 1 ransportation 
Co., 495 1 .2d 398, 8 FEE Cases 66 (CA 5 1974)” ; Johnson v. 
Goodyear Tire & Rubber Co., 491 F.2d 1364, 7 FEP Cases 627 
(CA 5 1974). Indeed, in other cases presented to it, this court 
Iras concluded that eradication of the effects ol past discrimina­
tion requited use ol plant-wide seniority with transfer rights. 
See, e.g., ILS. v. United States Steel Corp., 371 F.Supp. 1045, 7 
I I P  Cases 322 (1973).

67 a



68a

A departmental seniority system, however, is not per se 
violative of Title VII or § 1981. Rather, such a system is per­
nicious only if it is applied in a discriminatory manner'* or if, as 
is more commonly the situation, it locks in the effects of present 
or past discrimination in departmental or job assignments.'' For 
example, in the Johnson case, where seven of Goodyear’s 
departments had been while-only and the other (Labor) had 
been black-only,"1 the use of departmental age tended to 
frustrate the therapeutic effects of a 1968 rule permitting inter­
departmental transfers. Likewise, in the Franks case, blac^ 
employees had been confined solely to a single division of a 
single department in jobs that “ require the most menial work 
and bring the lowest pay.’’

A critical inquiry is to what extent—and with what ef­
fect—has there been discrimination in the assignment of 
employees to the various departments. The following chart, 
prepared by the court, reflects by department, ranked by job 
class ranges, the racial composition of the work force in June 
1965, together with certain accumulating percentage figures."

l ive of the ddepartments—all but one being in the upper hall 
of the ranking—were all-white; and three—all on the bot­
tom—were all-black. Pullman does not really deny that to 
perpetuate the effects of such assignments would be violative of 
Title VII. However, under its agreement with the Department of 
Labor, (he black employees affected by such prior discrimina­
tion are given transfer rights with carry-forward of total plant 
seniority. It is not without significance that, of the assignments 
to the formerly all-white departments since the agreement, the 
only assignments to the Template, Powerhouse and Plant Pro­
tection departments have been of black employees and over half 
of the assignments to the Airbrake and Inspection departments 
have been of black employees.

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69a

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70a

Attention therefore should in this ease be directed to the 
percentage column 11, which portrays the distribution by race 
excluding those departments covered by the agreement; i.e., the 
eight one-race departments and the Steel Miscellaneous depart­
ment. This reveals that, while only in five of the sixteen depart­
ments (Mobile Crane, Railroad, Paint and Shipping Track, 
Lumber Stores, and Miscellaneous Stores) was the racial com­
position of the department approximately equal to the ratio for 
the total of all such departments,” yet there was no pattern of 
favoritism to whites in the departmental assignments. Indeed, 
on balance, blacks as a group appeared to receive somewhat of 
an edge in such assignments.

Special consideration must be given to the significance of the 
data respecting composition of the Maintenance and Welding 
departments. A high proportion of the jobs in these two depart­
ments require special skills; and yet, as previously noted, the 
positions are not arranged in lines of progression through which 
one, by assignment to entry level positions, can acquire the 
necessary training and experience to qualify. Accordingly, those 
positions typically have been filled by “ olf-the-street” employ­
ment of persons already possessing requisite qualifications. 
Bare statistics showing only the racial composition of the 
employees in those departments do not—absent a study of the 
qualifications of the applicants or at least a showing of ex­
amples in which qualified blacks were not assigned to such 
departments—evidence discriminatory assignments thereto. 
There has been no such study of applicants, not indeed has 
there been any showing that the company declined to assign a 
qualified black employee or applicant to either black employee 
or applicant to either of the departments. Accordingly, a mote 
realistic picture of departmental distribution of employees by 
race insofar as pertinent to the issues in this case is given in 
percentage column ill of the chart. With perhaps one excep-

71a

lion—the forge department—the conclusion must be drawn 
that black employees were not adversely affected by such 
disproportionate departmental assignments as existed at the 
Bessemer plant.

Lvcn with the loige depattmenl an uncritical acceptance of 
the data can be deceiving, l ot although in June 1965 there were 
12 blacks and 20 whites on its departmental seniority roster, 
other evidence shows that there has not been discrimination 
against blacks in the assignment of personnel to this “ good” 
department. Indeed, just three years earlier, blacks constituted 
47% of the forge department while representing less than 42% 
ol the total plant work lorce. (See Px-21).

()l course changes in the racial composition of the depart­
ments occur over time due to new hires and assignments and ter­
minations. A stud) ol the company’s assignments from 1965 to 
1974 discloses an obvious effect by Pullman to “correct” the 
racial imbalances in the departments. Those departments which 
m 1965 had been predominant!) of one race are, without excep­
tion, closer in 1973 to the racial ration for the plant as a whole; 
and those departments which had been exclusively of one race 
are, with one exception, no longer “ segregated” . While the 
Janitofs department is reflect as all-black in 1973, it should be 
noted that during the 1965-73 period two whites had been 
assigned to it, but subsequently quit.”  A chart prepared by the 
court (not reproduced in this opinion) similar to that for June 
1965 reflects that in June 1973 38.24% of the black employees in 
the sixteen dep’artments not covered by the agreement (and 
26.-44 % of the whites) were assigned to departments in the 
upper-half of departmental ranking; and approximately 5% of 
each racial group was assigned to the four “ bottom” such 
departments.



72a

A study based on seniority rosters suffers in that it does not, 
of course, show actual work forces, at any particular period. The 
only source in the evidence for making such a study is a com­
pilation (page 74 of DX-351) which reflects for all but the 
smallest departments the monthly averages for the period 
December 1972 to June 1974 of the actual number of persons, 
with racial percentages, who drew checks during the month. In 
the court’s study of such data, put into a form similar to that 
shown in percentage column 111 of the June 1965 seniority study 
for those departments for which the information was available, 
it was found that 40% of the blacks drawing paychecks were in 
departments in the upper-half of the department rankings, as 
compared to 36% of the whites.

In support of their attack upon Pullman’s departmental 
seniority system,'0 the plaintiffs have by a series of exhibits, 
PX-41 thru PX-50, asserted that 92% of the jobs were 
segregated, i.e., “ white only’’ or “ black only” , in 1962, and 
that 49% of the jobs were segregated even in 1973. A major dif­
ficulty with this approach is that it accords the same statistical 
significance to a job classification held by' a few employees as to 
one held by scores or hundreds. If the number of employees in 
particular classifications is taken into account, it appears that 
less then 7% or the 2,900-plus employees on the 1973 seniority 
roster held “ white only” or “ black only” classifications. 
Moreover, to be meaningful, the calculations should be ad­
justed so as not to treat as “ segregated” those classifications (1) 
which are one-man jobs (and hence necessarily of only one 
race); (2) which in prior years have been held by employees of 
both races (by looking at the seniority lists from 1966 through 
1973); or (3) which are held by both races in other departments 
(e g., the hook-on classification in four departments was held in 
1973 only by blacks, but the same job in two other departments

73a

was held by both blacks and wbites). II this adjustment is made, 
it appears that less than 3% ol the employees held “ segregated” 
classifications according to the 1973 seniority roster.

As to the, putative elfcct of such segregation, only 9 blacks 
have “ segregated” classifications below JC 8; and only 14 
whites have “ segregated" classifications above JC 13. Twelve 
of these whites have the classification of Electrician Motor In­
spector (JC 16) while in the same department (Maintenance) 
there is a black employee with the classification of Electrician 
Wireman-Craft (JC 18), and the other 2 whites hold the 
classification of Powerhouse Operator, in which there have 
been no vacancies in over 20 years. If one disregards those 
“ white-only” classifications where a black employee in the 
same department has held another classification of equal or 
greater JC level, it appears that only 14 whites in 1973 held 
“ segregated, higher” classifications: 2 at the JC 7 level, 7 at the 
JC 8 level, 3 at the JC 10 level, and 2 at the JC 16 level. In the 
two higher classifications (JC 10 and 16), there have been no 
vacancies since 1965.

The difliculty with using seniority rosters, rather than actual 
work assignments, is even more pronounced in a study of job 
classilications than in one of the departental assignments. As 
previously indicated, the seniority rosters reflect the job 
classifications as to which the employee has demonstrated 
satisfactory performance so as not thereafter to be questioned 
as to “ relative” ability, and frequently only the highest rated 
job as to which he has so demonstrated his ability is shown on 
the roster. Typically, an employee is considered as 
qualified—and during periods of force reductions will work —  
jobs in the departmem lower than that shown for him on the 
roster. Accordingly, for example, to treat only black employees 
as holding the classification in the maintenance department as



74a

Oiler or Helper is somewhat misleading, since there are whites 
having higher rated classifications in the department who are 
considered as possessing such qualifications. Employees will 
also on occasion work jobs higher than the classif ication shown 
for them on the seniority rosters. Finally, the number of persons 
holding a given classification on the seniority rosters is not 
necessarily a reliable means for determining the actual number 
of persons who will be working that job even at times of high 
production; and, indeed, if one looks at the number of white 
employees who at high employment will actually be working a 
"segregated” job (as to which some vacancy has existed since 
1965) which has a higher job class than those at which blacks are 
working in that department, only 3 whites will be so "favored” , 
and they are at the JC 7 and JC 8 levels.

The foregoing analysis should not be understood as denying 
the existence of segregation of jobs in the past. Indeed, until 
mid-1965, such practices significantly discriminated against 
black employees; and the effects thereof lingered, with 
diminishing extent, over the following years. Rather, what it 
does indicate is that the changes which were then made — the 
opening up of jobs to blacks through permitting them actually 
to use their departmental seniority to obtain better jobs are 
remedying" (rather than perpetuating) the effects of such past 
job discrimination. What little racial identification of job 
classifications can still be discerned is basically due to the time 
lag which is an inherent quality of “ rightful place’ remedies.

Supportive of the conclusion that the seniority system at 
Bessemer is not perpetuating the effects ol prior discrimination 
are the earnings figures submitted into evidence. The average 
earnings for black employees in comparison to those of white 
employees has risen steadily, such that by 1973 the average total 
earnings for black employees was $7,031, or 96.-8% of the 
average total earnings for whites, $7,259. If one could eliminate 
from such calculations those whites holding high-paying jobs

75a

due to craft status or pre-1965 incumbency, it is clear that earn­
ings of blacks would be on a parity with, or somewhat above, 
those ol comparable white employees. Moreover, though not 
capable ol measurement, there arc potential opportunities for 
further increases in relative earnings for blacks due to the 
transfer rights under the agreement from some of the lower pay­
ing departments and to some of the higher paying departments.

Deserving of special consideration are two rather narrow at­
tacks made by the plaintiffs upon the departmental seniority 
system as altered bv the agreement with the Department of 
Labor, namely , that the transfer rights under the agreement are 
inadequate lor failing to provide “ red-circling” and for limiting 
the privilege to persons employed before April 30, 1965. These 
contentions are not dependent upon establishing discrimination 
in assignments other than in the nine departments covered by 
the agreement, and, as implied earlier in the decision, the court 
does conclude that there was such discrimination regarding 
those departments (though not as regards the other sixteen 
departments).

“ Red-circling” is, of course, a standard remedy in cases of 
past discrimination, frequently necessary “ since otherwise 
employees could not afford to take training jobs paying lower 
wages;” Rettway v. Acipeo 494 F.2d 211, 248 n. 99, 7 FFP 
Cases 1115, 1144 (CA5 1974); and this court has mandated its 
use in other Title VII cases. Where the job from which the 
employee transfers pays more than the new job and the new job 
is in a department where the top wage rate is greater than rates 
in the old department, the employee is “ red-circled , i.e., paid 
at his old wage rate until he advances to a job paying more or 
voluntarily freezes at the new job.



76a

The court concludes that under the particular circumstances 
of this case, however, red-circling is not appropriate respecting 
the nine transfer departments. Virtually all ol the jobs in the 
transfer-out departments have lower JC levels than the lowest 
JC jobs in the transfer-in departments. More significantly 
perhaps, there are no lines of promotion or residency re­
quirements to impede promotions in the new' department; and 
the frequent fluctuations in employment levels at Bessemer 
create many opportunities for advancement in the new depart­
ment, as well as obfuscate the meaning of an employee’s “ old 
wage rate” . Nor, except in a very loose sense, are there “ train­
ing” jobs in the new departments. Finally, it should be noted 
that, in the evidence presented to the court concerning turn­
downs or disinterest in transfers under the agreement, the key 
feature seemed to be confusion or apprehension concerning 
seniority carry-over and retreat rights,” and not the risk of 
possible diminished wage rates.

While tacitly admitting—as indeed they must—that in the last 
several years Pullman has abandoned any discrimination in 
making assignments to the nine departments covered by the 
agreement, the plaintiffs contend that this change was not made 
immediately on April 30, 1965. Plaintiffs assert that discrimina­
tion in assignments to such departments continued for a number 
of years thereafter; and that, accordingly, transfer rights ac­
corded under the agreement should be extended to black 
employees hired prior to, for example, June 1, 1969. In the 
court’s opinion the situation regarding each department should 
be given separate consideration.

The court has studied the yearly seniority rosters to ascertain 
the assignment practices of the company in the years following 
April 30, 1965, looking to those who “ survived” in the depart­
ment long enough to be listed on the seniority roster published

77a

alter their assignment. As to the formerly all-white depart­
ments: blacks did not make the Air Brake seniority list until the 
1971-72 period, although 6 whites previously had been added to 
the list subsequent to June 1, 1965; no black made the Inspec­
tion department list until the 1970-71 period, although 7 whites 
previously had been added after June 1, 1965; a black employee 
made the Plant Protection list in 1967-68, but a white employee 
had been added in the prior year; in the Template and 
Powerhouse departments the first (and only) person added after 
June 1, 1965, has been a black employee. As to the formerly all­
black departments: the first whites were added to the Truck 
department in 1968-69, and one black previously had been added 
after June 1, 1965; the first whites were added to Die & Tool in 
1971-72, but 2 blacks previously had been assigned subsequent 
to June 1, 1965; the first white was assigned to the Janitors 
department in 1967-68, but two black employees previously had 
been added after June 1, 1965. Respecting the Steel
Miscellaneous department, lour of the first thirteen employees 
added were white.

The court concludes, largely on the basis ol the foregoing 
statistics, that the company did not abandon racially 
discriminatory assignment practices regarding the Janitors and 
Plant Protection departments until June 1, 1967, regarding the 
Truck department until June 1, 1968, regarding the Inspection 
department until June 1, 1970, and regarding the Die and Tool 
and Air Brake departments until June 1, 1971. The court con­
cludes that discriminatory assignments were not made after 
April 30, 1965, respecting the Template, Powerhouse and Steel 
Miscellaneous departments.

Based upon the foregoing conclusions, the defendants are 
directed ( I) to expand" the del in it ion of the “ affected class as



78a

contained in paragraph one of the agreement (the "transfer- 
out” group) to those black employees assigned to the Janitors 
department who were employed prior to June 1, 1967, assigned 
to the Truck department who were employed prior to June 1, 
1968, or assigned to the Die & Tool department who were 
employeed prior to June 1, 1971; and (2) for purposes of 
"transfer-in” to the Plant Protection, Inspection and Air Brake 
departments under paragraph two of the agreement, to add’4 to 
the list of eligible black employees those who were employed 
prior to June 1, 1967, June 1, 1970, and June 1, 1971, respec­
tively.

Other than to the limited extent indicated in the preceding 
paragraph, the plaintiffs’ attacks upon the departmental 
seniority system (as altered by the agreement with the Depart­
ment of Labor) are denied. With the exception of nine depart­
ments, the evidence does not indicate any past or present policy 
of racially discriminatory assignments. As to those nine depart­
ments infected by past discrimination in assignments, the effects 
thereof are not being perpetuated by the present system with its 
transfer rights (as partially modified by the court in the 
preceding paragraph). It is not without significance that the 
Steelworkers local, which was organized principally by blacks, 
and .whose policies over the years have been shaped as much by 
blacks as by whites, has advocated departmental seniority and, 
indeed, within the past several years, has rejected by unanimous 
vote a company proposal to merge several of the departments. 
Finding no statutory violations, it is unnecessary for the court to 
deal with the company’s rear-line defense of business necessity.

II. Work Within Same Job Class

With one exception to be discussed infra, management has 
the sole authority under the collective bargaining agreement to 
assign work among employees working in a given job class in a 
department.” For example, a rivet driver has no voice in the

79a

decision whethei he is to drive rivets on the roof, or on a "top 
corner," or along the side, etc. W hile his pay in any event is the 
same,”' the individual riveter frequently as personal likes and 
dislikes about particular assignments. Likewise, the company 
can transler, without regard to seniority, an employee from one 
JC 6 job to another 1C 6 job in the same department, such 
"lateral" 11 ansi or being within the management prerogative 
provisions ol the labor contract. Here again, a particular lateral 
assignment may be distaste!nl to the individual employee.

1 he plaintiffs claim that, in exercising this discretion, 
Pullman gives the more dsirable assignments to w hite employees 
and the less desirable ones to blacks. C ertainly such a practice, 
tl established, would be violative ol the anti-discrimination 
statutes notwithstanding the provisions of the collective 
bargaining agreement.1

Neither the claim, nor its denial, is susceptible of proof by 
direct statistical means; and, in essence, the plaintiffs rely upon 
purported examples of such discriminatory assignments, coupled 
with evidence ol other acts and practices indicative of bias 
against black workers by a predominantly white group of 
foremen.” In support ol its denial, aside from noting that the 
burden ol proof is upon the plaintiffs, the company has offered 
evidence to show that the differences in jobs are merely matters 
of individual preference, that best utilization of skills is the 
criterion lor such decisions (and not racial considerations), and 
that, under the business necessity doctrine, employees cannot be 
given the right to choose their own particular work assignments.

It is clear from the evidence that many—perhaps 
most—employees believe that some work assignments are better 
or worse than others. It is clear that many black employees who 
have received, in their opinion, a "bad" assignment from a



80a

white foreman, consider the situation one of racial prejudice. 
The court must, of course, examine for itself the reality of the 
labels so placed by the witnesses.’1'

Yet the evidence is also clear that there is no general agree­
ment among the employees as to which arc the better, or (he 
worse, work assignments for their job classification. Some riveters 
considered roof work exceptionally dirty; another liked it 
because he could kneel and work in a downward position; some 
preferred positions where there was no “ O.K.” (Corrective) 
work, and others considered “ lop corner” work good although 
it involved “ O.K.” work. Some spray painters liked the 
elevator-like platforms to work from; others preferred the old 
scaffolding method; some thought stencilling better work, but a 
stenciller, musing about the fumes when cleaning stencils, 
though otherwise. Evidence about other work assignments has 
the same theme: in short, “ the grass looks greener. . . The 
court cannot conclude from the evidence that in fact some par­
ticular work assignments are objectively better or worse than 
others, either from the characterizations given by the employees 
or from a consideration of the particular functions to be per­
formed.

Indeed, the typical situation of assertedly racial discrimina­
tion as presented to the court involved the assignment of work 
as between two or more black employees. In a few instances, the 
complaint did relate to a white employee receiving a “ better” 
assignment, or a black receiving a “ worse” one; but the 
evidence also showed that on other occasions this “ better” 
assignment was given to blacks and this “ worse” one to whites. 
Significantly, the assignments being criticized by the witnesses 
had been made by white, black, and Spanish-surnamed 
foremen.

81a

Testifying were a numbei of foremen, both white and black, 
including some who have since returned to the bargaining unit. 
Without exception, they attested to the fact that their assign­
ment decisions had been based on their assessment of the 
relative skills and limitations of their crew, mindful of their 
responsibility to complete the assigned work properly and on 
schedule, l or example, some welders cannot satisfactorily do 
certain types ol welding at all. Racial considerations, according 
to the foremen, have not been involved so far as they are con­
cerned or have observed, l oremen do tend to keep an employee 
on a particular job so long as he is doing satisfactory work and 
is not needed more on another position—this for the reason that 
the crew is more efficient when the men are accustomed to the 
particular details of theii assignment—and they may listen to an 
employee’s preference and, on occasion, honor that preference. 
Nevertheless, the foremen, both black and white, insist’ that 
assignments must be left to them rather than to a selection pro­
cess by the individual workers, at least if that would be a fre­
quent matter.40

The evidence taken as a whole is unconvincing that blacks are 
being discriminated against in the assignment of work.41 The 
dissatisfaction with work assignments at Pullman is basically an 
employer-employee dispute, not a black-w hite problem. In part, 
this conclusion finds support in the fact that in the last collective 
bargaining negotiations the union had a proposal, similar to the 
relief being sought by plaintiffs under this issue of the case, for 
permitting employees to use seniority rights in the selection of 
work assignments throughout the plant. While such a proposal 
might be beneficial to black employees (as well as to whiles), 
there is no violation of the anti discrimination statutes from the 
failure of a company to accord to blacks all that they want or all 
that might be beneficial to them. The court’s function is not 
that of master mediator for the benefit of black employees or



82a

for while employees. One might as well come to the court for a 
mandate to raise wage levels at the plant, an action that no 
doubt would meet with favor from all black and white workers.

Indeed, it is not merely the plaintiffs and the union, but on a 
related issue the company as well, that would have this court 
fight their collective bargaining battles under the guise of rente 
dying discrimination. The company’s invitation relates to the 
one situation in the plant where employee selection of work 
assignments is permitted—the “ sub-assembly” work in the 
Welding department. As a result of an arbitration proceeding 
some ten years ago, Pullman was forced to institute a system 
whereby welders can use their seniority to “ sign-up” for certain 
sub-assembly work at the start of large orders. Opportunities 
for incentive bonuses are generally better (or these jobs than for 
other welding work, in large part due to the smaller crews on 
sub-assembly work. Since the welders with the greatest depart­
mental age are predominantly white, the company asks that the 
court abolish this sign-up procedure/1

However, since the court has found no racial discrimination 
in the assignment of personnel to the Welding department, there 
is no basis for invalidating4’ the departmental seniority arrange­
ment for sub-assembly work, a facially neutral system which is 
“ bona fide” and is not the result of an intention to discriminate 
because of race or color.44 42 U.S.C.A. § 2000(e)-2(h). That 
such a system may benefit one race more than another is, absent 
proof of other discrimination being perpetuated thereby, insuf­
ficient—one might as well contend that where white employees 
on the average have more company, plant, departmental, LOP 
and job age, no seniority system could be used, or that blacks 
would have to be given pre-employment credit. Cf. Pranks v. 
Bowman Transportation Co., 495 F.2d 398, 8 FEP Cases 66 
(CA5 1974). Here again, finding no statutory violation, the 
court must reject the company’s invitation to adopt its unsuc­
cessful collective bargaining position.

83a

All attacks upon the practices regarding assignment of work 
within the same job class positions, whether made by plaintiffs, 
company, or union, are denied; and the parties are left instead 
to the collective bargaining forum.

III. Promotions to Foreman

Prior to June 1965 there were no black foremen. At the time 
of trial only approximately 10% of the salaried foremen were 
black. Only one black has become a “ B” foreman. Several 
blacks have asked for foreman positions, yet not been selected. 
Selection of loremen is made by an all-white group of super­
visors, without any objective standards or tests. This, in 
essence, is the basis4’ lor plaintiffs' claim of discrimination 
respecting promotions" to supervisory positions; and it has ob­
vious appeal.

The front line in the supervisory ranks is the hourly foreman, 
typically an employee promoted from the bargaining unit in the 
department to supervise a crew of his former co-workers. Super- 
\ising the work done under several houly foremen will by an 
“ A” toreman, who is salaried. The next step is the “ B” 
foreman, and above that comes the Department Head. Hourly 
foremen are frequently moved back and forth between their 
supervisory positions and work in the bargaining unit, there be­
ing concomitant changes in the needs for supervision as the level 
of employment in the department rises and falls.4’ The company 
attempts to limit the number of salaried positions to that which 
can be given reasonable job security, and selects a foreman from 
the ranks of successful hourly foremen.

The key to this issue lies in the analysis of Pullman’s practices 
regarding promotion of hourly foreman, lor that is the source 
for higher promotions. Since mid-1965, some 56 blacks—ap-



84a

proximaleiy one-third of the total number—have been ap­
pointed as hourly foremen; and the percentage would be higher 
if the first few- years of the period were disregarded. While this is 
lower than the percentage of blacks in the total workforce, 
several factors must be taken into consideration. First, it ap­
pears that a greater proportion of black than while employees, 
particularly among those with more experience with the com­
pany, fall into the functionally illiterate or minimally literate 
classifications, and accordingly are less likely candidates for 
supervisory positions.*' Secondly, a greater proportion of 
blacks than whites have turned down opportunities to become 
hourly foremen.4’ Additionally, due to pre-1965 segregation of 
jobs, it has taken some time for blacks to learn the range of job 
skills necessary in many cases to performance of supervisory 
duties. The statistical evidence, fairly considered, does not sup­
port any claim of discrimination since 1965 in making appoint­
ments of hourly foremen; and the few instances of individual 
passovers are likewise unpersuasive.’0

Inasmuch as blacks constitute a minority—for the reasons in­
dicated above—of group of persons who have served as hourly 
foremen, it is to be expected likewise that there would be a 
minority of blacks raised to salaried foremen’s positions. Data 
reflects that approximately 20% of such promotions since 
mid-1965 have been of blacks, a percentage that is not really 
disproportionate to the composition of the source group when 
one takes into account the pre-1965 hourly foremen (all white) 
and the necessity of some lag time for demonstration of satisfac­
tory performance as an hourly foreman. Thus, while for the 
1965-68 period only 4 of the. 35 such promotions were of black 
employees, by the 1971-74 period 8 of 20 were blacks, a ratio 
higher than the percentage of blacks in the source group. One 
black hourly foreman testified that when recently complaining 
that the hadn’t been put on salary, he was told that the company 
was attempting to use a “ one-for-one” promotional ratio to 
salaried positions where possible."

85a

Selection ol foremen has been largely a matter of subjective 
evaluation'- by an all-white group of supervisors,” a fact which 
provides a ready-made opportunity lor discrimination and 
which in other cases has added weight to inferences of bias 
drawn fiom statistical evidence. F.g., Rowe v. General Motors 
Corp., 457 F. 2d 348, 4 FF.P Cases 445 (CA5 1972). But the lack 
of objective criteria—and in the selection of supervisors it is dif­
ficult to arrive at such criteria without at the same time runn­
ing the risk ol potentially unlawful testing or educational re­
quirements—is not itself a statutory violation or, indeed, 
necessarily even evidence of such a violation. See, e.g., Pettway 
v. Acipco. 494 F.2d 211, 7 FTP Cases 1115 (CA5 1974) (reman­
ding for a consideration of the effect, if any, of using subjective 
evaluation). In the case sub judice, the court concludes that the 
statistical evidence, properly evaluated, is not supportive of a 
claim ol discrimination in supervisory appointments in recent 
years and that there is no evidence of blacks during this period 
having been passed over in favor ol less qualified whites. It 
must, therefore, follow that the use ol subjective judgment in 
selecting foremen likewise is not shown to be a discriminatory 
employment practice.

In summary, upon a consideration ol the whole of the perti­
nent evidence—and not merely those parts highlighted by plain­
tiffs—, the conclusion must be reached that the claim of racial 
discrimination in promotion of employees to foremen positions 
has not been proved and is therefore to be denied.

IV . Posting of Assignments

To the outside observer, the exercise of seniority rights for 
promotion, roll-back, layoff or recall purposes would appear to 
be fraught with difficulties. There is no bidding procedure, or 
even posting, of vacancies; nor is there even after-the-fact



86a

notification of changes in assignments. Pullman notes that it 
has always been this way, for the very good reason that daily 
changes in employment levels and in assignments makes a bid­
ding procedure impossible and a posting of assignments un­
necessarily burdensome. According to Pullman, the recent in­
novation of publicly posting its daily turn-over sheets (in­
dicating hires, terminations, layoffs, and recalls) really is of lit­
tle benefit to the employees, inasmuch as these sheets in the past 
have been given to, and monitored by, union officials. Counsel 
for plaintiffs contend that black employees are entitled to some 
better system of notification in order that they may take full ad­
vantage of their seniority rights.

The court, frankly, was astonished during pretrial con­
ferences that such a system—or lack of a system—could work. 
During trial, however, it became apparent from the evidence 
that the company’s contentions as to the impossibility of a bid­
ding procedure and as to the lack of utility of public posting of 
daily assignments were not specious. More importantly it was 
clear from the testimony that the employees, white and black, 
found the “ word-of-mouth” and “ personal observation” ap­
proach satisfactory and workable. Critical to this case, it was 
clear from the evidence that the lack of formal procedures for 
notification neither discriminated, nor perpetuated the effects 
of any past discrimination, against blacks. It should be noted in 
this regard that at Pullman’s Bessemer plant the union officials 
play a far more active role in monitoring and ferreting out viola­
tions of employees’ seniority rights than this court has found at 
other plants, and that these union positions are shared rather 
evenly between blacks and whites.

The court has no doubt but that some better system of giving 
notification about assignments could be adopted lor this 
plant—though it would have to be different from that found in 
typical collective bargaining agreements—and that such a 
system, though the present one meets with general satisfaction,

87a

would be ol benefit to the employees, both white and black. 
However, as indicated earlier in this opinion, the court’s role is 
limited to providing remedies for violations of the anti­
discrimination statutes, and otherwise not to interfering with 
the collective bargaining process. As an issue in this lawsuit, 
plaintiffs’ claim regarding posting of notices and the like is due 
to be denied, leaving the matter for collective bargaining pro­
cesses.

V. Discharges of Swint and Humphrey

Louis Swint and Clyde Humphrey, black employees in the 
Steel Erection department, were fired by Pullman in May 1971 
and November 1972, respectively. Disappointed with the out­
come ol arbitration proceedings," each attacks the company’s 
action as discriminatory or retaliatory, each having filed a 
charge of racial discrimination with the EEOC’6 prior to 
discharge and Swint also having been active on the plant’s Civil 
Rights Committee.

In each instance the principal reason assigned by the company 
lor its action was that of insubordination; and, without recoun­
ting the extensive evidence here, it is clear that the company had 
good and ample reason for believing” them guilty of such con­
duct, as well as of other prior derelictions in employment. There 
can be no doubt but that such action by employees was deemed 
by the company as a dischargeable offense, whether coming 
from blacks or from whites; and the only real question is 
whether these were but labels—were but a subterfuge—to cover 
the real reasons for their discharges; namely, that they were 
black or that they had caused problems to the company through 
filing of EEOC charges or Swim’s service on the Civil Rights 
Committee. '*

There is not the slightest evidence anywhere in the record on 
which the court might indulge in the inference that they were



88a

fired because they were black. Perhaps the most telling point is 
that Swint’s insubordination was directed toward a black 
foreman and that, in Humphrey’s case, another black 
employee, who had been jointly involved in a refusal to do 
assigned work, was given no punishment when he recanted and 
agreed to do the work. (Humphrey persisted in refusing to do 
the work, was therupon discharged, and was reinstated by the 
arbitrator on the basis there was not enough distinction between 
the conduct of the two to justify the widely disparate treatment 
by the company.)

Nor is there substance in the assertion that Pullman’s actions 
were retaliatory for earlier EEOC charges. It does not appear 
that the persons making the decision to discharge them were 
even aware of the tiling of the charges. These were not the only 
charges filed with the EEOC—there have been a number of 
them, virtually all, it may be noted, having been found to be 
without probable cause. The evidence discloses that a number 
of those who have made claims of racial discrimination have ob­
tained, if anything, favored treatment thereafter from the com­
pany in the form of obtaining promotions, transfers, 
reassignments, etc., which they had requested. Examples in­
clude Henry Vann, Spurgeon Seals, Edgar Davis, Junior 
Wormley, Willie James Johnson (one of the two named plain­
tiffs in this case), and William C. Harris. With the sole excep­
tion of the claims of Swint and Humphrey, the evidence reveals 
no instance of an employee filing an EEOC charge or serving on 
the Civil Rights Committee and thereafter being subjected to 
any allegedly retaliatory action from the company. In the pre­
sent case it is unlikely that either Swint or Humphrey would 
have remained with Pullman as long as they did unless the com 
pany had been “ bending over backwards’’ on their behalf. 
Their claims are denied.

89a

Conclusion

V\ ith the limited exception of expanding somewhat eligibility 
to transfer rights under the 1972 agreement respecting six 
departments, the various claims and items of relief sought by 
plaintiffs ate due to be denied. While the defendants must be 
considered as the “prevailing parties” , nevertheless, in the exer­
cise of discretion, the court believes that auornes’ fees and costs 
should not be awarded to them. It is quite possible that the 
presence of this litigation has played some therapeutic role in 
bringing about the 1972 agreement and the strides made at 
I ullman in fashioning its affirmative action plans lor enhance­
ment of opportunities for black employees. The exposure of 
employ ment practices at Pullman through this litigation has not 
been without some benefit to both the company and the union. 
In a case where counsel lor the plaintiff class has displayed 
unusual ability, fairness, and industry, it would hardly be in the 
public interest not only for his firm to go without recompense 
for considerable time and expenses, but for his clients as well to 
be taxed with additional charges. Judgment will reflect that each 
party is to bear his or its own costs and expenses.

Judgment

In accordance with the findings and conclusions contained in 
the Memorandum of Opinion tiled concurrently herewith, it is 
ORDERED, ADJUDGED, and DECREED as follows:

I. The Memorandum of Agreement of May 1972 between the 
Department of Labor and Pullman-Standard is declared to be 
binding upon the union defendants; but eligibility under the 
agreement for transfers from the Janitors, Truck, and Die & 
Iool (CIO) departments and for transfers to the Plant Protec­
tion, Inspection, and Ait Brake & Pipe Shop departments shall 
be modified to include certain classes of employees as more fully 
specified in the Memorandum of Opinion. Liability, if any, for



90a

back pay in favor of persons benefited by such change in 
eligibility respecting transfers from the Janitors, Truck, and Die 
& Tool departments is severed for subsequent proceedings, as 
may be necessary, in accordance with procedures specified in 
the Memorandum of Opinion; but there is no just reason for 
delay as to the other issues in the case and entry of final judg­
ment as to all such other issues is expressly directed.

2. In all other respects the claims of plaintiffs and of the 
plaintiff class are denied and the action dismissed with pre­
judice.

3. Each party shall bear its own costs.

91a

SW IN T I  - Footnotes

I he court concluded that the case was maintainable as a class ac­
tion under Rule 23(b)(2) and that neither constitutional requirements 
nor Rule 23(c)(2) made individual notice mandatory under the cir­
cumstances. Cf. Eisen s. Carlisle & Jacquelin, 417 U.S 156 9 FEP 
Cases 1302 (1974).

1 One of the five issues, that involving posting requirements, was 
thought resolved in advance of trial, but the plaintiffs, believing that 
resolution inadequate, chose to present the issue at trial as permitted 
by the pretrial order.

Orders may be for as few as 25 cars, or for several thousand.

The number of workers in Steelworkers units at the Bessemer 
plant varies from over 2,800 at peak employment periods to less than 
200 at the lowest levels. During 1973, which was not abnormal in this 
respect, on only three occasions was the employment level in one week 
approximately equal to that of the prior week. Indeed, a chart based 
upon monthly employment hours from early 1958 to mid-1974 reflects 
only a very few times that hours worked in one month have have been 
aproximately the same as in any of the two months preceding or 
following. Changes in the work force were occurring during the 
several weeks this case was tried.

’ Millrighis and certain employees in the Die and Tool Department 
are represented by the International Association of Machinists and 
Aerospace Workers, AFL-CIO. For the limited purpose that some of 
the relief sought by plaintiffs might entail possible modification of its 
contract with Pullman, the I.A.M. and its Local Lodge 372 were join­
ed as defendants at (he time of trial although not previously named in 
any charges before the EEOC or involved in the allegations of the 
pleadings in this case. Since the I.A.M. jobs are only indirectly involv­
ed in this litigation, such positions are not dealt with or included in the 
review of evidence or the findings in this opinion unless specifically 
noted.

While the job classification manual lists some 250 jobs, many of 
these are not worked at Bessemer, and several of the classifica­
tions— particularly, laborer, cleanup, craneman, and hook- 
on—appear in a number of departments as separate listings. The 
plaintiffs identified 123 jobs Irom the June 1973 seniority rosters, but 
even this figure includes duplications where the same job appears in 
more than one department.



92a

’ According (o data showing the average number of persons draw­
ing paychecks by department over an 18 month period ending June 
1974, over 50% of the employees work in the Welding and Steel Erec­
tion Departments and almost 77% work in those departments plus the 
next four largest (Paint & Shipping Track, Punch & Shear, Steel Con 
struclion, and Maintenance).

1 For example, Cleanup man, JC 1, has the lowest non-incentive 
standard hourly wage ($3,635 as of October 1973), while Template 
Maker Craft, JC 20, has the highest such wage (15,399 as of October 
1973). Piece-rate scales and production quotas are frequently of great 
significance in determining the actual earnings potential of a par­
ticular job.

’ There are a score or so of female production and maintenance 
workers at Pullman, both white and black. Due to the predominance 
of male employees, however, the masculine gender for pronouns is us­
ed for convenience in this opinion. 10

10 Actual work-hour figures for 1965 wer.e not available; nor was 
the June I, 1965, seniority list. However, by looking at the June 1964 
seniority list (PX-2) and by taking account of the additions and dele­
tions to that list representing hires and terminations during the year, it 
is possible to construct the functional equivalent of, the June 1965 list. 
This calculation reflects 1,151 blacks and 1,773 whites on the seniority 
list as of June 1, 1965. While the seniority list does not absolutely 
reflect actual employment at any particular time, it does bear a signifi­
cant correlation therewith in a period of high employment, such as 
June 1965 (in excess of 2,350 average workers for the month, per page 
35 of DX-351). It may be noted that the actual employment of blacks 
in the December 1972 June 1974 period, i.e., 49.5% exceeded slightly 
the percentage of blacks on the seniority lists for June 1972 and June 
1973, i.e., 44% and 46%, respectively.

93a

I hat the percentage ol black workers at Pullman is higher than 
the percentage of black population or work force in Jefferson County, 
or even in Bessemer, does not, however, indicate hiring bias in favor 
ol blacks. While data has not been compiled to compare actual ap­
plications leu employment with hiring at Pullman lor the period, one 
can, by analyzing the seniority rosters from 1966 through 1973, deter­
mine that approximately 36% ol the new hires during that period were 
black, a percentage which is compatible with work force and popula­
tion daia I ion) the census. Piesumably. the analysis of quits and 
discharges during 1971 (page 83 of DX 351), showing that during that 
year almost three limes as many whites as blacks either quit or were 
discharged, would be ty pical lor the entire period. One may speculate 
that relative job oppoitunities with other employers were better for 
whites than lor blacks and that relatively more blacks than whites 
chose to accept recall to Pullman alter layoffs.

Pullman’s old records, quite incomplete, do reflect a mixing of 
the races in some ol these jobs in the I920’s and 30’s. Nonetheless, it is 
clear that by the late 40's many ol the jobs had become racially 
segregated, and remained so into the mid-60’s, not by formal agree­
ment to that effect, but under a custom and practice which the com­
parts condoned, it not approved.

11 Foi a number ol years the labor agreement has contained 
language icquiring its pros isions to be applied w ithout discrimination, 
but prior to the Met oy arbitration decision in March 1965 this 
language had been without apparent significance.

A temporary promotion results in some increase in compensation 
and, perhaps more significantly, is the principal avenue by which an 
employee can obtain recognition as capable ol satisfactorily perform­
ing the job.

I he memorandum contained provisions similar to those later in­
corporated in the 1972 agreement, including transfer rights with 
seniority carryover lor black employees from four "low-ceiling” 
departments or to the five formerly all-white departments. (A black 
employee had already been assigned to one of the five “white only" 
departments, plant protection.)



94a

'* Over a hundred blacks have received welder training at company 
expense and become welders at Pullman (though many have since 
gone with other companies). Without denying the benefits such train­
ing has provided to blacks, plaintiffs do note that with respect to 
welder jobs, the company has instituted a requirement that before it 
will test a welder’s competency the employee must now show either 
formal training or field experience with some other company. This 
new requirement, though not unreasonable standing by itself, might 
constitute a discriminatory practice since in prior years whites were 
able to gel testing with only company experience. This potentially 
discriminatory requirement, however, is not challenged as one of the 
issues in this case, and really has nothing to do with such issues, e g., 
departmental seniority, assignment ol work in the same JC level.

” 1 he union has never formally adopted the agreement, but in 
practice has accepted the terms thereof to the extent that it must be 
deemed bound thereby.

" Employees from the low-ceiling departments, if possessing 
minimal qualifications, can also obtain vacancies arising in the l.A.M. 
units. In such event, they lake their plant age into such units for the 
purposes of layoff and recall and, when vying against other appren­
tices at the same level, for promotional purposes. Without formally 
concurring in the agreement, the l.A.M. has apparently accepted the 
provisions and implicitly agreed to be bound thereby.

'• It was discovered during the trial that one employee so transferr­
ing into the Powerhouse department, Robert Johnson, is not credited 
on the seniority rosters with his plant age for promotional purposes 
and apparently has never been given his option regarding seniority for 
layoff and recall purposes. Due, however, to stability of employment 
in the department and lack of subsequent promotional opportunities 
in the department, it appears that this mistake has been error without 
injury

The class was defined as consisting of all black persons who at 
any time sebsequent to one year prior to the filing of any charges w ith 
the EEOC had been employed by Pullman (at its Bessemer plant) as 
production or maintenance workers in positions represented by the 
United Steelworkers. General notification to class members specified 
these as the issues in the case and stated the class prevailed on one or 
more ol the lour issues

95a

In the pretrial order this issue was defined as subsuming the con­
tentions on behall ol the class that the agreement with the Department 
ol Tabor was inadequate in the following respects: the transfer rights 
applied only to four departments; the agreement did not provide for 
“ red circling” ; only a single transler was provided; and transfers to 
l.A.M. positions were not afforded. At conferences during the trial of 
the case it became apparent that plamtifls also contended that the 
transler rights should have been extended to black employees hired in 
the 1965-68 period, rather than being limited to pre-May 1965 
employees \C uvcai: I he description of the issues in this part of the 
opinion should be taken merely as defining the contentions and not, 
for example, as constituting a finding by the court that no provision is 
in fact made lor transfers to the l.A.M. positions under the agreement 
Cf In 18, supra |

Mr Swim’s claims are premised on 42 U.S.C.A. §§ 1981, 
2000e-2(a)( I), and 2(XX)e 3(a). while Mr. Humphrey’s are grounded 
only upon 42 U.S.C.A § 1981 The court has assumed arguendo 
without deciding, that Humphrey’s claim of retaliation lor filing 
EEOC charges can be posited under §1981 and that Swint’s alternative 
claim ol retaliation for his participation on a joint Civil Rights Com­
mittee is cognizable.

I lie I ranks case disposes ol one contention made by plaintiffs’ 
namely, that the agreement with the Department of Labor was defi­
cient m providing a one-transler-only See, 495 E.2d at 417 n. 16, 8 
I EP Cases at 69 Actually, the agreement sub judice does provide for 
additional transler rights under certain conditions.

There is no contention in the present case that the departmental 
seniority system at Besscmci is applied other than in a uniform man­
ner regardless ol race or color. Nor is there evidence that the rather 
limited number of inter-departmental transfers granted at Pullman 
have been other than in a lair and noil-discriminatory manner.

I or example, in Pettway v. ACIPCO, 494 K.2d 211,7 FEP Cases 
1115 (CA5 1974), at the time of trial in 1971 there were some 8l°r/o of 
the black employees (as compared with 54(,/o of the whites) assigned to 
the seven departments (excluding Personnel and those with under 15 
employees) having the lowest average wage, while 37.6a/'o of the whites 
(as compared with 7% of the blacks) were assigned to the five depart­
ments having the highest average wage. More significantly, jobs in 
'hose mixed departments had in 1962 been totally segregated (whites 
holding only the higltei paying jobs and blacks only the lower paying 
ones); and, ol. the limited integration in jobs which occurred over the



96a

next seven years (over 75°/o of the job classifications still were 
segregated in 1969), such was effected through the influx of whiles in­
to black jobs, without a “sign of movement of blacks into higher pay­
ing jobs” . Only 25% of the job classifications were integrated in 1971 
when the case was tried.

’* At Goodyear the departments were totally segregated until 1962. 
The first assignment of a white employee to the labor department oc­
curred in September 1965. Of the 80 blacks hired in 1965-70, over 40% 
were assigned to the labor department, while of the 149 whites hired in 
the same period less than 7% of them were so assigned. It was admit­
ted that labor department jobs were the lowest paying in the plant.

” A ranking according to job class levels does not mean that each 
employee would so rank the departments in terms of desirability; but 
it does provide a rough index of earnings potentials in the absence of 
other more reliable data, such as average earnings or average job 
classworked. For the Welding department the court has disregarded 
the highest job, Welder-Craft (JC 16), using instead the next highest 
job class, this adjustment being made because the highest position of­
fers such few opportunities considering the size of the department, 
i.e., less than 1% of the department jobs. This study is based upon 
seniority rosters in the absence of data showing actual distribution of 
the work force by departments; and the June I, 1965, figures are 
derived from PX-2. See footnote 10, supra. Percentage column I is 
computed for all departments. For the purposes indicated in the test 
of the opinion, percentage column II disregards employees for the 
nine departments involved in the agreement with the Department of 
Labor and percentage. Column III further disregards the maintenance 
and Welding departments. (In analyzing the evidence the court con­
structed charts of the same formal based upon the June 1973 seniority 
rosters and upon the December 1973-June 1974 average monthly 
employment data. While these charts are not reproduced in this 
opinion, some references are made to the results of such studies.) 11

11 It should be noted that, absent a conscious effort to achieve 
racial balance in departments, the existence of disproportionate racial 
compositions in departments is to be expected. Even when the extent 
of variation from the mean is great, other factors—such as quit rates, 
composition of application group at time of hire, applicant preference 
for employment in departments where other family members or 
friends are assigned, etc.—must be considered before concluding that 
racial motivations were involved in making the assignments.

97a

1 he matter of personal choice cannot be wholly discounted when 
evaluating departmental statistics. It is clear from the evidence that 
the blacks in the Janitors department prefer it to most — and a few of 
them prefer it to all—departments. The actual earnings of employees 
in the Janitors department indicate that, due to greater stability of 
employment, it may indeed have greater earnings potential than 
employment in a number ol other departments with higher JC posi­
tions

Actually, even il there were a demonstration of segregation in 
job classiIications, this would have no causal connection with the 
departmental seniority system, but would be indicative of some other 
discriminatory practice. Presumably, these studies were offered by 
plaintiffs as circumstantial evidence of motive, intent, design, etc., on 
the issue of departmental seniority and the other issues in this case.

" While there is a dramatic improvement in the status of blacks 
between PX-61 and PX-55, showing job classes of persons by race on 
seniority rosters lor 1964 and 1973, respectively, yet the time lag in­
herent m "rightful place'’ adjustments still leaves much room for fur­
ther movement upward by blacks. For example, the 1973 study by 
plaint ills showed that 19.9% of the whiles held positions on the 
rosters above JC 10, as compared with only 12.2% of the blacks. As 
an illustration of the difficulty of using seniority rosters to evaluate 
job classifications, it may be noted that for May 8, 1973, the only dale 
lor which such information has been presented (DX-274), 10,8% of 
the whites (and 9.3% of the blacks) actually working on that date in 
non-cralt jobs were in jobs above JC 10.

” From January 1969 to May 1972, there was confusion since the 
1969 memorandum of understanding, for lack of union acceptance, 
never became effective One of plaintiff’s witnesses, Alfonso Cole, 
implied that he was deceived by the Contract Compliance Officers as 
to his rights under the May 1972 agreements; but the court, having 
heard all of them, is persuaded that any misunderstanding by Cole is 
the result of distortion on the receiving, rather than on the sending, 
end of such communication.

" It is possible, though unlikely, that one or more of the blacks not 
being added to the "affected class" provision would have a claim for 
back pay based on their not having previously been included in that 
provision. Questions of back pay were previously severed for subse­
quent trial as might be necessary. The defendants are directed to give 
immediate written notice to such persons of their possible entitlement 
to back pay; and they shall have thirty days from receipt of such



98a

notice (or one year if personal notification cannot be effected) in 
which to file with the court a claim for such relief. Plaintiffs’ counsel 
may represent such persons unless they choose to employ their own at­
torneys. Under the provisions of Rule 54(b) the court determines that 
there is not just reason for delay of the other issues in the case pending 
resolution of such back pay claims, if any, and expressly directs entry 
of judgments as to all issues excluding that relating to back pay for 
such persons.

14 It is clear that the persons now being added to the “ transfer in” 
groups under the agreeement have no claim for back-pay since the 
vacancies in the three departments to this point would not have been 
sufficient to give them, at the bottom of the eligible group, any tranfer 
rights. Accordingly, any claim for back pay on their behalf is denied.

” This assumes, ol course, that the work asigned is within the nor­
mal range of duties of the position. Occasionally, there will be a claim 
that certain work has been assigned which is outside the scope of 
duties and in that event grievances under the contract can be, and have 
been, pursued. Plaintiffs’ contentions in this case are directed to 
assignments of work which, but for asserted racial implications, 
would be within management’s rights. It may be noted that the provi­
sion in the collective bargaining agreement prohibiting discriminatory 
application of its terms would probably be an overriding limitation on 
management’s rights and be the basis for a grievance under the con­
tract where racial discrimination were involved in the exercise of such 
powers. Such a possibility does not, of course, preclude an action 
under Title Vll for the same conduct.

“ Certain assignments in the Punch & Shear department may, due 
to differing piecerales, have some monetary conequences. Plaintiffs 
have candidly acknowledged, however, that such results are only of 
collateral signifcance and not at the core of their complaint.

” In view of the court’s conclusions as to the claim it is unnecessary 
to determine an appropriate remedy. Defendant company notes that 
any compensatory relief would not be “back pay” but rather an 
award comparable to general compensatory damages for mental Suf­
fering, presumably a matter for jury determination See Curtis v. 
Loether, _  U.S. ___(1974); Lynch v. Pan American World Air­
ways, 475 F.2d 764 , 6 FEP Cases 353 (CA5 1973).

99a

Hie tendered circumstantial evidence regarding prejudice by 
foreman is mixed and quite inconclusive. A few black witnesses gave 
accounts of having been subjected to purportedly abusive language, or 
the like, from a white loreman; but the paucity of such complaints in 
comparison to the astronomical number of possibilities over the years, 
together with the near-paranoiac, exaggerated descriptions by those 
who did have such complaints, leads the court to place little weight on 
such evidence. A review of the more than 2,800 grievances filed by 
white and black employees in the past eight years is hardly supportive 
of any inference as to discrimination against blacks. The picture is 
rather that of typical disputes between employees and their employer, 
with only a very few having even marginal racial overtones. While a 
greater percentage of blacks than whiles have been discharged over the 
years, a study of the grievances related thereto indicates no unequal 
treatment by the company. From the testimony of witnesses, the court 
is convinced that, by and large, white foremen in the past several years 
when dealing with black workers (and, likewise, black foremen when 
dealing with white workers) have tended to “ lean over backwards” to 
avoid possible criticism as to discrimination. Over 54<7o of the tem­
porary promotions to bargaining unit jobs made by foremen in the 
December 1972 to June 1974 period were to black employees.

” “How many legs does a dog have if you call a tail a ‘leg’?” “On­
ly four,” goes the epigram, “because what you call it doesn’t change 
what it is.” The wisdom so expressed is illustrated by one ex­
ample—and there are others — from the evidence in the case sub 
judice. Edward Loftin testified that all—or, at the very least, almost 
all—of the many grievances he had filed against Pullman involved 
racial discrimination. The grievances—over fifteen of them—were 
then examined one by one. Not one appeared to have any substantial 
element of racial discrimination A characteristic grievance was that 
some other black employee had received an assignment that by 
seniority Loltin claimed he should have gotten. As to one grievance, 
l oftin also filed a charge with the EEOC—it involved a 30 day 
suspension for refusing to obey the orders of his black foreman, and 
the principal complaint apparently was that he was not adequatley 
represented by his union since only two union officials were present 
during one of the grievance steps.

40 The company's business necessity defense is persuasive on this 
claim; that is, if assignments were to be a matter of daily choicg. It is 
not persuasive, however, as to more infrequent opportunities for in­
dividual selection, such as to the beginning of a substantial order. 
While there no doubt would be selections by an employee of work he



100a

could not perform satisfactorily, this could be largely remedied, albeit 
with increased inconvenience and expense of additional grievances, by 
use or the “ability” factor in the seniority definition. The failure of 
the “busmess necessity” defense does not, of course, mean the 
establishment of a cause of action.

1 The court is not so naive as to believe that in no instance has 
there ever been racial prejudice in an assignment by a foreman No 
doubt there has been. But the court concludes that this would have 
been far from commonplace and uncharacteristic of the conditions of 
employment at Bessemer. Isolated acts of prejudice, particularly 
where deemed to exist more by assumptions as to human nature than 
by direct proof, would not justify the issuance of injunctive relief.

*’ Of course, the company would not want to expose itself to back­
pay liability respecting such sign-ups. Its defense-that it was not at 
fault and to the extent of its bargaining power, had attempted to 
eliminate the practice—very possibly would be successful in passing to 
(he union ultimate liability for such back pav. See Guerra v Man­
chester Terminal Corp., 498 F.2d 641, 8 FEP Cases 433 (CA5 1974).

41 The plaintiffs' request that sub-assembly work should be award­
ed on the basis of plant age (rather than departmental age) must also 
be denied for lack or prior discrimination in assigning personnel to the 
Vs elding department.

Instituted at a time when, due to job segregation, there were only 
white welders, the sub-assembly sign-up would only have had the ef­
fect of determining which whites would get the sub-assembly work 
apdwhich would not. Prior direct discrimination can sometimes be 
determinative of lack of racial motivation as to other acts See Taylor

708f5-86)i‘hen-----F 2d----  (CA5’ AUg 2 I ' ,9?4; S'ip ° P a' PP

Plaintiffs also assert that black foremen generally are given 
responsibility only over predominantly black crews. In a sense this is 
Irue. for most of the black foremen are located in departments which 
are predominantly black. This, however, is a natural consequence of a 
system, such as at Pullman, where most of the foremen come up 

through the ranks” of their departments rather than being hired 
from the outside; and, indeed, a relatively higher proportion of white 
foremen generally is found in those departments where there is a 
relatively higher percentage of which employees The plaintiffs for 
obvious reasons do not want a change in the basic in-plant approach 
to supervisory promotions. Moreover, it is clear that black foremen 
do exercise supervision over white employees and that at least two nor­
mally have supervision over predominantly white crews.

101a

Plaintiffs attack is upon Pullman s practices regarding promo­
tions of production and maintenance employees to foremen positions 
not upon its relatively few “outside” hires of managerial personnel. It 
should be noted that the Plant Manager at Bessemer is one who came 
up through the ranks.

The employee continues to accumulate seniority in his depart­
mental bargaining unit (or two scars after promotion to a supervisory 
position.

1 This conclusion is reached upon a consideration of census infor­
mation introduced, of evidence concerning particular employees, and 
of an analysis of Bessemer employment records conducted by defen­
dant's outside statistician. According to the latter study,*13.3% of 
Pullman's black employees who had been hired before 1965 were 
functionally illiterate (as compared to 2.4*70 of the whites in such 
category). The court is not holding—nor has the company really con­
tended—that some particular level of education could pass muster as a 
requirement lor promotions to supervisory positions; but it is obvious 
from oilier c\ idence in the case that the lack ol minimal education fre­
quently would render such persons unable to perform their required 
duties and hence make them less likely candidates for such positions.

Testimony revealed many instances of such turn-downs. Accor­
ding to company records, 30 blacks and 17 whites have refused ap­
pointments as hourly foremen since the mid-60's, while according to 
the statistician s study of the 1971-73 period 58.3% ol the refusals of 
such promotions were by blacks. There are many reasons why an 
employee, white or black, might choose to reject a temporary promo­
tion to foreman; but it is clear from the evidence that an additional 
problem for blacks considering acceptance of such positions (at least 
until the past couple of years) was the likelihood of derision as an 
“ Uncle Tom” by some black co-workers.

Basically, these situations involved disgruntlement when other 
black employees were picked lor such promotions ahead of, or instead 
of, the witness. Alvester Braxton was not selected, according to his 
foreman, due to excessive absenteeism (shown to the court), lack of 
initiative in learning other jobs in the department, and an inability to 
accept responsibility due to a nervous condition. In Braxton’s depart­
ment other blacks have been made hourly foremen, and one a salaried 
forman. Another, Spurgeon Seals, was turned down because he didn't 
get along with the other men; and here also in the Paint department,



102a

oilier blacks have been made foremen before and after the rejection of 
Seals. Another, a man named Wilson in the Punch & Shear depart­
ment, was, subsequent to this first request, later made a foreman. The 
evidence has not shown a single example of a black indicating an in­
terest in a foreman’s job being passed over in favor of a white with less 
qualifications.

” If this were the policy—and the company asserts it has no such 
limitation on promotions of blacks—it would be above that requested 
as relief by the plaintiffs. In the particular department where this is 
reported to have been said, five of the last six permanent supervisory 
promotions have been of black employees.

” The selection procedure at Bessemer is not totally subjective. The 
company is committed under the agreement with the department of 
Labor to attempting to appoint as temporary foremen no smaller a 
percentage of blacks than the percentage of black employees in a given 
department. Moreover, selection of salaried foremen is based upon 
demonstrated abilities while serving as hourly foremen, and hence is 
an experientially-based decision, albeit by a presently all-white group.

” Actually, one black (a Contract Compliance Officer) at the pre­
sent time makes significant input to the decision-making process. 
With blacks starting to move further up the supervisory ladder, in the 
not distant future the decisions on supervisory positions will likely 
cease being an all-white function.

>* The only suggested alternative in the evidence, that by one of 
plaintiffs’ witnesses, was that seniority should be followed in making 
appointments of foremen. An objective standard to be sure, but hard­
ly an apt one.

103 a

" Swim's discharge was upheld by the arbitrator, Humphrey s 
resulted in reinstatement without back pay. Pullman raises two special 
defenses to llumpluey s Haim m this case related to the arbitration 
proceedings; (I) that Ins claim here is time barred since, in view of 
Alexander v. Gardner-Denver Co., 413 U.S. 915, 7 FEP Cases 81 
(1974) (allowing pursuit ol statutory remedies independent of the 
grievance machinery), the period during which contractual remedies 
were being processed should not toll the statute ol limitations, and (2) 
that, having accepted benefits under the arbitrator’s award, he should 
not be allowed ”a second bite at the apple” . In support of the first 
point, Pullman cites Guy v. Robbins & Myers Inc., 8 I LiP Cases 311 
(W 1) lenn., June 12, I^”4; but this court concludes that the Fifth 
Circuit still approves the tolling concept, as evidenced analogously by 
its recent decision in Gueiia v Manchester Terminal Corp., 498 F.2d 
Ml. 8 I IP  Cases 43.3 (CA5 No. 73-1907, July 31, 1974). As to the 
second point, this court concludes there is no basis here for applying a 
doctrine ol waiver ol estoppel (since Humphrey is seeking backpay, 
which was not awarded in the arbitration decision) and that, indeed, 
Humphrey is not attempting to reap “any windfall or unjust enrich­
ment from the overlapping remedies” under the statutes and the col­
lective bargaining agreement CL Guerra v. Manchester Termtna 
Corp , supra, slip opinion at p. 6470; footnote 14 in Alexander v. 
Garner-Dcnver Co., supta

'► |„ neither case did the lTOC find “probable cause.”

' I he court need not actually decide whether they in fact were guil­
ty ol insubordination; it is sulicieni lor the company s delense if 
management with good reason thought they were so guilty and 
discharged them lor that reason. As a matter of fact, this court—as 
did the arbitrators—would lind they were guilty ol insubordination.

'« i here is a suggestion that the real reason for the company s 
discharge ol Swim was its suspicion that Swint had instigated a work- 
stoppage bv others, [ veil tl this were true and would not have been 
sustainable by evidence in the arbitration proceeding, such would not 
constitute a Title Ml violation. See Balderas v. LaCasita Farms, 500 
1 2d 195, 8 FLP Cases 686 (CA5, Aug. 30, 1974).



104a

SW INT II

Swint v. Pullman-Standard

Louis Swint et al., Plaintiffs-Appellants,

v.

Pullman-Standard et al., 
Defendants-Appellees,

Clyde Humphrey, Intervenor.

No. 74-3726.

United States Court of Appeals, 

Fifth Circuit.

Aug. 30, 1976.

U. W. demon, Birmingham, Ala., Marilyn Holifield, New 
York City, for plaintiffs-appellants.

John C. Falkenberry, Birmingham, Ala., Michael H. Got- 
tesman, Washington, D. C., for U. S. Steelworkers, and others.

1 All footnotes for this section appear at the end of this opin­
ion, pp. 141a to 155a.

l()5a

C. V. Stelzenmuller, Birmingham, Ala., Franklin B. Snyder, 
Chicago, 111., for Pullman-Standard Inc.

Appeal Irom the United Stales District Court for The Nor­
thern District of Alabama.

Before COFFMAN, C LARK and OFF, Circuit Judges.

CLARK, Circuit Judge:

This Title VII case raises claims that the very substantial, 
good faith ef forts of the employer and union working together 
to end racially segregated working practices still fall short of 
eliminating the present effects of past discrimination for many 
black workers. The central attack is on a continuation of 
departmental seniority. The district court after a full hearing 
prepared a detailed memorandum opinion reasoning that the 
steps taken constituted sufficient complaince with Title VII. 
Principally because that result was based on a prima facie case 
and other burden of proof concepts which did not fit this case, 
we vacate the judgment appealed from and reverse for further 
proceedings, including reconsideration of appropriate backpay 
and other relief .

1 FACTS'

Pullman-Standard, a division of Pullman, Inc., is the world’s 
largest manufacturer ol railway freight cars and parts. Opera­
tions at its Bessemer, Alabama plant are geared to special 
orders, rather than the production ol an inventory, and accor­
dingly are conducted much like a custom steel fabricating shop, 
though on a larger scale. ' This method of production, coupled 
with sporadic market demands Irom the railroad industry, 
results in frequent and dramatic fluctuations in the level of 
employment.' Since the early 1940 s, most* of the production 
and maintenance workers at Pullman-Standard s Bessemer



106a

plant have been represented by the United Steelworkers, which 
also hold representation status at Pullman-Standard’s other 
three plants; and key provisions dealing with seniority rights are 
largely covered by local rules at the individual plants rather than 
b> company-wide triennial collective bargaining contracts.

The production and maintenance jobs at Pullman-Standard, 
over a hundred in number,', are divided among 25 different 
United Steelworkers departments of varying sizes." In addition 
to these departments there are two Machinist Union depart­
ments and an additional United Steelworkers department hav­
ing only one employee. All assignments to departments are 
made by Pullman-Standard. Each job has a specified job class 
(JC) level, which determines its relative ranking in base pay in 
comparison to other jobs.’ All but two departments, Janitors 
and Template, have more than one job classification; and most, 
but not all, classifications will be worked by more than a single 
employee during peak employment periods. One such job 
(Welder) sometimes is worked by over 500 employees.

Under the local rules at Pullman-Standard, seniority is 
measured by continuous service in a particular department and 
is exercised in competition with all other employees in that 
department, there being no lines of promotion or progression in 
any department. Seniority rosters are maintained by depart­
ment; and departmental age is basically the sole criterion used to 
determine who is rolled back or laid-off in the event of reduc­
tions, and who is recalled or promoted (assuming ability to do 
the work) in the event of force increases or other vacancies, in 
the department. It is somewhat inappropriate to talk about 

permanent jobs at Pullman-Standard, except perhaps with 
respect to the most senior employees in the department; lor the 
constant fluctuations in job requirements and employment 
levels cause Irequent movement ol employees Irom one job to 
another. While the seniority rosters do indicate a job

107 a

classiliealon for each employee, these designations do not 
reflect Ins" permanent jolt, but rather constitute a recognition 
by the company that the employee has satisfactorily performed 
the job and is thereby protected under the collective bargaining 
agreement against rejection in favor of a junior employee on the 
factor ol lelative ability. The rosters are updated annually as of 
June 1st; and frequently only the highest job class which an 
employee has satisfactorily performed is shown for him.

From the study of payroll information for the 18-month 
period ending June 1974, it appears that 49.5% of the work 
force is black, a ratio which is comparable to that which existed 
in June 1965.v Understandably, plaintiffs, do not assert that 
Pullman’s initial hiring policies, as such, aie now or ever have 
been racially discriminatory.10 Plaintiffs do, however, contend 
that assignment of new hires to the several departments was 
discriminatory, and continued so for several years following the 
passage ol Title VII. Further, the plaintiffs contend that prior to 
June 1965 a number of the better jobs, including supervisory 
positions, were “ white only’’ and a number of the lower-paying 
jobs were “ black only.” Pullman’s old records, quite in­
complete, do reflect a mixing of the races in some of these jobs 
in the 1920’s and 3()’s. Nonetheless, it is clear that by the late 
40’s many of the jobs had become racially segregated, and re­
mained so into the mid-60's, not by formal agreement to that ef­
fect, but under a custom and practice which the company con­
doned, il not approved.

In earls 1965, spurred by an arbitration decision which opened 
up the then all-white Rivet Driver Job to blacks," the company 
began implementing a program to eliminate barriers to advance­
ment by blacks and, in general, to conform to the impending re­
quirements of Title VII where possible infractions were 
detected. Black buckets and welder helpers were given trials to 
ascertain their abilities as rivet drivers and welders, respectively .



108a

Beginning in June 1965 black employees were appointed as 
hourly loremen. A reporting system of hires and promotions 
was undertaken, as were efforts to recruit blacks for the more 
highly skilled positions. In early 1966, an agreement was made 
with the union to utilize seniority in the filling of temporary 
vacancies.Negotiations were commenced in 1968 with the 
Department of Labor, Office of Federal Contract Compliance 
(OfCC), which led in January 1969 to a conditional memoran­
dum of understanding (OFCC agreement) designed to enhance 
opportunities for blacks.'1 Although this memorandum never 
became fully effective due to lack of union acceptance, 
Pullman-Standard through its Contract Compliance Of­
ficers—one black and one while—began encouraging black 
employees in certain “ low ceiling” departments to transfer to 
other departments and monitoring the filling of temporary 
vacancies to assure a fair allotment to black employees. Black 
employees and their families were encouraged to participate in 
vocational education at the company’s expense, a program that 
has been particularly significant in the training of black 
welders.'4

In May 1972, Pullman-Standard entered into an agreement 
with the Department of Labor to serve as a corrective action 
program and to bring its employment prctices into compliance 
with Fxecutive Order 11246 as amended.11 Of the many provi­
sions in the 25-page OFCC agreement, the most significant to 
the issues in this case are those relating to interdepartmental 
transfers. Black employees with employment dates prior to 
April 30, 1965, are given preference for vacancies arising in the 
five traditionally all-white departments (Template, 
Powerhouse, Airbrake Pipe Shop, Inspection, and Plant Pro­
tection); and those hired before April 30, 1965, who had been 
assigned to four “ low ceiling” departments (Janitor, Die & 
Tool, Truck and Steel Miscellaneous) are given preference for 
vacancies arising in any of the departments.16 These transfer

109a

rights arc without limit as to lime; and, when exercised, the 
employee vies lor promotions in the new department using his 
total plant age. l or layoff and recall purposes, the employee is 
given at the time of the transfer the option either to take his 
plant age into the new department or to keep accruing seniority 
in his old department while building new age for such purposes 
in the new department. Retreat rights to the employee’s prior 
job are prov ided should he fail to qualify for at least a JC 4 job 
or is disqualified for a promotion in the new department; and in 
such event tfie employee may have the right to go to another 
department rattier than return to his original one.

The trial court had before it for determination four claims of 
class discrimination1’ and claims of indiv idual discrimination by
two employees. The class issues were:

(1) Does the system of departmental seniority, even with 
the changes made under the OFCC agreement, perpetuate 
the effects of past discrimination in the assignment of 
black employees among tfie various departments?1’

(2) Has there been discrimination in the assignment of 
work to persons having the same job title or in the assign­
ment of jobs having the same JC level to the persons entitled 
to jobs of such JC level?

(3) Has there been discrimination in the promotion of 
persons to supervisory positions?

(4) Has there been discrimination in the failure to post 
publicly a list of changes in assignments?

One of the named plaintiffs, Louis Swint, and an intervenor- 
plaintiff, Clyde Humphrey, each claim that their discharges by 
the company in Mas 1971 and November 1972, respectively, 
were racially motivated or were in retaliation for their having 
earlier filed charges with the LLOC.”



110a

II. DEPARTMENTAL SENIORITY

The district court upheld the use of departmental seniority at 
Pullman-Standard on the premise that this practice may only be 
found to have perpetuated the effects of past discrimination 
when there has been a showing of prior discrimination in the 
assignment of black employees among departments by ex­
clusively or disproportionately assigning white hires to higher­
paying departments and black hires to lower-paying ones. This 
general principle, though correct in the abstract, cannot be 
translated into an absolute requirement that a plaintiff prove 
economic harm before he has established a prtma facie case ol 
racial discrimination in hiring assignments. Because the effect 
of the district court’s approach improperly placed that burden 
on plaintiffs in this action, it found no unremedied 
discriminatory hiring assignments. Its conclusion based on the 
assumption that the plaintiffs had not shown that they were 
assigned to less desirable departments must be reversed and the 
issue remanded to the district court for reconsideration and 
resolution in a manner not inconsistent with this opinion.-’0

The lower court concluded that: “ With the exception of nine 
departments, the evidence does not indicate any past or present 
policy of racially discriminatory assignments.” This conclusion 
primarily rested upon the district court’s finding that although 
in 1965 only five departments had racial compositions approx­
imately equal to the ratio for the total of all departments, "there 
was no pattern of favoritism to whites in the departmental 
assignments.” At the heart of this finding is a chart constructed 
by the lower court which ranked each department according to 
job class range.' ' I he chart reveals that a greater percentage of 
blacks than of whites were employed in 1965 in departments 
with higher job class ranges. Because the chart is crucial to the 
district court’s appioval of departmental seniority, we must 
carefully and completely analyze the attacks made on it by 
plainti11.

11 la

A. Was the Chart Wrong?—The Clearly 
Erroneous Attack

Plaintiffs contend that the theory and use of the chart give an 
incomplete and misleading impression and that fact findings 
based on it are clearly erroneous. The chart is designed to show 
departmental desirability. It accumulates the percentages of 
blacks and whites in each department in three ways. Column I 
shows all Steelworker departments except Boilerhouse, Column 
II additionally excludes the nine departments affected by the 
OFCC agreement, Column III further takes away the 
maintenance and welding departments. The accuracy of such an 
accumulating percentage chart directly depends upon the ac­
curacy of the departmental rankings. Plaintiffs argue that the 
ranking of departments in the chart is arbitrary and inaccurate 
for the following five reasons:

1) Departments were ranked by job class range." Plaintiffs 
argue that the key factor, economic desirability, is much more a 
function of the number of employees who work in each job 
class than of a department’s job class range. For example, the 
chart would rank a department with job class ranges 1-10 above 
a department with ranges 1-9; yet, a department with 100 
workers in JC-1 and five workers in JC 10 is clearly not as 
desirable as a department with five workers in JC-I and 100 in 
JC-9. Plaintiffs' propose that any charting of desirability 
should rank departments by median job classes.” Not surpris- 
ingly, plaintiffs' proposed charting shows that blacks were 
disproportionately assigned to less desirable departments. 
Pullman-Standard replies that medians ate also inaccurate in­
dicia unless substantiated by various statistical techniques (such 
as standard deviations) which have not been supplied in this in­
stance.

2) Ihe plaintiffs contend the court arbitrarily excluded 
higher, sparsely populated job classes in some departments. The



112a

Welding Department has a JC-16 job class which has less than 
1 ff/o of (he department s employees; therefore, the court exclud­
ed JC-16 from the Welding Department’s job class range. If the 
JC-16 job class were included in the Welding Department job 
class range, the department would rise from rank 16 to rank 4 
on the chart. Since Welding is the largest department and one in 
which whites are disproportionately represented, the ac­
cumulated percentages would be changed significantly by this 
move. Plaintiffs argue that the Wood-Mill, Wood-Erection, 
Paint, and Steel Construction departments all have less than I °io 
of their employees working in the top job class; however, the 
10/0 j °b classes are included in those departments’ ranges. The 
last three departments are particularly important because they 
are disproportionately black departments which by across-the- 
board equal treatment would be shown to be less desirable than 
presently reflected by the chart. Pullman-Standard, however, 
logically argues that the special statistical treatment given the 
Welding Department is entirely justified because the JC-IO to 
JC-16 jump (from the highest job class listed to the unlisted l°7o 
job class) is much greater than the jump in the four departments 
where 1% job classes were included. Also, Pullman-Standard 
contends Welding is by far the largest department and deserved 
the special consideration given by the court’s Column III to en­
sure (hat it did not unfairly skew the chart. 3

3) Plaintiffs object to the exclusion from the chart of the Die 
& Tool 1AM, Maintenance IAM, and Boilerhouse departments. 
Two of these departments are covered by the Machinists instead 
of the Steelworkers Union. Therefore, they do not have job 
class ranges and could not easily be assigned ranks on the chart. 
However, no attempt at even estimating relative rank was made 
by the court. Boilerhouse is a Steelworker’s department whose 
only worker has always been a JC-IO white employee. Plaintiffs 
argue that these departments are mostly segregated and are 
higher paying; therefore, their exclusion directly affects the 
chart and the conclusions drawn from it.

113a

4) Plaintiffs point to departments which have the same job 
class ranges. These departments are arbitrarily assigned a rank 
on the chart even though they are nominally equal. The most 
ob\ious example is right in the middle of the rankings where five 
departments with ranges of 1C-1 to JC 11 are listed in order. 
These ar latge departments which total 1/3 of all workers. Two 
of these departments are heavily black. One contains more 
blacks than any other department. The ranking of these depart­
ments among the live could afleet conclusions drawn from the 
chart.

5) Plaintiffs assail the chart’s accumulating percentage col­
umns. Plaintiffs are especially concerned with Column 111 
which provides the strongest support for the court’s findings. 
The exclusion of Welding" and Maintenance was made because 
of special technical skills needed in some of the job classes in 
these two departments. But, nowhere in the opinion is there the 
kind of business necessity finding which would be essential to 
allow a special-needed-skill exclusion to keep these departments 
from being considered." Also, there is no finding of the nature 
of these needed skills nor whether they are necessary only in the 
higher job classes. Finally, if the skills are only needed in the 
higher job classes, there is no finding as to whether they could 
be gained while working in the lower ones, either with or 
without additional special training." The court also found that 
plaintiffs had failed to prove that blacks were qualified to enter 
either department. This, however, reflects an incorrect place­
ment of (lie burden of proof. The question of absence of 
qualifications is relevant, but only after the determination that a 
pattern of discrimination has been shown; and then, the burden 
is on the defendant to show the absence of qualifications.”

Prior to the desegregation of the Welder job class in this 
department, whites were able to take a lest (usually after having 
served as a welder’s helper and learning the skill) without either



114a

prior formal training or experience to determine whether the 
employee was qualified to be a welder. Since blacks have been 
allowed to become welders, the company has required that only 
those persons with either prior experience or formal training 
could take the qualifying test. Plaintiffs argued that this should 
be considered as a facially neutral requirement which in reality 
operates to perpetuate past discrimination. Since there is some 
question as to whether this final issue was squarely presented 
below and since its resolution would not control our decision, 
we pretermit its resolution.

The concept of plaintiffs’ attack on the district court’s 
conclusion that blacks were not disproportionately assigned to 
less desirable departments based on the chart’s deficiencies is 
framed in terms of a clearly erroneous factual determination. It 
fails because the district court did not treat the chart as plain­
tiffs contend. The court made two factual findings relevant to 
this inquiry. First, the court found that the chart shows that 
blacks were not disproportionately assigned to less desirable 
departments. This factual finding is correct to a mathematical 
certainty. Second, the lower court found that the chart was a 
“ rough index of earnings potentials in the absence of other 
more reliable data, such as average earnings or average job class 
worked.” In other words, the district court recognized that the 
chart had problems. Its “ rough index” conclusion also is not 
clearly erroneous. The reason plaintiffs’ clearly erroneous at­
tack miscarries is that they misread th& court’s ultimate legal 
conclusion as resting upon a factual finding that the chart was 
both accurate and not arbitrary.

Despite our holding that the district court did not make an er­
roneous factfinding in its direct references to (he chart, it is clear 
that plaintiffs valid attacks on the structure of the chart as 
discussed in detail above do impugn the credibility of the court’s 
ultimate conclusions based on departmental desirability.

115a

B. Less Desirable Assignments—Prima 
facie Case

Plaintiffs in successful Title VII cases have uniformly been 
able to establish that their assignments produced diminished 
wages.” When today’s proof was ruled insufficient to 
demonstrate loss, a novel question was squarely presented. To 
resolve it requires resort to the statutory language and case 
analysis of legislative purpose. When this path of reasoning is 
followed it leads to the conclusion that a Title VII plaintiff does 
not have to show economic loss to prove discrimination.

The district court concluded that plaintiffs’ failure to show 
that class-wide economic harm resulted from the departmental 
assignments made meant that no prima facie case had been 
established. This legal deduction is inconsonant with the Act 
and its interpretative cases. The Title VII gravamen of the com­
plaint is that departmental seniority perpetuated past 
discrimination. The key for this case is whether there was past 
discrimination, i.e., that Pullman-Standard discriminated on 
the basis of race in making assignments to departments. Going 
further and requiring plaintiffs to prove that past assignment 
practices produced lower pay checks is contrary to law and 
precedent. The district court relied on tranks v. Bowman 
Transportation Co., 495 F.2d 398 (5th Cir. 1974) and Johnson 
v. Goodyear Tire <£ Rubber Co., 491 F.2d 1364 (5th Cir. 1974) 
for its conclusion that economic harm from departmental 
assignments must be part of plaintiffs’ prima facie proof. This 
reliance is misplaced. These cases and our contemporary deci­
sion in Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 
(5th Cir. 1974) are cases in which the plaintiffs had clearly 
demonstrated that the defendants had assigned them to lower 
paying positions. W hen we recognized that the proof of such 
lower pay confirmed the existence of proscribed discrimination 
we did not mandate this element as a part of the prima facie case 
proof every Title VII plaintiff must make.



116a

Title VII contains neither requirement nor implication that 
economic harm must be shown before a class can be found to 
have made out a prima facie case of racially discriminatory job 
assignment. Indeed, the statutory proh'ibitions of the enactment 
are explicitly broader than economic harm.

It shall be an unlawful employment practice for an 
employer —

( 1) to fail or refuse to hire or to discharge any individual, 
or otherwise to discriminate against any individual with 
respect to his compensation, terms, conditions, or 
privileges of employment, because of such individual’s 
race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or ap­
plicants lor employment in any way which would deprive 
or tend to deprive any individual of employment oppor­
tunities or otherwise adversely affect his status as an 
employee because of such individual’s race, color, religion, 
sex, or national origin.

42 U.S.C. § 2000e-2(a)(I) and (2).

In the seminal departmental seniority case, Quarles v.. Philip 
Morris, Inc., 279 F.Supp. 505 (E.D.Va. 1968), the court made 
the general observation that employees in the predominately 
black department were usually paid less than employees in the 
two predominately white departments. However, a comparison 
of the wage ranges in all three departments showed one white 
department offered more and one less pay than the 
predominately black department.J”

Notwithstanding this wage range proof and the fact that 
Quarles was specifically requesting a transfer to a department 
with a lower range than the department in which he worked, the 
court lound that past discriminatory departmental assignment

117a

practices were perpetuated by departmental seniority. While 
Quarles does not explicitly hold that a prima facie case was 
made without showing economic harm, it necessarily ruled that 
prima facie case was proven even though wage or job class range 
showed the predominately black department was not the least 
desirable.

In United States v. S.L . Industries, Inc., 479 F.2d 354 (8th 
Cir. 1973) the appeals court reversed the trial court’s refusal to 
find that a T itle VII violation had been established. The district 
court had placed on plaintiffs the burden of proving that the 
Labor Department was the least desirable department, then held 
that the burden had not been met by proof which showed racial­
ly disproportionate assignments of blacks to the Labor Depart­
ment despite the fact that many jobs in that department paid 
less than jobs in most of the plant’s predominately white depart­
ments. The Eighth C ircuit reversed this burden placement. In a 
footnote it declared that where departmental desirability might 
be relevant defendants must carry the burden of showing blacks 
had been assigned to a more or an equally desirable department. 
Speaking more broadly, the court relied on our decision in 
United States v. Hayes International Corp., 456 F.2d 112 (5th 
Cir. 1972) (Hayes II) to hold that n was more important for the 
court to assure discriminalorily assigned employees had the op­
portunity to bid for jobs denied them because of race than to 
determine subjective factors of departmental desirability. 
Although the appeals court’s principal determination was that 
the subjective evidence relied on did not establish the depart­
ment to be the plant’s most desirable place to work, its opinion 
leaves no doubt that departmental desirability is not an essential 
part of a plaintiffs’ prima facie proof in a case such as this.

In Haves 11 this court reviewed a lower court’s determination 
that a departmental transfer system cured all possible perpetua­
tion of past discrimination The plaintiff United States unques­



118a

tionably had established a prima facie case of racially 
discriminatory departmental assignment and as part of that pro­
of had shown general economic harm to the affected class. 
However, one substantial issue in Hayes 11 concerned the defen­
dant’s contention that justification for not including several 
departments in the group of departments affected class 
members could transfer into could be found in the fact that the 
wages in those departments were “generally lower" than the 
departments in which affected class members were presently 
employed. The court ordered that qualified blacks be given an 
opportunity to transfer into these economically less desirable 
departments because “ the Civil Rights Act provides Tor a job 
notwithstanding its lower pay or other disadvantages." Haves
11. 456 F.2d at 118.

In Reed v. Arlington Hotel Co.. Inc., 476 F.2d 721, 723 (8th 
Cir. 1973), the Eighth Circuit concluded simply that “ statistics 
which show segregated departments and job classifications 
establish a violation of Title VII." Absent a single statement 
regarding either objective or subjective economic desirability 
the court found a Title Vll violation. The court expressed con­
cern because the blacks had suffered “ the indignities of segrega­
tion” and ordered complete relief including transfer rights and 
departmental merger. Id at 726. This case clearly indicates that 
economic harm is not a necessary element of a prima facie case.

The same district judge in United States v. United States 
Steel, 371 F.Supp. 1045 (N.D.Ala. 1973), after finding that a 
prima facie case of racial discrimination had been made, 
presumed damages to a particular subclass for purposes of in­
junctive relief.’0 The judge then denied back pay in U.S. Steel 
because plaintiffs had not proven harm caused by discrimina­
tion.

The locus of out appellate reversal of this latter burden 
assignment in U.S. Steel was not on whether sufficient evidence

1 19a

had been presented to establish a prima facie case of discrimina­
tion nor on the presumed damages for injunctive relief, but 
rather locused on the erroneous assignment to plaintiffs of the 
burden of presenting evidence sufficient to justify a backpay 
award to the class.

The backpay issue must ol course face the causal relation bet­
ween discrimination and proof of economic harm. We make 
reference to this prior action not only because of its presump­
tion o! damage from racially skewed assignments, but also 
because it held that economic harm was not even a required part 
ol a backpay prima tacie case unless the defendant had convinc­
ingly brought the issue into question.

A holding that plaintiffs here may be entitled to relief absent 
showing harm to their pocketbook is analogous to the situation 
which exists in T itie Vll failure -to-hire cases. Courts uniformly 
award class-wide relief without any showing that other jobs 
available in the community were less desirable than the jobs the 
defendant refused to make available.” Discriminatory- 
departmental-assignment T itle VII cases are neither more nor 
less than lailure-to-hire cases. The failure to hire here is a failure 
to hire into a particular department. Just because the other job 
the plaintiff received when he was discriminatorily prevented 
from being hired into one department was in the same plant is 
not a sufficient reason for increasing the plaintiffs’ prima facie 
burden ol proof.

T itle Vll of the Civil Rights Act prohibits all forms of racial 
discrimination in all aspects of employment. The degree of 
discrimination practiced by an employer is unimportant under 
Title Vll. Discriminations come in all sizes and all such 
discriminations are prohibited by the Act.

Rowe \ Ceneral Motors. 457 I 2d 348, 354 (5th Cir. 1972).

I'he plaintiffs in the instant case were found to have failed 
to establish a prima facie case, for both injunctive relief and



120a

backpay purposes, because they did not show economic 
harm i.e., that they were disproportionately assigned to less 
desirable departments. Quarles, N.L. Industries, Hayes II, 
Reed, U.S. Steel, and Rowe all lead us to the conclusion, but­
tressed by the broad statutory language, that, at least for the 
purposes of injunctive relief, plaintiffs need not show that they 
were assigned discriminatory to less desirable departments in 
order to prove a prima facie case of racial discrimination.

For purposes of backpay relief, U.S. Steel holds that 
economic harm is not required to be shown as an element of a 
prima facie case unless the defendant has shown 
“convincingly” by “ statistically fair exhibits” that the class 
earned “at least as much as a plant-seniority comparable group 
of whites. The district court’s desirability finding was based on 
a “ rough index” chart which it used in “ the absence of other 
more reliable data.” As demonstrated above.the chart contain­
ed patent inaccuracies. It does not amount to a convincing 
showing by a statistically fair exhibit of earnings equality.” In 
addition, the chart did not even attempt to correlate seniority- 
comparable workers. In the instant case, therefore, the defen­
dant’s evidence did not “ draw into substantial question the 
group’s entitlement to (backpay].” ’4

Without attempting to lay down a rule for all cases, it 
was error to require plaintiffs to prove economic harm as an ele­
ment of their prima facie case of racially discriminatory depart­
mental assignment. ”

C. Scope of the Prima Facie Inquiry 
on Remand

Since the district court was in error when it ruled that plain- 
tills had failed in their proof the case must go back for further 
consideration. Errors apparent in prior procedures indicate that 
we should now define the prima facie inquiry to eliminate the

121a

likelihood they would recur on the reconsideration we now 
mandate. It would be inappropriate for this court to decide 
here, whether a prima facie showing was made. Not only do we 
not decide it, but also we do not intimate how it should have 
been resolved. This evidence-weighing process should be con­
ducted by the district court in the first instance, especially since 
the question is so obviously a close one. We emphasize that 
despite our directions as to procedures and parameters on re­
mand, we intimate no decision as to what the district court’s 
ultimate conclusion should be.

Plaintiffs argue that previously the court limited its inquiry 
only to Steelworkers Union departments, exclusive of such 
departments as were covered by OFCC, plus Welding and 
Maintenance. Also, they contend that neither pre-’65 policies of 
discrimination nor statistics showing overall lower job class 
assignments to blacks were sufficiently considered. Finally, they 
claim undue weight was given to a 1972 yearly wage com­
parison. The trial court’s opinion does not make it apparent 
that the weighing of this evidence ever actually took place 
(although several elements were discussed). The lack of proof of 
harm necessarily sidetracked the prima facie case conclusion.

The most important aspect of determining whether a 
prima lacie case has been proven is to identify the proper scope 
of the evidentiary examination. Flic authorities speaVing to this 
scope all conclude that the question should be whether the class 
has established a history of broad patterns of plant-wide racially 
discriminatory departmental assignments.”

(TJhe class must demonstrate a prima facie case of employ­
ment discrimination. Sometimes statistical evidence alone 
will suffice; on other occasions live testimony or additional 
exhibits may be necessary. At all events, however, the 
stress . . is upon demonstration of the defendant’s broad 
employment policies and practices, the defendant’s rebut-



'122a

tal and business necessity defenses, and the inferences
which remain at the close of the evidence.

United States v. United States Steel, 520 F.2d 1043, 1053 (5th 
Cir. 1976); citing. United States \ . T.I.M.E.—D.C., 517 F.2d 
299, 315-16 (5th Cir. 1975); Rodriguez v. East Texas Motor 
f  reight, 505 F.2d 40, 53-55 (5th Cir. 1974); United States v. 
Hayes International Corp. (Hayes II), 456 F.2d 112, 120 (5th 
Cir. 1972).

During the class-wide inquiry, commonly referred to as 
phase one,” the court must also define the limits of the class ac­
tually entitled to relief and determine the relief necessary. Com­
posing the makeup of the affected class is usually one the more 
difficult I itle VII tasks. ’* 1 he temptation to expedite the handl­
ing of a complicated Title VII case such as the one before us 
here urges a court to combine the determination of the prima 
facie case phase and the delineation of the affected class. These 
are separate problems and must be handled separate!). The 
combination of a prima facie case determination and an af­
fected class limitation inevitably results in a narrowing of the 
broad prima facie case inquiry or broadening of the affected 
class delineation. Neither result is permissible. Title VII ad­
judicatory procedures are complex. In this maze of shifting of 
burdens and f irst-narrow-then-broad areas of trial court con­
cern, it is particularly important that a court proceed only one- 
step at a time.

The first inquiry should be whether a prima facie case has 
been shown. In the instant case that requires us initially to focus 
on whether a history existed at Pullman-Standard of broad pat­
terns of plantwide racially discriminatory departmental 
assignments.

123a

(I) Disparate Department Assignments

Although there are 28 departments at Pullman- 
Standard, the court’s opinion and the chart from which it draws 
its major conclusions did not consider the two Machinists 
Union departments, the single-member Boilcrhouse depart­
ment, the departments covered by the OFCC agreement, and 
the Welding and Maintenance departments. In addition, the 
court found five of the remaining departments to be fairly 
statistically balanced. Thus, under its decisional framework, 
what was left was to decide whether a showing that nine depart­
ments are racially imbalanced makes out a prima facie case of 
racial departmental assignment. On remand, this entire analysis 
must be discarded. The appropriate evidentiary examination 
should focus on the plant as a whole to determine whether there 
have been racially discriminatory assignments.40

Many courts have found departmental assignments to be 
discriminatory where statistics showed absolute or almost ab­
solute one-race departments.4' The inference of discriminatory 
assignment in such complete exclusion or only token inclusion 
situations is much more direct than we have here.4-’ But it is not 
necessary to show complete or substantially complete segrega­
tion by departments.4' When the departments arc racially mixed 
but simply do not represent the plant-wide balance, the in­
ference of discriminatory assignment is much more difficult to 
draw If the locus were only on the statistical racial disparity in 
nine departments, one could not conclude that a prima facie 
case existed. However, these statistics need not be viewed in this 
sort of vacuum. There exists a great deal of other evidence in the 
record which must also be entered onto the balance. It is this ad­
ditional evidence which must be considered in the first instance 
by the trial court so that the balance can be struck according to 
the inferences that court chooses to draw.



124a

(2) OFCC Departments

In its initial prima lade case inquir the court examined 
only those departments not covered by the OFCC agreement. 
The logic of its reasoning was sound, as lar as it 
went—discriminatory assignments which are shown by these 
departments’ statistics showing heavy segregation have been 
cured by O K 'C  "  But, the scope of the court’s examination 
should have continued to be whether there had been past 
discriminatory racial assignments instead of stopping at answer­
ing whether the most glaring past discriminatory racial 
assignments were no longer frozen in by department seniority. 
The face that discriminatory assignments were made to these 
nine departments is clearly probative on the issue of whether 
plant-wide racially discriminatory departmental assignments ex­
isted. In this case where percentage discrepancies could indicate 
subtle discrimination or no discrimination in the remaining 
departments, the elimination of the unmistakable discrimina­
tion in these nine departments skews the analysis. An inference 
can be drawn from this proof that discrimination in departmen­
tal assignments stopped at these most segregated rosters. 
Another conclusion is that every department was involved. 
Whether either of these or some inbelween conclusion should be 
drawn will most probably depend on the other evidence 
presented and is lor the trial court. But, the evidence must be 
assayed for this purpose to keep the process right.

(3) Machinists Union Departments

Similarly, the racial makeup of the Machinists Union depart­
ment should also be considered in the prima facie balance. 
Pullman-Standard made assignments to these departments as it 
did the others. Although the court states in a footnote that the 
Machinists Union departments are included in the OFCC agree­
ment, it appears that the departments were not included as all- 
white departments into which any blacks hired before the cutofl

125a

date could transfer. Instead, the departments appear to be 
opened only to the extent that blacks in all-black departments 
could transfer into them. I he actual el lect of the OFC C plan on 
Machinists Union departments must be clarilied on remand. 
Plaintiffs contend the Machinists Union departments were all- 
white and should have been included in the OFCC agreement as 
(ranslei-in departments lot any black hited belore the cutoff 
date, not just blacks who were assigned to all-black depart­
ments. Plaintiffs claim that these departments were still all- 
white in 1974. The district court made no finding regarding the 
racial composition ol these departments in 1965 or 1974 and 
drew no interence Irom (heir composition. On remand it must 
do so. If blacks were excluded from these departments in the 
past, the departments must be included in the relief ordered by 
the court as departments to which any black hired before the 
cutoff date may transfer.

Moreover, the racial makeup of these departments in 1965, 
especially if they were all-white and high-paying departments, 
could be probative of plant-wide discriminatory assignment.
1 he broad plant-wide scope ol examination required during the 
prima facie case determination requires that this evidence be 
evaluated.

(4) II'elding and Maintenance Departments

The court indicated that special skills are required for 
Welding and Maintenance departments and, therefore, they 
should not be considered as to whether there was plant-wide 
racially discriminatory departmental assignment This conclu­
sion would only be justified if the defendant could show that 
blacks were excluded from these departments because they lacked 
minimum qualifications and it such qualifications were justilied 
by a business necessity.” Neither linding appears in the district 
court’s opinion. Unless these findings can be made, the racial 
makeup of both departments must also be considered in deter­
mining whether a prima lacie case has been shown.



126a

(5) Past Policies oj Discrimination

Plaintiffs contend that prior to 1965 blacks were 
discriminatorily assigned to departments and were discrim- 
inatorily assigned to lower paying job classes within each 
department. They point out that in 1964 98.4% of the blacks 
and only 15.8% of the whites were qualified to work in job 
classes 8 or below, while 79.7% of all whites were in job classes 
10 or above. Since arbitration decisions in 1965 eliminated up­
ward mobility barriers for blacks within each department, i| 
would be logical to assume that in the 8 years between 1965 and 
1973—if the disparity in job classes had truly resulted from the 
limitation of upward mobility within each department and not 
from discriminatory assignment to lower paying departments— 
that there would be substantial improvement in these figures. 
Hut, plaintiff’s exhibits show that in 1973 74.1% of blacks still 
remained assigned to job classes lower than 8 w hile 80.7% of all 
whites were assigned to job classes over 10. If this evidence is 
not rebutted by substantial evidence that blacks were not 
qualified to progress within their departments, it indicates that 
blacks were assigned to less desirable departments and should be 
weighed in determining whether a prima facie case has been 
made.4* The district court not only rejected consideration of the 
evidence, but also inexplicably discussed completely different 
figures from those shown in the record. If it is pertinent, this 
statistical discrepancy should be clarified on remand.

The district court recognized that until mid-1965 job 
classes were segregated by Pullman-Standard. Plaintiff states 
that 134 out of 148 job classes were all-white or all-black. The 
district court found that this job class segregation phenomenon 
has substantially dissipated and, therefore, did not give this past 
practice any weight. However, the prior history of 
discriminatory job class assignments is clearly relevant to the 
issue of whether the present discrepancies in departmental 
assignments were part and parcel of a broad scheme to treat

127a

black and while workers differently. Historical policies of racial 
discrimination have often been used by other courts as indicia of 
plant-w ide discriminatory conduct.4 The weight to be given and 
the inferences to be diawn are tor the trier ol tact.

(6) A cerate Yearly H aye

I he district court buttressed its conclusion that there 
was no perpetuation of discriminatory racial assignment at 
Pullman-Standard by referring to 1973 wage proof which 
showed that the gross yearly income of blacks from Pullman- 
Standard employment and unemployment benefits was 96.8% 
of that of whites from the same sources.41 These statistics must 
be carefully examined. Lduted Stales v. United States Steel, 520 
F.2d 1043, 1054 (5th Cit 1976), teaches that such wage parity is 
relevant only if groups with similar seniority are being 
statistically compared.4'4 The figure used by the district court 
does not attempt only to compare groups of blacks and whites 
with relatively equal seniority. This is especially pertinent here 
because this record indicates that in general blacks have more 
senioritv than whites at Pullman-Standard; if discrimination 
had not been perpetuated, blacks reasonably might be making 
more than whites. In addition, this yearly salary parity does not 
include two other extremely relevant factors: amount of over­
time worked and number of sveeks or hours worked. Because 
the figures did not consider seniority, overtime, and time 
worked, they were not a reliable indicia of even rough wage 
parity in 1973.’" Their use by the district court was not proper.

(7) Summary

The district court must examine the evidence presented con­
cerning the plant as a whole to determine whether a prima facie 
case of discriminatory departmental assignment has been made. 
If a prima facie case ol past discrimination has been shown, '1 
the court must then determine if it has been perpetuated. If such 
a determination can be made, then as a second and separate step



128a

the court must limit the broad certified class to appropriate af­
fected classes or subclasses and order necessary relief

D. Perpetuation of Past Discrimination

I he district court did not find any discrimination which 
could be perpetuated by the departmental seniority system in 
use at Pullman-Standard. Although it did find that the nine 
departments included in the OFCC plan were previously com­
pletely segregated, it determined that the OFCC provision 
allowing carryover departmental seniority for transferring 
discriminatees broke down any barriers for these blacks in 
reaching their rightful place in the plant. The approval of the 
OFCC plan (with slight expansions in effective dates) was a 
proper judicial recognition that if the departmental seniority 
system in effect at Pullman-Standard was left to function 
without modification, it would perpetuate past discrimination. 
The case law precedent is legion if not unanimous in holding 
that departmental seniority plans similar to that in use by defen­
dant do perpetuate past discrimination.” If the trial court 
should find that the plaintiff has shown plant-wide 
discriminatory racial assignment has been perpetuated by the 
departmental seniority system, this barrier to transfer, which 
bars blacks from their rightful places in the plant, must fall.”

E. The Limitation of the Affected Class

Before the Court is able to order appropriate relief, however, 
it must define the plaintiff class affected by this discriminatory 
conduct. In a factual milieu such as that provided at Pullman- 
Standard, the two limiting factors on the definition of the af­
fected class will be the number of departments covered and the 
hiring date upon which discriminatory departmental assignment 
ended. These two considerations—department and end 
date—will define the parameters of the affected class.

129a

(I) Affected C la vs Depart menial limitation

1 he purpose ol this second Title VII decisional step is to 
narrow the certified class only to those members most probably 
entitled to relief.” In performing this task the court should first 
delineate the elements ol the plaintiffs' proof which were sufFt- 
cient to make out a prima facie case ol racially discriminatory 
departmental assignment If these elements are clearly and con- 
vincingly inapplicable to a particular department, the depart­
ment must be eliminated from membership in the affected class. 
In a completely segregated departmental situation, this limita­
tion by departments may be easy.” In mixed department cases, 
however, the court may choose to order relief which applies 
plant-wide to all black employees hired before a certain date.’*

Of course a defendant may also attack the inclusion of a par­
ticular department lor reasons entirely separate from whether 
the elements of the plaintiffs’ prima facie case are applicable. 
For example, proof that there have been specific requests by all 
black applicants not to be assigned to a particular department 
could well exclude a department from membership in the af­
fected class. The burden of proving departmental exclusion in 
this latter type ol situation would be on the defendant.

(2) Affected Class Time Limitation

If the court determines that plant-wide discriminatory 
assignment exists, it must limit the class to all blacks hired 
before the datd when this historical discriminatory assignment
process ceased.

Plaintiffs attack the dates used by the lower court when it 
expanded the time limitation on the departments under the 
OFCC agreement. The court used as the significant dale the 
date when the first black or white was appointed to the all-white 
or -black department respectively. Token integration, however, 
does not signal the end of discrimination. These dates must be



130a

reconsidered. It is improper to end affected class membership at 
a date upon which the first black or white was assigned to the 
department unless this date signifies the end of the 
discriminatory practices.” Otherwise, the court must use a date 
which clearly signifies the end of a racially discriminatory 
departmental assignment.

Should the affected class be broadened on remand, the same 
analysis must be used whether the court chooses to limit the lin­
ing date time factor of the affected class on a department-by­
department or on a plant-wide basis.

111. APPROPRIATE RELIEF

If there ever was a time of facile Title Vll litigation, it surely 
ended with the demise of intentional violations of equal employ­
ment opportunity. Today’s parade of Title Vll cases present 
more and more subtle manifestations of discrimination. Proof 
of invidious practices becomes more difficult as the ability to 
separate the real violation from the unfounded suspicion grows 
harder. This is especially so since many employers and unions, 
including Pullman-Standard and Steelworkers, have made 
substantial good faith efforts toward eliminating racial distinc­
tions for the work force. Frequently, bargaining which results in 
minority employees being hired and allowed to progress in their 
jobs free of discrimination does not accord the Act’s intended 
relief to older black employees. Although the temptation to en­
force the accomodation reached by the parties most directly in­
terested is great, it lemains part of the court’s task to see that 
these older workers, who bore the brunt of past disparities, do 
not continue to work at jobs their white peers would not have 
and for wages less than those paid to recent hires who were not 
put down because they were black.

131a

A. Red Circling

Red circling is the mechanism by which the wage rate of an af­
fected class member who transfers goes with the man—even 
though the new department to which he moves would pay the 
transferee a wage rate less than the old one. The purpose of the 
remedy is to protect the employee from financial loss until he 
has an opportunity to learn the necessary skills to progress in the 
new department to a wage equal to his old department scale.

The district court held that red circling in the instant case was 
unnecessary for six reasons: (1) " [Virtually all of the jobs in the 
transfer out departments have lower job class levels than the 
lowest jobs in the transfer in departments.” (2) There are no 
lines of promotion or residence requirements to impede promo­
tion in new departments. (3) Frequent manpower fluctuations 
may create new opportunities. (4) Some of these manpower 
fluctuations will obviate old wage rates. (5) No training is pro­
vided for new jobs. (6) The key reason for affected class 
members turning down transfer opportunities is apprehension 
over retreat rights and not the possibility of diminished wages.

Should the court find plant-wide discriminatory departmental 
assignments were perpetuated by the departmental seniority 
system, several of the six reasons discussed above would be in­
applicable. However, since we hold that some kind of modified 
red circling system probably will be necessary even if the af­
fected class is not expanded, we do no more than mention this 
contingency which an expanded affected class would present.

The red circling remedy was originally developed to 
eliminate impediments to discriminates rising to their rightful 
place in a plant. Therefore, whenever the possibility exists of 
receiving lower wages in the new department, red circling must 
be ordered. The remedy must continue until the transferee had 
had an opportunity to progress to the new department job 
which he would have held but for the past discrimination. For



132a

this reason, it is now clear that red cycling is a necessary element 
of a Title VII remedy in most,” though not all,” cases.

The only situation where we have recognized that this 
part of the remedy would not be mandated is where the plaintiff 
is unable to show that the absence of red circling presents a 
practical impediment to any affected class member. Stevenson 
v International Paper Co., 516 F.2d 103, 113 (5th Cir. 1975); 
accord, Watkins v. Scott Paper co., 530 F.2d 1159, 1174 (5th 
Cir. 1976). The district court’s major premises for refusing to 
order red circling were its conclusions that (1) ‘‘virtually all” af­
fected class members will be able to transfer immediately to 
higher paying jobs and (2) the key reason for nontransfers has 
been apprehension over retreat rights and not lower wages. 
Neither reason appears to meet the Stevenson and H'alkins stan­
dard. The test is not whether ‘‘virtually all” discriminatees will 
not suffer reduced wages. If any will suffer, red circling is ap­
propriate. On remand, unless the district court determines that 
the plaintiffs have failed to show that any discriminatees would 
suffer diminished wages on transfer, red circling must be 
ordered.60 This would also be true should the affected class be 
expanded on remand. Apprehension over retreat rights could 
only result from ignorance of the OFCC agreement’s provi­
sions. Full and complete retreat rights are guaranteed. Surely 
neither Pullman-Standard nor the union should or will allow ig- 
norapee of rights already conferred to operate as a bar to 
departmental transfer. When the fear over retreat rights has 
dissipated, the possibility of reduced wages surely will be seen as 
the major impediment to transfer. Neither of these considera­
tions can pass the /lo-affected-class-member test.

The four other reasons given by the district court are insuffi­
cient to justify its refusal to order red circling.61 However, the 
lack of on-the-job training and lines of progression along with 
frequent fluctuations in the work force indicate that the stan­
dard red circling remedy would be inappropriate and that some 
modification of that remedy is needed.

133a

The purpose of red circling—to eradicate the obvious im­
pediment of lowered wages to transfer to a new department—is 
meant to protect the affected class transferees only until they 
have been in the new department a sufficient amount of time to 
have had a realistic opportunity to become recognized and listed 
as qualified to work in a job class which pays at least as much as 
the old department wage rate.

Job manpower fluctuations, which are particularly acute in 
some departments offering greater advancement opportunity, 
create problems for devising a remedy which will not go too far 
and convert the attempted remedy into a windfall. The lack of 
on-the-job training and lines of progression also present pro­
blems lor the trial court. They are not ones appropriate for 
resolution or detailed suggestion here. Suffice it to say that if 
the remedy is required, it must be devised justly—but, if re­
quired, it must be granted despite difficulty in its formulation.

13. Posting

The union contracts with Pullman-Standard do not pro­
vide for a formal bidding procedure or a posting of vacancies 
either plant-wide or department-wide. In fact, not even an after- 
the-fact notification of changes in assignments was required.61 
Pullman-Standard asserts that the absence of these formal 
notification and bidding procedure impossible and the posting 
of assignments unnecessarily burdensome. The plant operates 
on a “ word of mouth” 6' and “ personal observation” approach 
to the notification of job vacancies. In addition the union takes 
a very active role in monitoring employees’ seniority rights.

Plaintiffs requested below that a plant-wide system of posting 
job vacancies be ordered for the Pullman-Standard plant. The 
court framed the issue as: “ Has there been discrimination in the 
failure to post publicly a list of changes in assignment?” Its 
answer was that “ the lack of formal procedures for 
notification neither discriminated nor perpetuated the effects of



134a

any past discrimination against blacks.” So addressed, the 
claim is limited to whether the notification system prevented 
blanks from taking full advantage of their seniority rights. The 
court’s answer is not clearly erroneous. However, it only 
answers the questions of nondiscrimination and perpetuation ol 
discrimination presented by the posting issue per se. The pro­
priety of ordering posting to facilitate transfer rights has not 
been considered.

Not only must posting be examined to see if the lack of a for­
mal system itself discriminates or perpetuates prior discrimina­
tion against blacks, but the ordering of a formal posting remedy 
must be considered as a part of the remedy which will facilitate 
the advancement of the affected class members to their rightful 
places in the plant. The illegal discrimination found at Pullman- 
Standard was racially discriminatory departmental assignment. 
We hold that the neutral departmental seniority system has 
perpetuated that discrimination into the present. Carry-over 
seniority, red circling, and backpay are parts of the total 
remedy. The need of a formal system of notification of plant­
wide vacancies to make the remedy efficacious must also be 
reconsidered. If any affected class member would be prevented 
from exercising his transfer rights because the present non- 
system failed to notify him of a vacancy then some more formal 
system of notification must be ordered unless business necessity 
pi events it.6'

C. Backpay

The district court did not award any backpay, and except for 
one small subclass of discriminatees no adjudication regarding 
backpay has been made in the instant case.65 Plaintiffs’ attack 
on the failure to award any backpay in this action is premature. 
The pretrial order of June 5, 1974 severed backpay claims for a 
subsequent trial should they be necessary.

135a

The OFCC agreement identified five all-white departments 
and allowed blacks hired prior to April 30, 1965, to transfer into 
these departments with carry-over departmental seniority as 
vacancies occurred. The trial court ordered that the cut-off date 
for transfer into three of these departments, plant protection, 
inspection, and an brake departments, be extended until June 1, 
1967, June 1, 1970, and June 1, 1971, respectively, to allow 
blacks who were discriminatorily prevented from being assigned 
to those departments adequate transfer rights. The court 
recognized that any blacks hired between April 30, 1965 and 
these new dates were entitled to backpay. However, it also 
recognized that no backpay would be necessary if there were no 
vacancies in these departments prior to transfer.

The court did not hold that there were no vacancies; instead, 
it held there were not enough vacancies to allow' this class of 
employees at the bottom of the eligibility group to be assigned 
to these departments. Here the district court obviously had 
reference to the priority enjoyed by senior affected class 
members which would preclude workers in the expanded af­
fected class from eligibility for transfer to one of these depart­
ments. This finding by the court is not clearly erroneous. 
However, the legal conclusion that the expanded class is not en­
titled to backpay must be reversed since it was reached using an 
erroneous legal principal.

A finding of no vacancies in these departments would 
support a conclusion that no entitlement to backpay existed, as 
would a finding that all vacancies were filled by more senior 
discriminatees. The court did not make either clear-cut, ab­
solute factual finding. Rather, it inferred that since there were 
so few vacancies and since the expanded affected class’ priority 
was so low, they would have been precluded by more senior 
discriminatees. This inference is precluded by Baxter v 
Savannah Sugar Refining Corp., 495 F.2d 437 (5th Cir. 1 9 ) ,  
cert, denied, 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed.2d 308
(1975).



136a

flavor requires a two phase backpay inquiry. During the first 
or general phase the class must show its entitlement to backpay. 
This is presumptively shown once employment discrimination 
has been found.*6 The second or specific phase allows each 
discriminatee to present the backpay claim to which he is 
presumptively entitled unless the defendant bears the burden of 
proving nonentillement. A general inference of class-wide 
unavailability of vacancies is insufficient.6’ To avoid liability the 
defendant must show during phase one that no vacancies what­
soever were available or during phase two it must show that the 
particular discriminatees seeking backpay could not have been 
assigned to that department nor transferred to it because of the 
unavailability of vacancies they were eligible to fill.

Of course, we pretermit any indication of appropriate resolu­
tion of the severed claims for backpay. We would only note that 
if on remand the court should expand the affected class, 
substantial backpay issues would be raised.66

IV. SUPERVISORY PERSONNEL

The appointment of supervisory personnel at Pullman- 
Standard is done totally subjectively. There are no established 
criteria for selection of new foremen. The plant manager and 
superintendent choose department heads (C foremen) who in 
turn select track supervisors (B foremen), production foremen 
(A or salaried foremen) and hourly (temporary) foremen. Plain­
tiffs contend that prior to 1965 there were no black foremen. In 
1966 the first black salaried foreman was promoted to one of 
the 143 existing salaried foreman positions. Four years later 
there were only nine black salaried foremen while there were 151 
white foremen. At the time of trial there were 13 departments in 
which blacks had never been offered either salaried or tem­
porary foreman positions. Since 1966 and until the time of this 
trial there were at least 59 salaried foreman vacancies. Only 12 
of these were filled by blacks.

137a

The district court esscmiallx agreed that these statistics were 
correct but chose to focus on the selection of hourly foremen 
since they in turn formed the source group for the selection of 
salaried foremen. The court found that since 1965, 56 blacks — 
approximately 'A of the total number — have been selected as 
hourly foremen. Recognizing that this was a lower percentage 
than the approximately 50°'o ol black personnel in the plant, the 
court found four factors which ameliorated the otherwise com­
pelling inference of discriminatory promotion.

1. The court found as a fact that a greater number of 
blacks than whites were functionally illiterate and, therefore, 
were less likely candidates for promotion. Educational re­
quirements which operate disporportionateiy to exclude blacks 
may not be used unless they pass Title VII validation and 
business necessity muster.69 The court itself recognized in a 
footnote that it was not holding that some particular level of 
education was allowable under l itle VII. Despite this recog­
nized absence from the record of validation or business necessi­
ty proof, the court found this absence of functional literacy 
would render black employees “ less likely’’ candidates for pro­
motion. This non sequitur is impermissible.’0 Since no 
minimum educational requirement was proven legal under the 
strict guidelines of Title VII, the “ requirement” may not be 
used as a generalized inference to explain why blacks were not 
potential supervisors.

2. The court found that 30 blacks and 17 whites have 
turned down hourly foremen opportunities since the 
mid-1960’s. This, of course, is a legitimate item of rebuttal to a 
prima facie case. The most statistically pure representation of 
discrimination would be the percentage of black vs. white of­
fers of promotion. A comparison of actual appointments with 
the number of turned down offers would enable the court, if the 
number of actual offers was not before it, to approach this 
statistically sterile measure.



138a

3. The court concluded that due to pre-’65 segregation of 
jobs, it has taken blacks some time to learn the range of job 
skills necessary to perform supervisory duties. This justification 
for not promoting blacks to supervisory positions has been 
uniformly rejected by this court. Before such justification could 
be considered the defendants would have to prove that un­
promoted blacks did in fact lack the necessary skills; that the 
needed skills are justified by a business necessity; and, if plain­
tiffs could show that the failure to gain these skills was the result 
of a neutral policy which perpetuated past discrimination, 
defendants would have to show that the policy was justified by 
business necessity.’ 1 Since none of these facts were found by the 
lower court, it was improper to consider this item as indicative 
of nondiscrimination.

4. The district court noted the recent dramatic improvement 
in black promotions to salaried supervisor. Between 1971 and 
1974, eight of the twenty newly appointed foremen were black. 
This figure is clearly indicative of the lack of discrimination in 
promotion. It is appropirate to consider it as counterbalancing 
evidence of the statistics indicative of discrimination which were 
presented by the plaintiffs.

Since two of the four reasons given for finding that 
the plaintiffs’ statistics did not establish a prima facie case of 
racially discriminatory promotion to supervisory positions were 
erroneously considered, the court’s conclusion that no 
discrimination was proven is reversed. We do not conclude, 
however, that the evidence clearly makes out a prima facie case. 
Instead, we remand to the district court to balance recent pro­
motion statistics and black turn-downs against the overall 
statistics presented by the plaintiffs.72 The inference to be drawn 
from this balancing of the evidence is for the lower court. 
Should the court desire supplemental evidence in its reconsider­
ing it may on remand open the record to evidence concerning 
promotions made since trial.

139a

V WORK WITHIN HU SAME JOB CLASS

With but one exception the management of Pullman- 
Standard has the sole authority under the collective bargaining 
agreement to assign work among employees working within a 
given job class in a given department. The only exception is that 
members of the welding department are able to bid to their 
supervisors for “ sub-assembly” work according to departmen­
tal seniority. Plaintiffs argue that the supervisors in exercising 
this unbridled discretion give the more desirable assignments to 
white employees and the less desirable ones to blacks. The lower 
court not only found that the plaintiffs had failed to prove that 
blacks were assigned to less desirable tasks within each job class, 
it also found that the plaintiffs were unable to prove which tasks 
were more or less desirable. The totality of the proof clearly 
showed that various employees had varying interpretations of 
which tasks within each job class were more or less desirable. 
Given nothing but this kind of subjective opinion evidence, 
especially since the credibility of each witness was at the core of 
the issue, we are unable to say that the lower court’s factual 
conclusion was clearly erroneous.

VI. INDIVIDUAL CLAIMS

The lower court concluded that Louis Swint and Clyde 
Humphrey were not discharged for racial reasons as alleged. In­
subordination, the principal reason given for the discharge in 
each instance, was more than amply justified. The court’s con­
clusion that there was not even the slightest evidence anywhere 
in the record upon which it could indulge the inference that 
these individuals were fired because they were black is not clear­
ly erroneous.



140a

Vll. NOTICE OF APPEAL

Pullman-Standard’s attempt to limit the issues on appeal 
solely to these presented by Louis Swint in his individual capaci­
ty is uithout merit. Jones v. Chaney & James Construction Co., 
399 F.2d 84, 86 (5th Cir. 1968); Markham v. Holt, 369 F.2d 940, 
943 (5th Cir. 1966); see Foman v. Davis, 371 U.S. 178, 181, 83 
S.Ct. 227, 230, 9 L.Ed.2d 222, 225 (1962).

CONCLUSION

The judgment appealed from is vacated and the cause is 
remanded to the district court for such proceedings as that court 
may determine are appropriate or necessary to compliance with 
this opinion.

AFFIRMED IN PART, PART VACATED AND 
REMANDED.

141a

5 H 7 A T  II - Footnotes

1 The factual statement was taken substantially verbatim from the 
opinion of the disiict court.

•' Orders may be for as few as 25 cars or for several thousand.
’ The number of workers in Steelworkers units at the Bessemer 

plant varies from over 2,800 at peak employment periods to less than 
200 at the lowest levels. During 1973, which was not abnormal in this 
respect, on only three occasions was the employment level in one week 
approximately equal to that of the prior week. Indeed, a chart based 
upon monthly employment hours from early 1958 to mid-1974 reflects 
only a very few times that hours worked in one month have been ap­
proximately the same as in any of the two months preceding or follow­
ing. Changes in the work force were occurring during the several 
weeks this case was tried.

‘ Millwrights and certain employees in the Die and Tool Depart­
ment are represented by the International Association of Machinists 
and Aerospace Workers, AFL-CIO. For the limited purpose that 
some of the relief sougln by plaintiffs might entail possible modifica­
tion of its contract with Pullman-Standard, the l.A.M. and its Local 
Lodge 372 were joined as defendants named in any charges before the 
EEOC or involved in the allegations of the pleadings in this case.

! While the job classification manual lists some 250 jobs, many of 
these are not worked at Pullman-Standard, and several of the 
classifications—particularly, laborer, cleanup, craneman, and hook- 
on_appear in a number of departments as separate listings. The 
plaintiffs identified 123 jobs from the June 1973 seniority rosters, but 
even this figure includes duplications where the same job appears in 
more than one department.

* According t6 data showing the average number of persons draw­
ing paychecks by department over an 18-month period ending June 
1974, over 50% of the employees work in the Welding and Steel Erec­
tion Departments and almost 77% work in those departments plus the 
next four largest (Paint & Shipping Track, Punch & Shear, Steel Con­
struction, and Maintenance).

’ For example, Cleanup man, JC I. has the lowest nonincentive 
standard hourly rate ($3,635 as of October 1973), while Template 
Maker Craft, JC 20, has the highest such wage ($5,399 as of October
1973). Piece-rate scales and production quotas are frequently of great 
significance in determining the actual earnings potential of a par­
ticular job.



142a

There are a score or so of female produciion and maintenance 
workers at Pullman, both white and black. Due to the predominance 
of male employees, however, the masculine gender for pronouns is 
used for convenience in this opinion.

’ Actual work-hour figures for 1965 were not available; nor was the 
June I, 1965 seniority list. However, by looking at the June 1964 
seniority list and by taking account of the additions and deletions to 
that list representing hires and terminations during the year, the trial 
court constructed the functional equivalent of the June 1965 list. This 
calculation reflects 1,151 blacks and 1,773 whites on the seniority list 
as of June 1, 1965. While the seniority list does not absolutely reflect 
actual employment at any particular time, it does bear a significant 
correlation therewith in a period of high employment, such as June 
1965 (in excess of 2,350 average workers for the month). It may be 
noted that the actual employment of blacks in the December 
1972-June 1974 period, /.£>., 49.5%, exceeded slightly the percentage 
of blacks on the seniority lists for June 1972 and June 1973, i. e . ,  44% 
and 46% respectively.

10 That the percentage of black workers at Pullman-Standard is 
higher than the percentage of black population or work force in Jef­
ferson County, or even in Bessemer, does not, however, indicate hir­
ing bias in favor of blacks. While data has not been compiled to com­
pare actual applications for employment with hiring at Pullman for 
the period, one can, by analyzing the seniority rosters from 1966 
through 1973, determine that approximately 36% of the new hires 
during that period were black, a percentage which is compatible with 
work force and population data from the census. Presumably, the 
analysis of quits and discharges during 1971 showing that during that 
year almost three times as many whites as blacks either quit or were 
discharged, would be typical for the entire period. One may speculate 
that relative job opportunities with other employers were better for 
whites than for blacks and that relatively more blacks than whites 
chose to accept recall to Pullman after layoffs.

For a number of years' the labor agreement had contained 
language requiring its provisions to be applied without discrimination, 
but prior to the McCoy arbitration decision in March 1965 this 
language had been without apparent significance.

11 A temporary promotion results in some increase in compensation 
and, perhaps more significantly, is the principal avenue by which an 
employee can obtain recognition as capable of satisfactorily perform­
ing the job.

143a

" The memorandum contained provisions similar to those later in­
corporated in the 1972 agreement, including transfer rights with 
seniority carryover for black employees from four “ low-ceiling” 
departments or to the five formerly all-white departments. (A black 
employee had already been assigned to one of the five “white only” 
departments, plant protection.)

Over a hundred blacks have received welder training at company 
expense and become welders at Pullman (though many have since 
gone with other companies) Without denying the benefits such train­
ing has provided to blacks, plaintiffs do note that with respect to 
welder jobs, the company has instituted a requirement that before it 
will test a welder’s competency the employee must now show either 
formal training or field experience with some other company.

” The union has never formally adopted the agreement, but in 
practice has accepted the terms thereof to the extent that it must be 
deemed bound thereby.

'• Employees from the low-ceiling departments, if possessing 
minimal qualifications, can also obtain vacancies arising in the I.A.M. 
units. In such event, they lake their plant age into such units for the 
purposes of layoff and recall and, when vying against other appren­
tices at the same level, foi promotional purposes. Without formally 
concurring in the agreement, the I.A.M. has apparently accepted the 
provisions and implicitly agreed to be bound thereby.

I ’ The class was defined as consisting of all black persons who at 
any time subsequent to 1 year prior to the filing of any charges with 
the EEOC had been employed by Pullman-Standard (at its Bessemer 
plant) as production or maintenance workers in positions represented 
by the United Steelworkers. General notification to class members 
specified these as the issues in the case and stated that the entitlement 
to back pay, if any, by any members of the class would be determined 
by subsequent hearings., but only if the class prevailed on one or more 
of the four issues.

II In the pretrial order this issue was defined as subsuming the con­
tentions on behalf of the class that the agreement with the Department 
of Labor was inadequate in the following respects: the transfer rights 
applied only to four departments; the agreement did not provide for 
"red circling", /. e  , carrying an old wage rate into a new department 
upon transfer; only a single transfer was provided; and transfers to 
I.A.M. positions were not afforded. At conferences during the trial of



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41 62.73
35 68.37
17 68.98

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12 95.48
7 95.92
6 96.52
0 98.35
0 99.13
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11.17 .
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15.94 15.41
16.11 15.71
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35.89 76.78
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146a

11 Most courts use some kind of average salary comparison instead 
of wage range comparison. See, e. g., Sagers v. Yellow Freight 
System, Inc., 529 F.2d 721 (5th Cir. 1976); Baxter v. Savannah Sugar 
Refining Corp., 495 F.2d 437, cert, denied (5th Cir. 1974), 419 U.S. 
1033, 95 S.Ct. 515, 42 L.Ed.2d 308 (1975); Pettway v. American Cast 
Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974). Even the lower court in 
an explanatory note to the chart recognized that a average hourly 
wage comparison would be preferable. The only two cases which have 
used wage range comparisons are distinguishable In Brown v. Gaston 
County Dyeing Machine Co., 457 F.2d 1377 (4th Cir. 1972), the court 
used job class (not department) ranges—the court was examining 
discriminatory promotion and hiring, not perpetuation of discrimina­
tion caused by departmental seniority. In Quarles v. Philip Morris, 
Inc., 279 F.Supp. 505 (E.D.Va. 1968), discussed infra, the court 
ordered plantwide seniority even though blacks wre not assigned to 
departments with the least desirable wage ranges.

” The chart below ranks the departments in Column III of the 
district court’s chart according to job class median. Departments hav­
ing the same job class median are ranked, in descending order, accor­
ding to size, Maintenance CIO and Welding are included while the 
Mobile Crane Department is not.

Median Job Classes of “Mixed” Departments 
As of June 1, 1965

Job Class Median ”/o Blacks Accum. o/o
Department Median JC Klacks in Dept. B. W.
Maint. CIO 13 4 210 2.5 8 9
Welding 10 6 19.2 18.3 70.6
Paint & ST 7 6 52.0 27.2 78.2
Railroad 7 7 44.4 28.0 79.1
Steel Erection 6 6 87.6 56.4 82.8
Steel Constr. 6 6 87.3 68.5 84.4
Wheel & Axle 6 6 30.2 69.8 87.1
Forge 6 2 37.5 71.0 88.9
Misc. Stores 6 7 53.8 71.7 89.4
Wood Mill 5 2 29.2 72.4 90.9
Punch & Shear 4 3 81.1 84.1 93.4
Wood Erection 4 2 65.0 90.5 96.6
Press 4 4 73.8 95.2 98.1
Lumber Stores 3 3 41.7 95.7 98.7
Steel Stores 2 2 81.8 100.1 99.6

i

147a

14 See United States v. Dillon Supply Co., 429 F.2d 800 (4th Cir. 
1970) reversing a lower court’s failure to consider evidence of black 
exclusion from a welding department, albeit for other reasons.

” See, e. g., Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 
28 L.Ed.2d 158 (1971); Pettway v. American Cast Iron Pipe Co., 494
F.2d 211 (5th Cir. 1974).

'* The court did, however, recognize that there were no formal lines 
of progression designed to teach these skills.

” See Franks v. Bowman Transportation Co., 424 U.S. 747, 96
S.Ct. 1251, 47 L.Ed.2d 444 (1976); Watkins v. Scott Paper Co., 530 
F.2d 1159, 1 177-78 (5th Cir. 1976); cf. United States v. Jacksonville 
Terminal Co., 451 F.2d 418 (5th Cir. 1971), cert, denied, 406 U.S. 
906, 92 S.Ct. 1607, 31 L.Ed.2d 815 (1972).

" See, e. g., Watkins v. Scott Paper Co., 530 F.2d 1 159, 1 165 (5th 
Cir. 1976); Sagers v. Yellow Freight System, Inc., 529 F.2d 721, 726 
(5th Cir. 1976); United States v. T.I.M.E.—D.C., 517 F.2d 299 (5th
Cir. 1975), cert, granted, ___U.S.____96 S.kCt. 2200, 48 L.Ed.2d
814, (1976); Sabala v. Western Gillette, Inc., 516 F.2d 1251 (5th Cir. 
1975); Stevenson v. International Paper Co., 516 F.2d 103, 107 (5th 
Cir. 1975); EEOC v. Detroit Edison Co., 515 F.2d 301 (6th Cir. 1975); 
Rogers v. International Paper Co., 510 F.2d 1340 (8th Cir.), as 
modified, 526 F.2d 722 (1975); Rodriguez v. East Texas Motor
Freight, 505 F.2d 40 (5th Cir. 1974), cert, granted,___ U.S. ____, 96
S.Ct. 2200, 48 L.Ed.2d 814 (1976); Herrera v. Yellow Freight System, 
Inc., 505 F.2d 66 (5th Cir. 1974); Resendis v. Lee Way Motor Freight,
Inc., 505 F.2d 69 (5th Cir. 1974); cert, denied. ___U.S.____ 96
S.Ct. 2201,48 L.Ed.2d 815 (1976); Baxter v. Savannah Sugar Refin­
ing Corp., 495 F.2d 437 (5th Cir. 1974), cert, denied, 419 U.S. 1033, 
95 S.Ct. 515, 42 L.Ed.2d 388 (1975); Franks v. Bowman Transporta­
tion Co., 495 F.2d 398 (5th Cir. 1974), rev'd on other grounds, 424 
U.S. 747, 96 S.Ct. 1251,47 L.Ed.2d 444 (1976); Johnson v. Goodyear 
lire <£ Rubber Co., 491 F.2d 1364, 1368 (5th Cir. 1974); United States 
v. N. L. Industries, Inc., 479 F.2d 354, 355 (8th Cir. 1973); United 
States v. Georgia Power, 474 F.2d 906, 910 (5th Cir. 1973); United 
States v. Cheaspeake cf Ohio Ry., 471 F.2d 582, 586 (4th Cir. 1972); 
United States v. St. Louis-San Fran. Ry., 464 F.2d 301, 307 (8th Cir.
1972); United States v. Jacksonville Terminal Co., 451 F.2d 418, 442 
(5th Cir. 1971, cert, denied, 406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 
815 (1972); United States v. Bethlehem Steel, 446 F.2d 652 (2d Cir. 
1970); Robinson v. Lord lard Corp., 444 F.2d 791 (4th Cir.), cert.



148a

dismissed, 404 U S 1006, 92 S.Ct. 573, 30 L,.Ed.2d 655 (1971); Jones 
v. Lee Way Motor Freight, 431 F.2d 245, 246 (10th Cir 1970), cert, 
denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (1971); United 
States v. Dillon Supply Co., 429 F.2d 800 (4th Cir. 1970).

” Although four departments were discussed in Quarles, only three 
departments were involved in the relief ordered.

)0The conclusion which relied on United States v. Hayes Interna­
tional Corp. (Hayes l), 415 F.2d 1038 (5th Cir. 1969), was phrase: 
“equity may for the purposes of injunctive relief presume damages 
from the invasion of a legal right. . . United States v. United States 
Steel, 371 F.Supp. 1045, 1058 (N.D.Ala. 1973).

*' Eg., Morrow v. Crisler, 479 F.2d 960 (5th Cir. 1973), aff'd en 
banc, 491 F.2d 1053 (1974); Parham v. Southwestern Bell Telephone 
Co.. 433 F.2d 421 (8th Cir. 1970).

11 See Rodriguez v. East Texas Motor freight, 505 F.2d 40 (5th Cir.
1974), cert, granted, ___  U.S.___ 96 S.Ct. 220(1, 48 L.Ed.2d 814
(1926).

" See Ochoa v. Monsanto, 473 F.2d 318, 319 (5th Cir. 1973); 
United States v. Ironworkers Local 86, 443 F.2d 544, 551 (9th Cir.) 
cert, denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971).

14 See United States v. United Slates Steel, 520 F.2d 1043, 1053 (5th 
Cir. 1976).

14 This conclusion, however, should not be misconstrued as a 
holding that departmental desirability is irrelevant. In fact, depart­
mental desirability could be relevant to the establishment ol a prima 
facie case in two instances: First, as pointed out in U.S. Sieel, if 
backpay is sought and if the defendants have convincingly brought in­
to question the class’s entitlement to it, economic harm must be 
shown. Second, a showing that the departments to which blacks have 
disproportionately been assigned are less desirable departments is pro­
bative of racial discrimination. Such a showing could in fact be crucial 
to the establishment of a prima facie case when the racially disparate 
assignments arc not substantial in number or proportion.

“ The relevant inquiry has been variously defined: “pattern and 
practice," Sagers v. Yellow Freight System, Inc., 529 F.2d 721, 729 
(5th Cir. 1976); "bioad patterns and practices, as opposed to in­
dividual damages,” United States v. United States Steel, 520 F.2d 
1043, 1049 (5th Cir. 1976); “pattern of past discriminatory hiring," 
Sabala v. Western toilette, Inc., 516 F.2d 1251, 1261 (5th Cir. 1975); 
"history of racial discrimination,” EEOC v. Detroit Edison, 515 F.2d 
301, 313 (6th Cir 1975); "history of employment discrimination,"

149a

Johnson v. Goodyear lire <i Rubber Co., 491 I 2d 1364, 1373 (5lh 
Cir. 1974); "historical pattern,” Sims v. Sheet Metal Workers Local 
65, 489 1 2d 1023, 1025 (6th Cir. 1973); "policy of racial 
assignment,” Head v. Timken Roller Bearing Co., 486 F 2d 870, 875 
(6th Cir 1973); "pattern and practice of racial discrimination in hir­
ing,” Morrow v. Crisler, 479 F.2d 960, 962 (5th Cir. 1973), aff’d en 
banc. 491 F.2d 1053 (5th Cir . 1974); "practices, policies or patterns,” 
Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377, 1382 
(4th Cir 1972), quoting United Slates v. Dillon Supply co., 429 F.2d 
800, 804 (4th Cir. 1970); "plant-wide system-wide racially
discriminatory employment practices," Jenkins v. United Gas Co., 
400 F.2d 28, 34 (5th Cir 1968)

” See Baxter v. Savannuh Sugar Refining Corp., 495 F.2d 437 (5th 
Cir. 1974), cert, denied, 4 |9  U.S. 1033, 95 S.Ct. 515, 42 L.Ed.2d 308 
(1975). Baxter delineates two phases for the Title VII inquiry. Phase 
One is reserved for class-wide determinations and Phase Two for in­
dividual proof of damages for backpay.purposes and the assertion of 
defenses as to individuals.

” See generally Franks v. Bowman Transportation Co., 424 U.S. 
747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); United Slates v. United 
States Steel, 520 F.2d 1043 (5thCir. 1976); United States v.
T I M E.-D C . 517 F.2d 299 (5th Cir.1975), cert, granted------ . U.S.
___ 96 S.Ct. 2200, 48 L.Ed.2d 814 (1976).

” In United States v. N.L. Industries, Inc., 479 F.2d 354, 375 (8th 
Cir 1973), the reviewing court first established that a prima facie case 
had been show n and then proceeded to delineate the bounds of the af­
fected class. See also Stevenson \ . International Paper Co., 516 F.2d 
103, 117-18 (5th Cir. 1975).

*" in rejecting the limitation of the scope of the court’s examination 
to the statistical imbalance of nine departments, we likewise reject the 
notion that a Title VII prima facie case of discriminations could be 
shown merely by proving that some departments in a plant do not ap­
proximate the racial makeup of the plant.

41 Sabala v. Western Gillette, Inc., 516 F.2d 1251 (5th Cir, 1975); 
Franks v. Bowman Transportation Co., 495 F.2d 398 (5th Cir 1974), 
rev’d on other grounds, 424 U.S. 747,96 S.Ct.1251, 47 L.Ed.2d 444 
(1976); Johnson v. Goodyear Tire <£ Rubber, 491 F.2d 1364 (5th 
Cir. 1974); United Slates v. N.L. Industries. Inc., 479 F.2d 354,355 
(8th Cir. 1973); United States \ . Chesapeake & Ohio Ry., 471 F.2d 582 
(4th Cir. 1972); United States v. St. Louis-San Fran. Ry., 464 F.2d 
301, 306 (8th Cir. 1972); United States v. Jacksonville Terminal Co.. 
451 F.2d 418 (5th Cir. 1971), cert, denied, 406 U.S. 906, 92 S.Ct. 
1607, 31 L.Ed.2d 815(1972); Bing v. Roadway Express: Inc., 444 F.2d 
687 (5th Cir. 1971); Robinson v. Lorillard Corp., 444 F.2d 791 (4th 
Cir ), cert denied, 401 U.S 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (1971).



150a

*' In evaluating the evidence presented in United States v. Jackson­
ville Terminal Co., 451 I .2d 418, 442 (5th Cir.1971), cert denied, 406 
U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 815 (1972), this court slated:

Certainly the weight to be accorded this (discriminatory) in­
ference varies: much depends on the correctness, completeness, 
and comprehensiveness of the figures proffered. Measured by 
these criteria, the Government’s statistics sub judice should have 
been given substantial weight. They disclose that all persons 
hired for higher paying positions and most people promoted to 
these jobs after Title Vll’s effective date were white. Absent ex­
planatory evidence and tesimony, the statistics indicate that of­
ficials have impliedly equated job qualifications with race.

*’ See Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th 
Cir. 1974); United Slates v. Bethlehem Steel, 446 F.2d 652 (2d Cir. 
1970); cf. United States v. T.I.M.E.- D C., 517 F.2d 299 (5th Cir.
1975), cert, grunted. ___  U.S. 96 S.Ct. 2200, 48 L.Ed.2d 814
(1976).

“ The existence of an OFCC agreement does not provide the com­
pany with a defense to the Title VII action. See B atkins v. Scott Paper 
Co., 530 F.2d 1159, 1166 (5th Cir. 1976); Stevenson v. International 
Paper Co., 516 F.2d 103, 106 (5th Cir. 1975); Rogers v. International 
PaperCo., 510F.2d 1340 (8th Cir.), as modified, 526 F.2d 722 (1975); 
United Papermakers, Local 189 v. United Stales, 416 F.2d 980 (5th 
Cir.1969), cert, denied, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100 
(1970).

*’ See notes 25 & 27 supra.

** Title VII cases have often considered similar historical 
discrimination policies in evaluating the prima facie case aspect. 
Watkins v. Scott Paper Co., 530 F.2d 1159, 1 165 (5th Cir. 1965);. 
United Slates v. T.l M.E. D.C., 517 F.2d 299 (5th Cir 1975), cert.
granted, ___  U .S .____96 S.Ct. 2200, 48 L.Ed.2d 814 (1976);
Stevenson v. International Paper Co., 516 F 2d 103, 107 (5th Cir. 
1975); Gamble v. Birmingham So. R.R., 514 F.2d 678 (5th Cir.1975); 
Rogers v. International Paper Co., 510 F.2d 1340 (8th Cir.), as 
modified, 526 F.2d 722 (1975); Pettway v. American Cast Iron Pipe 
Co., 494 F.2d 221 (5th Cir. 1975); Johnson v. Goodyear Tire d Rubber 
Co., 491 F.2d 1364, 1369 (5lh Cir. 1974); United States v. N.L. In­
dustries, Inc., 479 1 2d 354, 355 (8th Cir. 1973); United States v. 
Chesapeake & Ohio Ry„ 471 F.2d 582, 586 (4th Cir. 1972); United 
Stales v. St. Louis-Sun Iran. Ry., 464 F.2d 301, 306 (8th Cir. 1972).

*’ See note 46 supra.

151a

“ In this highly volatile employment, workeis were Irequentl) laid 
oil. Plaint it Is contend that the i eason this gross pay comparison look­
ed as good as it did was because blacks working ai lower paving jobs 
with heller seniorilv experienced fewer layoffs. Ilius to receive com­
parable payments from Pullman-Standard, whites worked fewer 
hours and drew unemployment benelits while vacationing or working 
at jobs lor others. I he district court indicated this contention might 
have some probity by its finding that the desirability of majority black 
jobs was enhanced b\ stability and less frequent lay offs than higher 
paying majority white jobs.

" Ibis court has previously indicated in dicta that consideration 
should be given to including supervisory and clerical personnel, 
especially il they are heavily white, in such average yearly wage racial 
comparisons. United Slates v. Haves International C'orp. (Haves I), 
415 F.2d 1038, 1040 n. 3 (5th Cir. 1974).

,0 The use of statistics and similarly statistical wage comparisons 
must be conditional on the “absence of variables w hich would under­
mine the reasonableness of the inlerence of discrimination which is 
drawn.” United States v. Ironworkers Local 86, 443 F.2d 544 551 
(9th Cir, 1971); accord, Oclioa v. Monsanto Co., 473 F.2d 3 8, 319 
(5th Cir 1973); United States v. Jacksonville Terminal Co., 451 F.2d 
418, 442 (5th Cir 1971), cert, denied, 406 U.S. 906, 92 S.Ct. 1607, 31 
L.Ed.2d 815 (1972).

” For an example of this prima facie case approach, see Pettway v. 
American Cast Iron Pipe Co., 494 F 2d 211 (5th Cir. 1974). There, 
this court focused on the percentage variance from the plant's racial 
norm in each department, various tests and educational requirements 
which were hiring and transferring barriers, lower paying dispropor­
tionate black departments, and past official policies of segregation in 
the plant. The court found that the combination of all of these items 
made out a prima facie case ol plant-wide discriminatory departmen­
tal assignment.

” E g., Sagers v. Yellow f reight System, Inc., 529 F.2d 721, 729 
(5th Cir. 1976); United States v. United States Steel, 520 F.2d 1043 
(5th Cir 1975); United States v. T I M E.-D C.. 518 F 2d 299, 313
(5lh Cir 1975), cert, granted, __  U.S. __ , 96 S.Ct. 2200, 48
I..Ed.2d 814 (1976); Sabulu v. llestern Gillette. Inc., 516 F.2d 1251, 
1255 (5th Cir. 1975); Stevenson v. International Paper Co., 516 F.2d 
103, 111-12 (5th Cir. !975);/:£OC v. Detroit Edison, 515 F.2d 301, 
313 (6th Cir. 1975); Rogers \. International Paper Co., 510 F.2d 1340



152a

(8th Cir.), as modified, 526 F.2d 722 (1975); Carey v. Greyhound Bus 
Co., 500 F.2d 1372, 1376 (5th Cir. 1974); Pettway v. American Cast 
Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974); Johnson v. Goodyear 
Tire & Rubber Co.. 491 F.2d 1364 (5th Cir. 1974); United States v. 
Chesapeake & Ohio Ry., 471 F.2d 582, 593 (4th Cir. 1972); United 
States v. Bethlehem Steel Co., 446 F.2d 652, 660-61 (2d Cir. 1970); 
Jones v. Lee Way Motor Freight, 431 F.2d 245 (10th Cir. 1970), cert, 
denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (1971).

” Watkins v. Scott Paper Co., 530 F.2d 1159, 1168 (5th Cir. 1976); 
Sagers v. Yellow Freight System, Inc., 529 F.2d 721 (5th Cir. 1976); 
Sabala v. Western Gillette, Inc., 516 F.2d 1251, 1262 (5th Cir. 1975); 
Pettway v. American Cast Iron Pipe Co., 494 F.2d 21 1, 243 (5th Cir.
1974) ; Bing v. Roadway Express, Inc. (Bing II), 485 F.2d 441 (5th Cir.
1973); United States v.. Georgia Power, 474 F.2d 906 (5th Cir. 1973).

** The carry-over of antecedent seniority need not be granted to 
every employee; it is compelled only for victims of prior 
discrimination, dubbed by the courts to be members of the ‘af­
fected class.’ Although the gravamen of an attack on the seniori­
ty forfeiture provision may be its inhibition of minority transfer, 
the affected class clearly includes those who already have 
transferred, incurring the loss, as well as those inhibited from 
transfer. On the other hand, the affected class is not necessarily 
that described by plaintiffs in the class action paragraph of their 
complaint nor does it extend to those hired after discrimination 
has ceased.

Stacy, Title VII Seniority Remedies in a Time of Economic 
Downtown, 28 Vand.L.Rev. 487, 496-97 (1975).

” See, e.g., Rodriquez v. East Texas Motor Freight, 505 F.2d 50
(5th Cir. 1974), cert, granted, ___  U.S. ___ , 96 S.Ct. 2200, 48
L.Ed.2d 814 (1976); Johnson v. Goodyear Tire & Rubber Co., 491 
F.2d 1364 (5th Cir. 1974).

’* See, e.g., EEOC v. Detroit Edison, 515 F.2d 301, 316 (6th Cir.
1975) ; United Papermakers, Local 189 v. United States, 416 F.2d 980 
(5th Cir. 1969), cert, denied, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 
100 (1970).

153a

” "Though this rule seems simple, it has been misapplied to 
foreclose class membership to blacks hired after the assignment of just 
one while to a previously all-black department. E.g., Johnson v. 
Goodyear Tire <£ Rubber Co., 349 F.Supp. 3, 16 (S.D.Tex. 1972), 
modified, 491 F.2d 1364, 1374 (5th Cir. 1974).” Stacy, Title VII 
Seniority Remedies in u lime of Economic Downturn, 24 
Vand.I Rev. 487, 497 n. 73 (1975) See Johnson v. Goodyear Tire & 
Rubber Co., 491 F.2d 1364, 1374 (5lh Cir. 1974).

’’ Watkins v. Scott Paper Co., 5.30 F.2d 1159, 1174 (5th Cir. 1976); 
citing Stevenson v. International Paper Co., 516 F.2d 103, 112 (5th 
Cir. 1975) and Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 
248 n. 99 (5th Cir. 1974); accord, Rogers v. International Paper Co., 
510 F.2d 1340, 1355-56 us modified, 526 F.2d 722 (8th Cir. 1975); 
United Stales v. A'./.. Industries, Inc., 479 F.2d 354, 375-76 (8th Cir. 
1973; Long v. Georgia Kraft Co., 450 F.2d 557, 560 (5th Cir. 1971); 
United Stales v. Bethlehem Steel, 446 F.2d 652, 659 (2d Cir. 1970).

" Stevenson v International Paper Co., 516 F.2d 103, 112 (5th Cir. 
1975):

We do not hold as a matter of law that there should always be . .
. red circling . . . .  The requirement for and feasibility of the 
remedy turn on tactual matters.

60 If the district judge chooses to credit all testimony, the present 
record indicates that some diseriminaiees might initially suffer reduc­
ed wages by transferring to another department. Whether this reduced 
wage phenomenon would be the result of a departmental reduction in 
force is not clear from the record We intimate no view as to the pro­
per resolution of this issue.

*' The following are the other reasons given by the district court: (I) 
There are no lines of promotion or residence requirements to impede 
promotion in new departments. (2) Frequent manpower fluctuations 
may create new opportunities. (3) Some of these manpower fluctua­
tions will obviate old wage rates. (4) No training is provided for new 
jobs.

*' By company consent an after-the-fact notification process has 
begun.



154a

41 Word of mouth notification systems, at least for purposes of 
publicizing job vacancies, have been alluded to as being inherently 
prejudicial to blacks in majority white plants. E.g., United States v. 
Georgia Power, 474 F.2d 906, 925 (5th Cir. 1973); Parham v. 
Southwestern Bell Telephone Co., 433 F.2d 421 (8th Cir. 1970).

44 Cf. Stevenson v. International Paper Co., 516 F.2d 103, 112-113 
(5th Cir. 1975); Watkins v. Scott Paper Co., 530 F.2d 1159, 1174 (5th 
Cir. ,1976).

This reconsideration should not be limited to only considering 
the word of mouth notification system. It should also consider 
the recently instituted system of posting daily turn-over sheets, 
monitoring provided by union members, and notification pro­
vided by contract compliance officers. If any such system is to 
be instituted, the business necessity defense which was not reach­
ed by the court before, should be considered.

41 In a footnote to its opinion the district court held one subclass 
was not entitled to backpay.

44 Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1374 
(5th Cir. 1974); accord, Pettway v. American Cast Iron Pipe Co., 494 
F.2d 211 (5th Cir. 1974); Head v. Timken Roller Bearing Co., 486 
F.2d 870 (6th Cir. 1973); Robinson v. Lorillard Corp., 444 F.2d 791, 
801-02 (4th Cir.), cert, dismissed, 404 U.S. 1006, 92 S.Ct. 573, 30 
L.Ed.2d 655 (1971); Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 
712-20 (7th Cir. 1969).

41 "Generalizations concerning such individually applicable 
evidence cannot serve as a justification for the denial of relief to the 
entire class.” Franks v. Bowman Transportation Co., 424 U.S. 747, 
96 S.Ct. 1251, 1268, 47 L.Ed.2d 444 (1976).

“ See, e g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 
2362, 2371, 45 L.Ed.2d 280 (1975); Sabala v. Western Gillette Inc., 
516 F.2d 1251, 1264 (5th Cir. 1975); Gamblev. Birmingham So. R.R., 
514 F.2d 678, 686 (5th Cir. 1975); Carey v. Greyhound Bus Co., Inc., 
500 F.2d 1372, 1378 (5th Cir. 1974); Baxter v. Savannah Sugar Refin­
ing Corp., 495 F.2d 437, 442-45 (5th Cir. 1974), cert, denied, 419 U.S. 
1033, 95 S.Ct. 515, 42 L.Ed.2d 388 (1975); Pettway v. American Cast 
Iron Pipe Co.. 494 1 2d 211, 251-53 (5th Cir. 1974); Johnson v. 
Goodyear Tire <£ Rubber Co., 491 F.2d 1364, 1375 (5lh Cir. 1974); 
Sims v. Sheet Metal Workers Local 65, 489 F.2d 1023, 1028 (6th Cir.

155a

1973); United Stales v. Georgia Power, 474 F.2d 906, 921 (5lh Cir.
1973) ; Robinson v. Lorillard Corp., 444 F.2d 791, 801-02 (5th Cir.), 
cert, dismissed, 404 U.S. 1006, 92 S.Ct. 573, 30 l..Ed.2d 655 (1971); 
Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969).

44 E.g., Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 
L.Ed.2d 158 (1971), Pettway s. American Cast Iron Pipe Co., 494 
F.2d 211 (5th Cir. 1974).

Plaintiffs claim that some whites promoted to foremen had less 
formal education than some blacks who were not promoted.

” Watkins v. Scott Paper Co.. 530 F.2d 1159, 1192 (5th Cir. 1976); 
Stevenson v. International Paper Co., 516 F.2d 103, 117 (5th Cir. 
1975); Rogers v. International Paper Co., 510 F.2d 1340, 1344, as 
modified, 526 F.2d 722 (8th Cir 1975); Rodriguez v. East Texas
Motor Freight, 505 F.2d 40, 59 (5th Cir. 1974), cert, granted, ___
U .S .___ 96 S.Ct. 2200, 48 L.Ed.2d 814 (1976); Pettway v.
American Cast Iron Pipe Co., 494 F.2d 211,249 (5th Cir. 1974); Rowe 
v. General Motors, 457 F.2d 348, 358 (5th Cir. 1972).

” We note in this regard that the use of subjective promotion 
criteria by mostly white foremen has been held to be a ready 
mechanism for racial discrimination in promotion. Rowe v. General 
Motors, 457 F.2d 348, 358-59 (5th Cir. 1972); accord, Watkins v. 
Scott Paper Co., 530 F.2d 1159, 1192-93 (5th Cir. 1976); Baxter v. 
Savannah Sugar Refining Corp., 495 F.2d 437, 442 (5th Cir. 1974), 
cert, denied, 419 U.S. 1033, 95 S.Ct. 515,42 L.Ed.2d 308 (1975); Pett­
way v. American Cast Iron Pipe Co., 494 F.2d 211, 241 (5th Cir.
1974) ; United States v. N.L. Industries, Inc., 479 F.2d 354, 367-68 
(8th Cir. 1973).



156a

SW INT HI

U.S. District Court,

Northern District of Alabama

SWINT, et al. v. PULLMAN-STANDARD, a Division of 
Pullman, Inc., et al., No. CA 71-P-0995-S, July 5, 1977

U. W. Clemon (Adams, Baker & Clemon), Birmingham, 
Ala., for plaintiffs.

C. V. Stelzenmuller and D. Frank Davis (Thomas, Taliaferro, 
Forman, Burr & Murray), Birmingham, Ala., for defendant 
employer.

John C. Falkenberry (Cooper, Mitch & Crawford), Birm­
ingham, Ala., for union defendants.

SAM C. POINTER, Jr., District Judge: — On September 13, 
1974, this court denied the plaintiffs’ several claims of racial 
discrimination. 8 EDP 19720, 11 FEP Cases 943. On August 30, 
1976, the Fifth Circuit remanded the case for further pro­
ceedings with respect to two issues — the seniority system and 
the selection of supervisors. 539 ¥.26 11, 13 FEP Cases 604.1 On 
February 22-23, 1977, after conferences and further pretrial 
briefing, additional evidence was taken and the case resubmit­

I All foot notes for this section appear at the end of this opin­
ion, pp. 173a to 177a.

157a

ted. Final decision was delayed in anticipation of potentially 
relevant Supreme Court cases, which, as it turned out, are in­
deed of critical significance in the case sub judice.1 See Interna­
tional Brotherhood of Teamsters v. U.S., — U.S. — , 45 LW 
4506, 14 FEP Cases 1514 (May 13, 1977); United Air Lines, Inc. 
\. Evans, — U.S. — .45 1 W 4566, 14 FEP Cases 1510(May31, 
1977).

I. Seniority System

This court had found Pullman’s departmental seniority 
system not to be in violation of T itle VII, basing its decision in 
large part upon a finding that the evidence was insufficient to 
show past discrimination respecting departmental assignments 
to most of the departments.’ The Fifth Circuit directed that this 
finding be reconsidered, emphasizing that past discrimination in 
assignments could be established, at least as a part of plaintiffs’ 
prima facie case, without regard to the relative desirability of 
those departments — i e., that in employment situations, as 
with schools, there is no “ separate but equal” doctrine. The 
Circuit also reviewed in depth the procedures to be followed 
under existing precedents should, on such reconsideration, the 
trial court determine that a prima facie case of discriminatory 
assignments was shown.

In the initial trial court decision and on the appellate review, 
principal attention was focused upon the extent, if any, to 
which there had been shown discrimination in departmental 
assignments prior to June 1965. It was sufficient to look to such 
a time period because it provided the evidence most favorable to 
plaintiffs’ claims of discriminatory assignments and because, 
under the then state of the law, a violation of Title VII was con­
sidered proved by showing a seniority system which perpetuated 
the effects of discriminatory assignments which pre dated Title
VII.



158a

The Supreme Court decisions in the Teamsters and United 
Air Lines cases require, however, this court to place primary' at­
tention 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 discrimination, although such a 
system may have to yield, subject to considerations of equity, to 
remedial measures ordered for persons injured by discrimina­
tory acts timely challenged and pursued under Title VII. Look­
ing to the earliest related EEOC charge,’ what this means is that 
the court must, if it determines that the seniority system was 
“ valid” , also determine whether and to what extent there were 
discriminatory assignments to departments on and after 
December 27, 1966.‘ Evidence of discriminatory assignments 
prior to June 1965 or, indeed, prior to 1967, no longer forms the 
basis for the plaintiffs’ claims, but is now useful only for its cir­
cumstantial value.

An initial inquiry is whether the seniority system at 
Pullman is “ valid” — a word chosen by this court to encompass 
the several requirements imposed by statute and viable judicial 
precedents. As was implicit in its original opinion but is now 
made explicit, the court finds — subject only to the implications 
of the 1972 changes — that the seniority system was adopted’ 
and has been maintained' free of any racial purposes; that it is 
neutral in form, applying equally to all; that it is consistent with 
industry practice and, particularly for a company with the 
operational characteristics of Pullman, quite rational; and that 
it has been uniformly followed for all, regardless of race.’

The one qualilication to the foregoing stems from the 1972 
changes to the seniority rules under the Department of Labor 
agreement. For the purpose of correcting possible past

159a

discrimination, blacks lured before June 1965 were given special 
seniority benefits, detailed in this court’s original opinion. To 
the extent of those changes, Pullman has seniority rules which 
are purposefully discriminatory — in favor of affected blacks — 
and which are not neutral at all. In the context of this case, the 
court finds it unnecessary to wrestle with the “ reverse 
discrimination” problem raised thereby. 10 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(h).

For the plaintiffs to prevail on this issue, therefore, they 
must establish that there were discriminatory departmental 
assignments after December 27, 1966. One method of proof, ap­
proved in the Teamsters case, is by comparing the racial com­
position of departments with each other and with applicable 
census information." And, in the present case, exhibits PX 
24-30 certainly do reflect that for each of the years 1967 through 
1973 there were variations in the racial composition of the 
departments beyond that expected from random, “ colorblind” , 
selection. However, the law recognizes the reality of the situa­
tion; namely, that departments are not reshuffled anew each 
year but are rather, the result of past assignments as well as new 
ones." Hence, as noted in Teamsters, an employer can over­
come the prima Jacie eff ect of such statistics by showing that 
“ the claimed discriminatory pattern is a product of pre-Act 
[assignments] rather than unlawful post-Act discrimination.” 
45 LW at 4515, 14 FEP Cases at 1529. Here, the evidence shows 
that the somewhat disparate compositions of the departments in 
the post-1966 period were attributable to the assignments made 
prior to Title VII, as covered in great detail in this court’s prior 
opinion and in the Fifth Circuit’s decision. Indeed, these very 
exhibits reflect that the extent of departmental variations from 
the overall work force composition was being reduced each suc­
ceeding year during the critical time period.



160a

It is, moreover, possible under the evidence in the case to 
directly examine the assignment policies of Pullman during the 
critical years, for one can derive from the records introduced the 
individual assignments that were made, and there is much infor­
mation about how these decisions were made. While not 
reproduced here, the court has made a chart showing, for each 
year starting June 1966, the number of individuals, by race, 
assigned to each of the 28 departments. These statistics give rise 
to rio inference that assignments were being made to further a 
policy of segregated or racially-imbalanced departments. In­
deed, if anything the reverse is true: the post-1966 assignments 
indicate that the company was engaged in efforts to move whites 
into formerly all-black or predominantly-black departments 
and blacks into formerly all-white or predominantly-white ones. 
The evidence reflects, moreover, no specific instances of 
discriminatory assignments during the post-1966 period and, to 
the contrary, a policy of actively attempting to get blacks into 
the formerly all-white jobs, which by and large were the 
"better” jobs. In Teamsters, the statistical data gave rise to an 
inference of discrimination, a conclusion "bolstered” by 
evidence of specific employment practices; here, the statistics 
for the period in issue give rise to the contrary inference, a con­
clusion abundantly supported by the other evidence in the case.

To what extent was there a policy of discriminatory depart­
mental assignments in earlier years? An answer to this question 
would have been critical to the plaintiffs’ claims prior to the re­
cent Supreme Court decisions, and still may be of circumstantial 
value. The court has carefully reevaluated the evidence in the 
light of the principles indicated by the Fifth Circuit and does in­
deed find that there was, prior to March 1965, a policy of 
discrimination in such assignments which affected not just the 
nine departments dealt with in the Department of Labor agree-

161a

merit, but indeed, in varying degrees, virtually every department
— to the extent that n must be viewed as a plant-wide policy. 
This conclusion is based not so much on the statistical data, 
which, as recognized by the Fifth Circuit, is certainly susceptible 
of different interpretations, as it is upon the implications of the 
former practice of informally "segregating” most of the jobs at 
Pullman. The segregation ot jobs prior to March 1965 — which 
certainly must be taken as an employment practice and policy, 
whether or not e\er formally approved by company and union
— meant that departmental assignments were likewise depen­
dent upon the nature of the jobs where vacancies existed. If all 
the jobs of a department were "consigned” to employees of the 
same race, the department was, of course, totally segregated 
and departmental assignments were likewise racially deter­
mined. But even in mixed departments whose racial composi­
tion approximated that of the plant as a whole, the assignments 
were dependent upon whether particular job openings were for 
a white or black position, rather than a "mixed” one. What the 
court is saying is that there was a plant-wide policy of making 
assignments to departments based on race — not as a policy to 
segregate departments, but as a means to carry out the plant­
wide practice of job segregation.1’

The practice of job segregation was however upset by an ar­
bitration decision in March 1965 dealing with Rivet Drivers, and 
over a period of the next several months, prompted in part by 
the advent of Title VII, it was discarded throughout the plant. 
Of course, it took some time before the residue of that former 
practice had essentially been eradicated." The point is that, 
with the demise^of the segregated job practice, so also went the 
ancillary practice of making departmental assignments based on 
race. Accordingly, the finding of pre-Act discriminatory 
assignments does not compel circumstantially a finding that 
such assignments were made during the period involved in this



162a

lawsuit. It is clear that by December 1966 the company was no 
longer making assignments to departments based on race — ex­
cept, that is, to the extent of attempting to rectify imbalances 
caused by its earlier discriminatory practices — and that the 
plaintiffs have therefore failed to establish an essential element 
of their claim.

In its original decision this court had concluded that the com­
pany did not immediately abandon its discriminatory assign­
ment policies respecting six of the nine departments involved in 
the OFCC agreement. The court instead used as a cutoff — for 
purposes of determining which black employees should have the 
benefits under that agreement — the dates on which the first 
white achieved some permanent status in a formerly all-black 
department or on which the first black obtained such status in a 
formerly all-white department. Having been directed to recon­
sider this entire question, the court concludes that its original 
decision, based largely upon a mechanical application of 
statistical data respecting a few departments, was incorrect. It 
concludes, consistent with the remainder of this opinion and 
upon a reevaluation of the evidence in its totality, that there was 
not a policy of discriminatory assignments respecting these six 
departments after 1966 anymore than there was respecting the 
other departments.

It is perhaps useful to look at the assignments after December 
1966 to these six formerly one-race departments. Respecting the 
three formerly all-while departments: in the Air Brake Depart­
ment, while the next vacancy (in 1970) was filled by a white, 
blacks had been tried in the department in 1965 and in 1966, and 
in 1971 two blacks were assigned to it; in the Inspection Depart­
ment, while three whites were assigned to it in the 1967-70 
period, a black had been tried there in 1967 and two blacks had 
declined assignment to it in 1969, and indeed six of the 10 in­
spectors with post-April 1965 seniority dates are black; and in 
the Plant Protection Department the first vacancy filled after

163a

December 1966 was by a black. Insofar as the formerly all-black 
departments are concerned, the first vacancy in the Janitor 
Department after December 1966 was filled by a white; the se­
cond vacancy in the Die and Tool Department after that date 
was filled by a while (and post-Act assignments to the depart­
ment have more frequently been of whites than of blacks); and 
in the 1 ruck Department two of the first five vacancies were 
filled by whites and through the date of trial more whites than 
blacks were hired into that department. In the other three 
departments covered by the OFCC agreement, the first vacan­
cies occurring alter April 1965 were filled by workers of a race 
different from the prevailing racial identiy of those depart­
ments, dramatizing the change of policy that had taken place.

Special concern was raised in the Fifth Circuit decision as the 
situation respecting the two formerly all-white IAM depart­
ments, a matter which had not been covered in detail in the 
original decision. The first post-1966 assignments to the 
Machinist Department (1AM) were three blacks and four 
whites. The Die & Tool Department (IAM), six blacks and one 
white were assigned in 1966 and over the next four years seven 
other blacks and eight whites were assigned to it. The court is 
convinced that with respect to these departments, as with the 
other twenty-six departments, there was no policy or practice of 
discriminatory assignments after December 1966.

Having found that during the applicable time period there 
was no policy or practice of discriminatory department 
assignments to any of Pullman’s departments, the court is not 
called upon to treat the relief-oriented issues described by the 
Fifth Circuit, such as “ red circling” and “ posting” . The court 
furthermore vacates that part of its earlier decision which had 
expanded the rights given blacks under the OFCC agreement 
and which had provided a means for certain blacks to present



164a

back pay claims respecting the effect of the department seniority 
system upon their prior assignments. It will not therefore be 
necessary for the court to determine, under teamsters, whether 
claimants for back pay who did not request assignment or 
transfer to particular departments would have done so but for 
knowledge of some contrary company policy — a matter which 
would be most difficult of proof under the facts of this case 
showing active efforts by the company to correct past im­
balances.

II .  S e le c t io n  o f  S u p e r iv so r s

This court had found that plaintiffs failed to make a prima 
facie showing of discrimination in the selecion of supervisors, 
basing its ruling in part upon two factors which the Fifth Circuit 
concluded were impermissible under the circumstances. 15 The 
evidence from the original trial is now due to be reconsidered in 
conjunction with the additional evidence presented after re­
mand.

At the time of trial only some 10% of Pullman’s salaried 
foremen were black, a figure which is substantially below that 
expected from the labor market — which ranges from 25 to 35% 
black, depending on the age group and area selected — or from 
Pullman’s own work force — which ranges from approximately 
45 to almost 50% black, depending upon the time selected. As 
Teamsters indicates, however, such statistics may be the result 
of the pre-Act discrimination and hence may be "rebutted” by 
data pertinent to the employment decisions made during the 
period covered under the EEOC charge. A summary of these 
promotions is given below:

165a

Years Promotions Blacks

1967-68 17 2 (12%)
1969-70 18 4 (22%)
1971-72 8 2 (25%)

1973-mid ’74 20 6 (30%)
mid '74-Jan. 77 12 4 (33%)

75 18 (24%)

While these figures would compare favorably to expectations 
from the area labor market, at least after the first few years, 
such a comparison would be inappropriate. Likewise, a com­
parison with Pullman’s total work force — showing a substan­
tial disparity — would also be inappropriate. As Hazelwood
School District v. United States,----- U .S .------ , 45 LW 4882,
15 PEP Cases 10 (June 27, 1977), makes clear, the group 
selected lor comparison should be one which, when special 
qualifications are needed to fill particular jobs, possesses those 
qualifications.

It is clear from the evidence, if not from common sense, 
that special skills are needed by supervisors and that — to 
paraphrase another Supreme Court decision"’ — all workers are 
not "fungible” when it comes to selection of supervisors. The 
long-standing practice at Pullman has been to select salaried 
supervisors from the ranks of those who have demonstrated 
their abilities as front-line supervisors, i.e., as temporary 
foremen. This limitation, imposed by Pullman both before and 
after blacks became appointed as temporary foremen, is found 
by the court to be a bona fide occupational qualification under 
the evidence in this case. It moreover provides — subject to con­
sideration of whether promotions to temporary foremen have



166a

temporary foremen themselves been discriminatory against 
blacks — the appropriate group to which comparisons should 
be made under Hazelwood School District.

The opinion in Hazelwood School District, fn. 17, suggests 
the usefulness of the standard deviation as a measure of 
predicted fluctuations, citing the methodology employed in
Castaneda v. Partida,----- U .S .------ , 45 LW 4302, 4306, n. 17.
(March 23, 1977). When such a calculation is here made, it is 
found that the number of blacks appointed to salaried super­
visory positions is less than two standard deviations from the 
number expected from the composition of temporary foremen 
for the period. Indeed for the latter eight years, the number of 
blacks so promoted is higher — though not statistically signifi­
cant at p ^  .05 — than what was expected from the selection 
group. Certainly when taken in conjunction with evidence of a 
non-statistical nature as to the company’s active and earnest ef­
forts to promote blacks into the supervisory level — which are 
not mere ‘‘simple protestations” of a denial of discrimination11 
— it is clear, and the court so finds, that plaintiffs; prima facie 
showing with respect to salaried supervisors has been rebutted 
and that Pullman did not discriminate against blacks in such 
promotions in the time frame covered by the EEOC charges.

What about the promotions to temporary foreman, the prac­
tice by which Pullman has long met its sporadic needs for front­
line supervision? The summaries presented by the company, 
DX-351 and DX-361, reflect that for the four most recent years 
the percentage of such promotions made to blacks has been 
some 31%. Here again, it is necessary to determine the group — 
or groups — to which the ratio of black promotions should be 
compared.

As was true with salaried foremen, it would be inappropriate 
to make a comparison to figures for the area labor market, a 
comparison which would give rise to no inference of racial

167 a

disctiminalion. And at first glance it would seem that a com­
parison could properly be made to the total work lorce at 
Pullman, which is 45-50% black. But that too, on analysis, 
would be inappropriate.

Promotions of temporary foremen arc departmental in all 
essential aspects. T hey are made according to the needs of the 
individual departments. They are made by the supervisory per­
sonnel m that department. They are made from the employees 
working in that department.1' The only involvement in the pro­
cess by non-departmcnial personnel is the regular review by the 
Contract Compliance Officers — one black and one white — to 
assure that racial discrimination has not occurred.

The restriction of such temporary promotions to persons 
working in the department is a bona fide occupation qualifica­
tion, justified by business necessity, under the evidence in this 
case. It is most appropriate in this case to analyze the temporary 
promotions on a departmental basis and to base expectancies on 
the composition ol workers within the department. From the 
evidence in this case, principally DX-282 and DX-334''', it is 
possible, as the court has done, to tabulate the departmental 
promotions, the blacks actually appointed, and the number of 
expected black appointments.



168a

Promotions to Temporary Foreman

Department

1967 through May 1974 

Promotions Blacks

Air Brake Pipe 3
(exp.)

(0)
observed

0
Boiler House 0 (0) 0
Die and Tool, 1AM 33 (1) 0
Die and Tool, CIO 0 (0) 0
Forge 6 (2) 1
Inspection 5 (0) 0
Janitors 0 (0) 0
Lumber Stores 0 (0) 0
Maintenance, IAM 17 (2) 0
Maintenance, CIO 47 (9) 13
Misc. Stores 12 (6) 5
Mobile Crane 0 (0) 0
Paint and Shipping 27 (14) 16
Plant Protection 0 (0) 0
Power House 0 (0) 0
Press 2 (1) 0
Punch and Shear 8 (6) 3
Railroad 6 (2) 1
Steel Construction 12 (9) 11
Steel Erection 57 (41) 41
Steel Misc. 36 (32) 29
Steel Stores 27 (20) 15
Template 3 (0) 0
Truck 0 (0) 0
Welding 149 (22) 11
Wheel and Axle 4 (1) 0
W'ood Erection 12 (7) 3
Wood Mill 0 (0) 0

466 (175) 149

169a

The calculation of the expected number of black promotions 
was done by multiplying the number of such promotions in a 
department during a given month (or quarter) by the percentage 
o! blacks working in the department that month (or quarter), 
then adding the products so obtained over the 89 month period, 
and then rounding the sum to a whole number. As to the two 
largest departments — Welding and Steel Erection — the black 
percentage was determined in a slightly different manner: in the 
Welding Department, the figures were the black percentage of 
welders that month (or quarter); and in the Steel Erection 
Department, the figures were the percentage of blacks working 
that month (or quarter) who were qualified as either Riveters, 
Assemblers, or Healers. This limitation was thought ap­
propriate because it is clear—and the court so finds—that only 
Welders would be qualified to act as temporary foremen in the 
Welding Department and only persons with experience as a 
Riveter. Assembler or Heater would be qualified to act as tem­
porary foremen in the Steel Erection Department.

Similar restrictions as to prerequisite jobs needed for promo­
tion to temporary foreman could be determined for many of the 
other departments. For example, it is clear that only a full 
Millwright has the necessary qualifications to be temporary 
foreman in the Maintenance (1AM) Department: and, if such a 
restriction had been utilized, the chart would have reflected no 
expected black promotions (rather than the two shown). The 
court’s study of the departments, while not attempting to fix the 
actual number, does indicate that the expected number of black 
promotions shown on the chart is overstated and is closer to the 
actual number of black promotions.

As was noted in the earlier decision, a greater number of 
blacks than whites have turned down offers of such promo­
tions. T he data on these refusals available to the court — for the



170a

1971-73 period — can be used to make rough projections for the 
entire period.20 The indications, is that, for every 30 whites who 
accepted, 32 would have been offered the promotion and that, 
for every 30 blacks who accepted, 36 would have been offered 
the promotion. When a chart such as that shown above is con­
structed using the projected number of offers of promotion, it 
shows that some 35% of the total offers would presumably have 
been made to blacks, in comparison to the expected figure of 
38°/o — a difference of less than two standard deviations.

The greatest difference between observed and expected results 
shown on the chart — both in absolute numbers and standard 
deviations — is in the Welding Department, where there is an 
“ under-appointment” of 11 blacks, or some 2.54 standard 
deviations from the expected result. And, indeed, exclusive of 
the figures for the Welding Department, the overall actual ap­
pointments of blacks (and not merely the projected job offers, 
as described in the preceding paragraph) would be less than two 
standard deviations from the expected number. Inquiry must 
certainly be made whether as to the Welding Department case of 
“ liability” has been established respecting such promotions — 
i.e., such as would create a presumption of discrimination in 
favor of individual class members in the department, subject to 
additional proof as a “ second” phase of the case.

A major reason for the large disparity in promotions in 
the Welding Department is that during the first two years of the 
period involved — 1967 and 1968 — there were 24 such promo­
tions and not a single black was selected. The problem was that 
the black welders had only a few months of experience as 
welders and did not possess the skills needed to act as foremen 
in the Welding Department. Nor was this the result of any post- 
Act discrimination against them — rather, as indicated in the 
prior decision, the company has during the applicable time 
period actively sought and trained blacks to be welders and — 
to prevent employment of unqualified welders, black or white 
— has adopted procedures to verify qualifications.2'

171a

I he restriction of temporary foremen in the Welding Depart­
ment to those with adequate skills and experience — and who 
were willing to accept such appointments” — was a bona fide 
occupational requirement for such promotions and was shown 
to be justified by business necessity. As Teamsters makes clear, 
a company is not limited in the “ liability” phase of a case mere­
ly to statistical evidence. Sec 45 1 W at 4515, n. 46, 14 FEP 
Cases at 1529. Here the company not only has countered the 
plaintiffs’ puma June showing with other statistical evidence, 
undercutting inferences drawn from plaintiffs’ statistics, but 
perhaps even more importantly has provided non-statislical in­
formation as to its promotion of black welders to temporary 
foreman positions, both as to its general policies and as to in­
dividual decisions. The active efforts to upgrade blacks in the 
Welding Department, both to welder positions and to tem­
porary foreman, together with the regular reviews undertaken 
by the Contract Compliance Officers to assure lack of 
discrimination and to encourage black promotions, are not 
mere window-dressing. When both the statistical data, fairly 
evaluated, and the non-statistical evidence are fairly considered, 
the court is convinced, and so finds, that the plaintiffs’ prima 
fuac showing of discrimination in promotion of temporary 
foremen in the Welding Department has been rebutted and that 
no such discriminatory practice existed subsequent to 1966. The 
same finding is made with respect to promotion of temporary 
foreman in the other departments.2'

III. Summary

The court finds and concludes that the company did not in 
violation of the anti-discrimination laws follow any practice or 
policy after 1966 which discriminated against blacks in the 
assignment of employees to departments or in the selection of 
supervisory personnel. Nor has any violation of such laws been



172a

shown 10 have been committed by the unions. Judgment is due 
to be entered in favor of the defendants as to all issues in this 
case.

J u d g m e n t

In accordance with the findings of fact and conclusions of law 
contained in the Memorandum of Opinion filed concurrently 
herewith, judgment is hereby entered in favor of the defen­
dants. Each party shall bear its own costs.

173a

Stt'INT III  - F o o t n o t e s

' The Appelluie court affirmed this court's rulings (a) that there 
had not been shown discrimination in the assignment ol work among 
employees working the same job class; (b) that the failure to post job 
vacancies had neither discriminated nor perpetuated the effects of past 
discrimination; and (c) that the individual claims of discrimination by 
the plaintills had not been established. While the l iltlt Circuit affirm­
ed the tilling respecting “posting", it however held that the court 
should reconsidei the question in the light of whether such relief was 
required to make ellicacious the transfer rights ol any who had been 
discriminated against.

1 A thud decision announced by the Supreme Couit on the same 
day should also be noted. I he body of the opinion in East Texas 
Motoi Freight System, Inc v. Rodriguez, — U.S. — , 45 LW 4524, 14 
FEE C ases 1505, indicates that the instant case should not have pro­
ceeded as a class action at all. However, this case was certified before 
trial as a class action, was tried as a class action, and involved 
representative plamntts who had not at the time lost their individual 
claims. As looinote 12 of the Rodriguez opinion suggests, such facts 
make this case distinguishable Irom that in Rodiiguez. Also see 
Franks v. Bowman I ransportation Co., 424 U.S. 747, 752-57, 12 FEP 
Cases 549, 551-553 (1976)

1 While finding that there had been past discrimination in 
assignments to nine departments, the trial court concluded that, in 
view of transfer opportunities given blacks in 1972, the effects thereof 
were not being perpetuated by the seniority system.

4 Evidenced as the practices prior to the effective date ol Title VII 
oi not the subject of timely EEOC charges would, of course, still be 
relevant circumstantially as to the practices challenged by timely 
FEOC charges.

’ So far as the court has been able to determine from the evidence 
the first EEOC charge against Pullman was one filed by a Commis­
sioner in January, 1967. This charge, however, was limited to the 
alleged practice of segregated facilities and, even with liberal rules of 
interpretation, could hardly be held reasonably related to attacks on 
departmental or job assignments or on the seniority system. The next 
charge, also by a Commissioner, was filed on March 27, 1967, and, by 
questioning the hiring and promotion practices of Pullman, is suscep­
tible to the interpretation that it related also to assignment and 
transfer matters. Actually it is doubtful that this Commissioner’s 
charge should be used as a date-designator since the instant private



174a

lawsuit grew out of later filed individual charges. The earliest charge 
filed by one of the plaintiffs, on October 15, 1969, did not raise 
challenges to the assignment, transfer, or seniority policies, although 
it was amended on several occasions prior to the issuance of the riglu- 
to-sue letter. The first private charge directly bringing into question 
the company’s assignment policies was apparently filed on May II, 
1970. To give plaintiffs’ the benefit of the doubt, the court has in this 
opinion used the earliest possible date, i.e., 90 days before the March 
27, 1967, Commissioner’s charge, while nevertheless having substan­
tial reservations that such a date is proper.

* Read literally, the issue specified in the pretrial order — whether 
the seniority system perpetuates the effects of past discriminatory 
departmental assignments — would not under the recent Supreme 
Court decisions state a material issue under Title VII. However since 
this implicitly assumed as an issue whether there had been 
discriminatory assignments, it adequately indicated the issue which 
this court must now resolve and, indeed, abundant evidence was 
presented at the trial as to the employment practices of the company 
up to the time of trial itself.

’ Discrimination against blacks, a reality for many years at 
Pullman prior to Title VII, was accomplished through the vehicle of 
reserving many of the “better” jobs for whites. The departmental 
seniority system was not adopted with the intent or purpose of protec­
ting whiles against blacks.

' Illustrative of this conclusion is the fact that on a relatively recent 
vole by the union — approximately half of whose members are black 
— opposition to a merger of several departments for seniority pui- 
poses was unanimous.

* Of course there have been the typical disputes processed through 
the grievance procedures claiming that the company deviated from the 
seniority rules. As noted in the original opinion, fn 24, the plaintiffs 
have not actively contended that the rules have been discriminatorily 
applied.

10 The problem is compounded by the fact that the 1972 changes 
give remedial relief to blacks whose mistreatment, pre dating Title 
VII, was not a legal wrong.

11 Unlike Teamsters, the present case does not involve any claim of 
discrimination in the initial hiring decisions, and for good reason. See 
539 F.2d at 83, n. 10, 13 FEP Cases at 608. Reference to census data is 
of doubtful value to the case at hand.

175a

“ Also see 539 F.2d ai 94, n. 40, 13 FEP Cases at 618 (pruna Jane 
case not established merely by proving some departments do not ap­
proximate racial makeup of plant).

11 In so ruling, the court is not however saying that racial considera­
tions were the sole determinant ol assignments. I he court rather is im­
pressed, particularly in view of the evidence presented by the company 
alter remand, that bona tide job qualifications played the decisive role 
in assignments to many ol the key jobs and departments — that, for 
example, whites were assigned as welders and to craft jobs because, 
with only very lare exception, no black hires possessed the requisite 
experience and skills lor those jobs. There were, however, a lew such 
exceptions, where aparenily qualified blacks were denied assignment 
for what the court must conclude was in furtherance of the job- 
segregation practice — and, though few in number, such persons 
should have the benefit of a presumption of liability if they had 
cognizable claims (which they do not, under Teamsters) under Title 
VII. The co-existence of a non-discriminatory reason for the majority 
of assignments (the lack of qualifications) would not, in short, have 
destroyed the plaintiff’s pruna facie showing on behalf of the class, 
but would rather have constituted defensive matter to be shown in 
responding to individual class members’ claims at subsequent hear­
ings.

“ See the section entitled “Segregation Claims” in the initial deci­
sion, 8 EDP at p. 5989, II FEP Cases at pp. 951-952. It is here ap­
propriate to respond to the Fifth Circuit’s comment that, in dealing 
with the lag time involved lor blacks to exercise the rights afforded by 
opening jobs to them, the district court had “inexplicably discussed 
completely different figures from those shown in the record.” See 539 
F.2d at 96. 13 FEP Cases at 620. This court had, in its footnote 31, 
slated that "the 1973 study by plaintiffs showed that 19.9% of the 
whiles held positions on the rosier above JC 10, as compared with 
only 12.2% of the blacks.” and the Fifth Circuit in its opinion said, 
“plaintiffs’ exhibits show that in 1973 74.1% of blacks still remained 
assigned to job classes lower than 8 while 80.7% of all whites were 
assigned to job classes over 10.” This court did make an error of addi­
tion from PX-55, erroneously calculating the number of whites above 
JC 10 as being 150, when the correct number was 160, and the cor­
responding division should have been 21.2% rather than 19.9%’. Its 
calculation ol the percentage of blacks in such positions, 12.2%, was 
correct. Actually, the Fifth Circuit made a greater miscalculation, for 
the percentage of whiles assigned to job classes over 10 was not 80.7% 
but rather the 21.2%.



176a

" This court considered plaintiffs’ statistics deficient in failing to 
take account (a) of the higher rate of functional illiteracy among black 
employees and (b) of the time required for blacks, previously 
discriminated against, to obtain skills useful to supervisors. The Fifth 
Circuit held that these two factors would be pertinent in evaluating the 
statistics only if, inter alia, the court found that literacy and acquisi­
tion of the job skills were bona fide occupational qualifications — a 
finding which this court had not made.

“ See Mayor v. Educational Equality League, 415 U.S. 605, 
620(1974).

" Cf. Castaneda v. Partida, 45 LW at 4306, n.19.

" Of the 415 monthly promotions reported from January 1969 
through May 1974, 403 — or 91% — were appointments of a person 
then in the department. Of the 13 “ inter departmental” temporary 
promotions, virtualy all involved an assignment to closely related 
work, e.g., an Inspector to the department in which he performed his 
duties or an Assembler from one department being assigned as 
foreman for assembly work in another department.

” DX-282 details the department promotions by month from 
January 1969 through May 1974. DX-334 provides the essential infor­
mation on a quarterly basis back to January 1967.

10 Prior to 1971 the turn-down rate by blacks was higher, and 
subsequent to 1972 the rate was probably lower. The 1971-73 figures 
should be reasonable approximation for the period as a whole.

“ Plaintiffs assert that the requirement of either training or outside 
experience was a barrier designed to deter blacks. The court is per­
suaded that, to the contrary, it was both a valid requirement and was 
indeed intended to rpevent on-the-job training of unqualified whites. 
The requirement was not pul in until black employees were given an 
opportunity to demonstrate their skills as welders.

11 Turn-downs by blacks in the welding department were a signifi­
cant factor.

11 This is not to say that at no time has any black been the victim of 
discrimination in the selection of temporary foremen. On some 
isolated occasion — although the court was not shown this in the 
evidence — there may have been such an incident. For the plaintiffs to 
prevail at the “ liability” phase of the case, thereby creating a 
presumption of discrimination with respect to individual class

177a

members, there must however be established a policy ol practice of 
discrimination It may be noted that general notice of the trial of the 
case was given, with ihe invitation to class members to present 
evidence il they chose. It is unnecessary lor the court to determine at 
this time w liether an mdiv idual class member could, although unaided 
by any presumption of discrimination, still present by other litigation 
a claim ol discrimination, lor example, as to a supervisory position.



178a

SW1NT IV  

U.S. District Court,

Northern District of Alabama

SW1NT, et al. v. PULLMAN-STANDARD, A Division of 
Pullman Inc., et al., No. CA 71-P-0955-S, October 11, 1977

POINTER, District Judge: — By motions timely filed on July 
15, 1977, plaintiffs seek to alter or amend the judgment of July 
5, 1977, or, in the alternative, a new trial.

Plaintiffs first ask that the court produce the chart used by it 
in arriving at certain conclusions about departmental 
assignments and identify the source documents relied upon. As 
to the latter request, the information was simply that derived 
from the annual seniority lists themselves (PX-4 et seq ), look­
ing to those new employees in each department who “ survived” 
long enough to be listed on the succeeding June 1st roster. This 
is the same approach as was used in the original decision in 
reconstructing the June I, 1965, seniority list. It is unnecessary 
for the court to reproduce the tabulation of such assignments by 
race, department, and year, as the same information is readily 
available in the exhibits on file.

Plaintiffs next assert that the court erroneously used a period 
of 90 days prior to filing of an EEOC charge as the commence­
ment date for evaluating evidence concerning departmental 
assignments allegedly in violation of Title VII. The argument is 
that the 1972 amendment to Title VII, extending the lime for fil­
ing charges to 180 days, has generally been given retroactive ef­
fect. See, e.g., Davis v. Valley Distributing Co., 522 F.2d 827, 
10 FEP Cases 1473 (CA9 1975). Plaintiffs are probably correct. 
While this court’s use of the 90-day period followed the opinion 
in United Air Lines Inc. v. Evans, 431 U.S. 553, 45 LW 4566, 14

179a

FEP C uses 1510 (May 31, 1977), that case did not actually con- 
siiuitc a holding against retroactivity ol the 1972 amendments. 
Evans rather involved a situation in which the charges would 
have been stale under either period of lime.

As noted in the July 5th opinion at In. 5, it is doubtful that 
plain tills can lake advantage of the Commission-initiated 
charge ol March 27, 1967 However, even il this be proper and 
if the plaintiffs have the benefit of a period of 180 days, the 
ultimate result slays the same. For the court nevertheless re­
mains persuaded under the evidence that there was no practice 
ol discriminatory assignments to departments after September 
28, 1967, anymore than there was after December 27, 1967.

Plaintiffs argue that this court was prohibited by the mandate 
of the Fifth Circuit from reconsidering the question of whether 
there had been discriminatory assignments. To the contrary, 
however, it is clear that this court was in the remand order being 
directed to reevaluate from a new perspective whether racially 
discriminatory assignments had occurred, with this court to 
determine afresh the inferences that should be drawn from the 
evidence presented.

Finally, plaintiffs sa> that they should be given the opportuni­
ty to present additional evidence to demonstrate the invalidity 
of the seniority system in the light of International Brotherhood 
of Teamsters v. U.S., 431 U.S. 324, 45 LW 4506, 14 FEP Cases 
1514 (May 31, 1977).' This case was prepared for trial — as 
shown by the limitation of issues recited in this court’s original 
opinion and in the appellate court’s opinion — on the theory, 
then well recognized in this circuit, that a violation of Title VII 
could be shown by proof of a neutral seniority system which 
perpetuated the effects of.pre-Act discrimination. Trial was 
conducted on such a limitation of issues, with consequent inat­
tention by plaintiffs to possible evidence showing the seniority 
system to have been instituted or maintained contrary to Section 
703(h) of the new Civil Rights Act of 1964.

I All footnotes for this section appear at the end of this opin­
ion r\ IW|.|



180a

Somewhat similar situations have been recently considered by 
the Fifth Circuit. In each it was held that the opportunity should 
be given for presentation of further evidence in the light of 
Teamsters. See Sabala v. Western Gillette, Inc., 559 F.2d 282, 
15 FEP Cases 1809 (CA5 No. 74-2711); Sept. 16, 1977); James 
v. Stockham Valves & Fittings Co., 559 F.2d 310, 15 FEP Cases 
827 (CA5 No. 75-2176, at p. 6031; Sept. 19, 1977). The concern 
that a final decision affecting such important interests, in­
cluding those of represented class members, be based upon the 
true facts — rather than upon those presented under what now 
appears to have been an erroneous interpretation of the law by 
all parties and by the court — leads this court to the conclusion 
that a new trial should be granted. The new trial will, of course, 
be for the limited purpose of receiving new evidence from plain­
tiffs and defendants upon the issue of the validity of the seniori­
ty system under Section 703(h) of the Civil Rights Act of 1964.

In making this ruling, the court would express the caveat that 
not all previously tried employment discrimination cases are due 
to be re-opened — that this particular case happens to be one 
which was under submission when Teamsters was decided and 
which had been tried at a particular point in time when all con­
cerned acted under what, as it turned out, was an erroneous 
view of the law.

Order

In accordance with the accompanying Memorandum of 
Opinion, it is ordered that a new trial be granted, limited, 
however, to presentation of additional evidence relevant to the 
issue of the validity of the seniority system under Section 703(h) 
of the Civil Rights Act of 1964. The parties may proceed with 
further discovery as may be appropriate to that end.

181a

SWINT IV - Footnotes

Plaintil Is sa> thev were unaware dial diis court was withholding 
judgment in anticipation ol the I canisters case; and die court has no 
reason to doubt this, acknowledging that it did not tell the parlies it 
was doing so However, it should be noted that, in presence of plain- 
tills counsel, the conn was requested by the defendant union to await 
the outcome ol such decisions, with union’s counsel at the time pro­
viding the court with a copy ol the transcript ol arguments made 
belore the Supreme Court.



182a

SW1NT V 

U.S. District Court,

Northern District of Alabama

SW1NT, et al. v. PULLMAN-STANDARD, et al„ No. 
71-P-0955-S, May 5, 1978

POINTER, District Judge: 

MEMORANDUM OF OPINION 

(Pullman-Standard V)

An understanding of the issue now before the court — involv­
ing the validity of the seniority system at Pullman-Standard 
under Section 703(h) of the Civil Rights Act of 1964 — requires 
some consideration of the history of this litigation:

(1) Pullman-Standard 1. In September 1974, following 
a sixteen day trial, this court held, with minor exceptions, 
against the plaintiffs’ individual and class claims of 
discrimination. Inter alia, it found Pullman’s departmental 
seniority system not violative of Title VII, basing that deci­
sion in large part upon a finding that the evidence was in­
sufficient to show past discrimination respecting depart­
mental assignments to most of the departments. See 8 EPD 
19720, 11 FLP Cases 943

(2) Pullman-Standard II. In August 1976, the Court of 
Appeals remanded the case for reconsideration on certain 
issues, including that relating to the attack on the seniority 
system. The court emphasized that discrimination in 
assignments could be established without regard to the 
relative desirability of the various departments — i.e., that 1

183a

there is no “ separate bin equal" doctrine in employment 
situations. See 539 F.2d 77, 13 FLP Cases 604 (CA5 1976).

(3) Pullman-Standard 111. In July 1977, after receiving 
additional evidence, this court again ruled against the 
plaintills’ claims. While finding, under the standards 
outlined by the appellate court, that there had been 
discrimination in departmental assignments, it determined 
that such assignments had pre-dated the time period 
covered by LLOC charges. Concluding that the evidence 
had shown the seniority system to be valid under Section 
703(h), the court found .the claims barred under Interna­
tional Brotherhood of Teamsters v. United States, 431 
U.S. 324, 14 FLP Cases 1514 (1977). See 14 EPD 17815, 15 
FEP Cases 144.

(4) Pullman-Standard IV. In October 1977, on timely 
motion by the plaintiffs, the court reopened the case for 
additional evidence relating to the validity of the seniority 
system under Section 703(h). See 15 EPD 17993, 15 FEP 
Cases 1638.

In January 1978 further evidence in the form of testimony ore 
tenus, depositions, interrogatories, and exhibits was presented 
to the court. The parties, having rested,' were then directed to 
file post-trial briefs.

A. B u rd en  o f  P r o o f .

According to the company’s brief, the plaintiffs have the 
burden of showing invalidity of the seniority system. In the 
sense that the plaintiffs had the burden of “going forward with 
the evidence” at the most recent hearing, this is certainly true; 
lor at that time, based on the prior state of the evidence, both 
this court and the Fifth Circuit had adopted various findings 
supporting the validity of the seniority system.

1 All footnotes lor this section appear at the end of this opin- •
ion no. 203a to 206a.



184a

Imposition of the ultimate “ burden of persuasion" is, 
however, another matter. The defendants could, with con­
siderable logic, argue that Section 703(h) is interrelated with 
Section 703(a) in delineating an “ unlawful employment prac­
tice” , Frank v. Bowman Transportation Co., 424 U.S. 747, 
758, 12 FEP Cases 549, 553 (1976), and that therefore the plain­
tiffs should have the burden of establishing inapplicability of 
Section 703(h).

A contrary conclusion is here reached by the court — 
namely, that where the plaintiffs establish a disparate impact 
resulting from a seniority system (by reason of prior, 
discriminatory practices), the defendants, as in the nature of an 
affirmative defense, have the burden to show that the seniority 
system in question was bona fide and that the differences caused 
thereunder were not the result of any intent to discriminate on 
the basis of race or color. The situation is analogous to that in­
volving use of ability tests under this same Section 703(h), where 
the employer is held to have the burden to demonstrate ap­
plicability of the exclupatory provision of Title V11. Griggs v. 
Duke Power Co., 401 U.S. 424, 432, 3 FEP Cases 175, 178 
(1971) (“ Congress has placed on the employer the burden of 
showing that any given requirement must have a manifest rela­
tionship to the employment in question” ); also see Albemarle 
Paper Co. v. Moody, 422 U.S. 405, 425, 10 FEP Cases 1181, 
1190 (1975); Teamsters, supra, 431 U.S. at 360-61 n.46, 14 FEP 
Cases at 1529 (1977) (“ the employer’s burden is to provide a 
non-discriminatory explanation for the apparently discrimina­
tory result” ).

B . S e n io r i ty  S y s te m .

The seniority system under attack in this case has its essence 
in the 1954 company-wide collective bargaining agreement be­
tween Pullman and the United Steelworkers. Under that agree-

185a

mem, seniority was measured by length of continuous service in 
a particular department — there were 26 such USW depart­
ments — and was exercised in the event of increases and 
decreases of forces in competition with all other employees in 
that department. I here were no lines of promotion or progres­
sion in any department and, indeed, seniority — again, depart­
mental age — was not formally recognized for promotional pur­
poses until the 1956 agreement. Employees transferring from 
one department to another were treated as “ new” employees in 
the department to which transferred (i.e., no carryover of 
seniority) and, with limited exception for those transferring at 
the request of the company or electing transfer in lieu of lay-off, 
also lost their seniority in the “ old” department.

There is an additional component — not directly at issue in 
this litigation1 — to the seniority system at the Bessemer plant; 
namely, the existence of two additional seniority units, or 
departments, represented by the International Association of 
Machinists and Aerospace Workers. Since 1944, the collective 
bargaining agreements with the 1AM have provided for seniori­
ty based on length of service within the particular job classifica­
tion in the seniority department, without opportunity for car­
ryover of seniority in the event of transfer from other occupa­
tions or departments, whether represented by the 1AM or not.

The seniority system in effect at Bessemer in 1954 remained 
virtually unchanged throughout the next eighteen years of col­
lective bargaining between the company, the USW, and the 
1AM. Then, in 1972, as outlined in prior opinions, provision 
was made in an OFCC agreement to permit black employees 
hired before April 30, 1965, to transfer from predominantly 
black departments or to transfer to predominantly white depart­
ments, in either case with carryover of seniority. See Pullman- 
Standard II, 539 F.2d at 84 nn. 15-16, 13 FEP Cases at 609 (CA5 
1976). The restriction against carryover of seniority on depart­
mental transfers continued in effect as to such black employees



186a

when transferring from a “ mixed” department to another 
“ mixed” department, as well as to black employees hired alter 
April 30, 1965, and to all white employees. Rate retention (or 
“ red circling’’) is not afforded for any transferring employee.

For a number of years — until the arbitration decision in 
March 1965’ — there was an informal custom at the plant of 
treating certain jobs as “ white only” and others as “ black 
only” . This practice in turn, as has been previously found (see 
Pullman-Standard 111), caused decisions respecting assignments 
to departments throughout the plant to be infected during that 
period with racial considerations. According to the plaintiffs, 
the effects of this discrimination in departmental assignments4 
have been perpetuated by the seniority system — a system which 
determines employment rights on the basis of departmental age 
and which, even with the 1972 changes, provides barriers to 
departmental transfers. The plaintiffs deny that the system 
meets the requirements of Section 703(h), taking issue with the 
company as to its bona fides and purposes. The applicable legal 
principles are those stated in Teamsters, supra, as explicated by 
the Fifth Circuit in James v. Stockham Valves & Fittings Co., 
559 F.2d 310, 15 FEP Cases 827 (1977).

(1) Neutrality o f System.

One of the factors to be considered, as a part of the “ totality 
of the circumstances in the development and maintenance of the 
system,” is whether it operates to “ discourage all employees 
equally from transferring between seniority units.” James, 
supra, 559 F.2d at 352, 15 FEP Cases at 861. In the case sub 
judice, as in Teamsters, the seniority system — at least as it ex­
isted prior to 1972 — was facially neutral and, certainly with 
respect to the facets attacked (i.e., use of departmental age and 
loss of seniority on transfer), was applied equally to all races 
and ethnic groups. As this court noted in Pullman-Standard I — 
and subsequent evidence does not change the court’s view — the

187a

departmental seniority system was applied in a uniform manner, 
tegatdless ol race or color, and the limited number of in­
terdepartmental transfers granted were handled in a fair and 
non-discriminatory manner. 8 EPD at 5997 n.24, 11 FEP Cases 
at 949. While many ol the grievances and other complaints 
made by blacks include charges of racial discrimination, these 
charges are not substantiated by the evidence. See, e.g., 
Pullman-Standard I, 8 EPD at 5998-99 nn.39, 41 & 50, 11 FEP 
Cases at 955-956, 958.

Io the extent the system “ locks” employees into a depart­
ment and discourages transfers, it does so equally for both white 
and black — that is, it did so until 1972. Since the 1972 OECC 
agreement, a substantial portion ol the black employees are 
given lavored treatment b> being permitted to transfer their ac­
cumulated seniority I t orn certain departments or into certain 
departments. The plaintiffs hardly have standing to challenge 
this solitary exception to the principles of neutrality found in the 
seniority system.

The Supreme Court noted in Teamsters, 431 U S. at 356, 14 
FEP Cases at 1527, that the overwhelming majority of 
employees discouraged from transferring to line-driver jobs 
were white. Emphasizing that fact, one might argue that a no- 
transler seniority rule should be reviewed for its quantitative im­
pact upon dillerent groups ol employees. Such an analysis may, 
indeed, be useful in the process of evaluating circumstantial 
evidence. II, to take an extreme example, a seniority rule were 
shown to penalize all blacks and no whites, the inference that 
the rule was racially motivated would seem compelled. Where, 
however, as here, a rule affects significant numbers of both 
white and black employees — and docs so in an identical man­
ner — it would be a misreading of Teamsters, in this court’s 
\iew, to determine “ neutrality” on the basis of its quantitative 
eflects. Indeed, according to n.24 of the decision of the court of 
appeals in Teamsters, 517 F.2d 299, 312, II FEP Cases 66, 75



188a

(CA5 1975), it appears that 95% of the non-white employees 
were affected by the rule precluding transfer to line-driver jobs, 
whereas only 59% of the whites were so affected. As noted in 
the Supreme Court opinion, 93% of the black and Spanish- 
surnamed American drivers were not line drivers, and only 38% 
of the white drivers were not line drivers. 431 U.S. at 342 n.23, 
14 FEP Cases at 1521-1522. The reference by the Supreme 
Court to the numerical impact of the rule should be understood 
as providing additional support, and not as a sine qua non, for 
its decision — particularly since it apparently accepted the lower 
court’s findings that non-whites had suffered the most from the 
rule. See 431 U.S. at 344, 349-50.

By ranking the twenty-eight USW and 1AM departments ac­
cording to some perceived order of desirability, one could 
however attempt to measure the relative effect of the no­
transfer rule on white and black employees, i.e., to determine 
which group was the more discouraged from transferring. It 
may well be that a somewhat greater impact was felt by blacks 
than whites, although — as indicated in the chart considered in 
Pullman-Standard 1 for a somewhat different purpose and 
subsequently analyzed in Pullman-Standard II — this conclu­
sion is by no means certain. In any event, the rationale of the 
Fifth Circuit in Pullman-Standard II indicates that such a study 
of relative economic desirability would be inappropriate. If one 
is to measure inequality without reference to economic 
desirability, it would seem logical to likewise measure its op­
posite — equality or neutrality — without reference to such 
desirability. Under this approach, it is clear that the per-1972 no­
transfer rule applied equally and uniformly to all employees, 
black and white, and that, given the approximately equal 
number of employees of the two groups, it was quantitatively 
neutral as well.

189a

(2) Rationality o f  Seniority Units.

A second factor under Teamsters, is, in the words of the Fifth 
Circuit, “ whether the seniority units are in the same or separate 
bargaining units (if the latter, whether that structure is rational 
and in conformance with industry practice).” James, supra, 559 
F.2d at 352, 15 FEP Cases at 861. In so staling this factor, the 
appellate court seems to be suggesting that separate seniority 
units may be more acceptable if in the same bargaining unit than 
if in different bargaining units, in which latter situations one 
should make further inquiry as to rationality and industry prac­
tice. It is doubtful that such a proposition was intended by the 
circuit; at least there appears to be nothing in Teamsters to sup­
port such a principle, and it would logically seem that, if 
anything, greater scrutiny should be given to separate seniority 
units within the same bargaining unit than to ones in different 
bargaining units. It may well be that — in discussing the restric­
tion against transfers to line-driver jobs as involving separate 
bargaining units, which was itself viewed as rational, in accord 
with industry practice, and consistent with NLRB precedents — 
the Supreme Court was not proposing a standard for Section 
703(h), but was rather highlighting facts which demonstrated 
the bona fides of lhe seniority rule there in question.

In any event, this cou’rt is bound to follow the rulings of the 
Fifth Circuit. A solution — one which is in keeping with the ad­
monition to use a “ totality of circumstances” approach — is to 
inquire into rationality and industry practice not only when 
seniority units are in different bargaining units, but also when 
they are in the same bargaining unit.

The division of the plant’s work force into twenty-eight 
separate seniority units — 26 USW units and 2 I AM units — has 
remained essentially unchanged since 1954.’ While this at first 
glance appears to be an unusually large number of departments,



190a

it must be viewed in the context of the diversity of operations at 
the plant, the extreme fluctuations in employment levels/ and 
— what is particularly significant — the opportunity to use 
seniority within the unit for any job without the barrier of any 
lines of promotion. Given these facts, the failure to require that 
jobs be fairly closely related to constitute a seniority unit could 
be expected to produce undue bumping or displacements, highly 
inefficient performance, or excessive grievances over ability fac­
tors — or all of them.7

One can, of course, raise questions about particular units and 
can ask whether other configurations would, from the later 
perspective of the courtroom, make more sense. For example, 
the plaintiffs note that the Steel Miscellaneous department owes 
its separate existence — since 1952 — to no apparent reason 
other than the fact that, prior thereto, there were two work 
gangs in the Steel Stores department. Whether it is rational to 
have separate seniority units based upon the fact that the two 
groups worked under different foremen may be debated; but it 
should be noted that this separation came about as a result of 
collective bargaining at which blacks, as well as whites, were 
representing the union, and the two units created had roughly 
comparable racial compositions. On the other hand, while the 
company’s apparently unilateral creation of a separate Inspec­
tion department in the late 1940’s, drawing the inspectors from 
the various operating departments into a separate unit, can be 
seen as having a racial impact (all the inspectors were white)*, 
this change was certainly rational — removing them from 
responsibility to the very persons whose production they were 
being called upon to inspect.

In context, and taken as a whole, the seniority units at 
Pullman’s Bessemer plant constitute a rational structure. They 
are, moreover, consistent with practices which were at the time 
generally followed at other unionized plants throughout the

191a

country, at other companies in the same industry, and indeed at 
Pullman plants located outside the South where race was 
presumably not a potential consideration.

As staled by the Supreme Court,

“ In addition, there is not reason to suppose that Congress in­
tended in 1964 to extend less protection to legitimate depart­
mental seniority systems than to plant-wide seniority systems. 
Then, as now, seniority was measured in a number of ways, in­
cluding length of time with the employer, in a particular plant, 
in a department, in a job, or in a line of progression. *** The 
legislative history contains no suggestion that any one system 
was preferred.”

Teamsters, supra, 431 U.S. at 355 n.41, 14 FEP Cases at 1527. 
Indeed, as the company has established — by publications of 
the Department of l abor, arbitration awards, decisions of the 
War Labor Board, various collective bargaining agreements, 
and contemporaneous studies made by it at the lime of contract 
negotiations — seniority by departmental age such as found at 
Bessemer was the modal form of agreements generally, as well 
as with manufacturers of railroad equipment in particular.4

The number of separate departments found at Pullman’s 
Bessemer plant is less than that (40 departments) at American 
Car and Foundry’s plant at St. Charles, Missouri, and than that 
(29 departments) at Eastern Car Company’s plant in Nova 
Scotia. The same number of departments (28) are found at 
Pullman’s plant in Butler, where less than 1% of the employees 
were black; and the lesser number of departments found at 
Pullman’s plant in Hammond, also having a small percentage of 
black employees, should be reviewed in the light of the more 
limited operations there conducted.10



192a

There are, as would be expected, differences between the 
departmental configurations at Pullman’s three plants; and 
some of these are emphasized by plaintiffs as indicating the ex­
istence of racial considerations at Bessemer."

Plaintiffs note that the Truck, Wheel and Axle shops at Ham­
mond are in a single department, while at Bessemer the Truck 
shop (which remained all-black until 1968-69) and the Wheel & 
Axle shop (racially mixed) are separate departments. Although 
any overlap of occupational titles in the two departments is in­
significant, it may be - the evidence is not clear - that there is a 
sufficiently close relationship between the jobs in the shops that 
they could be in the same seniority unit, rather than in different 
ones. It should, however, be noted that the two shops were 
treated as separate departments before any unionization or 
seniority,11 that they were certified by the NLRB for inclusion in 
separate representational units, 11 and that for a time they were 
covered under separate collective bargaining agreements with 
different unions. Moreover, when the company proposed 
merger of these and other departments, the proposal was 
unanimously rejected by the union at a meeting where the ma­
jority in attendance were black.14

Plaintiffs likewise complain that at Butler and Hammond 
there is a separate Electrical & Crane department, while at 
Bessemer cranemen are in more than one department. Here 
again, cranemen at Bessemer were not in a single department 
prior to unionization and seniority (indeed, they were in five 
separate departments), the electricians were certified by the 
NLRB to be in a different bargaining unit, and for a period of 
time the two groups were covered under separate collective 
bargaining contracts with different unions. When consideration 
was given in the 1950’s to possible formation of an Electrical & 
Crane department at Bessemer, company officials at Butler ad­
vised against the practice based on their actual experience. Re­
jection by the company of union proposals to merge a small

193a

seniority unit having some of the cranemen (the Mobile Crane 
department) into either the Railroad department or the 
Maintenance department appears to have been based on 
business considerations, not racial ones - for all three of the 
departments were racially mixed.

A primary facet ot plainti11s’ attack is their challenge to the 
two Die & Tool departments and the two Maintenance depart­
ments at Bessemer. No similar situation exists at Pullman’s 
Butler and Hammond plants, and indeed there were no such 
divisions at Bessemer prior to unionization and seniority. The 
key here is that responsibility lor this situation cannot properly 
be placed on either of the real defendants - the company or the 
USW - and that, moreover, this circumstance does not diminish 
the bona fides of the seniority system under attack - that be­
tween the company and the USW.

The existence of these divided departments is due to actions 
ol the NLRB in 1941, when it - at the request of other petition­
ing unions - divided the plant into three representational units 
for election purposes. This was done over the opposition of the 
predecessors1’ ol ihe USW, which sought to represent all pro­
duction and maintenance employees. The company properly 
adopted a "hands-off” attitude on formulation of election 
units. Three separate election units were formed by the NLRB, 
with the International Brotherhood of Electrical Workers gain­
ing representation status (over the USW) for two small depart­
ments, with the 1AM gaining representation (o\er the USW) for 
five other departments, and with the USW gaining representa­
tion (over the Federal Labor Union) for the bulk of the 
employees. The unit formed by the NLRB as to which the 1AM 
gained recognition was one which included certain positions in 
the Die & Tool and Maintenance departments considered by the 
NLRB as involving cralt and cralt-relaied jobs, but which omit-



194a

led other positions in those departments, they being in the unit 
for which the USW gained recognition. Hence - and it is dif­
ficult to understand how the company and the USW could have 
legally done otherwise - it resulted that there were two Die & 
Tool seniority units, each subpart being represented by a dif­
ferent union. The separation into different bargaining units was 
not merely, as in Teamsters, “ consistent with National Labor 
Relations Board precedents,” 431 U.S. at 356, 14 FEP Cases at 
1527; it was rather required by a specific decision of the NLRB 
and the outcome of the elections.

Much effort is expended by the plaintiffs to show that the 
NLRB erred in determining which occupations should and 
should not have been treated as craft and craft-related jobs and 
that the result of that decision was to create for a few years16 all- 
white 1BEW bargaining unit and to establish after a few years17 
an all-white 1AM unit. The collateral attack on the NLRB deci­
sion by plaintiffs in this litigation, filed more than twenty-five 
years later, must fail, if for no other reasons, because the real 
defendants - the company and the USW - are not chargeable 
with responsibility for those events and because such matters do 
not impair the validity of the seniority system to which they did 
agree. If there was any industry practice to combine positions 
represented by different unions into the same seniority unit, this 
court was certainly not presented with evidence to that effect.

Also criticized by plaintiffs are certain other departments at 
Bessemer - such as the Inspection, Boilerhouse, Railroad, and 
Janitors1' departments - seeing the existence of such depart­
ments as frustrating opportunities for black employees. These 
same departments, however, are likewise to be found at either 
the Hammond or Butler plants, or both. Indeed, putting aside 
those departments whose existence was incident to the recogni­
tion of three separate unions,1’ the configuration of depart­
ments at Bessemer is quite similar to that at Pullman’s Butler 
plant. There are, in fact, two instances where broader seniority

195a

is provided at Bessemer than at Butler - Butler’s Punch and 
Shear departments being combined at Bessemer into a single 
department, as is also true with respect to the Paint and Shipp­
ing Track departments.

Individual differences in the departmental structures at 
Pullman’s Bessemer and Butler plants, such as they are, do not 
establish that either is irrational or inconsistent with industry 
practices. While it is appropriate to view, as this court has done, 
the systems under a microscope, the ultimate objective should 
be to comprehend the gestalt of the system. Here, from either 
perspective, the court finds the departmentalization at Pullman 
to be rational, in accord with the industry practice, and consis­
tent with NLRB policies. As stated by the Supreme Court in 
Ford Motor Co. v. Huffman, 345 U.S. 330, 338-39, 31 LRRM 
2548 (1953),

“ A wide range of reasonableness must be allowed a statutory 
bargaining representative * * * subject always to complete good 
faith and honesty of purpose in the exercise of its discretion. * * 
* Variations acceptable in the discretion of bargaining represen­
tatives 6 * * may well include differences based upon such mat­
ters as the unit within which seniority is to be computed.”

(3) Genesis o f Seniority System.

Next the court must consider “ whether the seniority system 
had its genesis in racial discrimination.” James, supra, 539 F.2d 
at 352, 15 FEP Cases at 861. Taken from a factual finding in 
Teamsters, this factor, while ambiguous, is presumably not 
wholly dependent7" upon a determination that racial discrimina­
tion had a causative relationship with the seniority system. It 
rather, implies that consideration should be given to the extent 
of racially discriminatory practices at the time the seniority 
system came into existence.



196a

In ihe case sub judice, two times of “ origin” might be ex­
amined - in 1941 - 42, when union organizational efforts were 
finally successful and the first collective bargaining agreements 
were signed; or in 1954, when the seniority system under attack 
in this litigation became essentially fixed. Selection of the more 
appropriate date is not, however, critical under the cir­
cumstances of this case, for the evidence reflects similar prac­
tices at both periods.

Both in 1941 and in 1954, racial segregation was extensively 
practiced at the company’s Bessemer plant, in the local union 
hall, and in the community as a whole. Most of the jobs at the 
plant were by custom treated as “ while only” or “ black only” - 
or, more accurately, as “ white” or “ colored” . Bathhouses, 
locker rooms, and toilet facilities were racially segregated. Com­
pany records - including employee rosters, internal cor­
respondence, records of negotiation sessions, lists of persons 
picketing - included racial designations. In 1941 some of the 
“ mixed” jobs even had different wage scales for whites and 
blacks. All of the company’s officials, supervisors and foremen 
were while. Union meetings were conducted with different sides 
of the hall for white and black members, and social functions of 
the union were also segregated. The court can take judicial 
notice of the widespread extent of segregation in the community 
- in schools, transportation, public accommodations, et cetera.

Considering the apparent pervasiveness of such discrimina­
tion, one may naturally infer that related matters - such as a 
seniority system - must, even when facially neutral, have been 
the product of the same discriminatory animus. And yet, based 
on the very extent of such other forms of discrimination, it may 
well be that racial considerations were not involved - being “ un­
necessary” - in the development of a particular practice. Great 
care should be given in drawing the correct inference from such 
evidence, as has been illustrated in voter dilution cases where 
similar circumstantial evidence has been presented. See Taylor

197a

v. McKeilhen, 499 I 2d 893, 896 (CA5 1974); McGill v. 
Gadsden County Commission, 535 F.2d 277, 280-81 (CA5 
1976); Nevelt v. Sides, — F.2d —, slip op. 3373 (CA5 1978).

One of the few mutual and common ventures of blacks and 
whiles at Pullman’s Bessemer plant in 1941 - one which , due to 
laws of the United States and their enforcement by the NLRB, 
treated the two races as the same - was the unionization effort 
by the predecessor of the USW. The success of its drive for 
representation and recognition must be attributed in large part 
to the black workers, who constituted more than half of the 
election unit. In 1954, as was true in 1941 and in the intervening 
years, blacks were involved actively in the leadership of the local 
union and had at least an equal voice in the formulation of the 
policies and positions of the union - the local not being 
dominated by whites. While possessing some of the trappings 
taken from an otherwise segregated society/’1 the USW local 
was one of the few institutions in the area which did not func­
tion m fact to foster and maintain segregation; rather, it served 
a joint interest of white and black workers which had a higher 
priority than racial considerations.

Although determined by collective bargaining, a seniority 
system may properly be viewed as the manifestation ot a union 
objective, one which operates in opposition to and as a limita­
tion upon the managerial powers sought by the company. This 
generalization is shown by the evidence to be applicable to the 
case sub judice, where, although certainly affected by the pro­
cess of negotiation, the seniority system under attack is essen­
tially the product ol USW aims and policies. The use of depart­
mental age for seniority purposes was adopted in the first 
1941-42 contract at the request of the USW’s predecessor. The 
return to departmental age in 1954, as a consequence of the first 
company-wide collective bargaining agreement, was in fact a



198a

broadening of the seniority by “ occupation-within-a- 
department” which had been adopted in 1947 at the urging of 
the USW local - indeed, at the request of a black member of that 
USW negotiating committee. Since 1954 the union has con­
tinued its support for departmental seniority and has rejected 
certain company efforts to merge departments for broader 
seniority.

The seniority system under attack had its genesis - whether 
viewed as being in 1941-42 or in 1954 - at a period when racial 
segregation was certainly being practiced; but this system was 
not itself the product of this bias. The system rather came about 
as a result of colorblind objectives of a union which - unlike 
most structures and institutions of the era - was not an arm of a 
segregated society. Nor did it foster the discrimination - of 
treating certain jobs as being for one race or the other - which 
was being practiced by custom in the plant. Indeed, it was this 
very seniority system which, as a result of arbitration in 1965, 
provided the means for stopping that discrimination even before 
the effective date of Title VII.

In reviewing the history of collective bargaining at Pullman’s 
Bessemer plant, an inquiry which has relevance to and could be 
treated under each of the four James factors, the plaintiffs note 
the role played by the 1BEW. During its short-lived tenure, the 
1BEW was an all-white unit - a matter, however, for which 
neither the company nor the USW can be blamed. In any event, 
it was decertified in 1946, with its members being reabsorbed in­
to the Maintenance department represented by the USW. The 
next USW contract, at the suggestion of a black member of the 
negotiating committee, provided such persons (no differently 
from other USW members) with occupational seniority. While 
the plaintiffs challenge the spin-off of one part of the former 
1BEW members into a separate department (Powerhouse) in 
1954 when departmental seniority was reinstituted, it should be 
noted that this provided them with no greater seniority protec -

199a

tion than they had enjoyed during the 1941-46 period when they 
were part of an all-white representational unit.

Even greater stress is placed by the plaintiffs on the role of the 
1AM. Plaintiffs view the evidence as showing that the 1AM 
never wanted to represent any black employees and that, by a 
series of maneuvers including agreements with the NLRB and 
later a partial ceding of members, it was able to eliminate blacks 
from its membership, a matter which continued until passage of 
Title VII. While the objective facts are not greatly in dispute, 
the defendants here do challenge the characterization of the 
1AM motives, asserting that the changes took place because of 
initial confusion over which craft and craft-related positions 
should be properly represented by the 1AM and because of 
subsequent loss of support of the IAM by many of its members.

Whatever the motives of the 1AM in the 1941-42 period - the 
court finds it unnecessary to resolve this factual dispute - the 
USW cannot be charged with racial bias in its response to the 
IAM situation. The predecessor of the USW sought to represent 
all workers, black and white, in the plant. It accepted additional 
workers of both races into its local after the election, when that 
opportunity presented itself. Its concurrence in the 1944 agree­
ment, which resulted in still further blacks and whites being ad­
ded to its ranks, was not due to a desire to confer any benefits 
upon the all-white 1AM remnant; rather, it was refusing to ac­
cept those remaining whites because it viewed them as scabs who 
had not honored picket lines. Its representation of those who 
had been a part of the original USW group. The departments of 
the former 1AM members were, with one exception (the Air 
Brake Pipe Shop), the same as had existed prior to any 
unionization or seniority rights. While the Air Brake Pipe Shop 
was treated after the 1954 contract as a separate department, 
this provided no greater seniority protection than such persons



200a

had enjoyed during the 1941-44 period (when they were 
members of a predominately white representational unit) or 
during the 1944-54 period (when they were either a separate 
department under departmental seniority or were under an oc­
cupational seniority system).

The effort of the plaintiffs to fix responsibility on the com­
pany for whatever racial discrimination may have existed in the 
lAM is likewise without merit. The company properly took a 
“ hands-off” approach towards the establishment of the elec­
tion units and the subsequent modifications of the representa­
tional units. It bargained with those unions which were afforded 
representational status by the NLRB, and did so without any 
discriminatory animus.

The seniority system under challenge in the case sub judice - 
that between the company and the USW - had its genesis at a 
lime when there was wide-spread racial segregation but not as a 
result of, nor in furterance of, such discrimination.

(4) Purposes o f Seniority System.

The fourth factor is “ whether the system was negotiated and 
has been maintained free from any illegal purpose.” James, 
supra, 559 F.2d at 352. 15 FEP Cases at 861. On the basis of 
facts already discussed in this opinion, which need not be here 
repeated, the court finds that the seniority system between the 
company and the USW has been negotiated and maintained free 
from any discriminatory purpose. In reaching this conclusion, 
the court has carefully considered the detailed record of 
negotiation sessions and contracts which span a period of some 
thirty-five years. This is not a situation, such as was described in 
James, supra, where a company has opposed broadening of 
seniority or has shown intransigent adherence to unlawful 
employment practices. The major impediment to employment 
opportunities for blacks - the custom of treating certain jobs as 
reserved for members of a particular race - was removed prior to

20 la

the effective date of Title VI1 by the very instrument here under 
attack, i.e., the seniority system. That system did not then pro­
vide - nor has there been any subsequent effort to erect - barriers 
to the reaching of one’s “ rightful place” as is typically provided 
by lines of progression. The provision lor seniority by depart­
mental age - which, depending upon viewpoint, may be viewed 
either as a restriction or as a protection - has been negotiated 
and maintained by blacks, no less than by whiles.

(5) Totality.

The factors extracted by James from Teamsters are 
ultimately but aids, or local points, for deciding “ whether there 
has been purposeful discrimination in connection, with the 
establishment or continuation of a seniority system", which is 
in turn “ integral to a determination that the system is or is not 
bona fide.” James supra, 559 F.2d at 351. 15 FEP Cases at 861. 
Looking not only to the four factors at least three” of which are 
found here adverse to the plaintiffs, but also to totality of the 
system under attack, the court finds and concludes that the 
system is “ bona fide” and that the differences in terms, condi­
tions or privileges of employment resulting thereunder are “ not 
the result of an intention to discriminate” because of race or 
color. The defendants have met the burden of proving the ap­
plicability of Section 703(h) of the Civil Rights Act of 1964. 
Judgment will be entered accordingly.

III. Attorneys Fees and Costs.

While the defendants have prevailed in this litigation, 
neither in its institution nor in continuation were the plaintiffs’ 
claims frivolous, unreasonable or groundless. Award of at­
torney’s fees is denied under the authority ol Christiansburg 
Garment Co. v. EEOC, 434 U S. 412, 46 LW 4105, 16 FEP 
Cases 502(1978). Costs not previously taxed shall moreover be 
borne by the respective parties incurring the same.



202a

Judgment

In accordance with the findings of fact and conclusions of law 
contained in the Memorandum of Opinion filed concurrently 
herewith, judgment is hereby entered in favor of the defen­
dants. Each party shall bear its own costs.

203a

SW IN T V - Footnotes

1 In March 1978 the plaintiffs moved the court to lake judicial 
notice under I RE 201 of parts of answers to interrogatories filed by 
the International Association of Machinists in a case in this court in­
volving another company. While judicial notice can be taken under 
FRI; 201(1) alter the evidence has been closed, this request is due to be 
denied as involving matters not covered by FRE 201(b). In short, the 
matters sought to be noticed are neither "(1) generally known within 
the territorial jurisdiction of the trial court” nor (2) capable of ac­
curate and ready determination by resort to sources whose accuracy 
cannot reasonably be questioned.” Indeed, while lAM’s answers to 
interrogatories in another case (or even in this case) could have been 
introduced in evidence a n u m si I AM as a party-opponent (albeit a par­
ty lor the very limited purpose of possible relief) under FRE 801(d)(2), 
such hearsay would not have been admitted against other defendants 
under FRE 802. Unlike depositions — which have a special rule of ad­
missibility provided in the Federal Rules of Civil Procedure — inter­
rogatories must, when offered in evidence to prove the truth of the 
matters asserted therein, satisfy some exemption or exception to the 
hearsay rules of the FRE. See 4A Moore’s Federal Practice 133.29 (1. 
— 2). Even in circumstances where they would have been admissible if 
offered, the unoffered interrogatories are not treated as evidence or 
the subject of judicial notice. See Jones v. Diamond, 519 F.2d 1090, 
1098 n. 13 (CA5 1975); Bracey v. Grenoble, 494 F.2d 566, 570 n.7 
(CA3 1974).

1 The 1AM and its Local Lodge 372 were not named in the EEOC 
charges Irom which this litigation arose or in the complaints initially 
filed in this court. They were joined as defendants at the time of trial 
for the limited purpose that the relief to which the plaintiffs might be 
entitled against the company and the USW might involve possible 
modification of the 1AM collective bargaining agreements. The 
limited role of the 1AM defendants does not mean, however, as the 
company apparently contends, that evidence respecting the 1AM and 
its agreements is irrelevant to the issues concerning the validity of the 
seniority system existing between the company and the USW — such 
matters being part of the "totality of the circumstances in the develop­
ment and maintenance" of the system which is at issue. See James v. 
Slock ham Valves & Fittings Co., 559 F.2d 310, 352, 15 FEP Cases 
827, 861 (CA5 1977).



204a

* It is not without significance to the issue now before the court that it 
was the seniority system itself which in early 1965 provided the means 
for overturning the practice of job segregation.

4 There is no claim that the effects of prior discrimination in 
segregation of jobs within a department are perpetuated by the USW 
seniority system, for the system allows use of departmental age for 
promotions without the interposition of lines of progression. The 
1AM agreement, measuring seniority by job classification within the 
department, makes no provision for use of seniority in promotions.

1 One of the USW departments, the Boiler House, which at its peak 
had but, three employees, was vacated on June 22, 1964.

* See Pullman-Standard II, 539 F.2d at 82 n.3, 13 FEP Cases at 
607.

’ At one of Pullman's four plants (Worcester), a system of plant­
wide seniority was adopted. According to the evidence, the problems 
created by the rule contributed substantially to the ultimate closing of 
the plant for economic reasons.

' Actually, at the time the Inspection department was created, 
seniority was measured by service in the occupation within the depart­
ment, so that its creation as a separate department, so that its creation 
as a separate department deprived no one, white or black, of employ­
ment opportunities. With the return several years later to departmen­
tal seniority, it did, in retrospect, mean a loss of opportunities to both 
whiles and blacks in the operating departments.

* Plaintiffs specifically disavow any intent to condemn all depart­
mental seniority systems. The approach, however, of their attack on 
the system here in issue includes elements which would apply to all 
such systems.

14 The Hammond plant does not build cars. It only provides repair 
services and produces certain parts and components.

“ It would be equally appropriate to treat these matters under the 
factors involving the purposes of the seniority system, for the plain­
tiffs' attack partakes of both facets.

11 There is a dispute between the parties as to whether the shops 
were treated as separate departments prior to unionization. The court 
finds that, although certain employees in the Wheel & Axle shop were 
joined with those in the Truck shop for cost accounting purposes, the 
two were in fact treated as separate departments.

205a

11 The original NLRB certification and election had included 
employees of both departments in the same representational unit. 
However, a clarification was issued the following month by the NLRB 
to the effect that most of the Wheel & Axle employees were in the 
1AM unit, with the Truck employees being in the USW unit.

14 It is not without significance that blacks, constituting approx­
imately half the work force, have played a major role in the formation 
and direction of the USW local, occupying positions as officers, com­
mitteemen, and negotiators. While not foreclosing the possibility of 
discriminatory conduct, see Rodriquez v. East Texas Motor Freight, 
505 F.2d 40, 8 FEP Cases 1246 (CA5 1974), these facts are certainly 
relevant to the issues before the court.

11 The Steelworkers Organizing Committee later became part of the 
USW. For simplicity SWOC is treated in this Memorandum as 
equivalent to the USW.

14 In 1946 the IBEW was decertified and the employees in the two 
1BEW units became USW members. Thereafter they were included in 
USW contracts.

" As will be noted infra, a substantial portion of 1AM workers were 
ceded in 1944 to the USW, leaving two 1AM units which were, until 
much later, all-while.

'* It may be noted that the possibility of merging the Janitors and 
Plant Protection employees was raised in 1962 by a white member of 
the union negotiating committee, but rejected by a black member of 
that negotiating committee who was a member of the Janitors depart­
ment.

'* Bessemer's Air Brake Pipe Shop is another which was created as a 
result of the tri partite certification and election. It has retained 
separate existence as a department except during the period when the 
USW contract called for occupational seniority.

The “genesis” factor, if dependent upon a finding of causation, 
might well be surplusage in view of the fourth factor (“whether the 
system was negotiated * * * free from any illegal purpose") unless, 
that is, the fourth factor were treated as involving only the later period 
of time when the challenged collective bargaining agreement was 
negotiated. While “causation" is here held not to be a condition 
precedent to relevancy under the third factor, it is nevertheless of great



206a

significance in determining iis weight. After all, it is the applicability 
of Section 703(h) that is ultimately before the court. See Southbridge 
Plastics v. Local 759. Rubber Workers, 565 F.2d 913, 16 FEP Cases 
507 (CA5 1978).

11 E.g., separate seating and separate social functions for whites and 
blacks.

11 The “genesis” factor may be said to be favorable to the plaintiffs 
if causation be ignored and the existence of other discrimination be 
deemed sufficient.

207a

SH'INT VI

Louis SW1NT and Willie James Johnson, on behalf of them­
selves and others similarly situated, Plaintiffs-Appellants,

v.

PULLMAN-STANDARD, Bessemer, Alabama, United Steel­
workers of America, Local 1466, United Steelworkers of 
America, AFL-CIO and International Association of 
Machinists and Aerospace Workers, AFL-CIO, 
Defendants-Appellees.

No. 78-2449.

United States Court of Appeals,
Fifth Circuit.

Aug. 18, 1980.

Ocsar W. Adams, Jr., Birmingham, Ala., Elaine R. Jones, 
Washington, D. C., for plaintiffs-appellants.

Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, 
Ala., Bernard Kleiman, Chicago, 111., Carl B. Frankel, Pitts­
burgh, Pa., Franklin B. Snyder, Chicago, III., for Pullman- 
Standard.

Cooper, Mitch & Crawford, John C. Falkenberry, C. V. 
Stelzenmuller, D. Frank Davis, Birmingham, Ala., for United 
Steelworkers of America, Local 1466, United Steelworkers of 
America, AFL-CIO & Intern. Ass’n of Machinists & Aerospace 
Workers, AFL-CIO.

Appeal from the District Court for the Northern District of 
Alabama.

Before WISDOM, RONEY and HATCHETT, Circuit 
Judges.



208a

HATCHETT, Circuit Judge:

In this class action employment discrimination suit, before us 
for the second time, we review judgments of the district court 
rejecting claims of racial discrimination in employment. The 
claims are primarily aimed at the establishment and continua­
tion of a departmental seniority system and the selection of 
supervisory personnel. Because we find certain conclusions of 
the district court to be inconsistent with the applicable case law 
and unsupported by the record, we reverse the judgments and 
remand for proceedings necessary to render appropriate relief.

The original complaint in this action was filed on October 19, 
1971, pursuant to Title VII of the Civil Rights Act of 1964 , 42 
U.S.C. § 2000e et seq. and 42 U.S.C. § 1981. The claims of 
racial discrimination were made against Pullman-Standard, a 
division of Pullman, Inc., a manufacturer of railway freight 
cars and parts, United Steelworkers of America (U.S.W.) and 
its Local 1466, the bargaining representative of most of the pro­
duction and maintenance workers at Pullman-Standard. Leave 
of court was granted to amend the complaint to add as a defen­
dant, for purposes ot relief other than money damages, the In­
ternational Association of Machinists (I.A.M.), the bargaining 
representative of other departmental units at Pullman- 
Standard. The class was certified pursuant to Fed.R.Civ.P. 
23(b)(2) on behalf of all black persons who worked at any time 
“ within one year prior to the filing of any charges under Title 
VII.”

In July and August of 1974, a sixteen-day trial was held in the 
United Stales District Court for the Northern District of 
Alabama. Appellants challenged discrimination in the depart­
mental seniority system negotiated by the appellees, its pro­
cedure for assignment of work within the same job classifica­
tion, promotions to supervisory positions, lack of job posting, 
and the discharge of plaintiffs’ and plaintiff-intervenor Clyde 
Humphrey. At the close of appellants case, the U.S.W. and
i I 1 4 / ' / '  f : i i r  • i i :  i c  »t ,  ,

209a

asserted by plaintiff-intervenor Clyde Humphrey that the union 
failed to represent them because of their race. The motion was 
granted and those claims were dismissed. On September 13, 
1974, the district court denied the appellants’- several claims of 
racial discrimination. On appeal to this court, we affirmed the 
judgment in part and remanded in part for further proceedings 
with respect to the issues of the seniority system and the selec­
tion of supervisors. Swim v. Pullman-Standard, 539 F.2d 77 
(5th Cir. 1976).

FACTS

We need not restate the extensive factual background con­
tained in our decision on the first appeal, Swim v. Pullman- 
Standard. The following facts are helpful, however, in discuss­
ing the issues relevant to this second appeal.

Since the first collective bargaining agreements were 
negotiated between Pullman-Standard and the U.S.W. and
I.A.M. in 1941, seniority was measured by length of continuous 
service in a particular department. Seniority has been exercised 
in the event of increases and decreases of forces, in competition 
with all other employees in that department. Under the 
company-wide collective bargaining agreement negotiated in 
1954, there were no lines of promotion or progession in any 
department. Seniority was not formally recognized for promo­
tional purposes until 1956. There was no carryover of seniority. 
Employees transferring from one department to another were 
treated as “ new” employees in the department to which 
transferred, and, w ith limited exception for those transferring at 
the request of the company or electing transfer in lieu of lay-off, 
also lost their seniority in the “ old” department. Seniority 
rosters at the company were maintained by department. Depart­
mental age was basically the sole criterion used to determine 
who was rolled-back or laid-off in the event of reductions, and 
who was recalled or promoted in the event of force increases or 
oiher vacancies in the department The seniority system in d ie ct



210a

in 1954 remained virtually unchanged through the next eighteen 
years of collective bargaining between Pullman-Standard, and 
the U.S.W. and I.A.M.

In 1972, provisions were made in an agreement with the Of­
fice of Federal Contract Compliance (O.F.C.C.), to permit 
black employees hired before April 30, 1965, to transfer from 
predominately black departments or to predominately white 
departments, in either case, with carryover of seniority. The 
restriction against carryover of seniority on departmental 
transfers continued in effect as to black employees when 
transferring from a “ mixed” department to another “ mixed” 
department, as well as to black employees hired after April 30, 
1965, and to white employees.

Until the arbitration decision in March of 1965, there was an 
informal custom at the plant of treating certain jobs as “ white 
only” and others as “ black only.” This practice caused deci­
sions respecting assignments to departments throughout the 
plant to be infected during that period with racial considera­
tions. According to the plaintiffs, the effects of this discrimina­
tion in the departmental assignments have been perpetuated by 
the seniority system—a system which determines employment 
rights on the basis of departmental age, and which, even with 
the 1972 changes, provides barriers to departmental transfers.

Prior to June 1965 there were no black foremen at Pullman- 
Standard. At the time of the first trial, approximately ten per­
cent of the salaried foremen were black. The labor market, at 
the time of this trial, ranged from twenty-five to thirty-five per­
cent black, depending on the age group and area selected. 
Pullman’s work force, depending upon the time selected, ranges 
from approximately forty-five to almost fifty percent black. 
Selection of foremen is made by groups of supervisors, without 
any objective standards or tests. The plant manager and 
superintendent choose department heads (C foremen) who in 
turn select tract supervisors (B foremen), production foremen

21 la

(A or salaried foremen), and hourly (temporary) foremen. The 
first black salaried foreman was not promoted to the then 143 
existing salaried foreman positions until 1966. Four years later, 
there were nine black salaried foremen and 151 white foremen. 
Up until the time of trial, blacks had never been offered either 
salaried or temporary foreman positions in thirteen of the 
twenty-eight departments at Pullman-Standard. From 1966 un­
til the time of trial, only twelve blacks were selected to fill fifty- 
nine salaried foreman vacancies.

THE DISTRICT COURT’S ORDER

On July 5, 1977, the district court, pursuant to our remand 
for further proceedings with respect to issues regarding the 
validity of the seniority system and the selection of supervisors, 
concluded that the seniority system at Pullman-Standard does 
not discriminate against blacks, is “ valid” under 42 U.S.C. § 
2000e-2(h), and the appellees did not follow any practice or 
policy after the effective date of the Act which discriminated 
against blacks in the assignmet of employees to departments; 
further, the appellants’ prima facie showing of discrimination in 
the selection of supervisory personnel has been rebutted by the 
appellees, and no such discriminatory practice existed subse­
quent to 1966. At the request of appellants, the district court 
granted a new trial for the limited purpose of receiving new 
evidence which would have been relevant under the Supreme 
Court’s decision in Teamsters v. United States, 431 U.S. 324,97 
S.Ct. 1843, 52 L.Ed.2d 396 (1977). The present case was under 
submission when Teamsters was decided and had been tried at a 
lime when all concerned acted under what turned out to be an 
erroneous view of the law. On May 8, 1978, after hearing fur­
ther evidence, the district court entered an order finding the 
seniority system in question to be “ bona fide” within the mean­
ing of section 703(h) of Title VII.



212a

ISSUES

The critical issues before us are: (1) whether Pullman- 
Standard made racially discriminatory assignments to depart­
ments after the effective date of Title Vll of the Civil Rights Act 
of 1964, (2) whether the seniority system at Pullman-Standard is 
“ bona fide” within the meaning of § 703(h) of Title Vll, and (3) 
whether Pullman-Standard successfully rebutted appellants’ 
prima facie case of racial discrimination in the selection of 
foremen.

1

The appellants argue that the district court erred in its finding 
that Pullman-Standard’s post-Act assignments to departments 
were not racially motivated. In Teamsters v. United States, the 
Supreme Court held that a finding of validity respecting a 
seniority system does not thereby preclude the implementation 
of remedial measures for persons who seek relief from an 
employer’s post-Act hiring discrimination. See Franks v. 
Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 
L.Ed.2d 444 (1976). Based upon Teamsters, and Franks, the 
district court proceeded to make an initial determination 
whether the seniority system was “ valid” under 42 U.S.C. § 
2000e-2(h). After finding that the seniority system does not 
discriminate against blacks and is therefore “ valid,” the court 
considered whether there were discriminatory assignments to 
departments on and after December 27, 1966,' and found that 
there were not.

To facilitate its evaluation of the issue of post-Act depart­
mental assignments, the district court utilized statistics obtained 
from the compnay’s records, which consisted of seniority lists 
for the years 1965 to 1973.

1 All footnotes for this section appear at the end of this opin­
ion on 724a to 230a.

213a

The district court made a chart showing, lor back years star­
ting June 1966, the number of individuals by race, assigned to 
each of the twenty-eight departments at Pullman-Standard. The 
court found it useful to look particularly at assignments after 
December 1966, in the six formerly one-race departments. 
Although the district court did not reproduce the chart in its 
Memorandum Opinion, the court interpreted from the chart 
that Pullman-Standard, jitter December 1966, was no longer 
making assignments to departments based on race, except to the 
extent of attempting to rectify imbalances caused by its earlier 
discriminatory practices.

“ In racial discrimination cases, statistics often 
demonstrate more than the testimony of many witnesses, and 
they should be given proper effect by the courts. Jones v. Lee 
Way Motor Freight, Inc., (431 F.2d 245 (10th Cir. 1970));” 
United Stales v. Jacksonville Terminal Co., 451 F.2d 418, 442 
(5th Cir. 1971), cert, denied, 406 U.S. 906, 92 S.Ct. 1607, 31 
L.Ed.2d 8)5 (1972).

Our review of the exhibits upon which the district court 
based its conclusion reveals erroneous interpretations of the 
statistics contained therein. In 1966, the Die & Tool Department 
(I.A.M.) included seventy-seven whites and no blacks. The 
district court found that six blacks and one white were assigned 
to the Die & Tool Department (I.A.M.), in 1966, and over the 
next four years, seven other blacks and eight whites were assigned 
to it. Our review of the evidence indicates that between 1965 and 
1970, the company made approximately thirty-six new 
assignments to this department, all white persons. The first 
black was assigned to the department in 1970. In 1971, seven 
whites were assigned to the department along with two more 
blacks.



214a

In 1966, there were seventy whites in the Maintenance 
Department (I.A.M.), and no blacks. The district court found 
that the first post-1966 assignments to the Maintenance Depart­
ment (I.A.M.), were three blacks and four whites. The record 
evidence establishes that the company assigned seven new 
employees to this department between 1967 and 1970, all of 
whom were while. The first blacks were assigned to the depart­
ment in 1970 when six blacks were assigned to the department 
along with four whites.

The district court found that, subsequent to 1966, the first 
vacancies in the other previous all-white departments are filled 
by blacks and the first vacancies in the previous all-black 
departments are filled by whites. At this point, the court essen­
tially ended its analysis and concluded that there was no policy 
or practice of discriminatory departmental assignments after 
December 1966. Our examination of the statistics is in the con­
text of the plant as a whole. Although the statistics disclose that 
the company made significant advancements in the elimination 
of previous all-black and all-white departments subsequent to 
1966,' the total employment picture indicates that departmental 
assignments continued to be infected with racial considerations, 
albeit to a lesser degree than during the pre-Act period.

We find the district court’s conclusion that no discrimination 
existed in post-Act assignments to be factually unsubstantiated.' 
We have carefully reviewed the post-Act assignment statistics 
and, taken as a whole, they clearly support the appellants’ con­
tention that Pullman-Standard discriminated against blacks in 
the assignment of employees to departments after the applicable 
period.

II

The appellants argue that the district court erred in con­
cluding that the departmental seniority system is “ bona fide’’ 
within the purview of Section 703(h) of the Civil Rights Act of

215a

In Teamsters v. Untied Slates, the Supreme Court held that, 
absent a showing of discriminatory purpose in a seniority 
system, that system is protected by § 703(h), 42 U.S.C. § 
2000e-2(h) Irom attack on Title VII on grounds. Harris v. 
Plastics MJg. Co., 617 I .2d 438 (5th Cir. 1980). Fisher v. Proc­
tor & Gamble Manufacturing Co., 613 F.2d 527 (5th Cir. 1980). 
Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157 (5th 
Cir. 1978). Southbridge Plastics Division, etc. v. Local Valves & 
Fittings Co., 565 F.2d 913 (5th Cir. 1978). James v. Stockham 
Valves & Fittings Co., 559 F.2d 310 (1977), cert, denied, 434 
U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978). Section 703(h), 
provides in pertinent part:

Notwithstanding any other provision of this subchapter, 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 . . . system, . . . provided 
that such differences are not the result of an intention to 
discriminate because of race.

In James v. Stockham Valves & Fittings Co., we noted that 
the analysis in Teamsters suggests that the totality of the cir­
cumstances in the development and maintenance of a seniority 
system is relevant to examining “ whether there has been pur­
poseful discrimination in connection with the establishment or 
continuation of a seniority system [which is) integral to a deter­
mination that the system is or is not bona fide.’’ James, at 351. 
James extracts four factors from Teamsters which are helpful in 
deciding this issue:

1. Whether the seniority system operates to discourage 
all employees % equally from transferring between 
seniority units;

2. Whether the seniority units are in the same or 
separate bargaining units (if the latter, whether that



216a

structure is rational and in conformance with industry 
practice);

3. Whether the seniority system has its genesis in racial 
discrimination; and

4. Whether the system was negotiated and has been 
maintained free from any illegal purpose.

James, at 352.

Although the district court appropriately utilized the analysis 
provided in James, we are not satisfied that the court’s ultimate 
conclusion is amply supported by the record evidence.

In consideration of “ (w)hether the seniority system operates 
to discourage all employees equally from transferring between 
seniority units,” James, at 352, the district court made several 
findings. It found that the departmental seniority system was 
applied in a uniform manner, regardless of race or color, and 
that the limited number of interdepartmental transfers granted 
were handled in a fair and nondiscriminatory manner. The 
district court found that, to the extent the seniority system 
“ locks” employees into a department and discourages 
transfers, it does so equally for both whiles and blacks—that is, 
it did so until 1972. The district court acknowledged that a 
somewhat greater impact might be felt by blacks than by whiles 
if one were to rank the 28 U.S.W. and l.A.M. departments ac­
cording to some perceived order of desirability to determine 
which group was the more discouraged from transferring. Ac­
cording to the district court, such a study of relative economic 
desirability would be inappropriate in light of the rationale in 
our decision on the previous appeal, 539 F.2d 77 (1976). As the 
district court stated in its order, “ if one is to measure inequality 
without reference to economic desirability, it would seem logical 
to likewise measure its opposite—equality or neutrality without 
reference of such desirability.” Our holding that appellants 
need not show that they were assigned discriminatory to less

217a

desirable departments in order to prove a prima facie case of 
racial discrimination cannot reasonably be construed to 
preclude consideration of the fact that by locking blacks into 
the least remunerative departments a greater impact was fell by 
blacks than by whites.

While acknowledging differences in the departmental struc­
ture at Pullman-Standard Irom those at other Pullman plants, 
the district court did not find such differences sufficient to 
establish the departmental structure to be irrational or inconsis­
tent with industry practices. The court concluded that the 
seniority units at Pullman-Standard constitute a rational struc­
ture, “ in context, and taken as a whole.” They are, according 
to the district court, consistent with practices which were, at the 
time, generally followed at other unionized plants throughout 
the country, at other companies in the same industry, and at 
Pullman plants located outside of the south where race was 
presumably not a potential consideration. In attacking the ra­
tionality of the seniority units, appellants primarily attacked the 
two separate Die & Tool Departments and the two separate 
Maintenance Departments at Pullman-Standard. No similar 
situations existed at Pullman’s other plants.1 No such division 
existed at Pullman-Standard prior to unionization and seniority. 
The district court placed primary responsibility for this situation 
on the N.L.R.B. In 1941, at the request of the petitioning 
unions, the N.L.R.B. divided the plant into three representa­
tional units for election purposes. This was allegedly done over 
the opposition of the predecessors of the U.S.W.,4 which sought 
to represent all production and maintenance employees. The 
district court did not find this circumstance to diminish the 
bona fidcs of the seniority system between the company and the 
U.S.W. The court asserted that the separation within the 
various units was not, as in Teamsters, “ consistent with Na­
tional Relations Board precedent," Teamsters, 431 U.S. at 356, 
97 S.Ct. at 1865; but was required by a specific decision of the 
N.L.R.B. and the outcome of the elections. Accordingly, the 
court found the departmentalization at Pullman-Standard to be



218a

rational, in accord with industry practice, and consistent with 
N.L.R.B. policies.

The record evidence indicates that a significant number of 
one-race departments were established upon unionization at 
Pullman-Standard, and during the next twenty five years, one- 
race departments were carved out of previously mixed depart­
ments. The establishment and maintenance of the segregated 
departments appear to be based on no other considerations than 
the objective to separate the races.

As of the date of its certification to represent employees of 
Pullman-Standard, November 19, 1941, the l.A.M. unit included 
twenty-four black workers. Shortly thereafter, agreements bet­
ween the l.A.M. and Steel Workers Organizing Committee 
(S.W.O.C.)’ resulted in the l.A.M. giving its black members to 
the S.W.O.C. in return for two of the S.W.O.C.’s white 
members, which resulted in the l.A.M. being an all-white 
bargaining unit. The first U.S.W. contract with Pullman- 
Standard, providing for departmental seniority, excluded blacks 
from the better jobs. Blacks were relegated to the least 
remunerative departments. The creation of the new depart­
ments in the years subsequent to unionization involved con­
tinued separation of the races. The general effect of the new 
department was to restrict black workers to lower paying jobs. 
For example, the seniority rosters indicate that between 1947 
and 1952, the all-white watchmen and all-black janitors were 
both in the Safety Department. The 1953 seniority list carries 
both jobs under a Plant Protection Department. The 1954 
seniority list shows the janitors in an all-black Janitors Depart­
ment and the watchmen in an all-white Plant Protection Depart­
ment. They remained separate departments until the time of 
trial.

The evidence further indicates that the Pullman-Standard 
plant is the only one in the Pullman family with two separate . 
bargaining units for its production and maintenance workers.

219a

The record evidence, generally, indicates arbitrary creation of 
the departments by the company since unionization and an at­
tendant adverse affect on black workers. The individual dif­
ferences between the departmental structure at Pullman- 
Standard and that of other plants, and as compared with in­
dustry practice, are indicative of attempts to maintain one-race 
departments.

The district court determined that the seniority system in the 
present case has its genesis at a time when there was widespread 
racial segregation, but the system was not itself the product of 
this bias. The court took judicial notice of the widespread extent 
of segregation in the community in 1941-42, when organiza­
tional efforts were successful and the first collective bargaining 
agreements were signed, and also in 1954, when the seniority 
system in this litigation became essentailly fixed. At both times, 
racial segregation was extensively practiced at Pullman- 
Standard, in the union hall, and in the community as a whole. 
Most of the jobs at the plant were, by custom, treated as “ white 
only” or “ black only.” Bath houses, locker rooms, and toilet 
facilities were racially segregated. So were company records, in­
cluding employee rosters, internal correspondence, records of 
negotiation sessions, and lists of persons picketing. The court 
acknowledged that in 1941, some of the “ mixed" jobs even had 
different wage scales for whites and blacks. All of the 
company’s officials, supervisors and foremen were white. 
Union meetings were conducted with different sides of the hall 
for white and black members, and social functions at the unions 
were also segregated.

The court found that, although the U.S.W. Local possessed 
some of the local trappings taken from an otherwise segregated 
society, it did not function in fact to foster and maintain 
segregation. Rather, it served a joint interest of white and black 
workers for a higher priority than racial considerations. Fur­
ther, in 1954, as well as 1941 and the intervening years, blacks



220a

were involved actively in the leadership of the local union and 
had an equal vote in the formulation of the policies and posi­
tions of the union, the local not being dominated by whites.

The court took into consideration the plaintiffs’ contention 
that the l.A.M. effectively eliminated blacks from its member­
ship. The court dismissed the relevancy of this point by con­
cluding that the U.S.W. cannot be charged with racial bias in 
response to the l.A.M. situation and that the U.S.W. sought to 
represent all workers, black and white, in the plant.

The district court’s failure to recognize the l.A.M. as a party 
to the present case blemishes its consideration of the genesis of 
the seniority system. Although the l.A.M. is a party to the pre­
sent case for purposes of relief other than money damages, it is 
indeed a party. The motives and intent of the l.A.M. in 1941 
and 1942 are significant in consideration of whether the seniority 
system has its genesis in racial discrimination. The l.A.M. was 
one of the unions which unionized the company in 1941 and the 
evidence reflects that the l.A.M. manifested an intent to selec­
tively exclude blacks from its bargaining unit, N.L.R.B. cer­
tification considerations notwithstanding. The record makes 
clear that blacks were restricted from the better jobs under the 
first U.S.W. contract. The district court itself indicated that the 
first instance disclosed by the record in which the U.S.W. 
sought to remove the restriction of “ black only” jobs was in 
1965. it is crystal clear that considerations of race permeated the 
negotiation and the adoption of the seniority system in 1941 and 
subsequent negotiations thereafter.

The district court found that the seniority system had been 
negotiated and maintained free from any discriminatory pur­
pose. According to the court, this is not a situation, as was 
described in James v. Slockham Valves & Fillings Co., where a 
company has opposed broadening of seniority or has shown in­
transigent adherence to unlawful employment practices. The 
court asserted that the maior impediment to employment op­

221a

portunities for blacks—the custom of treating certain jobs as 
reserved lor members of a particular race—was removed prior 
to the effective date of Title VII by the very instrument under 
attack, i.e., the seniority system. Finally, the court found that 
the provision for seniority by departmental age has been 
negotiated and maintained by blacks as well as whites.

The court concluded that it found at least three of the four 
factors provided for analysis in James, in addition to general 
considerations of the totality of the system under attack, to be 
adverse to the plaintiffs. Therefore, the system was determined 
to be “ bona fide.”

Having carefully reviewed the evidence offered to show 
whether the departmental seniorii) system in the present case is 
“ bona fide” within the meaning of section 703(h) of Title VII, 
we reject the district court’s finding.

An analysis of the totality of the facts and circumstances 
surrounding the creation and continuance of the departmental 
system at Pullman-Standard leaves us with the definite and firm 
conviction that a mistake has been made.'1 There is no doubt, 
based upon the record in this case, about the existence of a 
discriminatory purpose. The obvious principal aim of the 
l.A.M. in 1941 was to exclude black workers from its bargain­
ing unit. That goal was ultimately reached when maneuvers by 
the l.A.M. and U.S.W. resulted in an all-white l.A.M. unit. 
The U.S.W., in the interest of increased membership, acquiesc­
ed in the discrimination while succeeding in significantly 
segregating the departments within its own unit.

The district court might have reached a different conclusion 
had it given the I.A.M.’s role in the creation and establishment 
of the seniority system its due consideration. No credible ex­
planation has been advanced to sufficiently justify the separate 
seniority units. The Pullman-Standard plant remains the sole 
plant within the Pullman family with two separate bargaining 
units for its production and maintenance workers.



222a

We consider significant in our decision the manner by which 
the two seniority units were set up, the creation of the various 
all-white and all-black departments within the U.S.W. unit at 
the time of certification and in the years thereafter, conditions 
of racial discrimination which affected the negotiation and 
renegotiation of the system, and the extent to which the system 
and the attendant no-transfer rule locked blacks into the least 
remunerative positions within the company. Because we find 
that the differences in the terms, conditions and standards of 
employment for black workers and white workers at Pullman- 
Standard resulted from an intent to discriminate because of 
race, we hold that the system is not legally valid under section 
703(h) of Title VII, 42 U.S.C. §2000e-2(h).

Ill
The district court concluded that plaintiffs had made a prima 

facie case of racial discrimination in the selection of supervisory 
personnel but that the defendants rebutted it.

The district court accepted Pullman-Standard’s insistence 
that “ special skills” are needed to be supervisors. The court 
acknowledged the practice at Pullman of selecting salaried 
supervisors from the ranks of those who have purportedly 
demonstrated their capabilities as temporary foremen. This 
limitation was found by the court to be a bona fide occupational 
qualification, sufficient to rebut plaintiffs’ prima facie showing 
with respect to salaried supervisors.

The court considered it appropriate in this ca.ie to analyze 
promotions to temporary foreman on a departmental basis. 
Promotions to temporary foreman are made according to the 
needs of the individual departments, they are made by the 
supervisory personnel in that department, and are made from 
the employees working in that department. The district court 
found this restriction of such temporary promotions to persons

223a

working in the particular department to be a “ bona fide oc­
cupational qualification, justified by business necessity, under 
the evidence in this case.”

The fact that blacks were concentrated in certain depart­
ments, and were not significantly represented in departments 
from which supervisors were selected as needed, was taken into 
consideration by the district court. The court focused on the 
large disparity in promotions in the Welding Department. Dur­
ing 1967 and 1968, there were twenty promotions in that depart­
ment and not a single black was selected. The problem, accor­
ding to the district court, was that black welders had only a few 
months of experience as welders at that time, and did not 
possess the skills needed to act as fortnen in that department. 
This was considered not to be the result of any post-Act 
discrimination—the company had actively sought and trained 
blacks to be welders. But, to prevent employment of un­
qualified welders, the company adopted procedures to verify 
qualifications.

First, the district court’s finding that "the restriction of . . . 
temporary promotions to persons working in the department is 
a bona fide occupation qualification, justified by business 
necessity . .” confuses the definite distinction between a bona 
fide occupational qualification defense and a business necessity 
defense. Although the two concepts are similar and distinct, and 
apply to different factual situations.

The doctrine of business necessity is operative when an 
employment criteria which is “ fair in form, but discriminatory 
in operation” is otherwise shown by the defendant to be related 
to job performance. Griggs v. Duke Power Co., 401 U.S. 424 at 
431, 91 S.Ct. 849 at 853, 28 L.Ed.2d 158. A bona fide occupa­
tional qualification, on the other hand, is deliberately calculated 
by the employer to discriminate. An employment criteria is 
justified under the bona fide occupational qualification defense 
when a certain sex, national origin, or religion is reasonably



224a

necessary to satisfy a particular business need. Dot hard v. 
Ruwlmson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1970). 
See also, Phillips v. Martin Marietta Corp., 400 U.S. 542, 91
S.Ct. 496, 27 L.Ed.2d 613 (1971).

We proceed, therefore, to consider whether the defense set 
forth by Pullman-Standard qualifies as either a bona fide oc­
cupational qualification or a business necessity defense.

Title VII, 42 U.S.C. § 2000e-2(e)(l) permits discrimination 
in hiring and employment “ where religion, sex, or national 
origin is a bona fide occupational qualification reasonably 
necessary to the normal operation of that particular business or 
enterprise.” Neither race nor color is included in this section. 
We believe that the omission of race and color as bona fide oc­
cupational qualifications was deliberate and intentional on the 
part of Congress. Our interpretation of the legislative history of 
this section is that Congress did not view race as a qualification 
which could, conceptually, be reasonably necessary to the effi­
cient operation of any business. Senators Clark and Case, the 
floor managers for the Civil Rights Bill in the Senate, submitted 
to the Senate and “ Interpretative Memorandum” to explain the 
exception:

* * * [The Section) creates certain limited exceptions from 
these prohibitions [of section 703). First, it would not be 
an unlawful employment practice to hire or employ 
employees of a particular religion, sex, or national origin 
in those situations were religion, sex, or national origin is a 
bona fide occupational qualification for the job. This ex­
ception must not be confused with the right which all 
employers would have to hire and fire on the basis o f 
general qualifications for the job, such as skill or in­
telligence. This exception is a limited right to discriminate 
on the basis of religion, sex, or national origin where the 
reason for the discrimination is a bona fide occupational

225a

qualification. Examples of such legitimate discrimination 
would be the preference of a French restaurant for a 
French cook, the preference of a professional baseball 
team for male players, and the preference of a business 
which seeks the patronage of members of particular 
religious groups for a salesman of that religion * * * (110 
Cong.Rec. 7213; emphasis supplied).

Diaz v. Pan Am World Airways, Inc., 311 F.Supp. 559 at 569 
(S.D.La.), rev’d. on other grounds, 442 F.2d 385 (5th Cir.), 
cert, denied, 404 U.S. 950, 92 S.Ct. 275, 30 L.Ed.2d 267 (1971). 
The legislature, therefore, has indicated that customer 
preference may be considered under the limited “ bona fide oc­
cupational qualification” exception in the areas of religion, sex, 
and national origin, but not on grounds of race or color. See 
also, Dothard v. Rawhnson, 433 U.S. 321, 97 S.Ct. 2720, 53 
L.Ed.2d 786 (1977). Since the alleged discrimination in this case 
is based on race, the bona fide occupational qualification excep­
tion cannot be applicable.

It is settled in this circuit that “ the one and only 
justification for standards or procedures which operate to deny 
Blacks promotional opportunities” is the business necessity 
defense. Rowe v. General Motors Corp., 457 F.2d 348 at 354 
(5th Cir. 1972). We provided in Rowe: “The only justification 
for standards and procedures which may, even inadvertently, 
eliminate or prejudice minority group employees is that the stan­
dards or procedures arise from a nondiscriminatory legitimate 
business defense. Griggs v. Duke Power Co., 401 U.S. 424, 91 
S.Ct. 849, 28 L.Ed.2d 158 (1971); Local 189, United Paper 
Makers and Paper Workers, AFL-CIO, SLC  v. United States, 
[416 F.2d 980 (5th Cir. 1969)).” Id. at 354. Further, we derived 
from Griggs v. Duke Power Co. three factors for determining 
whether promotional standards and procedures arise from a 
legitimate business necessity so as not to constitute a Title VII 
violation: “ (1) The standards and procedures were not shown to



226a

be significantly related to successful job performance. (2) The 
procedures operated to disqualify a substantially higher rate of 
Blacks than Whites. (3) The jobs in question had formally been 
filled by whites as part of a longstanding practice of discrimina­
tion. . . . ” Rowe at 355.

That factors two and three of the standard quoted above 
apply in favor of the appellants in this case Is a foregone conclu­
sion. In evaluation of the first factor, we are influenced by the 
lack of any articulated or defined skills which are necessary to 
perform capably as a temporary or salaried foreman at 
Pullman-Standard. Further, with regard to the promotion to 
temporary foremen of those within the particular department to 
which promoted, the evidence indicates that a substantial 
number of salaried and temporary foremen supervise depart­
ments in which they have never worked. We are additionally 
concerned about the low percentage of black supervisors in 
predominately black departments. We cannot agree that the 
business need advanced by the defendants for the limitation 
which restricts the promotion of blacks to supervisory positions 
is sufficiently compelling to override the significant racial im­
pact of the limitation.

We have further held that for a practice, which is not inten­
tionally discriminatory or neutral but perpetuates consequences 
of past discrimination, to be justified by business necessity, the 
practice must “ not only foster safety and efficiency, but must 
be essential to that goal . . . and there must not be an acceptable 
alternative that will accomplish that goal ‘equally well with a 
lesser differential racial impact.’ ” Parson v. Kaiser Aluminum 
& Chemical Corp., 575 F.2d 1374 (5th Cir.), cert, denied, 441 
U S. 968, 99 S.Ct. 2417, 60 L.Ed.2d 1073 (1979). The district 
court did not expose any evidence sufficient to show that the 
limitation upon which the defendants’ business necessity 
defense rests is essential to the safety and efficiency of the 
operations at Pullman-Standard, nor do we find evidence in the 
record to ihai end

227a

The district court further considered probative in us analysis 
of the defendants’ rebuttal arguments the fact that blacks refus­
ed supervisory promotions to a greater degree than whites; and 
peer pressure directed by black employees against black 
foremen discouraged many blacks from displaying good super­
visory qualities, from accepting promotions, and from remain­
ing in supervisors postions.

These circumstances undeniably emanate from the very 
discrimination which the class members seek to eliminate. When 
insufficient initiatives which purport to rectify a personnel im­
balance follow a history of preserving certain personnel posi­
tions for a select group-based upon race, such peer pressure 
naturally and conveniently results therefrom. Furthermore, 
these variables relied upon by the district court do not weigh 
heavily enough to lessen the appellants’ empirical conclusions 
that black employees were locked in the lower paying jobs and 
departments. See Pettway's. American Cast Iron Pipe Co., 494 
F.2d 211 (5th Cir.), cm. denied, 439 U.S. 1115, 99 S.Ct. 1020, 
59 L.Hd.2d 74 (1974). We hold, therefore, that the defendants 
tailed to rebut the plaintiffs’ prima facie case of racial 
discrimination in the selection of supervisory personnel.

IV

1‘ullman-Standard’s claim, on appeal, that the class represen­
tatives in the present case have no standing to maintain this ap­
peal because their individual claims have been mooted or 
destroyed is without merit. Sosna v. Iowa, 419 U.S. 393, 95 
S.Ct. 553, 42 L.Ed.2d 532 (1975). See also, East Texas Motor 
Freight v. Rodriquez, 431 U.S. 395, 406 n. 12, 97 S.Ct. 1891, 
1898 n. 12, 52 L.Ed.2d 453 (1977); Franks v. Bowman 
Transportation Co.



228a

APPROPRIATE RELIEF

Having rejected the district court’s finding that Pullman- 
Standard did not make racially discriminatory assignments to 
departments after the effective date of Title VU, that the 
seniority system at Pullman-Standard is “ bona fide” within the 
meaning of § 703(h) of Title VII, and that Pullman-Standard 
has successfully rebutted appellants’ prima facie case of racial 
discrimination in the selection of foremen, we reverse the 
judgments appealed from and remand to the district court for 
proceedings necessary to provide appropriate relief.

REVERSED AND REMANDED.

229a

5W7AT 17 - Footnotes
1 Allhough the firsi primary charge directly bringing into question 

the company’s assignment policies was tiled on May 11, 1970, a 
charge had been previously filed by an EEOC Commissioner on 
March 27, 1967 questioning the hiring and promotion practices of 
Pullman. Because the district court found this earlier charge to be 
susceptible to the interpretation that it related also to assignment and 
transler matters, the court used the date 90 days bel.oie the March 27, 
1967 Commission charge lor its analysis.

The 1972 amendment to Title VII extended the time for filing charges 
to 180 days, and this extension has been considered to be effective 
retioactively. See, e.g., Davis v. Valley Distributing Co., 522 F.2d 827 
(9th Cir. 1975). But, the district court asserts that it finds there was no 
practice of discriminatory assignments to departments after 
September 28, 1966 anymore than there was alter December 27, 1966. 
The 180 day statutory period is inconsequential to this analysis. See 
generally, Fisher v. Proctor <f Gamble MJg. Co., 613 F.2d 527 (5th 
Cir. 1980); Clark Ulmkrajl, Inc., 556 F.2d 1219 (5th Cir. 1977).

• As of the 1973 seniority list, the Boiler Flouse Department remain­
ed the sole one-race (white) department. No assignments had been 
made, as of the time of (rial, to that department since the effective 
date of Title VII.

1 At Pullman-Standard, there are two Die and Tool seniority units 
and two Maintenance seniority units, each subpart being represented 
by a different union.

4 The United Steelworkers (USW) evolved from the Steelworker's 
Organizing Committee (SWOC).

’ See footnote 4.

‘ f indings of fact by the district court in Title VII cases are not to be 
set aside unless they are clearly erroneous, Harrison v. Goodyear Tire 
& Rubber Co.. 508 F.2d 678 (5th Cir. 1975), Fed.R.Civ.P. 52(a), that 
is, unless the appellate court is “ left with the definite and firm convic­
tion that a mistake has been committed.” Kingsville Independent 
School District v. Cooper, 611 F.2d 1109, 1113 (5th Cir. 1980), 
quoting United States \. U.S. Gypsum Co., 333 U.S. 364, 395, 68 
S.Ct. 525, 541, 92 L.Ed. 746 (1948). Where findings, however, are 
made under an erroneous view of controlling legal principles, the 
clearly erroneous rule does not apply, and the findings may not stand. 
See, Rowe v. Generul Motors Corp., 457 F.2d 348, 356 n. 15 (5th Cir. 
1972); United States v. Pickett's Food Service, 360 F.2d 338, 341 (5lh 
Cir. 1966).



230a

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

Although discrimination vel non  is essentially a question of 
fact it is, at the same time, the ultimate issue for resolution in 
this case, being expressly proscribed by 42 U.S.C.A. § 
2000e-2(a). As such, a finding of discrimination or non­
discrimination is a finding of ultimate fact. (Cites omitted.| In 
reviewing the district court’s findings, therefore, we will proceed 
to make an independent determination of appellant’s allegations 
of discrimination, though bound by findings of subsidiary fact 
which are themselves not clearly erroneous.

518 F.2d at 339.

231a

SW1NT VII

U.S. Supreme Court

PULLMAN-STANDARD, A DIVISION OF PULLMAN, INC. 
v. SWINT ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 80-1190.
Argued January 19, 1982—Decided April 27, 1982*

White, J., delivered the opinion of the Court, in which 
Burger, C.J., and Brennan, Powell, Rehnquist, and 
O’Connor, JJ., joined. Stevens, J., filed a statement concur­
ring in part, post, p. 293. Marshall, J., filed a dissenting 
opinion, in which Blackmun, J., joined except as to Part I, 
post, p. 293.

Michael H. Gottesman argued the cause for petitioners. With 
him on the briefs for petitioners in No. 80-1193 were Robert M. 
Weinberg, Laurence Gold, Jerome A . Cooper, Bernard 
Kleinian, and Carl B. Frankel. Samuel H. Burr and C.V. 
Stelzenmuller filed briefs for petitioner in No. 80-1190.

Elaine Jones argued the cause for respondents. With her on 
the brief were Jack Greenberg, James M. Nabrit III, Patrick O. 
Patterson, Judith Reed, Barry L. Goldstein, and C. Lani 
Gunier.**

• Together with No. 80-1193, United Steelworkers o f  America. AFL- 
CIO, et al. v. Swim el at., also on certiorari to the same court.

•• Solicitor General Lee, Assistant Attorney General Reynolds, Deputy 
Solicitor General Wallace, Jessica Dunsay Silver, Marie E. Klimesz, Con­
stance L. Dupre, Philip B. Sklover, and Fella M. Fink filed a brief for the 
United States et al. as amici curiae urging affirmance.

Robert E. Williams and Douglas S. McDowell hied a brief for the Equal 
Employment Advisory Council as amicus curiae.



232a

Justice White delivered the opinion of the Court.

Respondents were black employees at the Bessemer, Ala., 
plant of petitioner Pullman-Standard (the Company), a manu­
facturer of railway freight cars and parts. They brought suit 
against the Company and the union petitioners—the United 
Steelworkers of America, AFL-CIO-CLC, and its Local 1466 
(collectively USW)—alleging violations of Title Vll of the Civil 
Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. 
§ 2000e et seq. (1976 ed. and Supp. IV), and 42 U.S.C. § 1981.1 
As they come here, these cases involve only the validity, under 
Title Vll, of a seniority system maintained by the Company and 
USW. The District Court found “ that differences in terms, 
conditions or privileges of employment resulting [from the sen­
iority system] are ‘not the result of an intention to discriminate’ 
because of race or color,” App. to Pet. for Cert, in No. 80- 
1190, p. A-147 (hereinafter App.), and held, therefore, that the 
system satisfied the requirements of § 703(h) of the Act. The 
Court of Appeals for the Fifth Circuit reversed:

“ Because we find that the differences in the terms, condi­
tions and standards of employment for black workers and 
white workers at Pullman-Standard resulted from an 
intent to discriminate because of race, we hold that the sys­
tem is not legally valid under section 703(h) of Title VII, 42 
U.S.C. 2000e-2(h).” 624 F.2d 525, 533-534 (1980).

We granted the petitions for certiorari filed by USW and by 
the Company, 451 U.S. 906 (1981), limited to the First question 
presented in each petition: whether a court of appeals is bound 
by the “ clearly erroneous” rule of Federal Rule of Civil Proce­
dure 52(a) in reviewing a district court’s findings of fact, 
arrived at after a lengthy trial, as to the motivation of the par­

1 In their original complaint, besides challenging the seniority system 
discussed in this opinion, plaintiffs also alleged discrimination in job assign­
ments and promotions and the failure to post publicly a list of changes in 
assignments. These were all brought as “class” issues. Two charges of indi­
vidual discrimination were also brought. The Court of Appeals held that the 
Company had violated Title Vll in making job assignments and in selecting 
foremen. In granting certiorari, we declined to review those aspects of the 
decision.

233a

ties who negotiated a seniority system; and whether the court 
below applied wrong legal criteria in determining the bona fides 
of the seniority system. We conclude that the Court of Appeals 
erred in the course of its review and accordingly reverse its judg­
ment and remand for further proceedings.

I

Title Vll is a broad remedial measure, designed “ to assure 
equality of employment opportunities.” McDonnell Douglas 
Corp. v. Green, 411 U.S. 792, 800 (1973). The Act was designed 
to bar not only overt employment discrimination, “ but also 
practices that are fair in form, but discriminatory in opera­
tion.” Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). 
“ Thus, the Court has repeatedly held that a prima facie Title 
Vll violation may be established by policies or practices that are 
neutral on their face and in intent but that nonetheless discrimi­
nate in effect against a particular group.” Teamsters v. United 
States, 431 U.S. 324, 349 (1977) (hereinafter Teamsters). The 
Act’s treatment of seniority systems, however, establishes an 
exception to these general principles. Section 703(h), 78 Stat. 
257, as set forth in 42 U.S.C. § 2000e-2(h), provided in perti­
nent part:

“ Notwithstanding any other provision of this subchap­
ter, 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 . . . system . . . pro­
vided that such differences are not the result of an inten­
tion to discriminate because of race.”

Under this section, a showing of disparate impact is insufficient 
to invalidate a seniority system, even though the result may be 
to perpetuate pre-Act discrimination. In Trans World Airlines, 
Inc. v. Hardison, 432 U.S. 63, 82 (1977), we summarized the 
effect of § 703(h) as follows: “ (A]bsent a discriminatory pur­
pose, the operation of a seniority system cannot be an unlawful 
employment practice even if the system has some discrimina­



234a

tory consequences.” Thus, any challenge to a seniority system 
under Title VII will require a trial on the issue of discriminatory 
intent: Was the system adopted because of its racially discrimi­
natory impact?

This is precisely what happened in these cases. Following our 
decision in Teamsters, the District Court held a new trial on the 
limited question of whether the seniority system was “ instituted 
or maintained contrary to Section 703(h) of the new Civil 
Rights Act of 1964.” App. A-125.2 That court concluded, as we 
noted above and will discuss below, that the system was 
adopted and maintained for purposes wholly independent of 
any discriminatory intent. The Court of Appeals for the Fifth 
Circuit reversed.

11

Petitioners submit that the Court of Appeals failed to comply 
with the command of Rule 52(a) that the findings of fact of a 
district court may not be set aside unless clearly erroneous. We 
first describe the findings of the District Court and the Court of 
Appeals.

Certain facts are common ground for both the District Court 
and the Court of Appeals. The Company’s Bessemer plant was 
unionized in the early 1940’s. Both before and after union­
ization, the plant was divided into a number of different opera­
tional departments.3 USW sought to represent all production 
and maintenance employees at the plant and was elected in 1941 
as the bargaining representative of a bargaining unit consisting 
of most of these employees. At that same time, 1AM became 
the bargaining representative of a unit consisting of five depart -

2 The procedural history of these cases is rather complex. The original 
complaint was filed in 1971. Since that lime the case has been tried three 
limes and has twice been reviewed by the Court of Appeals.

3 In 1941, prior to unionization, the Bessemer plant was divided into 
20 departments. By 1954, there were 28 departments—26 USW units and 2 
International Association of Machinists and Aerospace Workers (1AM) 
units. The departments remained essentially unchanged after 1954.

235a

merits.4 5 Between 1941 and 1944, 1AM ceded certain workers in 
its bargaining unit to USW. As a result of this transfer, the 
1AM bargaining unit became all white.

Throughout the period of representation by USW, the plant 
was approximately half black. Prior to 1965, the Company 
openly pursued a racially discriminatory policy of job assign­
ments. Most departments contained more than one job cate­
gory and as a result most departments were racially mixed. 
There are no lines of progression or promotion within depart­
ments.

The seniority system at issue here was adopted in 1954. 
Under that agreement, seniority was measured by length of con­
tinuous service in a particular department.6 7 * * Seniority was origi­
nally exercised only for purposes of layoffs and hirings within 
particular departments. In 1956, seniority was formally recog­
nized for promotional purposes as well. Again, however, sen­
iority, with limited exceptions, was only exercised within 
departments; employees transferring to new departments for­
feited their seniority. This seniority system remained virtually 
unchanged until after this suit was brought in 1971r

The District Court approached the question of discrimina­
tory intent in the manner suggested by the Fifth Circuit in

4 The International Brotherhood of Electrical Workers (IBEW) gained 
representation status for two small departments. The IBEW unit was all 
white. IBEW, however, was decertified in 1946 and its members were reab­
sorbed into a department represented by USW.

5 A departmental seniority system was part of the initial collective­
bargaining agreement between the Company and USW in 1942. Between 
1947 and 1954, however, the seniority system changed from one based on 
departments to one based upon particular occupations within departments. 
In 1954, the system went back to a departmental base.

6 The only exceptions, until 1972 (see n. 7. infra), were for employees 
transferring at the request of the Company or for those electing transfer in 
lieu of layoff.

7 In 1972, the Company entered into an agreement with the Depart­
ment of Labor to bring its employment practices into compliance with Exec­
utive Order No. 11246, 3 CFR 339 (1964-1965 Comp.). This provided an
exception to the departmental limit on seniority, allowing certain black
employees to make interdepartmental transfers without any loss of seniority.



236a

James v. Stockham Valves & Fittings Co., 559 F.2d 310 (1977). 
There, the Court of Appeals stated that under Teamsters “ the 
totality of the circumstances in the development and mainte­
nance of the system is relevant to examining that issue.” 559 
F.2d, at 352. There were, in its view, however, four particular 
factors that a court should focus on.8

First, a court must determine whether the system “ operates 
to discourage all employees equally from transferring between 
seniority units.” Ibid. The District Court held that the system 
here “ was facially neutral and . . . was applied equally to all 
races and ethnic groups.” App. A-132. Although there were 
charges of racial discrimination in its application, the court held 
that these were “ not substantiated by the evidence.” Id., at A- 
133. It concluded that the system “ applied equally and uni­
formly to all employees, black and white, and that, given the 
approximately equal number of employees of the two groups, it 
was quantitatively neutral as well.” Id., at A-134.

Second, a court must examine the rationality of the depart­
mental structure, upon which the seniority system relies, in light 
of the general industry practice. James, supra, at 352. The Dis­
trict Court found that linking seniority to “ departmental age" 
was ‘'the modal form of agreements generally, as well as with

8 The Fifth Circuit relied upon the following passages in Teamsters, 
431 U.S., at 355-356:

“ The seniority system in this litigation is entirely bona fide. It applies 
equally to all races and ethnic groups. To the extent that it ‘locks' employees 
into non-line-driver jobs, it does so for all. . . . The placing of line drivers 
in a separate bargaining unit from other employees is rational, in accord with 
the industry practice, and consistent with National Labor Relation Board 
precedents. It is conceded that that seniority system did not have its genesis 
in racial discrimination, and that it was negotiated and has been maintained 
free from any illegal purpose."

This passage was of course not meant to be an exhaustive list of all the fac­
tors that a district court might or should consider in making a finding of dis­
criminatory intent.

9 The court specifically declined to make any finding on whether the 
no-transfer provision of the seniority system had a greater relative effect on 
blacks than on whites, because of qualitative differences in the departments 
in which they were concentrated. It believed that such an inquiry would have 
been inconsistent with the earlier Fifth Circuit opinion in this case.

237a

manufacturers of railroad equipment in particular.” App. A- 
137. Furthermore, it found the basic arrangement of depart­
ments at the plant to be rationally related to the nature of the 
work and to be “ consistent with practices which were . . .gen­
erally followed at other unionized plants throughout the coun­
try.” Id., at A-136-A-137. While questions could be raised 
about the necessity of certain departmental divisions, it found 
that all of the challenged lines of division grew out of historical 
circumstances at the plant that were unrelated to racial discrimi­
nation.10 Although unionization did produce an all-white 1AM 
bargaining unit, it found that USW “ cannot be charged with 
racial bias in its response to the 1AM situation. [USW] sought 
to represent all workers, black and white, in the plant.” Id., at 
A-145. Nor could the Company be charged with any racial dis­
crimination that may have existed in 1AM:

“ The company properly took a ‘hands-off’ approach 
towards the establishment ol the election units . . . .  It 
bargained with those unions which were afforded repre­
sentational status by the NLRB and did so without any dis­
criminatory animus.” Id., at A-146.

Third, a court had to consider “ whether the seniority system 
had its genesis in racial discrimination,” James, supra, at 352, 
by which it meant the relationship between the.system and other 
racially discriminatory practices. Although finding ample dis­
crimination by the Company in its employment practices and 
some discriminatory practices by the union,11 the District Court 
concluded that the seniority system was in no way related to the 
discriminatory practices:

10 In particular, die court focused on llie history of the unionization 
process at the plant and found certain of the departmental divisions to be 
based on the evolving relationship between USW and 1AM.

11 With respect to USW, the District Court found that “ [u)nion meet­
ings were conducted with different sides of the hall for white and black mem­
bers, and social functions of the union were also segregated." App. A-142. It 
also found, however, that “ [wlhile possessing some of the trappings taken 
from an otherwise segregated society, the USW local was one of the few 
institutions in the area which did not function in fact to foster and maintain 
segregation; rather, it served a joint interest of white and black workers 
which had a higher priority than racial considerations." Id., at A-I43.



238a

“ The seniority system . . . had its genesis . . .  at a 
period when racial segregation was certainly being prac­
ticed; but this system was not itself the product of this 
bias. The system rather came about as a result of color­
blind objectives of a union which—unlike most structures 
and institutions of the era—was not an arm of a segregated 
society. Nor did it foster the discrimination . . . which 
was being practiced by custom in the plant.” Ap. A-144.

Finally, a court must consider “ whether the system was nego­
tiated and has been maintained free from any illegal purpose.” 
James, supra, at 352. Stating that it had “ carefully considered 
the detailed record of negotiation sessions and contracts which 
span a period of some thirty-five years,” App. A-146, the court 
found that the system was untainted by any discriminatory pur­
pose. Thus, although the District Court focused on particular 
factors in carrying out the analysis required by § 703(h), it also 
looked to the entire record and to the “ totality of the system 
under attack.” Id. at A-147.

The Court of Appeals addressed each of the four factors of 
the James test and reached the opposite conclusion. First, it 
held that the District Court erred in putting aside qualitative 
differences between the departments in which blacks were con­
centrated and those dominated by whites, in considering 
whether the system applied “ equally” to whites and blacks.12 13 
This is a purported correction of a legal standard under which 
the evidence is to be evaluated.

Second, it rejected the District Court’s conclusion that the 
structure of departments was rational, in line with industry 
practice, and did not reflect any discriminatory intent. Its dis­
cussion is brief but focuses on the role of 1AM and certain char­
acteristics unique to the Bessemer plant. The court concluded:

12 li does not appear to us that the District Court actually found a 
qualitative difference but held it to be irrelevant. The relevant passage of the 
District Court opinion read as follows: “ By ranking the twenty-eight USW 
and IAM departments according to some perceived order of desirability, one 
could . . . attempt to measure the relative effect of the no-transfer rule on 
white and black employees . . . .  It may well be that a somewhat greater 
impact was felt by blacks than whites although . . . this conclusion is by no 
means certain.’’ Id., at A-134.

239a

“ The record evidence, generally, indicates arbitrary cre­
ation of the departments by the company since union­
ization and an attendant adverse affect [sic] on black 
workers. The individual differences between the depart­
mental structure at Pullman-Standard and that of other 
plants, and as compared with industry practice, are indica­
tive of attempts to maintain one-race departments.” 624 
F.2d, at 532.

In reaching this conclusion, the Court of Appeals did not pur­
port to be correcting a legal error, nor did it refer to or expressly 
apply the clearly-erroneous standard.

Third, in considering the “ genesis” of the system, the Court 
of Appeals held that the District Court erred in holding that the 
motives of 1AM were not relevant.11 This was the correction of 
a legal error on the part of the District Court in excluding rele­
vant evidence. The court did not stop there, however. It went 
on to hold that 1AM was acting out of discriminatory intent— 
an issue specifically not reached by the District Court—and that 
“ considerations of race permeated the negotiation and the 
adoption of the seniority system in 1941 and subsequent negoti­
ations thereafter.” Ibid.

Fourth, despite this conclusion under the third James factor, 
the Court of Appeals then recited, but did not expressly set 
aside or find clearly erroneous, the District Court s findings 
with respect to the negotiation and maintenance of the seniority 
system.

The court then announced that “ [hjaving carefully reviewed 
the evidence offered to show whether the departmental senior­
ity system in the present case is ‘bona tide within the meaning 
of § 703(h) of Title Vll, we reject the district court’s finding.” 
624 F.2d, at 533. Elaborating on its disagreement, the Court of 
Appeals stated:

13 The original complain! in ibis case did not mention 1AM. .Prior to 
the first trial, respondents sought and received leave to amend their com­
plaint to add IAM as a Rule 19 defendant, "insofar as the relief requested 
may involve or infringe upon the provisions of such Union’s collective bar­
gaining agreement with the Company.” Order of the District Court, June 4, 
1974 (App. 29).



240a

“ An analysis of the totality of the facts and circum­
stances surrounding the creation and continuance of the 
departmental system at Pullman-Standard leaves us with 
the definite and firm conviction that a mistake has been 
made. There is no doubt, based upon the record in this • 
case, about the existence of a discriminatory purpose. The 
obvious principal aim of the I. A. M. in 1941 was to 
exclude black workers from its bargaining unit. That goal 
was ultimately reached when maneuvers by the I. A. M. 
and U.S. W. resulted in an all-white 1. A. M. unit. The 
U.S. W., in the interest of increased membership, acqui­
esced in the discrimination while succeeding in signifi­
cantly segregating the departments within its own unit.

“ The district court might have reached a different con­
clusion had it given the 1. A. M .’s role in the creation and 
establishment of the seniority system its due consider­
ation.” Ibid, (footnote omitted).

Having rejected the District Court’s finding, the court made 
its own findings as to whether the USW seniority system was 
protected by § 703(h):

“ We consider significant in our decision the manner by 
which the two seniority units were set up, the creation of 
the various all-white and all-black departments within the 
U.S. W. unit at the time of certification and in the years 
thereafter, conditions of racial discrimination which 
affected the negotiation and renegotiation of the system, 
and the extent to which the system and the attendant no- 
transfer rule locked blacks into the least remunerative ' 
positions within the company. Because we find that the 
differences in the terms, conditions and standards of 
employment for black workers and white workers at 
Pullman-Standard resulted from an intent to discriminate 
because of race, we hold that the system is not legally valid 
under section 703(h) of Title VII, 42 U.S. C. § 2000e- 
2(h).” Id., at 533-534.

In connection with its assertion that it was convinced that a 
mistake had been made, the Court of Appeals, in a footnote,

241a

referred to the clearly-erroneous standard of Rule 52(a). Id., at 
533, n. 6.14 It pointed out, however, that if findings “ are made 
under an erroneous view of controlling legal principles, the 
clearly erroneous rule does not apply, and the findings may not 
stand.” Ibid. Finally, quoting from East v. Romine, Inc., 518 
F.2d 332, 339 (CA5 1975), the Court of Appeals repeated the 
following view of its appellate function in Title VII cases where 
purposeful discrimination is at isiue:

“ ‘Although discrimination vel non is essentially a ques­
tion of fact it is, at the same time, the ultimate issue for 
resolution in this case, being expressly proscribed by 42 
U.S. C. A. § 2000e-2(a). As such, a Finding of discrimina­
tion or non-discrimination is a finding of ultimate fact. 
(Cites omitted.] In reviewing the district court’s findings, 
therefore, we will proceed to make an independent deter­
mination of appellant’s allegations of discrimination, 
though bound by findings of subsidiary fact which are 
themselves not clearly erroneous.’ ” 624 F.2d, at 533, n. 6.

Ill

Pointing to the above statement of the Court of Appeals and 
to similar statements in other Title Vll cases coming from that 
court,15 petitioners submit that the Court of Appeals made an

14 In United Stales v. United States Gypsum Co., 333 U.S. 364, 395 
(1948), this Court characterized the clearly-erroneous standard as follows: 
“A finding is ‘clearly erroneous’ when although there is evidence to support 
it, the reviewing court on the entire evidence is left with the definite and firm 
conviction that a mistake has been committed.”

We note that the Court of Appeals quoted this passage at the conclusion of 
its analysis of the District Court opinion. Supra, at 283.

15 See Jackson v. City o f  Killeen, 654 F.2d 1181, 1184 (1981); Payne v. 
McLemore's Wholesale & Retail Stores, 654 F.2d 1130, 1147 (1981); Wilkins 
v University o f Houston, 654 F.2d 388, 390 (1981); Lindsey v. Mississippi 
Research & Development Center, 652 F.2d 488, 492 (1981); Rohde v. K. O. 
Steel Castings. Inc., 649 F.2d 317, 320 (1981); Joslu v. Florida State Univer­
sity, 646 F.2d 981, 986 (1981); Phillips v. Joint Legislative Committee, 637 
F.2d 1014, 1024 (1981); Dunner v. United Stales Civil Service Comm n, 635 
F.2d 427, 430-431 (1981); Thompson v. Leland Police Dept., 633 F.2d 1111,



242a

independent determination of discriminatory purpose, the 
“ ultimate fact” in this case, and that this was error under Rule 
52(a). We agree with petitioners that if the Court of Appeals 
followed what seems to be the accepted rule in that Circuit, its 
judgment must be reversed.16

1112 (1980); C ra w fo rd  v. W estern E lectric C o ., 614 F.2d 1300, 1311 (1980); 
B urdine v. Texas D ep t, o f  C om m u n ity  A ffa irs , 608 F.2d 563, 566 (1979); 
W illiam s v. Tallahassee M otors, In c., 607 F.2d 689, 690 (1979); Parson v. 
K aiser A lu m in u m  <1 C hem ical C o rp ., 575 F.2d 1374, 1382 (1978); C ausey v. 
F ord  M o to r  C o ., 516 F.2d 416, 420-421 (1975); E ast v. R om ine, Inc., 518 
F.2d 332, 338-339 (1975).

16 There is some indication in the opinions of the Court of Appeals for 
the Fifth Circuit (see n. 15, supra) that the Circuit rule with respect to “ulti­
mate facts’’ is only another way of stating a standard of review with respect 
to mixed questions of law and fact—the ultimate “fact” is the statutory, 
legally determinative consideration (here, intentional discrimination) which is 
or is not satisfied by subsidiary facts admitted or found by the trier of fact. 
As indicated in the text, however, the question of intentional discrimination 
under $ 703(h) is a pure question of fact. Furthermore, the Court of 
Appeals’ opinion in this case appears to address the issue as a question of 
fact unmixed with legal considerations.

At the same lime, this Court has on occasion itself indicated that findings 
on “ultimate facts" are independently reviewable. In B aum gartner v. U nited  
Sta tes, 322 U.S. 665 (1944), the issue was whether or not the findings of the 
two lower courts satisfied the clear-and-convincing standard of proof neces­
sary to sustain a denaturalization decree. The Court held that the conclusion 
of the two lower courts that the exacting standard of proof had been satisfied 
was not an unreviewable finding of fact but one that a reviewing court could 
independently assess. The Court referred to the finding as one of “ultimate" 
fact, which in that case involved an appraisal of the strength of the entire 
body of evidence. The Court said that the significance of the clear-and- 
convincing proof standard “would be lost” if the ascertainment by the lower 
courts whether that exacting standard of proof had been satisfied on the 
whole record were to be deemed a “ fact” of the same order as all other 
"facts not open to review here.” Id ., at 671.

The Fifth Circuit’s rule on appellate consideration of “ultimate facts” has 
its roots in this discussion in B aum gartner. In G alena O aks C orp. v. Sco­
f ie ld , 218 F.2d 217 (CA5 1954), in which the question was whether the gain 
derived from the sale of a number of houses was to be treated as capital gain 
or ordinary income, the Court of Appeals relied directly on B aum gartner in 
holding that this was an issue of “ultimate fact" that an appellate court may 
review free of the clearly-erroneous rule. C ausey v. F ord  M o to r  C o ., supra, 
at 421, relying on G alena O aks C orp . v. Scofie ld , supra , said that "although

243a

Rule 52(a) broadly requires that findings of fact not be set 
aside unless clearly erroneous. It does not make exceptions or 
purport to exclude certain categories of factual findings from 
the obligation of a court of appeals to accept a district court’s 
findings unless clearly erroneous. It does not divide facts into 
categories; in particular, it does not divide findings of fact into 
those that deal with “ ultimate” and those that deal with “ sub­
sidiary” facts.

The Rule does not apply to conclusions of law. The Court of 
Appeals, therefore, was quite right in saying that if a district 
court’s findings rest on an erroneous view of the law, they may 
be set aside on that basis. But here the District Court was not 
faulted for misunderstanding or applying an erroneous defini­
tion of intentional discrimination.17 It was reversed for arriving 
at what the Court of Appeals thought was an erroneous finding 
as to whether the differential impact of the seniority system 
reflected an intent to discriminate on account of race. That 
question, as we see it, is a pure question of fact, subject to Rule 
52(a)’s clearly-erroneous standard. It is not a question of law 
and not a mixed question of law and fact.

The Court has previously noted the vexing nature of the dis­
tinction between questions of fact and questions of law. See

discrimination vel non is essentially a question of fact, it is, at the same time, 
the ultimate issue for resolution in this case" and as such, was deemed to be 
independently reviewable. The passage from East v. R om ine, Inc., supra, at 
339, which was repeated in the cases before us now, supra , at 285, rested on 
the opinion in C ausey v. F ord M o to r C o.

Whatever B aum gartner may have meant by its discussion of “ultimate 
facts," it surely did not mean that whenever the result in a case turns on a 
factual finding, an appellate court need not remain within the constraints of 
Rule 52(a). B aum gartner's discussion or “ultimate facts" referred not to 
pure findings of fact—as we find discriminatory intent to be in this context— 
but to findings that “clearly impl[y| the application of standards of law.” 
322 U.S. at 671.

17 As we noted above, the Court of Appeals did at certain points pur­
port to correct what it viewed as legal errors on the part of the District Court. 
The presence of such legal errors may justify a remand by the Court of 
Appeals to the District Court for additional factfinding under the correct 
legal standard. Infra, at 291-292.



244a

Baumgartner v. United States, 322 U.S. 665, 671 (1944). Rule 
52(a) does not furnish particular guidance with respect to distin­
guishing law from fact. Nor do we yet know of any other rule or 
principle that will unerringly distinguish a factual finding from 
a legal conclusion. For the reasons that follow, however, we 
have little doubt about the factual nature of § 703(h)’s require­
ment that a seniority system be free of an intent to discriminate.

Treating issues of intent as factual matters for the trier of fact 
is commonplace. In Dayton Board o f Education v. Brinkman, 
443 U.S. 526, 534 (1979), the principal question was whether 
the defendants had intentionally maintained a racially segre­
gated school system at a specified time in the past. We recog­
nized that issue as essentially factual, subject to the 
clearly-erroneous rule. In Commissioner v. Duberstein, 363 
U.S. 278 (1960), the Court held that the principal criterion for 
identifying a gift under the applicable provision of the Internal 
Revenue Code was the intent or motive of the donor—“ one 
that inquires what the basic reason for his conduct was in fact.” 
Id., at 286. Resolution of that issue determined the ultimate 
issue of whether a gift had been made. Both issues were held to 
be questions of fact subject to the clearly-erroneous rule. In 
United States v. Yellow Cab Co., 338 U.S. 338, 341 (1949), an 
antitrust case, the Court referred to “ [f]indings as to the design, 
motive and intent with which men act” as peculiarly factual 
issues for the trier of fact and therefore subject to appellate 
review under Rule 52.

Justice Black’s dissent in Yellow Cab suggested a contrary 
approach. Relying on United States v. Griffith, 334 U.S. 100 
(1948), he argued that it is not always necessary to prove “ spe­
cific intent” to restrain trade; it is enough if a restraint is the 
result or consequence of a defendant’s conduct or business 
arrangements. Such an approach, however, is specifically pre­
cluded by § 703(h) in Title VII cases challenging seniority sys­
tems. Differentials among employees that result from a 
seniority system are not unlawful employment practices unless 
the product of an intent to discriminate. It would make no 
sense, therefore, to say that the intent to discriminate required 
by § 703(h) may be presumed from such an impact. As § 703(h) 
was construed in Teamsters, there must be a finding of actual

245a

intent to discriminate on racial grounds on the part of those 
who negotiated or maintained the system. That finding appears 
to us to be a pure question of fact.

This is not to say that discriminatory impact is not part of the 
evidence to be considered by the trial court in reaching a finding 
on whether there was such a discriminatory intent as a factual 
matter.18 19 We do assert, however, that under § 703(h) discrimi­
natory intent is a finding of fact to be made by the trial court; it 
is not a question of law and not a mixed question of law and 
fact of the kind that in some cases may allow an appellate court 
to review the facts to see if they satisfy some legal concept of 
discriminatory intent.lv Discriminatory intent here means actual 
motive; it is not a legal presumption to be drawn from a factual 
showing of something less than actual motive. Thus, a court of 
appeals may only reverse a district court’s finding on discrimi­
natory intent if it concludes that the finding is clearly erroneous 
under Rule 52(a). Insofar as the Fifth Circuit assumed other­
wise, it erred.

18 See, e.g., Furnco Construction Corp. v. Waters, 438 U.S. 567, 580 
(1978): “ Proof that (an employer's] work force was racially balanced or that 
it contained a disproportionately high percentage of minority employees is 
not wholly irrelevant on the issue of intent when that issue is yet to be 
decided.”

19 “ We need not, therefore, address the much-mooted issue of the 
applicability of the Rule 52(a) standard to mixed questions of law and fact— 
i.e., questions in which the historical facts are admitted or established, the 
rule of law is undisputed, and the issue is whether the facts satisfy the statu­
tory standard, or to put it another way, whether the rule of law as applied to 
the established facts is or is not violated. There is substantial authority in the 
Circuits on both sides of this question. Compare United Stales ex rel. John­
son v. Johnson, 531 F.2d 169, 174, n. 12 (CA3 1976); Stafos v. Jarvis, 477 
F.2d 369, 372 (CA10 1973); and Johnson v. Salisbury, 448 F.2d 374, 377 
(CA6 1971), with Rogers v. Bates, 431 F.2d 16, 18 (CAS 1970); and Pennsyl­
vania Casualty Co. v. McCoy, 167 F.2d 132, 133 (CA5 1948). There is also 
support in decisions of this Court for the proposition that conclusions on 
mixed questions of law and fact are independently reviewable by an appellate 
court, e g., Bogardus v. Commissioner, 302 U.S. 34, 39 (1937); Helvering v. 
Tex-Penn Oil Co., 300 U.S. 481. 491 11937); Helvering v. Rankin, 295 U.S. 
123, 131 (1935). But cf., Commissioner v. Duberstein, 363 U.S. 278, 289 
(1960); Commissioner v. Heininger, 320 U.S. 467, 475 (1943).



246a

IV

Respondents do not directly defend the Fifth Circuit rule that 
a trial court’s finding on discriminatory intent is not subject to 
the clearly-erroneous standard of Rule 52(a).20 Rather, among 
other things, they submit that the Court of Appeals recognized 
and, where appropriate, properly applied Rule 52(a) in setting 
aside the findings of the District Court. This position has force, 
but for two reasons it is not persuasive.

First, although the Court of Appeals acknowledged and cor­
rectly stated the controlling standard of Rule 52(a), the 
acknowledgement came late in the court’s opinion. The court 
had not expressly referred to or applied Rule 52(a) in the course 
of disagreeing with the District Court’s resolution of the factual 
issues deemed relevant under James v. Stockham Valves & Fit­
tings Co., 559 F.2d 310 (1977).21 Furthermore, the paragraph in 
which the court finally concludes that the USW seniority system 
is unprotected by § 703(h) strongly suggests that the outcome 
was the product of the court’s independent consideration of the 
totality of the circumstances it found in the record.

Second and more fundamentally, when the court stated that 
it was convinced that a mistake had been made, it then identi­
fied not only the mistake but also the source of that mistake. 
The mistake of the District Court was that on the record there 
could be no doubt about the existence of a discriminatory pur­
pose. The source of the mistake was the District Court’s failure

20 Neither does the dissent contend that Rule 52(a) is inapplicable to 
findings of discriminatory intent. Rather, it contends, that the Rule was 
properly applied by the Court of Appeals.

21 In particular, in regard to the second James factor—whether the 
departmental structure was rational or in line with industry practice the 
Court of Appeals did not focus on the evidentiary basis for any particular 
finding of the District Court. It appeared to make an independent examina­
tion of the record and arrive at its own conclusion contrary to that of the 
District Court. Likewise, in dealing with the genesis of the seniority system 
and whether or not the negotiation or maintenance of the system was tainted 
with racial discrimination, the Court of Appeals, while identifying what it
thought was legal error in failing to consider the racial practices and inten­
tions of 1AM, did not otherwise overturn any of the District Court's findings 
as clearly erroneous.

247a

to recognize the relevance of the racial purposes of 1AM. Had 
the District Court “ given the I.A.Nl.’s role in the creation and 
establishment of the seniority system its due consideration,” it 
“ might have reached a different conclusion.” Supra, at 284.

When an appellate court discerns that a district court has 
failed to make a finding because of an erroneous view of the 
law, the usual rule is that there should be a remand for further 
proceedings to permit the trial court to make the missing find­
ings:

“ [F]actfinding is the basic responsibility of district courts, 
rather than appellate courts, and . . . the Court of 
Appeals should not have resolved in the first instance this 
factual dispute which had not been considered by the Dis­
trict Court.” DeMarco v. United Stales, 415 U.S. 449, 
450, n. (1974).22

Likewise, where findings are infirm because of an erroneous 
view of the law, a remand is the proper course unless the record 
permits only one resolution of the factual issue. Kelley v. 
Southern Pacific Co., 419 U.S. 318, 331-332 (1974). All of this 
is elementary. Yet the Court of Appeals, after holding that the 
District Court had failed to consider relevant evidence and indi­
cating that the District Court might have come to a different 
conclusion had it considered that evidence, failed to remand for 
further proceedings as to the intent of IAM and the signifi­
cance, if any, of such a finding with respect to the intent of 
USW itself. Instead, the Court of Appeals made its own deter­
mination as to the motives of 1AM, found that USW had acqui­
esced in the 1AM conduct, and apparently concluded that the

22 See 5A J. Moore & J. Lucas, Moore’s Federal Practice § 52.06[2J 
(1982) (“Where the trial court fails to make findings, or to find on a material 
issue, and an appeal is taken, the appellate court will normally vacate the 
judgment and remand the action for appropriate findings to be made”); Rule 
v. International Assn, o f Bridge Workers, 568 F.2d 558, 568 (CA8 1978); 
Cliicano Police Officer's Assn. v. Stover, 552 F.2d 918, 921 (CA10 1977); 
O'Neal v. Gresham, 519 F.2d 803, 805 (CA4 1975); Burch v. International 
Assn, o f  Machinists & Aerospace Workers, AFL-CIO, 433 F.2d 561 (CA5 
1970); General Electric Credit Corp. v. Robbins, 414 F.2d 208 (CA8 1969).



248a

foregoing was sufficient to remove the system from the protec­
tion of § 703(h).23

Proceeding in this manner seems to us incredible unless the 
Court of Appeals construed its own well-established Circuit 
rule with respect to its authority to arrive at independent find­
ings on ultimate facts free of the strictures of Rule 52(a) also to 
permit it to examine the record and make its own independent 
findings with respect to those issues on which the district court’s 
findings are set aside for an error of law. As we have previously 
said, however, the premise for this conclusion is infirm: 
whether an ultimate fact or not, discriminatory intent under 
§ 703(h) is a factual matter subject to the clearly-erroneous 
standard of Rule 52(a). It follows that when a district court’s 
finding on such an ultimate fact is set aside for an error of law, 
the court of appeals is not relieved of the usual requirement of 
remanding for further proceedings to the tribunal charged with 
the task of factfinding in the first instance.

Accordingly, the judgment of the Court of Appeals is 
reversed, and the cases are remanded to that court for further 
proceedings consistent with this opinion.

So ordered.

Justice Stevens, concurring in part.

Except to the extent that the Court’s preliminary comments 
on the burden of sustaining “ any challenge to a seniority system 
under Title Vll,” ante, at 277, are inconsistent with the views 1 
expressed separately in American Tobacco Co. v. Patterson, 
ante, p. 86, 1 join the Court’s opinion.

23 lAM’s discriminatory molivaiion, if ii existed, cannot be imputed to 
USW. It is relevant only to the extent that it may shed some light on the pur­
pose of USW or the Company in creating and maintaining the separate sen­
iority system at issue in these cases. A discriminatory intent on the part of 
1AM, therefore, does not control the outcome of these cases. Neither does 
the fact, if true, that USW acquiesced in racially discriminatory conduct on 
the part of 1AM. Such acquiescence is not the equivalent of a discriminatory 
purpose on the part of USW.

249a

Justice Marshall, with whom J ustice Blackmun joins 
except as to Part 1, dissenting.

In 1971, a group of Negro employees at Pullman-Standard’s 
Bessemer, Ala., plant brought this class action against Pull­
man-Standard, the United Steelworkers of America and its 
Local 1466 (USW), and the International Association of 
Machinists and its Local 372 (1AM). The plaintiffs alleged, 
inter alia, that the departmental seniority system negotiated by 
both unions discriminated against Negroes in violation of Title 
Vll of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. 
(1976 ed. and Supp. IV), and the Civil Rights Act of 1866, 42 
U.S.C. § 1981. In 1974, the District Court for the Northern 
District of Alabama concluded that the seniority system did not 
operate to discriminate against Negroes. A unanimous panel of 
the Fifth Circuit reversed. The court ruled that the District 
Court had committed several errors of law, including failure to 
give proper weight to the role of the LAM, and had relied on 
patently inaccurate factual conclusions. Swint v. Pullman- 
Standard, 539 F.2d 77, 95-96 (1976). On remand, the District 
Court again ruled that the seniority system was immune from 
attack under Title Vll, this time Finding that respondents had 
failed to show discriminatory intent as required by this Court’s 
decision in Teamsters v. United Slates, 431 U.S. 324 (1977). 
Ante, at 275. The Fifth Circuit again unanimously rejected the 
conclusion of the District Court. 624 F.2d 525 (1980). The 
majority now reverses the Fifth Circuit’s second unanimous 
decision on the ground that the Court of Appeals did not pay 
sufficient homage to the “ clearly erroneous’’ rule, Fed. Rule 
Civ. Proc. 52(a), in concluding that the seniority system at 
Pullman-Standard was the product of intentional discrimina­
tion against Negroes. Because 1 cannot agree with the premise 
of the majority’s decision to remand these cases for yet another 
trial, or with its application of that premise to the facts of this 
case, I respectfully dissent.



250a

I

The majority premises its holding on the assumption that 
“ ‘absent a discriminatory purpose, the operation of a seniority 
system cannot be an unlawful employment practice even if the 
system has some discriminatory consequences.’ ” Ante, at 277, 
quoting Trans World Airlines Inc. v. Hardison, 432 U.S. 63, 82 
(1977). As 1 have previously indicated, 1 do not find anything in 
the relevant statutory language or legislative history to support 
the proposition that § 703(h) of Title Vll immunizes a seniority 
system that perpetuates past discrimination, as the system at 
issue here clearly does, simply because the plaintiffs are unable 
to demonstrate to this Court’s satisfaction that the system was 
adopted or maintained for an invidious purpose. See Teamsters 
v. United States, supra, at 377-394 (opinion of M a r s h a l l , J.). 
In my opinion, placing such a burden on plaintiffs who chal­
lenge seniority systems with admitted discriminatory impact, a 
burden never before imposed in civil suits brought under Title 
Vll, frustrates the clearly expressed will of Congress and effec­
tively “ freeze[s] an entire generation of Negro employees into 
discriminatory patterns that existed before the Act.” Quarles v. 
Philip Morris, Inc., 279 F. Supp. 505, 516 (ED Va. 1968) 
(Butzner, J.).

11

Even if 1 were to accept this Court’s decision to impose this 
novel burden on Title Vll plaintiffs, I would still be unable to 
concur in its conclusion that the Fifth Circuit’s decision should 
be reversed for failing to abide by Rule 52(a). The majority 
asserts that the Court of Appeals in this action ignored the 
clearly-erroneous rule and made an independent determination 
of discriminatory purpose. 1 disagree. In my view, the court 
below followed well-established legal principles both in reject­
ing the District Court’s finding of no discriminatory purpose 
and in concluding that a finding of such a purpose was compel­
led by all of the relevant evidence.

The majority concedes, as it must, that the ‘‘Court of 
Appeals acknowledged and correctly stated the controlling

251a

standard of Rule 52(a).” Ante, at 290. In a footnote to its opin­
ion, the Court of Appeals plainly states that findings of fact 
may be overturned only if they are either “ clearly erroneous” 
or “ made under an erroneous view of controlling legal princi­
ples.” 624 F.2d, at 533, n. 6. Furthermore, as the majority 
notes, ante, at 283, the Court of Appeals justified its decision to 
reject the District Court’s finding that the seniority system was 
not the result of purposeful discrimination by stating: “ An 
analysis of the totality of the facts and circumstances surround­
ing (he creation and continuance of the departmental system at 
Pullman-Standard leaves us with the definite and firm  convic­
tion that a mistake has been made." 624 F.2d, at 533 (emphasis 
added: footnote omitted).1 I frankly am at a loss to understand 
how the the Court of Appeals could have expressed its conclu­
sion that the District Court’s finding on the issue of intent was 
clearly erroneous with any more precision or clarity.

The majority rejects the Court of Appeals’ clear articulation 
and implementation of the clearly-erroneous rule on the appar­
ent ground that in the course of correctly setting forth the 
requirements of Rule 52(a), the court also included the follow­
ing quotation from its prior decision in East v. Romine, Inc., 
518 F.2d 332, 339 (1975):

“ ‘Although discrimination vel non is essentially a ques­
tion of fact it is, at the same time, the ultimate issue for 
resolution in this case, being expressly proscribed by 42 
U.S.C.A. § 2000e-2(a). As such, a finding of discrimina­
tion or nondiscrimination is a Finding of ultimate fact. 
[Cites omitted]. In reviewing the district court’s findings, 
therefore, we will proceed to make an independent deter­
mination of appellant’s allegations of discrimination, 
though bound by findings of subsidiary fact which are 
themselves not clearly erroneous.’ ” 624 F.2d, at 533, 
n. 6.

1 As ihe majority acknowledges, ante, at 284-285, n. 14, this Court 
stated in United Suites v. United Suites Gypsum Co., 333 U.S. 364, 395 
(1948), that a finding of fact is clearly erroneous if "the reviewing court on 
the entire evidence is left with Ihe definite and firm  conviction that a mistake 
has been committed'' (emphasis added).



252a

The only question presented by this case, therefore, is 
whether this reference to East v. Romine, Inc., should be read 
as negating the Court of Appeals’ unambiguous acknowledge­
ment of the “ controlling standard of Rule 52.” Ante, at 290. 
The majority bases its affirmative answer to that question on 
two factors. First, the majority contends that the Court of 
Appeals must not have properly respected the clearly-erroneous 
rule because its acknowledgment that Rule 52(a) supplied the 
controlling standard “ came late in the court’s opinion.” Ante, 
at 290. Second, the Court of Appeals “ identified not only the 
mistake” that it felt had been made, “ but also the source of 
that mistake.” Ante, at 291. If the Court of Appeals had really 
been applying the clearly-erroneous rule, it should have abided 
by the “ usual requirement of remanding for further proceed­
ings to the tribunal charged with the task of factfinding in the 
first instance.” Ante, at 293.

Neither of these arguments justifies the majority’s conclusion 
that these cases must be remanded for a fourth trial on the mer­
its. 1 am aware of no rule of decision embraced by this or any 
other court that places dispositive weight on whether an accu­
rate statement of controlling principle appears “ early” or late 
in a court’s opinion. Nor does the majority suggest a basis for 
this unique rule of interpretation. So long as a court acknowl­
edges the proper legal standard, 1 should think it irrelevant 
whether it chooses to set forth that standard at the beginning or 
at the end of its opinion. The heart of the majority’s argument, 
therefore, is that the failure to remand the action to the District 
Court after rejecting its conclusion that the seniority system was 
“ bona fide” within the meaning of § 703(h) indicates that the 
Court of Appeals did not properly follow the clearly-erroneous 
rule. Before addressing this issue, however, it is necessary to 
examine the nature of the finding of “ intent” required by this 
Court in Teamsters, the procedure that courts of appeals should 
follow in reviewing a district court’s finding on intent, and the 
extent to which the court below adhered to that procedure in 
this case.

The District Court examined the four factors approved by the 
Fifth Circuit in James v. Stockham Valves & Fittings Co., 559 
F.2d 310 (1977), cert, denied, 434 U.S. 1034 (1978), to deter­

253a

mine whether the departmental seniority system at Pullman- 
Standard was adopted or maintained for a discriminatory 
purpose. Although indicating that these four factors are not the 
only way to demonstrate the existence of discriminatory intent,2 
the Court today implicitly acknowledges that proof of these 
factors satisfies the requirements of Teamsters. 3 In particular, 
the majority agrees that a finding of discriminatory intent suffi­
cient to satisfy Teamsters can be based on circumstantial evi­
dence, including evidence of discriminatory impact. See ante, at 
289; see also Arlington Heights v. Metropolitan Housing Dev. 
Corp., 429 U.S. 252, 266, 267 (1977).

Given the nature of this factual inquiry, the court of appeals 
must first determine whether the district court applied correct 
legal principles and therefore considered all of the legally rele­
vant evidence presented by the parties. This, as the majority 
acknowledges, is a “ legal” function that the court of appeals 
must perform in the first instance. Ante, at 282, 283. Second, 
the court of appeals must determine whether the district court’s 
finding with respect to intent is supported by all of the legally 
relevant evidence. This, the Court holds today, is generally a 
factual determination limited by the dictates of Rule 52(a). 
Finally, if the court of appeals sets aside the district court’s 
finding with respect to intent, either because that finding is 
clearly erroneous or because it is based on an erroneous legal 
standard, it may determine, in the interest of judicial economy, 
whether the legally relevant evidence presented to the district 
court “ permits only one resolution of the factual issue.” Ante, 
at 292. If only one conclusion is possible, the reviewing court is 
free to find the existence of the fact in question as a matter of

2 Contrary to the majority’s suggestion, ante, at 279, n. 8, I find noth­
ing in the Fifth Circuit's decision in Janies v. Stockham Valves & Fittings 
Co. to imply that these factors constitute the only relevant criteria for deter­
mining discriminatory intent.

3 This conclusion would seem to be compelled since, as the majority 
notes, the Janies factors are nothing more than a summary of the criteria 
examined by this Court in Teamsters, 431 U.S. at 355-356.



254a

law. See Bigelow v. Virginia, 421 U.S. 809, 826-827 (1975); 
Levin v. Mississippi River Fuel Corp., 386 U.S. 162, 170 (1967).

A common-sense reading of the opinion below demonstrates 
that the Court of Appeals followed precisely this course in 
examining the issue of discriminatory intent. Even the majority 
concedes that the Court of Appeals determined that the District 
Court committed “ legal error” by failing to consider all of the 
relevant evidence in resolving the first and the third James fac­
tors. Ante, at 282, 283. With respect to the first James factor— 
whether the system inhibits all employees equally from 
transferring between seniority units—the District Court found 
that the departmental system “ locked” both Negro and white 
workers into departments by discouraging transfers. The Dis­
trict Court acknowledged that Negroes might suffer a greater 
impact because the company’s previous discriminatory policy 
of openly maintaining “ Negro” jobs and “ white” jobs had 
caused Negroes to be concentrated in less desirable positions. 
The District Court concluded, however, that this differential 
impact was irrelevant in determining whether the seniority sys­
tem operated neutrally. The Court of Appeals properly held 
that the District Court erred in failing to consider the fact that 
the departmental system locked Negroes into less desirable 
jobs.

Similarly, as for the third James factor—whether the senior­
ity system had its genesis in racial discrimination—the District 
Court rejected respondents’ argument that the motives of the 
1AM were relevant. It concluded that the USW could not be 
charged with the racial bias of the IAM. The Court of Appeals 
held that this conclusion was erroneous because the “ motives 
and intent of the l.A.M. in 1941 and 1942 are significant in con­
sideration of whether the seniority system has its genesis in 
racial discrimination.” 624 F.2d, at 532.4

4 As the majority indicates in a footnote, ante, at 292, n. 23, the dis­
criminatory motive of the IAM is “ relevant . . .  to the extent that it may 
shed light on the purpose of USW or the Company in creating and maintain­
ing the separate seniority system at issue in this case." I do not read the 
Court of Appeals opinion in this action as holding anything more than that if

255a

As the majority acknowledges, where findings of fact “ are 
made under an erroneous view of controlling legal principles, 
the clearly erroneous rule does not apply, and the findings may 
not stand.’ ” Ante, at 285, quoting 624 F.2d at 533, n. 6; see 
also Kelley v. Southern Pacific Co., 419 U.S. 318, 323 (1974); 
United States v. General Motors Corp., 384 U.S. 127, 141, 
n. 16 (1966); United States v. Singer Manufacturing Co., 374 
U.S. 174, 194, n. 9 (1963); United States v. Parke, Davis & Co., 
362 U.S. 29, 44 (1960); Rowe v. General Motors Corp., 457 
F.2d 348, 356, n. 15 (CAS 1972). Having found that the District 
Court’s findings as to the first and third James factors were 
made under an erroneous view of controlling legal principles, 
the Court of Appeals was compelled to set aside those findings 
free of the requirements of the clearly-erroneous rule.5 * But once 
these two findings were set aside, the District Court’s conclu­
sion that the departmental system was bona fide within the 
meaning of § 703(h) also had to be rejected, since that conclu­
sion was based at least in part on its erroneous determinations 
concerning the first and the third James factors.

At the very least, therefore, the Court of Appeals was entitled 
to remand this action to the District Court for the purpose of 
reexamining the bona fides of the seniority system under proper 
legal standards. However, as we have often noted, in some 
cases a remand is inappropriate where the facts on the record 
are susceptible to only one reasonable interpretation. See Day- 
ton Board o f Education v. Brinkman, 443 U.S. 526, 534-537 
(1979); Bigelow v. Virginia, supra, at 826-827. In such cases, 
“ (ejffective judicial administration” requires that the court of 
appeals draw the inescapable factual conclusion itself, rather 
than remand the case to the district court for further needless 
proceedings. Levin v. Mississippi River Fuel Corp., 386 U.S., at

the USW participated in establishing a system that was designed for the pur­
pose of perpetuating past discrimination, the third Janies factor would be 
satisfied. Given that the 1AM is a party to this litigation, its participation in 
the creation of the seniority system can hardly be deemed irrelevant.

5 It is therefore irrelevant that the Court of Appeals did not specifi­
cally hold that the District Court's other factual findings were clearly errone­
ous.



256a

170. Such action is particularly appropriate where the court of 
appeals is in as good a position to evaluate the record evidence 
as the district court. The major premise behind the deference to 
trial courts expressed in Rule 52(a) is that findings of fact 
“ depend peculiarly upon the credit given to witnesses by those 
who see and hear them.” United States v. Yellow Cab Co., 338 
U.S. 338, 341 (1949); see also United States v. Oregon State 
Medical Society, 343 U.S. 326, 332 (1952). Indeed Rule 52(a) 
expressly acknowledges the importance of this factor by stating 
that “ due regard shall be given to the opportunity of the trial 
court to judge of the credibility of the witnesses.” Conse­
quently, this Court has been especially reluctant to resolve fac­
tual issues which depend on the credibility of witnesses. See 
generally United States v. Oregon State Medical Society, supra, 
at 332.

In the cases before the Court today this usual deference is not 
required because the District Court’s findings of fact were 
entirely based on documentary evidence.6 As we noted in 
United States v. General Motors Corp., supra, at 141, n. 16, 
“ the trial court’s customary opportunity to evaluate the 
demeanor and thus the credibility of the witnesses, which is the 
rationale behind Rule 52(a) . . . .  plays only a restricted role 
(in] a ‘paper case.’ ” See also Jennings v. General Medical 
Corp., 604 F.2d 1300, 1305 (CA10 1979) (“ When the findings 
of a trial court are based on documentary, rather than oral evi-

6 Only two witnesses testified during the brief hearing that the District 
Court conducted on the question whether the seniority system at Pullman- 
Standard was immune under § 703(h). Both of these witnesses were long-time 
Negro employees of Pullman-Standard who testified on behalf of respon­
dents concerning racial segregation at the plant and by the USW. There is no 
indication in the District Court’s opinion that it relied upon the testimony of 
these two witnesses in concluding that the system was bona Tide within the 
meaning of § 703(h). The remainder of the record before the District Court 
consisted entirely of 139 exhibits submitted by respondents, the company, 
and the unions concerning the development and maintenance of the seniority 
system from 1940 through the 1970’s.

257a

dence, they do not carry the same weight on appellate review” ); 
Orvis v. Higgins, 180 F.2d 537, 539 (CA2 1950).1

1 believe that the Court of Appeals correctly determined that 
a finding of discriminatory intent was compelled by the docu­
mentary record presented to the District Court. With respect to 
three of the four James factors, the Court of Appeals found 
overwhelming evidence of discriminatory intent. First, in ruling 
that the District Court erred by not acknowledging the legal sig­
nificance of the fact that the seniority system locked Negroes 
into the least remunerative jobs in the company, the Court of 
Appeals determined that such disproportionate impact demon­
strated that the system did not “ operatfe] to discourage all 
employees equally from transferring between seniority units.’ ” 
624 F.2d at 530, quoting James v. Stockham Valves & Fittings 
Co., 559 F.2d at 352. Second, noting that “ (n]o credible expla­
nation ha[d] been advanced to sufficiently justify” the existence 
of two separate Die and Tool Departments and two separate 
Maintenance Departments, a condition not found at any other 
Pullman-Standard plant, or the creation of all-white and all- 
Negro departments at the time of unionization and in subse­
quent years, the Court of Appeals concluded that the second 
James factor had not been satisfied.7 8 624 F.2d, at 533. Finally,

7 This is not to say that the clearly-erroneous rule does not apply to 
"document" cases. See United Slates v. Singer Manufacturing Co., 374 U.S. 
174, 194, n. 9 (1963). However, “ when the decision of the court below rests 
upon an incorrect reading of an undisputed document, (the appellate) court 
is free to substitute its own reading of the document." Eutectic Corp. v. 
Metco, Inc., 579 F.2d 1, 5 (CA2 1978). See also McKensie v. Sea Land Ser­
vice, 551 F.2d 91 (CA5 1977); Best Medium Pub. Co. v. National Insider, 
Inc., 385 F.2d 384 (CA7 1967), cert, denied, 390 U.S. 955 (1968); United 
Slates exrcl. Bimon v. O'Brien, 273 F.2d 495 (CA3 1959), cert, denied, 363 
U.S. 812 (1960).

8 Although the majority is correct in staling that the Court of Appeals 
did not "refer to or expressly apply the clearly-erroneous standard” in reach­
ing this conclusion, ante, at 282 (emphasis added), the appellate court s 
adherence to the requirements of Rule 52(a) is nevertheless apparent from the 
following statement:



258a

with respect to the third James factor the Court of Appeals 
found that once the role of the 1AM was properly recognized, it 
was “ crystal clear that considerations of race permeated the 
negotiation and the adoption of the seniority system in 1941 
and subsequent negotiations thereafter.” 624 F.2d, at 532.9

After reviewing all of the relevant record evidence presented 
to the District Court, the Court of Appeals concluded: “ There 
is no doubt, based upon the record in this case, about the exist­
ence of a discriminatory purpose.” Id., at 533. Because 1 fail to 
see how the Court of Appeals erred in carrying out its appellate 
function, 1 respectfully dissent from the majority’s decision to 
prolong respondents’ 11-year quest for the vindication of their 
rights by requiring yet another trial.

"The record evidence indicates that a significant number of one-race 
departments were established upon unionization at Pullman-Standard, and 
during the next twenty-five years, one-race departments were carved out of 
previously mixed departments. The establishment and maintenance of the 
segregated departments appear to be based on no oilier considerations Ilian 
the objective to separate the races.” 624 F.2d at 531 (emphasis added).

In my opinion, this statement is sufficient to satisfy the requirements of 
Rule 52(a), particularly in light of the Court of Appeals’ general acknowledg­
ment that it was bound by the clearly-erroneous rule. See supra, at 296-297.

9 Whether or not the Court of Appeals expressly ruled on the fourth 
James factor is irrelevant. As the Court of Appeals clearly stated, its conclu­
sion was based on "the totality of the facts and circumstances surrounding 
the creation and continuance of the departmental system at Pullman- 
Standard.” 624 F.2d at 533; see also id., at 532 ("It is crystal clear that con­
siderations of race permeated the negotiation and the adoption of the 
seniority system in 1941 and subsequent negotiations thereafter"), and id., at 
533 ("We consider significant in our decision . . . conditions of racial dis­
crimination which affected the negotiation and renegotiation of the system 

.” ). Even assuming that the District Court was correct in concluding that 
the system had been maintained free of any illegal purpose, the Court of 
Appeals was entitled to conclude that discriminatory intent had been demon­
strated on the basis of other relevant evidence.

j

SW INT VIII

U.S. Court of Appeals 
Fifth Circuit

United States Court of Appeals,
Fifth Circuit.*
No. 78-2449.

Dec. 6, 1982
As Corrected April 4, 1983.

Louis SWINT and Willie James Johnson, on behalf of them­
selves and others similarly situated, Plaintiffs-Appellants,

PULLMAN-STANDARD, Bessemer, Alabama, United Steel­
workers of America, Local 1466, United Steelworkers of 
America, AFL-CIO and International Association of 
Machinists and Aerospace Workers, AFL-CIO, 
Defendants-Appellees.

Oscar W. Adams, Jr., Birmingham, Ala., Elaine R. Jones, 
Washington, D.C., for plaintiffs-appellants.

Michael H. Gottesman, Washington, D.C., for defendants- 
appellees.

Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, 
Ala., Bernard Kleiman, Franklin B. Snyder, Chicago, 111., Carl 
Frankel, Pittsburgh, Pa., for Pullman-Standard.

Cooper, Mitch & Crawford, Jerome A. Cooper, C.V. 
Stelzenmuller, D. Frank Davis, Birmingham, Ala., for United 
Steelworkers of America, Local 1466, United Steelworkers of 
America, AFL-CIO & Intern. Ass’n of Machinists & Aerospace 
Workers, AFL-CIO.

259a

• Former Fifth Circuit Case, section 9(1) of Public Law 96-452— 
October 14, 1980.



260a

Appeal from the United States District Court for the North­
ern District of Alabama.

ON REMAND FROM THE SUPREME COURT 
OF THE UNITED STATES

Before Roney and Hatchett, Circuit Judges, and 
W isdom, Senior Circuit Judge.

Per Curiam:
This employment discrimination action’s first journey to this 

court resulted in a remand to the district court for further pro­
ceedings with respect to Pullman-Standard’s seniority system 
and its selection of supervisory personnel. Swint v. Pullman- 
Standard, 539 F.2d 77 (5th Cir.1976). Subsequently, the district 
court held that the seniority system did not discriminate against 
blacks and was therefore bona fide under 42 U.S.C.A. § 2000e- 
2(h), that Pullman-Standard did not follow a discriminatory 
practice or policy in job assignments after the effective date of 
the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-2(a), and 
that Pullman-Standard had rebutted the plaintiffs’ prima facie 
case of discrimination in the selection of supervisory personnel. 
We reversed and held that: (1) although the statistics disclosed 
that Pullman-Standard had made significant advancements in 
eliminating previous all-black and all-white departments subse­
quent to 1966, the total employment picture revealed that 
racially discriminatory assignments were made after the effec­
tive date of Title VII; (2) Pullman-Standard’s department sen­
iority system was not “ bona fide” within the meaning of 
section 703(h) of Title VII, 42 U.S.C.A. 2000e-2(h); and (3) the 
plaintiffs’ prima facie showing of racial discrimination in the 
selection of supervisory personnel had not been rebutted. Swint 
v. Pullman-Standard, 624 F.2d 525 (5th Cir. 1980).

The United States Supreme Court granted certiorari to review 
the seniority system issue, reversed the judgment of this court, 
and remanded the case to us “ for further proceedings consis­
tent with this opinion.” ------U .S .------- , ------ , 102 S.Ct. 1781,
1792, 72 L.Ed.2d 66, 82 (1982). Accordingly, we VACATE our 
judgment as to this issue and REMAND the case to the district

court for further proceedings to determine what impact the 
“ locking-in” of blacks to the least remunerative departments 
had on discouraging transfer between seniority units, and the 
significance of the discriminatory motivation of 1AM with 
respect to the institution of USW’s seniority system, and any 
other proceedings that may be deemed necessary in view of our 
prior opinion and that of the United States Supreme Court.

261a

Remanded.



262a

SW IN T IX

U.S. District Court 
Northern District of Alabama

UNITED STATES DISTRICT COURT 
Northern District of A labama 

Southern Division
No. CV 71-P-0955-S

Filed September 8, 1986 
Entered September 8, 1986

Louis Swint, et al.,

—vs.—

Pullman-Standard, et al.,

Plaintiffs,

Defendants.

OPINION
(Pullman-Standard IX)

For decision are certain issues still at “ Phase I” after fifteen 
years of litigation. The first trial was conducted in 1974; addi­
tional evidentiary hearings were held in 1977, 1978, and 1984. 
Although a detailed recital of the prior proceedings in the trial 
and appellate courts is unnecessary, reference must be made 
from time to time to these earlier opinions.1 Pullman-Standard 
ceased its operations in Alabama more than five years ago; 
however—absent settlement or providential intervention—this 
litigation appears destined for yet further hearings and deci­
sions.

1 Pullman-Standard 1, II FEP cases 943 (N.D. Ala. 1974); Pullman- 
Standard II, 539 F.2d 77 (5lh Cir. 1976); Pullman-Standard III, 15 FEP 
Cases 1638 (N.D. Ala. 1977); Pullman-Standard IV, 15 FEP Cases (N.D. 
Ala. 1977); Pullman-Standard V, 17 FEP Cases 730 (N.D. Ala. 1978); 
Pullman-Standard VI, 624 F.2d 525 (5ih Cir. 1980); Pullman-Standard VII, 
456 U.S. 273 (1982); Pullman-Standard VIII, 692 F.2d 1031 (5ih Cir. 1983).

263a

I. SCOPE OF INQUIRY.

Before proceeding to questions of liability, the court must 
define the scope of this inquiry—that is, the proper anterior 
(beginning) and posterior (ending) cut-off dates of this liability 
period and the appropriate class definition.

A. Anterior Cut-Off Date}

The question of the anterior cut-off is intertwined with, and 
complicated by, motions to intervene by four putative class 
members and the existence of a Title VII charge filed on March 
27, 1967, by Commissioner Shulman of the Equal Employment 
Opportunity Commission. Plaintiffs contend that this interven­
tion should be allowed, and that the anterior date should be set 
byEmployment
Opportunity Commission. Plaintiffs contend that this interven­
tion should be allowed, and that the anterior date should be set 
by reference to the EEOC charge filed on October 30, 1966, by 
one of the proposed intervenors, Spurgeon Seals. In the alterna­
tive, they argue that Commissioner Shulman’s charge should be 
the date designator. Defendants maintain that the anterior date 
should be measured by reference to October 15, 1969, the filing 
date of the charge of Louis Swint, the named plaintiff and class 
representative during the past 15 years. The court agrees with 
the defendants.2 3

Some factual background is necessary for an understanding 
of the attempted intervention. On December 9, 1975, a separate 
suit was filed in this district by William Larkin, Spurgeon Seals, 
Edward Loftin, and Jesse Terry against Pullman-Standard for 
redress of alleged Title Vll violations. Pullman-Standard I was 
already on appeal to the Fifth Circuit at the tune this new suit 
CLarkin) was filed. On January 20, 1976, Larkin was dismissed 
by the judge to whom it had been assigned, holding that the 
plaintiffs were putative class members in Pullman-Standard

2 Typically, the anterior cui-off for class membership and for the lia­
bility period are the same. Case law referring to the beginning date of mem­
bership in a class usually also refers to the beginning of the liability period 
and is relevant to the instant discussion.

3 The Fifth Circuit has succinctly stated the law: “The opening date
, r-., o t ;ii» vti Haim should be set by reference to



264a

and that their interests were adequately protected by class repre­
sentatives in Pullman-Standard. Eight years later, on March 23, 
1984, the plaintiffs in Larkin filed a motion to alter or clarify 
this dismissal. The motion was denied on April 16, 1984, with 
the judge adhering to his prior ruling and rationale.

On June 4, 1984, Larkin, Seals, Lofton, and Terry moved to 
intervene in the present case. This motion was denied on Sep­
tember 4, 1984.4

Intervention under Rule 24 of the Federal Rules of Civil Pro­
cedure, whether “ of right” or “ permissive,” may be granted 
only upon “ timely application.” The rule is silent as to what 
constitutes a timely application, and this determination has 
long been held to be within the sound discretion of the trial 
court. McDonald v. E.J. Lavino Co., 430 F.2d 1065, 1071 (5th 
Cir. 1970). The court must balance the competing interests of 
the parties and weigh any possible prejudicial effects interven­
tion would create. With respect to permissive intervention, the 
court is explicitly directed to “ consider whether the intervention 
will unduly delay or prejudice the adjudication of rights of the 
original parties.” FED. R. Civ. P. 24(b). This consideration is 
primary in the court’s determination. W r i g h t  & M i l l e r , F e d ­
e r a l  P r a c t i c e  a n d  P r o c e d u r e  § 1913. All circumstances of 
the case are to be examined, particularly whether the would-be 
intervenor was in a position to have requested intervention at 
any earlier time. Id. at §§ 1913, 1916.5 6

In the case at bar, the would-be intervenors were explicitly 
informed by the opinion issued in Larkin on January 20, 1976, 
of the existence of Pullman-Standard and of their interest in it.

4 At the same time, the court denied a motion that had been filed on 
February 24, 1984, seeking to designate Seals as a class representative in 
Pullman-Standard, even though at the time he was neither a party nor an 
intervenor.

5 See also Howard v. McLucas, 782 F.2d 956, 959 (11th Cir. 1986); 
Diaz v. Southern Drilling Corp., 427 F.2d 1118, 1125 (5th Cir. 1970).

6 The court here picks a date certain, although, in all likelihood, the 
intervenors knew of Pullman-Standard and their interest in it no later than

1

No attempt was made to intervene in Pullman-Standard until 
1984, after the case had twice been resubmitted for final deci­
sion. In light of the would-be intervenors’ knowledge, eight 
years is an unreasonable time to delay in taking action purport­
edly necessary to protect their rights. Such a belated effort is 
untimely by the most lenient standards. Even absent any legal 
bar to such an attempt, the equitable concept of laches dictates 
that the motion be denied. Inexcusable delay, lack of diligence, 
and prejudice to the defendants justify this application of 
laches. Occidental Life Ins. Co. o f California v. EEOC, 432 
U.S. 355, 373 (1977).

Allowing intervention would arguably broaden the temporal 
scope of the case, potentially increasing the liability of the 
defendants fifteen years after the case was filed. There has been 
no showing that denial of intervention would unfairly prejudice 
the would-be intervenors, who, as the case now stands, are class 
members whose interests are being adequately protected by the 
class representatives. They will hardly be deprived of their “ day 
in court,” as plaintiffs contend. The intervention motions were 
made only after the original plaintiffs had secured a partial 
decision in favor of the class; absent a showing of significant 
prejudice to the applicants and sound justification for their 
inordinate delay in seeking intervention, the court finds no 
basis for granting such motions.

Plaintiffs have alternatively moved that EEOC Commis­
sioner Shulman’s charge of March 27, 1967, be used as the date 
designator for beginning the period of liability. This mption 
should likewise be denied.

Although the Commissioner’s charge did allege some of the 
same violations of Title Vll as are alleged in the instant case, it 
did not list any of the named plaintiffs or would-be intervenors

265a

ihe dale the Larkin complaint was filed. Their attorneys were the same as 
those for plaintiffs in Pullman-Standard, and these attorneys obviously had 
knowledge of the relation between the two cases. The court, however, will 
not indulge in speculation as to what information w*as communicated 
between attorneys and clients, but will make findings only on that evidence 
which is squarely before it.



266a

as aggrieved or charging parties.7 It did not progress beyond 
internal EEOC level. There were findings of fact issued8 and an 
EEOC decision made which found reasonable cause to believe 
that respondents had engaged in unlawful employment prac­
tices.9

A decision finding reasonable cause under the then-existing 
EEOC guidelines meant only that the matter merited an attempt 
to conciliate, not that it was substantial enough to be litigated.10 
145 BNA Daily Labor Report, E-l, et seq. (July 27, 1977). No 
evidence was presented at any of the hearings before this court 
to show that this charge proceeded beyond this point. No evi­
dence of conciliation or recommendation to the Attorney Gen­
eral to litigate the cause was brought forth.11 12

The EEOC has sought neither litigation of the Commission­
er’s charge nor intervention in the case sub judice.n It is only at

7 The Commissioner’s charge, as such, was never introduced into evi­
dence. The findings of fact and the EEOC decision based on it were.

8 The findings of fact were entered into evidence as Plaintiff’s Exhibit 
60 in the 1974 hearing. Pullman-Standard and the USW Local and AFL-CIO 
were named as respondents. These findings, although of evidentiary value, 
are not binding on the court in its de novo consideration of a Title VII 
action. See also EEOC Decision 72-1704, page 3.

9 The decision was entered into evidence as Plaintiff’s Exhibit 58. For 
purposes of rendering a decision, the EEOC consolidated Commissioner 
Shulman’s charges and the charges filed by Terry, Lofton, Seals, and Larkin.

10 On July 20, 1977, the EEOC adopted a resolution modifying this 
policy. The standard of review was changed so that a finding of reasonable 
cause was thenceforth to indicate that a claim merited litigation if concilia­
tion failed. The decision whether to litigate was to be made by the Commis­
sion. EEOC Compliance Manual § 30.1.

11 At the time this charge was filed, the EEOC did not have the power 
to bring suit eo nomine, but it did have the authority to recommend the filing 
of suit by the Attorney General of the United States. Public Law 88-352. 
§ 705(g)(6) of the Civil Rights Act of 1964.

12 Under the present law, the EEOC’s power to bring suit is not subject 
to statutory time limitations. 42 U.S.C. § 2000e-5(O(O. as amended. See
Occidental Life Insurance Company v. EEOC, 432 U.S. 355 (1977); EEOC

267a

plaintiff’s instance that this charge has been raised for the 
court’s consideration. Plaintiff’s motion on this point is with­
out merit. The Commissioner’s charge is analogous to a private 
EEOC charge which was not pursued through the administra­
tive process into the courts. It retains no legal significance and 
has no bearing on the instant case’s temporal boundaries. It has 
died of old age and neglect.

Having decided that Louis Swint’s charge of October 15, 
1969, controls the anterior cut-off in this suit, the court must 
now decide how many days prior to this charge the liability 
period will include. IThe law as originally enacted provided a 
ninety-day period. Public Law 88-352, Civil Rights Act of 1964. 
An amendment enacted on March 24, 1972, extended this 
period to 180 days. 42 U.S.C. 2000e-5(e).

Swint’s charge was filed on October 15, 1969, and the EEOC 
issued a right-to-sue letter on September 21, 1971. The charge 
did not complain of a violation occurring within 180 days of 
enactment of the 1972 amendment nor was it pending before 
the EEOC on or after the amendment’s enactment.13

v. Guaranty Savings <Sc Loan Association, 561 F.2d 1 135, 1 137 (5ih Cir. 
1977); EEOC v. Griffin Wheel Co., 511 F.2d 456, 457 (5ih Cir. 1975), The 
court, however, does maintain the authority to reach a just result where 
defendant would be prejudiced by plaintiff's inordinate delay in bringing 
suit. This inherent power of the court applies to actions involving the EEOC 
just as it does to suits by private litigants. Occidental Life, 432 U.S. at 373. 
An attempt by EEOC to bring suit to intervene at this point would be viewed 
as untimely by the court.

13 Section 14 of Public Law 92-261 provided that: “The amendments 
made by this Act to section 706 of the Civil Rights Act of 1964 shall be appli­
cable with respect to the charges pending with the Commission on the date of 
enactment of this Act (March 24, 1972) and all charges filed thereafter."

The bare language of the 1972 amendment has been broadened somewhat 
by judicial interpretation in regard to what constitutes a timely complaint. 
The Supreme Court has allowed an action filed 180 days after the alleged vio­
lation to go forward, because it occurred within 180 days prior to the effec­
tive date of the amendment. The law at the lime of filing required filing 
within 90 days of the violation. International Union o f  Electrical, Radio and 
Machine Workers v. Robbins <£ Myers. Inc., 429 U.S. 229 (1976). The Ninth 
Circuit has held that it was not critical for the alleged’ violation to have



:

In the opinion of the court, the proper anterior cut-off is 
ninety days prior to the filing of Swint’s EEOC charge.14 
Accordingly, the period of potential of liability commenced 
July 17, 1969.

B. Posterior Cut-Off.

In its 1980 opinion, the Fifth Circuit of Appeals found liabil­
ity on certain class claims but did not define the liability 
periods.15 Pullman-Standard VI, 624 F.2d 525 (5th Cir. 1980). 
In 1983, the Circuit remanded the cause to this court for pro­
ceedings in conformity with its 1980 opinion and the interven­
ing Supreme Court opinion. Pullman-Standard VIII, 692 F.2d 
1031; Pullman-Standard VII, 456 U.S. 273. Much of the task 
now before this court is to determine the ending dates for viola­
tions found to exist by the Circuit.

In the pretrial order of September 19, 1983, this court 
rejected defendants’ position that claims of liability after 1974 
were untenable. The plaintiffs were allowed at the 1984 hearing 
to present evidence of liability up to the date of that hearing.

Due to the complexity of the case, the court must determine 
appropriate posterior cut-off dates for each class claim sepa­
rately. This issue will be addressed on that basis in subsequent 
portions of this opinion.

occurred within 180 days of the amendment if the charge were still pending 
before the EEOC on or after the amendment’s effective date. Inda v. Untied 
Airlines, 565 F.2d 554 (9th Cir. 1977).

The question here, however, is not whether Swint’s complaint was timely 
filed. The class’s temporal scope cannot be expanded by an attempt to analo­
gize these holdings to the situation now before the court.

14 See Payne v. Travenol Laboratories, 673 F.2d 798 (5th Cir. 1982).

15 The Supreme Court subsequently granted certiorari regarding the 
bona fides of the seniority system and reversed the Fifth Circuit on us find­
ing of liability on that issue. Pullman-Standard VII, 456 U.S. 273 (1982). The
seniority system issue is before the court for determination of liability. The
period of liability would need to be defined if liability were found.

269a

C. Class Definition.
t

The class definition established in the pretrial order of June 
5, 1974, remains in effect. The order stated that “ (Tjhis action 
may hereafter be maintained on behalf of all black persons who 
are now or have (within one year prior to any charges under 
Title Vll) been employed by defendant company as production 
or maintenance employees represented by the United Steel­
workers.” 16

11. DISCRIMINATORY SELECTION OF 
SUPER VISOR Y PERSONNEL

The Court of Appeals in Pullman-Standard VI reversed this 
court’s finding that the company had successfully rebutted 
plaintiff’s prima facie case of racial discrimination in the selec­
tion of supervisory personnel after the effective date of Title 
VII. This ruling was not reviewed by the Supreme Court in 
Pullman-Standard VII or vacated by the appellate court in 
Pullman-Standard VIII l7. Accordingly, it is to be treated, 
despite the company’s protest, as the law of the case. At the 
1984 hearing, no additional evidence was offered with respect 
to claims of discrimination in the appointment of supervisory 
personnel after 1974, and the court accordingly denied any 
claim with respect to this issue after that point. 1984 Hearing 
Transcript, Vol. 1, 5. As to these claims, therefore, the defen­
dant company is subject to liability upon proof of damages at a 
Phase 11 hearing for the period from July 17, 1969, until August,
16, 1974.

i

i

16 Arguably, ihis definition should be redrafted to conform to the lim­
its imposed by the court’s rulings regarding the cut-off dates. The result, 
however, would be the same with or without this change. Limits on recovery 
by members of the class are clearly laid out in the body of this opinion. As 
this case moves into Phase II, this opinion must be looked to in its entirety 
for limitations on the scope of liability.

17 Pullman-Standard VI, 624 F.2d 525 (5th Cir. 1980); Pullman- 
Standard Vll, 456 U.S. 273 (1982); Pullman-Standard VIII, 692 F.2d 1031 
(5th Cir. 1983).



270a

III. SENIORITY SYSTEM.

Pursuant to the opinions of the Supreme Court in Pullman- 
Standard VII and the Fifth Circuit in Pullman-Standard VIII, 
this court has considered afresh the bona fides of the United 
Steel Workers’ seniority system at Pullman-Standard.18 A 
three-day evidentiary hearing was held in 1984 to allow the pre­
sentation of exceptional additional evidence and newly discov­
ered evidence. A broad range of evidence was presented. 
Anecdotal and expert witnesses testified; statistical exhibits and 
depositions were received. Post-trial briefs were submitted. The 
evidence introduced at this hearing, as well as the evidence pre­
viously in the record, has been considered by the court in mak­
ing its determination regarding the validity of the seniority 
system. The essential facts relating to this seniority system were 
outlined in Pullman-Standard V, 17 FEP Cases at 732-39, and 
need not be repeated, but are adopted by reference as findings 
of the court.

The Fifth Circuit specifically instructed this court to address 
the effect of the IAM’s discriminatory motivation on the insti­
tution of USW’s seniority system.19 Plaintiffs argue that the 
racial animus of the 1AM should be imputed to the USW. Such 
a finding would be contrary to the evidence taken as a whole. 
The LAM’s discriminatory behavior is detailed in Pullman- 
Standard V.20 In addition to the evidence discussed therein,

18 The Supreme Court reversed the Fifth Circuit's judgment regarding 
the bona fides of the seniority system, and remanded the case to that court 
for further proceedings consistent with the Supreme Court opinion. Pullman- 
Staadard VII, 456 U.S. 273 (1982). The Fifth Circuit, in turn, vacated its 
prior judgment regarding this issue, and remanded the case to this court for 
further proceedings to determine what impact the ‘locking-in‘ of blacks to 
the least remunerative departments had on discouraging transfer between 
seniority units, and the significance of the discriminatory motivations of 
1AM with respect to the institution of USW’s system . . . ."  Pullman- 
Standard VIII, 692 F.2d U.S. at 1031-32.

19 Pullman-Standard VIII, 692 F.2d 1031 (5th Cir. 1983).
20 17 FEP 730 (N.D.AIa. 1978). In addition to the conduct described

therein, the 1AM also followed a policy under its printed ritual (in effect until
1948) of allowing only "qualified white candidates" to be proposed for
membership. Joint Appendix to Writs for Certiorari, 346. (Plaintiffs' request
for judicial notice of adjudicative facts).

271a

extensive testimony and deposition evidence were presented at 
the 1984 hearing which established that blacks were involved in 
the formation of the USW and the negotiation of its 1954 con­
tract.21 * * * The evidence, both at the 1984 hearing and at earlier 
hearings, indicates that the USW desired to represent all main­
tenance and production workers at Pullman-Standard regard­
less of race. The LAM's motives cannot fairly be imputed to the 
USW. Even if USW’s acquiescence in lAM’s discriminatory 
conduct were shown, it would not be equivalent to discrimina­
tory purpose on the part of the USW. Pullman-Standard VII, 
456 U.S. at 293, n.23.‘

In Pullman-Standard VII, the United States Supreme Court 
stated the applicable standard regarding discriminatory intent:

Differentials among employees that result from a seniority 
system are not unlawful employment practices unless the 
product of an intent to discriminate. It would make no 
sense, therefore, to say that the intent to discriminate 
required by Section 703(h) may be presumed from such an 
impact. As Section 703(h) was construed in Teamsters, 
there must be a finding of actual intent to discriminate on 
racial grounds on the part of those who negotiated or 
maintained the system. That finding appears to us to be a 
pure question of fact.

Pullman-Standard VII, 456 U.S. at 80. This court finds no 
intent to discriminate on the part of the USW.

The Fifth Circuit further instructed this court “ to determine 
what impact the ‘locking-in’ of blacks to the least remunerative 
department had on discouraging transfer between seniority 
units.’’ Pullman-Standard VIII, 692 F.2d at 1031. The Fifth

21 Deposition of Joseph Jeneske, USW international representative at 
the 1954 contract negotiations. Defendants' Exhibit 1301, 1984 Hearing. See 
also Hearing Transcript, Vol. II, 4-5. Rosters of USW officers from 1965 
through 1973 showed extensive involvement of blacks in leadership of the 
union. Joint Appendix for Writs of Certiorari, 66-89 (copy of Co. Ex. 309). 
Also, the anecdotal evidence throughout this case's long history has alluded 
repeatedly to blacks’ active role in the formation and leadership of the union.

22 Inequities did exist, but the court finds that they resulted ultimately 
from the initial assignments made by the company.



272a

Circuit had previously concluded that the assignment of blacks 
in a racially discriminatory manner to the least remunerative 
departments did not cease on the effective date of Title VII. 
Pullman-Standard VI, 624 F.2d 525 (5th Cir. 1980). These 
assignments, however, were the province of the company, not 
the union.

Any “ locking-in” effect produced by the departmental 
seniority system was felt equally by blacks and whites until 
1972. In 1972, an agreement between the company and the 
Office of Federal Contract Compliance gave certain advantages 
to specified groups of black employees in regard to interdepart­
mental transfers.23 This agreement sought to correct inequities 
created by discrimination in initial assignments, not inequities 
in the application of the seniority system. Evidence showed that 
reluctance to transfer between departments turned on facts 
extraneous to Title VII issues, such as skill levels and personal 
preference.

Whether a seniority system is bona fide in a Title VII context 
is controlled by International Brotherhood o f Teamsters v. 
United States.1* That case applied a four-pronged test to the 
seniority system under scrutiny.23 In Pullman-Standard V, this 
court used these guidelines and considered the totality of the 
circumstances in its detailed analysis of the USW’s system. 
Nothing presented at the 1984 hearing has changed the court’s

23 Memorandum of Agreement (between Pullman-Standard and the 
United Slates Department of Labor, OFCC, May 19, 1972), Defendants’ 
Exhibit 272, 1974 Hearing.

24 431 U.S. 324 (1977).

25 At the 1984 hearing, plaintiffs attempted to embark on a new theory 
to invalidate the seniority system. The presentation centered on dual applica­
tion of the seniority system. Plaintiffs’ attorneys were permitted to voice 
their theory at length and to question two witnesses extensively on this issue. 
The court then stated, “ The problem (here) is that that is the identical evi­
dence the Court called for and heard back in 1977 and ’78, and the only thing 
we are doing here is supplementing [the record) if there is some unusual or 
exceptional reason why some evidence couldn’t have been received back at 
that time." 1984 Hearing, Transcript Vol. II, 48. Given this case’s lengthy 
history and the ample opportunity previously afforded plaintiffs to present 
evidence of all types, this attempt was untimely and beyond the clearly 
defined scope of the 1984 hearing.

273a

opinion that the seniority system sub judice is bona fide and 
falls within the immunity provisions of Section 703(h) of the 
Civil Rights Act. The defendants have successfully carried their 
burden of showing that the seniority system is bona fide, and 
that the differences caused thereunder were not the result of any 
intent to discriminate on the basis of race.

Having considered the totality of the evidence presented at 
the various hearings and all submissions of counsel, the court 
finds that USW’s seniority system at Pullman-Standard was 
bona fide under the terms of Section 703(h) of the Civil Rights 
Act.

1V. DISCR I MINA TOR Y DEPA R TMENTA L 
ASSIGNMENTS.

The court of appeals in Pullman-Standard VI reversed this 
court’s finding that the company had not made racially discrim­
inatory initial job assignments after the effective date of Title 
VII.26 27 This ruling was not reviewed by the Supreme Court in 
Pullman-Standard VII or vacated by the appellate court in 
Pullman-Standard VIII.21 Accordingly, it is to be treated, 
despite the company’s protests, as the law of the case. Estab­
lishing the date this practice ceased is the task left to this court.

Both sides have presented reams of statistical evidence on this 
issue. The courts and legal scholars have expressed many com­
mon sense caveats concerning the use of statistics in Title VII 
cases. Statistics showing racial imbalance are probative of dis­
criminatory conduct. They are not, however, irrefutable.28 In 
most instances, infirmities and omissions in statistical evidence 
affect its probative value not its admissibility. Bazemore v. Fri­
day, ____U.S_______ 106 S.Ct. 3000 (1986). The court should

26 624 F.2d 525 (5th Cir. 1980).

27 Pullman-Standard VII. 456 U.S. 273 (1982); Pullman-Standard 
VIII, 692 F.2d 1031 (5th Cir. 1983).

28 Defendants’ rebutt’al may take various forms. They may impeach the 
reliability of the evidence, offer rebuttal evidence, or bring into question the 
probative value of plaintiff’s evidence. Dotliard v. Ruwlinson, 433 U.S. 321, 
338-39 (1977) (Rehnquist, J., concurring).



274a

not consider statistical evidence in a vacuum,29 30 and, indeed, 
should be cognizant of the potential for manipulation of statis­
tics in Title VII cases. These cases all too frequently develop 
into “ contests between college professor statisticians who revel 
in discoursing about advanced statistical theory.” Otero v. 
Mesa County Valley School District No. 51, 470 F. Supp. 326, 
331 (D.Colo. 1979), a ff’d, 628 F.2d 1271 (10th Cir. 1980).“  
Analysis of statistical evidence requires attention to the precise 
questions addressed by the statistics. The limits of statistical 
tests in supporting causal inferences must be recognized.31 In 
the case at bar, intrinsic non-quantitative evidence concerning 
the selection process has been considered in conjunction with 
the statistical evidence from both sides.

The statistical evidence was generally divided into two time 
periods—1964 to 1969 and 1969 to 1974. As might be expected, 
the defendants’ and plaintiffs’ experts took different statistical 
approaches and arrived at somewhat conflicting conclusions. 
The court carefully studied the evidence presented by the parties 
and at trial presented to the parties for their comment another 
standard statistical model.32 Plaintiffs’ expert acknowledged 
that a considerable change had taken place in the job class dis­
tribution by 1969.33 Defendants’ expert found a statistical dif­
ference between the pre-1969 and post-1969 periods, with a 
rough parity between the races in terms of job class assignments 
from 1969 forward.34 The alternative study prepared by the

29 See Teamsters, 431 U.S. at 340.

30 See Schlei & Grossman, Employment Discrimination Law (1983 
Supplement, 166); Richey, Charles, Manual on Employment Discrimination 
Law and Civil Rights Actions in the Federal Courts, A-29 (August 1985).

31 Baldus & Cole, Statistical Proof o f  Discrimination, § 9.42. The Fifth 
Circuit Court of Appeals has cautioned the courts to give “ close scrutiny (to 
thel empirical proof” on which statistical models are based. Pettway v. 
American Cast Iron Co., 494 F.2d 211. 230-31, n.44 (5th Cir. 1974).

32 Court's Exhibit 1. 1984 Hearing.

33 1984 Hearing Transcript, Volume I, 90.

34 1984 Hearing Transcript, Volume II, 165 (testimony of Robert Her­
rick in reference to Company’s Exhibit 1208, pages 5-7).

275a

court indicated that post-1969 assignments were not racially 
tainted.

An extrinsic event lies in with and bolsters this statistical evi­
dence as to a change in early 1969. In 1968, negotiations were 
begun between the company and the Department of Labor. In 
January 1969, the company agreed to a conditional memoran­
dum of understanding designed to enhance opportunities for 
Pullman’s black employees.35 This agreement put into motion 
the engines of change. The company cast its contract compli­
ance officers—one black and one white—in the role of equal 
employment counselors. They encouraged blacks in “ low ceil­
ing” departments to transfer to other departments, monitored 
the filling of temporary vacancies to insure fair allotment to 
blacks, and encouraged black employees and their families to 
take advantage of the company’s vocational education tuition 
program.34

Based on the statistical and non-statistical evidence, the court 
finds that Pullman-Standard’s practice of making racially dis­
criminatory initial job assignments ceased as of February 1969. 
The changes reflected by the evidence at that point were not 
mere tokenism. These changes were substantial and legally sig­
nificant.37 Since the period of liability in this case does not com-

35 This agreemeni was never termed official because the union never 
voted its approval. Nevertheless, the company put in place programs which 
affected real changes in policy. As was staled in Pullman-Standard 1.

The memorandum contained provisions similar to those later incorpo­
rated in the 1972 agreemeni, including transfer rights with seniority 
carryover for black employees from four “ low-ceiling” departments or 
to the five formerly all-white departments. (A black employee had 
already been assigned to one of the five “ white only" departments, 
plant protection.)

Pullman-Standard /, II FEP Cases at 947, n.15.

36 The vocational education program allowed employees and their fam­
ilies to obtain outside training and education at the company’s expense. This 
program was particularly significant in the training of black welders. Id. at 
947.

37 The question of legal significance is ultimately one for the court, 
rather than an expert witness, to decide. The court must integrate the circum-



276a

mence until July 17, 1969, the effect of this ruling is that the 
company faces no liability on these claims.

V. CONCLUSION

Based on the foregoing discussion, the court finds and con­
cludes as follows:

1. The period of potential liability commenced on July 17, 
1969.

2. ' Plaintiffs’ motion that Commissioner Shulman’s charge 
of March 27, 1967, be used as the date designator for the open­
ing of the class is denied.

3. The class definition remains as stated in the pretrial order 
of June 5, 1974, but with liability periods for affected sub­
classes as outlined in this opinion.

4. Regarding discriminatory selection of supervisory person­
nel, the defendant company is subject to liability upon proof of 
damages at Phase 11 proceedings from July 17, 1969, until 
August 16, 1974.

5. The USW seniority system is bona fide. Judgment is 
entered in favor of the defendants on claims of discrimination 
wrought by the seniority system.

6. Regarding plaintiff’s claims of racially discriminatory ini­
tial job assignments, judgment is entered in favor of detendant 
company.

stances with the statistics. Mere technical statistical significance may or may 
not amount to legal significance, depending on the surrounding facts. Baldus 
& Cole, Sialislical Proof o f  Discrimination, §§ 9.22, 9.41. “ [TJhe levels of 
significance required of a claimant may vary from one subject matter area to 
another under the same legal theory, and . . . the required level of signifi­
cance is a question of law to be decided by the court and not an expert wit­
ness.” Id. at § 9.41.

277a

So O r d e r e d .

This the 8th day of September, 1986.

/s /  Sa m  C. P o i n t e r , J r . 
United States District Judge

A TRUE COPY
CHARLES T. CLIVER, CLERK 

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF ALABAMA

B y : / s/  S u s a n  C o k e r

Susan Coker 
Deputy Clerk

1



278a

SVV1NT X

U.S. District Court 
Northern District of Alabama

UNITED STATES DISTRICT COURT 
Northern District of Alabama 

Southern Division

No. CV 71-P-0955-S

Filed November 26, 1986 
Entered November 26, 1986

LOUIS SwiNT, et al.,
Plaintiffs,

— v s .—

P ullman-Standard, et ah,
Defendants.

Memorandum of Opinion

This cause is before the court on a variety of post-judgment 
motions by both parties. All concerned would like to lay this 
case to its final rest, but, unfortunately, this is not yet to be. 
Despite the frustrations involved in taking another appeal, both 
sides and this court agree that appellate review and guidance 
would be beneficial prior to proceeding into Phase II on the 
issue of discriminatory supervisory promotions.

Turning first to plaintiffs’ motions, the court is presented 
with a motion under Fed.R.Civ.P. 59(e) to alter or amend its 
judgment of September 8, 1986, regarding the statute of limita­
tions applicable to the issues of initial assignments, supervisory 
promotion, and, to the extent they are successful on appeal in 
regard to it, the seniority system.1 * 2 The plaintiffs would have the

1 Plaintiffs have not sougtu a Rule 59 amendment of judgment on the 
seniority system issue, but they do seek entry of a final judgment pursuant to

279a

court abandon the law of the case and apply a six year statute of 
limitations via retroactive application of Wilson v. Garcia and 
adherence to Milter v. Hall’s Birmingham Wholesale Florist 
and, tangentially, to Jones v. Preuitt & Mauldin.1

The Supreme Court in Wilson ruled that each state was to 
choose one statute of limitations as applicable to all Section 
1983 actions arising in that state. The Court hopes to achieve 
uniformity, certainty, and minimization of unnecessary litiga­
tion by mandating the abandonment of case-by-case selection 
of statute of limitations in the civil rights arena. Wilson v. Gar­
cia, 471 U.S. 261 (1985), a ff’g Garcia v. Wilson, 731 F.2d 640 
(10th Cir. 1984). It must be noted that the very day it decided 
Wilson the Tenth Circuit declined to apply Wilson retroac­
tively. The Tenth Circuit specifically ruled that Wilson be 
applied prospectively only. Jackson v. Bloomfield, 731 F.2d 
652, 653-55 (10th Cir. 1984) (en banc).

The Eleventh Circuit and, subsequently, the district court in 
Jones applied Alabama’s six year statute of limitations for tres­
pass, Code of Alabama § 6-2-34(1), to actions brought under 42 
U.S.C. § 1983. Jones v. Preuitt & Mauldin, 763 F.2d 1250 (11th 
Cir. 1985), on remand, 634 F.Supp. 1520 (N.D. Ala. 1986).

In July 1986, the district court in Miller applied this same six 
year statute to an action brought under 42 U.S.C. § 1981. The 
ruling in Miller has not undergone appellate review as of the 
date of this opinion, therefore, the Eleventh Circuit has not 
declared its opinion concerning the correctness of this position. 
Miller v. Hall’s Birmingham Wholesale Florist, 640 F.Supp. 
948 (N.D. Ala. 1986).

Rule 54(b) on all issues decided adversely lo plaintiffs and plaintiff class. The 
court presumes that plaintiffs would seek the same broad period of liability 
to apply to all of their claims. The court Finds it appropriate that final judg­
ment be entered regarding its rulings concerning the seniority system, and 
that they be reviewed by-the appellate court.

2 Wilson v. Garcia, 471 U.S. 261 (1985), a/J'g Garcia v. Wilson, 731 
F.2d 640 (10th Cir. 1984). Miller v. Hall's Birmingham Wholesale Florist, 
640 F.Supp. 948, (N.D. Ala. 1986). Jones v. Preuitt <£ Mauldin, 763 F.2d 
1250 (11th Cir. 1985), on remand, 634 F.Supp. 1520 (N.D. Ala. 1986).

i



280a

In the case at bar, the one year statute of limitations was 
incorporated into the class definition in the pretrial order. It 
was explicitly stated in Pullman-Standard I by this court. The 
Fifth Circuit repeated this limitation in both Pullman-Standard 
II  and Pullman-Standard VI with no adverse comment.1 All 
claims brought under 42 U.S.C. § 1981 which arose outside the 
one year period have been denied by this court’s ruling. This 
time restriction was never the subject of appeal, and, thus, 
became the law of the case. Defendants have relied on this stat­
ute of limitations throughout this case’s long history. Nothing 
plaintiffs have presented has persuaded this court that this reli­
ance was unfounded, that retroactive application of Wilson and 
Miller is proper3 4 or that there are valid grounds for diverging 
from the law of the case.5 6

The applicability of the six year statute of limitations to 42 
U.S.C § 1981 actions in Alabama is still a debatable issue, par­
ticularly in cases which were litigated prior to Wilson and 
Miller.* The equities in the case at bar militate convincingly

3 Pullman-Standard 1, 11 FEP Cases 943. 948. n.20 (N.D. Ala. 1974); 
Pullman-Standard 11, 539 F.2d 77, 85. n.17 (5lh Cir. 1976); Pullman- 
Standard VI, 624 F.2d 525. 526 (5th Cir. 1980).

4 The Eleventh Circuit has applied Wilson retrospectively to a 42 
U.S.C. { 1983 claim in Williams v. City o f  Atlanta, 794 F.2d 624, 627-28 
(11th Cir. 1986). The appellate court clearly stated that it found this applica­
tion proper because the plaintiffs had no precedent for waiting more than 
two years to file suit (the longest period which had been applied in Georgia 
for a Section 1983 claim for money damages). Plaintiffs had not relied upon 
any ruling of the court in their suit to the contrary nor upon any other prece- - 
dent. The case at bar is clearly distinguishable by the defendants' long years 
of reliance on the one year statute of limitations.

5 See Leggett v. Badger, 798 F.2d 1387 (lllh  Cir. 1986); Stanley v. 
United Slates, 786 F.2d 1490, 1498 ( l l lh  Cir. 1986); Dorsey v. Continental 
Casualty Company, 730 F.2d 675. 678 (1 ilh Cir. 1984); and IB Moore's Fed. 
Prac. 1 0.404.

6 In the interest of achieving the uniformity, certainty, and minimiza­
tion of unnecessary litigation sought by the Supreme Court through its opin­
ion in Wilson, the Eleventh Circuit has stated that “ (llhe same single
limitations period should apply to § 1981 claims [as applies to § 1983 claims).

281a

toward strict adherence to the law of the case doctrine on this 
issue. The parties have relied throughout the case’s fifteen year 
life on the one year statute of limitations as dictated by Section 
6r2-39(a)(5) of the Alabama Code.7 * This provision had been 
applied to Section 1981 actions by federal courts in Alabama 
before Miller was decided. Ingram v. Steven Robert Corp., 547 
F.2d 1260, 1263 (5th Cir. 1977); Buckner v. Goodyear Tire & 
Rubber Company, 476 F.2d 1287 (5th Cir. 1973); a /f’g 339 
F.Supp. 1108 (N.D. Ala. 1972).1

The Supreme Court has established a three-part analysis for 
considering retroactive application of judicial decisions. Chev­
ron Oil v. Huson, 404 U.S. 97, 106-07 (1971).9 The final factor 
of weighing likely resultant inequities and hardships is the most 
persuasive in the instant case. After careful'consideration of all 
facts, the court finds that substantial inequity, hardship, and

Goodman v. Lukens Steel Company, 777 F.2d 113, 120 (3d Cir. 1985).” 
Friedlander v. Troutman, Sanders, Locker man & Ashmore, 788 F.2d 1500, 
1503, n.2 (11th Cir. 1986). The court has no quarrel with this proposition, 
but it does not agree that the ruling in Miller should be retroactively applied 
in knee-jerk fashion.

7 This section was repealed in 1985, and replaced by Ala. Code § 6-2- 
38 which provides a two-year statute of limitations.

8 See also Ray v. TVA, 677 F.2d 818, 822 (ll lh  Cir. 1982), cert, 
denied, 459 U.S. 1 147 (1983) (A Veterans Preference Act case in which the 
court stales that Alabama's one year statute of limitations is not so short as 
to frustrate federal policy); Watkins v. Scott Paper Co., 530 F.2d 1159, 1196 
(5th Cir.), cert, denied, 429 U.S. 861 (1976) (A Title VII backpay case which 
applied the one-year statute of limitations).

9 The court stated: (1) "(T|o be applied nonreiroactively (the decision] 
must establish a new principle of law either by overruling clear past precedent 
on which litigants may have relied . . .  or by deciding an issue of first 
impression whose resolution was not clearly foreshadowed . . . .” (2) The 
history of the rule, its purposes, and whether retrospective application would 
further or retard its operation must be considered. (3) The inequity, hard­
ship, and injustice that would result from retroactivity must be weighed.

It may certainly be argued that a decision in favor of nonretroactivity in 
this case could be premised on the first factor as well as on the third. This 
court, however, does not view Wilson as having overruled Buckner, nor does 
it view Miller in any way binding as precedent. The court, therefore, will not 
rely on this portion of the Chevron analysis.



282a

injustice would result from retroactive application of Wilson 
and Miller. The plaintiffs’ motion for alteration or amendment 
of judgment under Fed.R.Civ.P. 59(e), therefore, is DENIED.

The plaintiffs have further moved for entry of final judgment 
under Fed.R.Civ.P. 54(b) of all rulings decided adversely to 
them and to the plaintiff class. The court finds this request 
appropriate, except as to those rulings which relate to the selec­
tion of supervisory personnel during the period from July 17, 
1969, to August 16, 1974. The court’s denial of plaintiff’s Rule 
59 motion regarding the appropriate statute of limitations in no 
way impedes plaintiffs’ right to appeal that issue. The plain­
tiffs’ motion for entry of final judgment under Fed.R.Civ.P. 
54(b) is Granted, subject to the aforementioned exception.

Defendant, Pullman-Standard, has made motions to alter or 
amend the judgment under Fed.R.Civ.P. 52(b) and 59(e). The 
company contends that there has never been a finding of inten­
tional discrimination in its selection of supervisory personnel. 
The Fifth Circuit specifically found that the company had 
failed to rebut plaintiffs’ prima facie case regarding racially dis­
criminatory selection of supervisory personnel. Pullman- 
Standard VI, 624 F.2d 525, 536 (5th Cir. 1980). This issue was 
not a subject of the Supreme Court appeal, and, thus, became 
the law of the case. Stanley v. United States, 786 F.2d 1490 
(11th Cir. 1986); Dorsey v. Continental Casualty Co., 730 F.2d 
675 (11th Cir. 1986). The court finds that this holding is ripe for 
Phase 11 proceedings, and that the plaintiffs will not be required 
to prove intentional discrimination by the company at that 
point. Defendant Company’s motions under Fed. R.Civ.P. 
52(b) and 59(e) are D e n i e d .

Defendant company has moved in the alternative for leave to 
appeal this issue under 28 U.S.C § 1292(b). Defendant has fur­
ther moved for leave to appeal under that section the issue of 
whether named plaintiffs have standing to represent class mem­
bers claiming discriminatory initial job assignments. The court 
finds that there are controlling questions of law as to which 
there is substantial ground for difference of opinion regarding: 
(1) its holding that there has been a finding of intentional dis­
crimination in the selection of supervisory personnel during the 
period from July 17, 1969, to August 16, 1974, and that defen-

283a

dant company is subject to potential liability at a Phase 11 hear­
ing with respect to such claims, and (2) the issue of whether 
named plaintiffs have standing to represent class members 
claiming discriminatory initial job assignments. The court fur­
ther finds that immediate appeal of these issues may materially 
advance the ultimate termination of this litigation, and recom­
mends that the court of appeals permit said appeal. Motion for 
leave to appeal these issues is Granted.

An order in conformity with this opinion will be entered con­
temporaneously herewith.

This the 25th day of November 1986.

/s /  Sam C. P ointer, J r.
United States District Judge

UNITED STATES DISTRICT COURT 
Northern District of Alabama 

Southern Division
No. CV 71-P-0955-S

Filed November 26, 1986 
Entered November 26, 1986

Louis Swint, et al.,
Plaintiffs,

—vs.—

P ullman-Standard, et al.,
Defendants.

ORDER

In accordance with the Opinion filed concurrently herewith, 
this court’s opinion entered September 8, 1986, is hereby 
AMENDED in the manner described herein. The final sentence of 
the paragraph beginning on page eleven and ending on page 
twelve is to read:



284a

In the case at bar, extrinsic nonquantitative evidence con­
cerning the selection process has been considered in con­
junction with the statistical evidence from both sides.

In all other respects, the court’s order and opinion entered Sep­
tember 8, 1986, are hereby Ratified and Reaffirmed in their 
entirety.

It is Further Ordered:
1. Plaintiffs’ Motion to Alter or Amend Judgment pursu­

ant to FRCP 59(e) is hereby DENIED.
2. Defendant, Pullman-Standard’s, Motion to Alter or 

Amend the Judgment pursuant to FRCP 52(b) and 
59(e) is hereby DENIED.

3. The court finds that there is no just reason for delaying 
• entry of final judgment on the claims decided adversely

to plaintiffs and the plaintiff class in the court’s deci­
sion of September 8, 1986, being all claims except those 
relating to the selection of supervisory personnel during 
the period from July 17, 1969, to August 16, 1974. The 
plaintiffs’ motion for entry of final judgment on these 
issues pursuant to FRCP 54(b) is hereby Granted. It is 
further Ordered that final judgment be Entered 
denying all claims of the plaintiffs and the plaintiff 
class except those relating to selection of supervisory 
personnel during the period from July 17, 1969, to 
August 16, 1974.

4. The court Finds there to be a controlling question of law 
as to which there is substantial ground for difference of 
opinion regarding this court’s holding that there has 
been a finding of intentional discrimination in the selec­
tion of supervisory personnel during the period from 
July 17, 1969, to August 16, 1974, and that the defen­
dant company is subject to potential liability at a Phase 
II hearing with respect to such claims. The court fur­
ther finds that immediate appeal of this issue may 
materially advance the ultimate termination of this liti­
gation. Therefore, the defendant’s motion for leave to 
appeal under 28 U.S.C. § 1292 is hereby Granted

285a

with the recommendation of this court that the Court 
of Appeals permit said appeal.

5. The court is of the opinion that there is substantial 
ground for difference of opinion regarding the named 
plaintiffs’ standing to represent class members claiming 
discriminatory initial job assignments during the period 
from July 17, 1969, to August 16, 1974. The court fur­
ther finds that immediate appeal of this issue may 
materially advance the ultimate termination of this liti­
gation. Thus, leave to appeal this issue of standing is 
hereby Granted pursuant to 28 U.S.C. § 1292 with 
the recommendation of this court that the Court of 
Appeals permit said appeal.

This the 25th day of November 1986.

/s /  Sam C. Pointer, J r .
United States District Judge



286a

I I I .  The Judgment Sought to be Reviewed and 
Order Denying Rehearing

UNITED STATES COURT OF APPEALS 
For the Eleventh Circuit

No. 84-7319

D.C. Docket No. 75-2266

William B. Larkin; Louise Seals, as personal representa­
tive of Spurgeon Seals, deceased; Lillie Lofton, as 
personal representative of Edward Lofton, deceased; 
JESSE B. Terry, on behalf of himself and others similarly
situated, Plaintiffs-Appellants,

versus
Pullman-Standard Division,
Pullman, Inc., a corporation,

Defendant-Appellee.

No. 86-7886

D.C. Docket No. 71-0955

Louis Swint and Willie James Johnson, on behalf of 
themselves and others similarly situated; CLYDE Humphrey,

Plain tiffs-A ppellan ts,
versus

Pullman-Standard, Bessemer, Alabama) United Steel­
workers of America Local 1466; and United Steel­
workers of America, AFL-CIO International 
Association of Machinists,

Defendants-Appellees.

287a

No. 87-7057

D.C. Docket No. 71-0955

Louis Swint and Willie James Johnson, on behalf of 
themselves and others similarly situated, Clyde Humphrey,

Pluintiffs-A ppel lees,
versus

Pullman-Standard, Bessemer, Alabama,

Defendant-A ppellan t ,

United Steelworkers of America Local 1466; and 
United Steelworkers of America, AFL-CIO, Inter­
national association of Machinists,

Defendants.

APPEALS FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF ALABAMA

B e f o r e :

JOHNSON and C l a r k , Circuit Judges, and 
D u m b a u l d *, Senior District Judge.

JUDGMENT

These causes came on to be heard on the transcript of the rec­
ord from the United States District Court for the Northern Dis­
trict of Alabama, and were argued by counsel;

On Consideration Whereof, it is now hereby ordered 
and adjudged by this Court that the judgment of the said Dis­
trict Court on appeal in Nos. 84-7319 and 87-7057 be and the

* Honorable Edward Dumbauld, Senior U.S. District Judge lor the 
Western District of Pennsylvania, sitting by designation.



288a

same is hereby AFFIRMED; and the judgment of the District 
Court on appeal in No. 86-7886 be and the same is hereby 
AFFIRMED in part and REVERSED in part; and that this cause be 
and the same is hereby, REMANDED to said District Court for 
further proceedings in accordance with the opinion of this 
Court;

It is further ordered that defendant-appellee pay to plaintiffs- 
appellants, the costs on appeal to be taxed by the Clerk of this 
Court.

Entered: 

For the Court:

By:

September 21, 1988 

Miguel J. Cortez, Clerk

/s /  Karleen McNabb 
Deputy Clerk

Issued as Mandate: January 11, 1989

289a

UNITED STATES COURT OF APPEALS 
For the Eleventh Circuit

No. 84-7319

William B. Larkin; Louise Seals, as personal representa­
tive of Spurgeon Seals, deceased; Lillie Lofton, 1 as 
personal representative of Edward Lofton, deceased; 
Jesse B. Terry, on behalf of himself and others similarly 
situated,

Plaintiffs-A ppellan is,
versus

Pullman-Standard Division, Inc., 
a corporation,

Defendant-Appellee.

No. 86-7886

Louis Swint and Willie James Johnson, on behalf of 
themselves and others similarly situated; CLYDE HUMPHREY,

Plaintiffs-Appellants,
versus

Pullman-Standard, Bessemer, Alabama; United Steel­
workers of America Local 1466; and United Steel­
workers of America, AFL-CIO, International 
Association of Machinists,

Defendants-Appellees.



290a

No. 87-7057

Louis Swint, and Willie James Johnson, on behalf of 
themselves and others similarly situated; Clyde Humphrey,

Plaintiffs-A ppellees,
versus

Pullman-Standard, Bessemer, Alabama,
Defendant-Appellant,

United Steelworkers of America Local 1466; and 
United Steelworkers of America, AFL-CIO, Inter­
national Association of Machinists,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF ALABAMA

ON PETITION(S) FOR REHEARING AND 
SUGGESTION(S) OF REHEARING IN BANC

(Opinion September 21, 1988, 11 Cir., 198__, __F .2d__ ).
(January 3, 1989)

B e f o r e

JOHNSON and Clark, Circuit Judges, and 
Dumbauld*, Senior District Judge.

Per Curiam:
( The Petition(s) for Rehearing are Denied and no member 
of this panel nor other Judge in regular active service on the 
Court having requested that the Court be polled on rehearing in 
banc (Rule 35, Federal Rules of Appellate Procedure; Eleventh

* Honorable Edward Dumbauld, Senior U.S. District Judge for the 
Western District of Pennsylvania, sitting by designation.

291a

Circuit Rule 35-5), the Suggestion(s) of Rehearing In Banc are 
Denied.

Entered for the Court: 

/s /  Thomas A. Clark
United States Circuit Judge



292a

IV . Other Appended Materials 
a. Applicable Constitutional Provisions and Statutes

United States Constitution 

ARTICLE 111.

SECTION 1. The judicial Power of the United States, shall 
be vested in one supreme Court, and in such inferior Courts as 
the Congress may from time to time ordain and establish. The 
Judges, both of the supreme and inferior Courts, shall hold 
their Offices during good Behaviour, and shall, at stated Times, 
receive for their Services, a Compensation, which shall not be 
diminished during their Continuance in Office.

SECTION 2. The judicial Power shall extend to all Cases, in 
Law and Equity, arising under this Constitution, the Laws of 
the United States, and Treaties made, or which shall be made, 
under their Authority;—to all Cases affecting Ambassadors, 
other public Ministers and Consuls;—to all Cases of admiralty 
and maritime Jurisdiction;—to Controversies to which the 
United States shall be a Party;—to Controversies between two 
or more States;—between a State and Citizens of another 
State;—between Citizens of different States;—between Citizens 
of the same State claiming Lands under Grants of different 
States, and between a State, or the Citizens thereof, and foreign 
States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers 
and Consuls, and those in which a State shall be Party, the 
Supreme Court shall have original Jurisdiction. In all the other 
Cases before mentioned, the supreme Court shall have appel­
late Jurisdiction, both as to Law and Fact, with such Excep­
tions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, 
shall be by Jury; and such Trial shall be held in the State where 
the said Crimes shall have been committed; but when not com­
mitted within any State, the Trial shall be at such Place or 
Places as the Congress may by Law have directed.

293 a

Title V II of Civil Rights Act of 1964 § 703, 42 U .S .C . § 2000e-2

§ 2000e-2. Unlawful employment practices
(a) Employer practices

It shall be an unlawful employment practice for an 
employer—

(1) to fail or refuse to hire or to discharge any individual, or 
otherwise to discriminate against any individual with respect to 
his compensation, terms, conditions, or privileges of employ­
ment, because ol such individual’s race, color, religion, sex, or 
national origin; or

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

(b) Employment agency practices
It shall be an unlawful employment practice for ah employ­

ment agency to fail or reiuse to refer for employment, or other­
wise to discriminate against, any individual because of his race, 
color, religion, sex, or national origin, or to classify or refer for 
employment any individual on the basis of his race, color, reli­
gion, sex, or national origin.

(c) Labor organization practices
It shall be an unlawful employment practice for a labor 

organization—
(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 appli­
cants 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 
would limit such employment opportunities or otherwise 
adversely affect his status as an employee or as an applicant for



294a

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.

(d) Training programs
It shall be an unlawful employment practice for any 

employer, labor organization, or joint labor-management com­
mittee controlling apprenticeship or other training or retrain­
ing, including on-the-job training programs to discriminate 
against any individual because of his race, color, religion, sex, 
or national origin in admission to, or employment in, any pro­
gram established to provide apprenticeship or other training.

(e) Businesses or enterprises with personnel qualified on basis 
of religion, sex, or national origin; educational institutions 
with personnel of particular religion

Notwithstanding any other provision of this subchapter, (1) it 
shall not be an unlawful employment practice for an employer 
to hire and employ employees, for an employment agency to 
dassify, or refer for employment any individual, for a labor 
organization to classify its membership or to classify or refer 
for employment any individual, or for an employer, labor orga­
nization, or joint labor-management committee controlling 
apprenticeship or other training or retraining programs to 
admit or employ any individual in any such program, on the 
basis of his religion, sex, or national origin in those certain 
instances where religion, sex, or national origin is a bona fide 
occupational qualification reasonably necessary to the normal 
operation of that particular business or enterprise, and (2) it 
shall not be an unlawful employment practice for a school, col­
lege, university, or other educational institution or institution 
of learning to hire and employ employees of a particular reli­
gion if such school, college, university, or other educational 
institution or institution of learning is, in whole or in substan­
tial part, owned, supported, controlled, or managed by a par­
ticular religion or by a particular religious corporation, 
association, or society, or if the curriculum of such school, col­

2953

lege, university, or other educational institution or institution 
of learning is directed toward the propagation of a particular 
religion.

(f) Members ot Communist Party or Communist-action or 
Communist-front organizations

As used in this subchapter, the phrase “ unlawful employ­
ment practice” shall not be deemed to include any action or 
measure taken by an employer, labor organization, joint labor- 
management committee, or employment agency with respect to 
an individual who is a member of the Communist Party of the 
United States or of any other organization required to register 
as a Communist-action or Communist-front organization by 
final order of the Subversive Activities Control Board pursuant 
to the Subversive Activities Control Act of 1950 [50 U.S.C.A. 
§ 781 et seq.).

(g) National security

Notwithstanding any other provision of this subchapter, it 
shall not be an unlawful employment practice for an employer 
to fail or refuse to hire and employ any individual for any posi­
tion, for an employer to discharge any individual from any 
position, or for an employment agency to fail or refuse to refer 
any individual for employment in any position, or for a labor 
organization to fail or refuse to refer any individual for employ­
ment in any position, if—

(1) the occupancy of such position, or access to the premises 
in or upon which any part of the duties of such position is per­
formed or is to be performed, is subject to any requirement 
imposed in the interest of the national security of the United 
States under any security program in effect pursuant to or 
administered under any statute of the United States or any 
Executive order of the President; and

(2) such individual has not fulfilled or has ceased to fulfill 
that requirement.



296a

(h) Seniority or merit system; quantity or quality of produc­
tion; ability tests; compensation based on sex and autho­
rized by minimum wage provisions

Notwithstanding any other provision of this subchapter, 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 measures 
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, nor shall it be an 
unlawful employment practice for an employer to give and to 
act upon the results of any professionally developed ability test 
provided that such test, its administration or action upon the 
results is not designed, intended or used to discriminate because 
of race, color, religion, sex or national origin. 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 autho­
rized by the provisions of section 206(d) of Title 29.

(i) Businesses or enterprises extending preferential treatment to 
Indians

Nothing contained in this subchapter shall apply to any busi­
ness or enterprise on or near an Indian reservation with respect 
to any publicly announced employment practice of such busi­
ness or enterprise under which a preferential treatment is given 
to any individual because he is an Indian living on or near a res­
ervation.

(j) Preferential treatment not to be granted on account of exist­
ing number or percentage imbalance

Nothing contained in this subchapter shall be interpreted to 
require any employer, employment agency, labor organization, 
or joint labor-management committee subject to this subchap­

297a

ter to grant preferential treatment to any individual or to any 
group because of the race, color, religion, sex, or national ori­
gin of such individual or group on account of an imbalance 
which may exist with respect to the total number or percentage 
of persons of any race, color, religion, sex, or national origin 
employed by any employer, referred or classified for employ­
ment by any employment agency or labor organization, admit­
ted to membership or classified by any labor organization, or 
admitted to, or employed in, any apprenticeship or other train- 
ing program, in comparison with the total number or percent­
age ot persons ot such race, color, religion, sex, or national 
origin in any community. State, section, or other area, or in the 
available work force in any community, State, section, or other 
area.

42 U .S .C . § 1981

§ 1981. Equal rights under the law

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 proceedings for the secu­
rity 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 
R.S. § 1977.

federal Rules of Civil Procedure 

Rule 23. Class Actions

(a) Prerequisites to a Class Action. One or more members 
of a class may sue or be sued as representative parties on behalf 
of all only if (1) the class is so numerous that joinder of all 
members is impracticable, (2) there are questions of law or fact 
common to the class, (3) the claims or defenses of the represent­
ative parties are typical of the claims or defenses of the class, 
and (4) the representative parties will fairly and adequately pro­
tect the interests of the class.



298a

Federal Rules of Civil Procedure

Rule 52. Findings by the Court
(a) Effect. In all actions tried upon the facts without a jury 

or with an advisory jury, the court shall find the facts specially 
and state separately its conclusions of law thereon, and judg­
ment shall be entered pursuant to Rule 58; and in granting or 
refusing interlocutory injunctions the court shall similarly set 
forth the findings of fact and conclusions of law which consti­
tute the grounds of its action. Requests for findings are not nec­
essary for purposes of review. Findings of fact, whether based 
on oral or documentary evidence, shall not be set aside unless 
clearly erroneous, and due regard shall be given to the opportu­
nity of the trial court to judge of the credibility of the witnesses. 
The findings of a master, to the extent that the court adopts 
them, shall be considered as the findings of the court. It will be 
sufficient if the findings of fact and conclusions of law are 
stated orally and recorded in open court following the close of 
the evidence or appear in an opinion or memorandum of deci­
sion filed by the court. Findings of fact and conclusions of law 
are unnecessary on decisions of motions under Rules 12 or 56 or 
any other motion except as provided in Rule 41(b).

b. Selected Record Extracts 

★  ★  ★

1974 Transcript, page 884, lines 7-15:
Q (BY Mr. Clemon) Mr. Johnson, will you state to the 

Court your full name?

A Willie James Johnson.

Q And where do you live?

A 2801 Dexter Avenue, Bessemer.

Q Mr. Johnson, where are you now employed?

A Pullman-Standard.

299a

Q When did you first go to work for Pullman?
A January 12th, ’56.

*  *  *

1974 Transcript, page 899, lines 5-23:

Q (By Mr . Clemon) Mr. Johnston, was there a time when 
you were a foreman that—in the paint department?

A (By Mr . Willie James Johnson) Yes.

Q Was this a temporary or salaried position?
A Temporary.

Q Are there any black loremen in the paint department at 
this time?

A Yes, there are.
Q How many?

A Two.

Q What are their names?

A Willie Carter and Fred Prince.

Q Now, when were you a temporary foreman in the paint 
department?

A 1965.

Q 1965?

A Yes.

Q How long were you a temporary foreman?
A Approximately six weeks.

♦ * *

1974 Transcript, page 938, lines 2-11:

Q (By Mr. Clemon) Mr. Stubbs came to you about two or 
three months ago, didn’t he, Mr. Johnson, and asked you



300a

if you wanted to be—offered you a position as temporary 
foreman?

A (By Mr . Johnson) Right.

Q And you told him you weren’t interested?
A No, 1 told him 1 wouldn’t take it at least at that time, 

because 1 was feeling—was suffering ulcers and 1 thought 
the job would be too much for my stomach; 1 was having a 
little trouble out of it.

*  ♦  *

1974 Transcript, page 1054, lines 13-15:
Q (BY MR. CLEMON) Now, Mr. Swint, when did you go to 

work for Pullman?
A (BY Mr . Swint) In November, 1964.

*  *  *

1974 Transcript, pages 1775 line 1 to 1776 line 19:
A (By Mr . Harry E. Debrow, Sr .) Well, in July of 1968, 

on the 31st of July, 1 were informed by Mr. Smitherman 
that 1 would be starting out the 1st day of August again on 
salary.

Q (BY Mr . Stelzenmuller) Did he ask you if you would 
take it or just tell you you were going to get it whether you 
liked it or not?

A He just told me 1 would be going back. Wasn’t any discus­
sion one way or the other.

Q And you did go back?

A 1 did go back.
Q Did you have conversations about the subject with Mr. 

Swint along about that time?

A Subject with Mr. Swint?

Q Yes.

301a

A What about?

Q About going on as foreman.

A No, sir, 1 didn’t.

Q Did you know Mr. Swint then?

A No, sir, I didn’t.

Q On an occasion did you discuss a gold helmet, foreman’s 
gold helmet with Mr. Swint?

A No, not on that day.

Q Well, on some other occasion?

A That was some other occasion.

Q Would you tell us when it was and what that discussion 
was?

A As 1 recall, a man came along where 1 were working. 1 
were working back in the bargaining unit back at that 
time. And he says to me, Harry, you know what 1 would 
do if 1 were you? He says, 1 would let the company keep 
their gold hat.

Q Was that Swint?

A 1 later after 1 learned who he was, 1 didn’t know who he 
was at that time, just someone walked up to me. 1 didn’t 
know him.

Q You later learned it was Swint?

A 1 later learned that the man’s name was Swint. 1 didn’t 
know who he was then.

Q Did you have anything to say to him about the subject of 
going back on salary?

A The only words 1 recall him saying, well, 1 had not thought 
about it like that.

♦ * *



302a

1974 Transcript, pages 2505 line 12 to 2507 line 5:

Q (BY Mr . STELZENMULLER) How did Swint get along with 
his fellow employees, do you know?

A (BY Mr. RODRIQUEZ) You mean as far as his work went?

Q Yes. Work and work habits, getting along with folks.

A Well, the best 1 can answer that is the men complained 
about having to work behind him, you know, the OK men 
and all, they grumbled about it all the time. As far as per­
sonal relations with the men, 1 can’t answer that.

Q How about, you know Mr. Harry Debrow over here, 
don’t you?

A Yes, sir.

Q Did you have any conversation with Mr. Swint concerning 
him?

A Yes, 1 did.

Q Tell us about it, when was it, best you remember and what 
it was.

A 1 don’t remember exactly when it was. But he complained 
to me one time about that he thought somebody was mis­
treating him as far as him being a black man.

And 1 told him, 1 said, why don’t you go down there and 
talk to Mr. Clyde Robinson and Mr. Harry Debrow.

And he stated to me that he didn’t have anything to say to 
that damn Uncle Tom or something to that effect.

1 don’t remember the exact words, but he called him an 
Uncle Tom, I know that.

Q Said he didn’t have or didn’t want to have anything to do 
with him?

A He said, let’s see, best I recall, he said he wasn’t nothing 
but a damn Uncle Tom or something like that.

303a

Q Have you heard Mr. Swint refer to anybody—any other 
supervisor or union official or that type of language?

A Yes. 1 heard him refer to his union officials as Uncle 
Toms.

* * *

1974 Transcript, pages 2550 line 5 to 2553 line 19:

Q (By Mr. STELZENMULLER) Were you a supervisor at that 
time?

A (By Mr . Alfred Moorer) l was.

Q Were you an hourly supervisor then?
A Salary.

Q Do you recall a conversation you had shortly after Mr. 
Thompson was elected president with Mr. Swint referring 
to that, to his election, to the election and what was going 
to happen and so on?

A Yes. 1 remember a conversation.

Q Where did it happen and when, best of your recollection?

A It happened at one of the employees, one of the other 
employee’s house.

Q Were there a number of people over there?
A Yes.

Q Was it just an informal gathering or how did you happen 
to be over there?

A Well, just an informal gathering.

Q Were there a number of employees besides yourself over 
there?

A Well, yes. Everybody there was employed by Pullman.

Q And you—were you the only person who was a supervisor 
in the crowd?

A Right.



304a

Q Now, what was the conversation you had with Mr. Swint 
then?

A Well, it wasn’t much of a conversation. Mr. Swint just 
said he and the Tiger were going to take care of the Uncle 
Toms out there.

Q Me and the Tiger are going to take care of the Uncle 
Toms?

A Yes.

Q How did he say that? Did he say that directly to you or 
just to the crowd?

A I believe he was speaking directly to me.

Q Was he standing close to you looking at you when he said 
that?

A We were sitting.

Q Beg your pardon?

A We were sitting down when he said it.

Q You were sitting down but he looked at you and said, me 
and Tiger are going to take care of the Uncle Toms out 
there?

A Yes.

Q You took that as a reference to you, among other people?
Mr. CLEMON: Your Honor, we object to whatever 

mental operation may have gone on in his mind.
The Court: I overrule.

A Yes.

Q Tell me what you said about it, Mr. Morrow, if anything.

A 1 told Mr. Swint the best place to take care of me would be 
out there where we were.

Q In other words, you were telling him if he was threatening 
to take care of it now?

305a

A Well, if he felt that way.

Q If he felt that way? i
A Yes.

Q Anything happen after that?
A No.

Q Let me ask you, Mr. Moorer, it you didn’t get pretty mad 
about that?

Mr . Clemon: Your Honor, we object to whether he 
got mad or not.

The Court: 1 am going to overrule. It seems to me that 
the motivation on the part of those who may be involved 
in Mr. Swint’s discharge is of some significance in ascer­
taining ultimately the reason for his discharge and if there 
was hostility between this witness and Mr. Swint, for 
whatever the cause, it has some bearing perhaps on the 
offer.

Mr . Clemon: Yes, sir.

The Court: 1 overrule.
Q Pretty worked up about it, Mr. Moorer?

A Well, it didn’t bother me too much. 1 felt like the best 
place to settle it would be outside of the plant.

Q Was anything .else said between you and Swint at that 
time?

Q No.
♦ * *

1974 Transcript, pages 3206 line 22 to 3208 line 2:

A (By Mr. Prince) Well, 1 was told if 1 was the foreman, 1 
was also a union member and a man that didn’t do his 
work, 1 was not supposed to write a message or tell the 
foreman. 1 was supposed to pull my hat off, give the job



r

up. i was told that by the president and Dixon, whatever it 
is.

Q (BY Mr . Stelzenmuller) Are you referring to the pres­
ident?

A 1 was not supposed to discipline that man or tell anything 
on him because 1 was a union man, 1 was supposed to give 
my job up.

Q Mr. Swint, you say, said that?

A He did so.

Q And Mr. Blimp?
A Whatever his name is. He went to try to explain to me 

about some fellow in the wood mill who had did this 
thing. 1 don’t know who he was talking about.

Q Had given his hat up?
A That is the best 1 can understand it. He was trying to 

explain it to me about it. 1 don't know who it was.

Q What does it mean when you say give your hat up?
A Well, if a man don’t do his job, you don’t say anything to 

him, you just quit being a foreman.

Q You quit being a foreman?
A You quit being a foreman.

♦ *

306a

*