Terrell Jr. v. United States Pipe and Foundry Company Brief for Appellants
Public Court Documents
April 21, 1980
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IN THE UNITED STATES COURT OF APPEALS
FOR- THE FIFTH CIRCUIT
Nos. 80-7107, 80-7256
JOSEPH TERRELL, JR., et al. ,
Appellants,
v s .
UNITED STATES PIPE AND FOUNDRY
COMPANY, et al.,
On Appeal from the United States District Court
for the Northern District of Alabama
Defendants
BRIEF FOR APPELLANTS
JOSEPH P. HUDSON
1909 30th Avenue
Gulfport, Mississippi 39501
BARRY L. GOLDSTEIN
Suite 940
806 15th Street, N.W.
Washington, D.C. 20005
DANIEL B. EDELMAN
Yablonski, Both & Edelman
Suite 500
1150 Connecticue Avenue
Washington, D.C. 20036
JACK GREENBERG
Suite 2030
10 Columbus Circle
New York, New York 10019
DEMETRIUS C. NEWTON
2121 8th Avenue North
Birmingham, Alabama 35203
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Nos. 80-7107, 80-7256
JOSEPH TERRELL, JR., et al.,
Appellants,
vs.
UNITED STATES PIPE AND FOUNDRY
COMPANY, et al.,
Defendants.
CERTIFICATE OF INTERESTED PERSONS
The undersigned, counsel of record, certifies that
the following listed persons have an interest in the
outcome of this case. These representations are made in
order that the Judges of this Court may evaluate possible
disqualifications or recusal.
1. United States Pipe and Foundry Company, a
subsidiary of Jim Walter Resources, Inc.
2. United Steelworkers of America and its Local
2140.
3. International Holders and Allied Workers Union
and its Local 342.
•4
4. International Association of Machinists and
Aerospace Workers and its Lodge 359.
5. 3rotherhood of 3o ilermakers, Blacksmiths,
Forgers and Helpers and its Local 583.
6. Patternmakers League of North America and the
Patternmakers Association of Birmingham.
7. Local 136, International Brotherhood of Electrical
Workers.
8. Joseph Terrell, Walter Dudley, Thomas Green,
Johnny Long, Albert Mason, Marcus Oakes, Sam Walker and
the class of black workers at U.S. Pipe plant whom they
represent.
■Q CU W *) A . -oLH. 0 l )
Barry/ L. Goldstein■j
Attorney of Record for
PI aintif f s-Appe Hants
- ii -
Statement Regarding Oral Argument
The plaintiffs-appellants, Terrell, et al., believe that
this appeal should be orally argued. The legal issues are
important: The proper implementation of §703(h)of Title VII
with respect to legality of a seniority system which has a sub
stantial adverse racial impact; the proper interpretation of
this Court's analysis in James v. Stockham Valves & Fitting,
Inc., 559 F .2d 310 (1977), regarding the implementation of
§ 703(h); and the proper application of the EEOC procedural
requirements for the filing of an administrative charge.
Oral argument will facilitate the resolution of these legal
arguments as well as assist in the presentation of the com
plex, factual record in this appeal which covers "some 40
years of industrial relations at U.S. Pipe's Bessemer plant.”
R. 1168.
- iii -
TABLE OF CONTENTS
?age
Certificate of Interested Persons .................. i
Statement Regarding Oral Argument ................... . iii
Table of Contents ................................... iv
Table of Authorities ................................
Statement of the Issues ............................. xv
Statement of the Case ............................... ^
Statement of Facts ..................................
A. The Problem: Racial Segregation in the
Seniority System ...........................
B. The Institutions Responsible for the
Seniority System .......................... 9
C. The Development of the Seniority Ssytem 15
1. NLRB Decisions ................... 15
2. Implementation of the 1940NLRB Decision .................... 19
3. Irrationality and Unfairnessin the Seniority System ......... 21
D. The Maintenance of the SenioritySystem .................................... 24
1. The Parties and theNegotiation Process ............. 24
2. The Collective BargainingNegotiations ..................... 27
- iv -
Page
S. The Effect of Discrimination in the
Seniority System: The Experience of
Several Black Workers ...................... 33
Summary of the Argument 37
I. The Seniority System is Unlawful Because It Has a Severe Discriminatory Effect and
It Is not Bona Fide ....... ...................... 33
A. The Discriminatory Effect of the Seniority
System ....................................... 33
3. The non-Bona Fides and Illegality of
the Seniority System ......................... 39
1. The Legal Standard ....................... 39
a. Burden of Proof ................. 41
b. Analysis ......................... 42
c. Proof of Intent .................. 47
2. The Racially-Discriminatory Genesis of
the System ............................... 49
3. The System's Irrationality and Incon
sistency with Industry Practice and
National Labor Relations Board
Precedents ............................... 54
4. The Uneven Application of the System .... 63
a. Disparate Application ........... 63
b. Substantial Disparate Impact .... 65
5. The Discriminatory Maintenance of the
System .................................... 70
6. Conclusion: The Defendant Unions'
Liability for the Unlawful Seniority
System ..................... 73
Page
II. The District Court Erred in Holding that
the International Unions Could Not 3e Held Liable For Acts Occurring Prior to
October 4, 1971 .................................. 79
A. The 1969 Charges, Properly Construed, Name
the Internationals as Well as the Local
Unions as Parties Respondent ................ 79
B. The Class Association Between Local and
International Union Entities Allows an
International to be Joined as a Title
VII Defendant Even Where Only the Local
has been Named as a Discriminatory Party
in any EEOC Charge ........................... 32
C. The Filing of Amended Charges Should Be
Held to Relate Back to the Dates of the
Original EEOC Charges ........................ 88
CONCLUSION ............................................ 91
Appendix A
Appendix B
- vi -
Table of Authorities
Cases:
Paae
Acha v. Beame, 570 F . 2d 57 (2d Cir. 1 978) ......... 45
Albemarle Paper Co. v. Moody, 422 U.S. 405
( 1975) ........................................ 41
Alexander v. Avco Corp., 565 F.2d 1364 (6th
Cir. 1977), cert, denied, 436 U.S.946 ( 1 978) .................................... 45
Armour 4 Co, 49 NLRRM 195, 12 LRRM 120
( 1 943) ........................................ 57
Atlanta Oak Flooring Company, 62 NLRB 973,
16 LRRM 235 ( 1 945) ............................ 60
3ethel v. Jefferson, 589 F.2d 631 (D.C Cir.
1978) ......................................... 33
Bolden v. Pennsylvania State Police, 578 F.2d
912 (3rd Cir. 1 978) ........................... 39
Campbell Machine Co., 3 NRLB 793, 1-A LRRM 212
(1 937) ........................................ 57
Canavan v. Beneficial Finance Corp., 553 F.2d
860 ( 3rd Cir. 1 977) ........................... 90
Carey v. Greyhound Bus Co., 500 F .2d 1372
(5th Cir. 1 975) ............................... 76
Chrapliwy v. Uniroyal, Inc., 15 FEP Cases 822
(N.D. Ind. 1 977) ........................ 45
Coley v. M 4 Mars, Inc., 461 F. Supp. 1073
(M.D. Ga. 1 978) ............................... 90
Columbus Bd. of Educ. v. Penick, 99 S. Ct.2941 (1979) ................................... 47-48,70
Columbus Bronze Corp., 39 NLRB 156, 10 LRRM8 (19.42) ...... .........................
Copoer-Clad Malleable Range Co., 77 NLRB 250, 22 LRRM 1017 (1948) ....................
- 7 1 1 -
Page
County of Los Angeles v Davis, 440 U.S. 625
(9179) ........................................ 40
Dain Mfg. Co., 29 29 NLRB 526, 7 LRRM 202 (1941);
38 NLRB 528, 9 LRRM 285(1 941) ............... 57
Dayton 3d. of Education v. Brinkman, 99 S. Ct.
2971 (1 979) ................................... 48
Dent v. St. Louis-San Francisco Ry., 406 F .2d
399 (5th Cir. 1 969) ........................... 83
Detroit Police Officers' Assn. v. Young,
608 F. 2d 671 (6th Cir. 1 979) ................. 48
Donnell v. General Motors Cor?., 15 FEP Cases
242 (E.D. Mo. 1 977) ........................... 33
Electric Auto Lite Co., 10 NLRB 1239, 3 LRRM
521 ( 1 939) .................................... 57
EEOC v. Detroit Edison, 515 F.2d 301 (6th Cir.
1975), vac. and rem. on other grounds, 431
U.S. 951 ( 1 977) ............................... 76
Evans v. Sheraton Park Hotel, 503 F .2d 177
(D.C. Cir. 1 974) ............................. 82,84
Everlast Process Printing Co., 98 NLRB
1313, 3 0 LRRM 1017 (19 52) ..................... 62
Gamble v. Birmingham Southern R.R. Co., 514
F. 2d 678 (5th Cir. 1 975) ...................... 6,83
General Dyestuff Corp., 100 NLRB 1311,
30 LRRM 1 443 ( 1 952) ........................... 62
Georgia Power Co. v. EEOC, 412 F .2d 462 (5th Cir.
1969) ......................................... 89
Gibson v. ILWU Local 40, 543 F .2d 1259 (9th
Cir. 1 976) .................................... 81,90
Gilmore v. Kansas City Terminal Ry. Co.,
509 F. 2d 48 (8th Cir. 1 975) .................. 83
Glus v. C.G. Murphy Co., 562 F .2d 880
(3rd Cir. 1 977) ............................... 82,84
- viii -
Paae
Griggs v. Duke Power Co., 401 U.S 424 (1971) ...... 40-41
Guerra v. Manchester Terminal Co., 498 F .2d 641
(5th Cir. 1 974) ............................... 76
Harkless v. Sweeney Independent School District,
554 F.2d 1353 (5th Cir.), cert, denied,434 U.S. 966 (1977) ...........................
Hart v. J.T. Baker Co., 598 F .2d 329 (3rd Cir.
1979) ......................................... 33
In re Bethlehem-Alameda Shipyard, Inc., 53
NLRB 999, 1 3 LRRM 1 39 (1 943) .................. 60
Interstate Circuit v. United States, 306 U.S.
208 ( 1 934) .................................... 42
James v. Marinship Co., 155 P.2d 329 (1944) ....... 14
James v. Stockham Valves & Fittings, Inc.,
559 F.2d 310 (5th Cir. 1977), cert, denied,4343 U.S 1 034 (1 978) .......................... passim
J.I. Case Co., 80 NLRB 217, 23 LRRM 1072
(1948) ........................................ 57
John Deere Dubuque Tractor Works, 77 NLRB1 424, 22 LRRM 1 175 (1 948) ..................... 57
Johnson v. Goodyear Tire and Rubber Co., 491F. 2d 1 364 (5th Cir. 1 974) ..................... 76
Johnson v. Ryder Truck Lines, Inc., 575 F .2d
471 (4th Cir. 1978), cert, denied, 440
U.S. 979 ( 1 979) ............................... 39
Kaplan v. IATSE, 525 F.2d 1354 (9th Cir. 1975) --- 81,87
Keyes v. School District No. 1, 413 U.S. 189
( 1973) ........................................ 48,52
Larus & Bro. Co., Inc., 62 NLRB 1075, 16LRRM 242 ( 1 945) ......... 60
ix
Pace
Leake v. University of Concinnati, 605 F.2d 255
(6th Cir. 1 979) ............................... 33
Le Beau v. Libby-Owens-Ford Co., 484 F .2d 798
(7th Cir. 1 973) ............................... 83
Local 189, United Paperworkers v. United States,
416 F.2d 980 (5th Cir. 1969), cert, denied,
397 U.S. 919 ( 1979) ........................... 45
McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1 973) ........................................ 40
Macklin v. Soector Freight Systems, Inc., 478
F. 2d 978 (D.C. Cir. 1 973) ..................... 76
Mascot Stove Co., 75 NLRB 570, 23 LRRM 1098
(1 948) ........................................ 57
Merganthaler Linotype Co., 80 NLRB 132, 23
LRRM 1055 (1948) .............................. 61
Merrill-Stevens Dry Dock Co., 35 NLRB 587,
9 LRRM 994 ( 1 941) ............................. 57
Myers v. Gilman Paper Co., 544 F .2d 837, mod.
on rehearing, 556 F .2d 758, cert.dismissed, 434 U.S 801 ( 1 9771 T7............. 77-78
Myers v. Gilman Paper Co., 556 F.2d 758(5th Cir. 1977), cert, dismissed, 434
U.S. 801 (1 977) ............................... 45
Quarles v. Philip Morris, Inc., 279 F. Supp.
505 (E.D Va. 1 969) ............................ 45
Patterson v. American Tobacco Co., 535 F.2d 257
(4th Cir.), cert, denied, 429 U.S 920
( 1 976) ........................................ 77-78
Patterson v. American Tobacco Co., 586 F .2d 300
(4th Cir. 1 978) ...... ........................ 45
Personnel Administrator of Mass. v. Feeney,
442 U.S. 256 ( 1979) ........................... 47-48
- x -
Pettway v. American Cast Iron Pipe Company, 494 F.2d
211 (5th Cir. 1974) ............................ 68
Pettway v. American Cast Iron Pipe Company, 576 F.2d
1157 (5th Cir .1978), cert, denied,
439 U.S. 1 1 1 5 ( 1 979) .......................... 39
Reeb v. Economic OpDortunity Atlanta, 516 F.2d 924(5th Cir. 1 975) ............................... 83
Reed v. Arlington Hotel Co., Inc., 476 F .2d 721
(8th Cir. 1 973) ............................... 66
Roberts v. Western Airlines, 425 F. Supp. 416(N.D. Cal. 1 976) .............................. 83-34
Rose-Meehan Foundaries, 44 NLRB 569, 11 LRRM 50
(1 942) ........................................ 57
Russell v. American Tobacco Co., 528 F.2d 357
(4th Cir. 1975), cert, denied,
425 U.S. 935 ( 1 97‘5 T T .......................... 76,83
Sabala v. Western Gilette, Inc., 516 F .2d
1251 (5th Cir. 1975), vac. and rem. on
other grounds, 431 U.S. 951 ( 1 977) ........... 76
Safety Motor Transit Corp., 78 NLRB 831 22
LRRM 1 25 7 (1 948) .............................. 6 2
Sagers v. Yellow Freight System, Inc., 529
F. 2d 721 (5th Cir. 1 976) ...................... 78
Sanchez v. Standard Brands, Inc., 431 F .2d
455 (5th Cir. 1 970) ........................... 80-81 , 89
Scarlett v. Seaboard Coast Line R.R., 17
EPD para. 8428 (S.D. Ga. 1 978) ..................... 65
Scarlett v. Seaboard Coast Line R.R. Co.,
21 EPD para. 30,320 (S.D. Ga. 1 979) .......... 53
Sears v. Atchison, Topeka & Sante Fe Ry. Co.,
454 F. Supp. 158 (D. Kans. 1 978) ............. 50,53
Sinker-Davis Co., 58 NLRB 1547, 15 LRRM 117
(1944) ...............................
- X2. -
Paae
Sinyard v. Foots and Davis, 577 F.2d 943
(5th Cir. 1 978) ............................... 78
Standard Oil of California, 79 NLRB 1466, 23 LRRM
1019 ( 1 948) ................................... 62
Star & Crescent Oil Co., 3 NLRB 882, 1-A
LRRM 239 ( 1 937) ............................... 57
St. Regis Paper Co., 80 NLRB 570, 23 LRRM
1093 (1 943) .................................. 57,62
Stevenson v. International Paper Co., 432 F. Sapp.
390 (W.D. La. 1 977) ........................... 32,84
Superior Pattern Co., 16 LRRM 1854 (Nat. War L.
Bd. 1 945) ..................................... 61
Swint v. Pullman Standard, 539 F .2d 77 (5thCir. 1 977) .................................... 66-67
Taylor v. Armco Steel Corporation, 429 F .2d
498 ( 5th Cir. 1 970) ........................... 60
Taylor v. Armco Steel Cor., 373 F. Supp. 885(S.D. Tex. 1 973) ............................. 82,84
Teamsters v. United States, 431Q.S. 324
( 1 977) ........................................ passim
Tennessee Copper Co., 88 NLRB 1516, 25 LRRM 1498
( 1 950) ........................................ 57
Thornton v. East Texas Motor Freight, Inc.,
497 F . 2d 416 (6th Cir. 1 974) ................. 82
Tillman v. City of Boaz, 548 F.2d 592 (5th
Cir. 1 977) .................................... 80-81
Tipoett v. Liggett & Myers Tobacco Company,
316 F. Supp. 292 (M.D. N.C. 1979),
reaff'd., 11 FEP Cases 1290 (M.D.
N.C. 1 973) .............. ..................... 32, 84
- xii
Page
Trent v. Allegheny Airlines, 431 F. Supp.
345 (W.D. Pa. 1977) ............................ 31
United States v. 3d. of School Comm'rs., 573
F.2d 400 (7th Cir.), cert, denied, 439
U.S. 324 ( 1 978) ............................... 47,52
United States v. Jacksonville Terminal Co.,
451 F.2d 418 (5th Cir. 1971), cert.
denied, 406 U.S. 906 ( 1 972) .............. . . . . 39,67-68
United States v. N.L. Industries, 479 F.2d
354 (8th Cir. 1973) ...........................
United States v. Texas Education Agency,
600 F. 2d 513 (5th Cir. 1 979) ................. 47-48,52-53
United States v. United States Steel
Corporation, 520 F .2d 1043 (5th Cir 1975),cert, dneied, 429 U.S. 81 7 ( 1 976)............. 78
United Steelworkers of American v. Weber,
443 U.S. 1 93 ( 1 979) ........................... 1 0
United Transportatin Union Local No. 974 v.
Norfolk and Western Railway Company,
532 F.d 336 (4th Cir. 1975),
cert, denied, 425 U.S. 934 (1 976) ............ 78
U.S Potash Co., 100 NLRB 1518, 30 LRRM 1481
(1 952) ........................................ 62
Veeder Root, Inc., 49 NLRB 355, 12 LRRM 124
(1 943) ........................................ 57
Village of Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S.
252 (1977) .................................... 47-48,52
Washington v. Davis, 426 U.S. 229 ( 1 976) .......... 47,70
Waterman Steamship Corp. 78 NLRB 20, 22 LRRM
1 170 ( 1 948) ................................... 57
xiii
?aae
Weeks v. Souterhn Bell TeleDhone & Telegraph Co.,
408 P. 2d 228 (5th Cir. 1 969) ................. 39
Williams v. International Brotherhood of
Boilermakers, 165 P. 2d 329 (1 946) ............ 14
World Steel Products Corp., 27 NLRB 701
7 LRRM 84 ( 1 940) .............................. 61
Other Authorities:
28 U.S.C. § 1291 ................................... 4
28 U.S.C. § 1292(b) ................................. 4
42 U.S.C. § 1981 .................................. passim
42 U.S.C. §3 2000e et seq...................... passim
29 C.F.R. § 1601.12(5)(b) (effective February
20, 1979), amending 29 C.F.R. § 160.11(a) .... 38
The Developing Labor Law
(BNA 1971) ................................. . . 61
Note, Section 1981; Discriminatory Purpose
or Disproportionate Impact? 80 Col. L.
Rev. 1 37 (1980) ............................... 40
- xiv -
Statement of the Issues
1. Whether the district court erred in finding that the
seniority system, apart from the 1950 job transfers, was bona
fide and that the substantial racial difference in the effect of
the system was not the result of an intent to discriminate within
the- meaning of § 703 (h) of Title VII as interpreted by Teamsters
and James and that accordingly, apart from the liability of
Local 583, 3oilermakers and Lodge 359, Machinists for the 1950
job transfers, the defendant Unions were not liable to the
class of black workers for the substantial economic loss which
they suffered as a result of the seniority system?
2. whether the district court erred in holding that the
International Unions could not be held liable for acts occurring
prior to October 4, 1971, in light of the fact that (a) the 1969
EEOC charges, properly construed, name the Internationals and refer
to the Internationals' discriminatory practices, (b) the close re
lationship between the Internationals and their Locals who were
explicitly named in the 1969 charges, (c) the amended charges
filed by the plaintiffs expressly name the Internationals, and
(d) the failure of the Internationals during the series of
pre-trial conferences to state their position that the claims
against them ware subject to limitations dates separata from
and later than those governing claims against their Locals?
xv
STATEMENT OF THE CASE
Seven black present or former workers at the Bessemer,
Alabama plant of United States Pipe and Foundry Company brought
this action on October 4, 1972. The complaint alleged a broad
pattern of racially discriminatory practices in violation of Title
VII of the Civil Rights Act of 1964 (as amended 1972), 42 U.S.C.
§§ 2Q00e et_ seq. , the Civil Rights Act of 1 866, 42 U.S.C. § 1981,
and the duty of fair representation. R. 1-16. The complaintVnamed thirteen defendants and alleged a series of discrimina
tory practices which ranged from the discriminatory selection
of supervisors to the maintenance of segregated facilities. As a
result of the entry of three pre-trial orders and a partial settle
ment, the trial before the district court and this appeal concerns
one general issue of liability involving ten union defendants.
On June 27, 1973, the district court granted summary judg
ment in favor of one international union, IBEW, R. 236, but the
lower court declined to enter summary judgment in favor of two
international unions, Machinists and Boilermakers. The court
]_/ United States Pipe and Foundry Company ("U.S. Pipe" or
the "Company"), United Steelworkers of America ("Steelworkers"),
Local 2140, United Steelworkers of America, International Molders
and Allied Workers Union ("Molders"), Local 342, International Molders and Allied Workers Union, Patternmakers League of North
America ("Patternmakers"), Patternmakers Association of Birming
ham, International Association of Machinists and Aerospace
Workers ("Machinists" or "IAM"), Lodge 359, International Association of Machinists and Aerospace Workers, Brotherhood of Boilermakers, Blacksmiths, Forgers and Helpers ("Boilermakers"), Local 583, Brotherhood of Boilermakers, Blacksmiths, Forgers and Helpers, International Brotherhood of• Electrical Workers ( Electn
cians" or "IBEW"), and Local 136, International Brotherhood of
Electrical Workers.
1
"determined that the Boilermakers and IAM Internationals had
potential liability in the case." R. 1166. The first pretrial
conference was held on July 24, 1974. The pretrial Order entered
2/
on July 24 certified the action as a proper class action,
defined the issues and outlined the positions of the parties. R.
446-52. On August 10, 1977, and December 29, 1978, pre
trial Orders were entered which further defined the issues and
the class and which established a trial schedule. R. 773, 784.
The parties, especially the plaintiffs and U.S Pipe, under
took extensive discovery which not only provided a basis for
defining the issues in dispute and expediting the trial, R. 1166,
1168, but also served to facilitate settlement. All of the
parties entered into a settlement which modified the seniority
system to remove the discriminatory effects of the system and
which otherwise provided full injunctive relief. R. 1211-16.
U.S. Pipe and the olaintiffs entered into a settlement providing
3/
an award of monetary relief. R. 1226-1230. The effect of
2/ The definition of the class has been modified on several
occasions, R. 446, R. 773, R. 1166. Prior to trial the class was
defined as "all black persons who have been at any time after March 24, 1969 (or who*may hereafter be) employed as production
and maintenance employees at the Bessemer plant.... ' R. 1 166. ̂
When the settlement was entered on January 14, 1980, the district
court "redefine[d] the class to consist of all black persons who
have been at any time after January 1, 1968 (or who may hereafter
be) employed as production and maintenance employees at the
Bessemer, Alabama, plant of U.S Pipe and Foundry Company. R.
1 2 1 2.
3/ In a letter dated May 30, 1979, the plaintiffs and U.S
Pipe informed the lower court that they had reached a settlement.
R. 1 086-88. Mr. Longshore who was counsel at trial ror all the union defendants except for Local 136, IBEW, orally inrormed
counsel for the plaintiffs and the court that his fgrefgeto the injunctive relief settlement lust prior to the trial. See
Tr. 5-6.
2
these settlements which were approved by the district court on
January 14, 1980, R. 1216, 1230, was to resolve all contested4/
issues between the plaintiffs and U.S Pipe and Local 136,
IBEW, and to revolve the injunctive relief issues in the case.
The issues which remained in the case, and which were tried on
June 18-20, 1979, concerned the plaintiffs' claims for bach pay,
attorneys' fees and costs against the remaining ten union
5/
defendants. The plaintiffs contended that -the seniority
system had a racially discriminatory impact which had a severe
financial impact on black workers. Moreover, the plaintiffs
alleged that the system was not bona fide and resulted from an
intent to discriminate and that the remaining ten Unions were
liable for payment of back pay owed to the black workers to 6/
compensate them for the economic harm which they had suffered.
4/ The plaintiffs and U.S. Pipe agreed to attempt to settle the
amount of attorneys fees to be paidWthe^Company. If they are unable ’to agree, the plaintiffs may petition the Court to- resolve
the issue. R. 1230. The plaintiffs and Local 136 have also
agreed to attempt to settle the issue of the amount of attorneys'
fees, if any, owed by Local 136.
5/ The trial was limited to the "liability issue — the amount
of back pay, if any, was to be determined at a later trial as
necessary...." R. 1166—67; see R. 448 (Plaintiffs Motion to
Sever Claims for Back Pay granted).
6/ The plaintiffs' position with respect to the Steelworkers
differed from their position with respect to the other Unions.
"MR. GOLDSTEIN; Your Honor before we commence our
redirect [of the first witness], I would like to state Plaintiffs' position with respect [to the Steelworkers]. . . . [ T ]that Plaintiffs are notputting on any evidence with the intent of seeking
back pay from the Steel Workers. However, if a case is put on through evidence elicited by the
craft unions that the Steel Workers owe back pay, then, of course [the plaintiffs] would seek
such award in that situation." Tr. 67-68.
3
In an Opinion rendered on October 16, 1979, the district
court found that except for the transfer of certain jobs in 1950
the seniority system was lawful. R. 1182-83. The district court
fixed liability for the discriminatory 1950 job transfer upon
Lodge 359, Machinists and Local 583, Boilermakers. R. 1133. The
district court entered a Final Judgment in favor of the eight
union defendants who were held not liable for the discriminatory
part of the seniority system and entered a Rule 54(b) Certificate
providing that there was no just reason for delay. R. 1209-10.
The plaintiffs filed a timely notice of appeal. R. 1263.
The district court entered a Certificate Pursuant to 28 U.S.C.
§ 1292(b) stating that the issue of the liability of Local 583
and Lodge 359 for parts of the seniority system other than the
1950 job transfers was proper for interlocutory review. R. 1 206-
07. The lower court entered an Order dismissing the claims
of the plaintiffs against these locals except for those claims
which arose from the 1950 job transfers. R. 1208. This Court
granted leave to file an interlocutory appeal by Order, dated
March 31, 1980.
This Court has jurisdiction of appeal No. 80-7107 pursuant
to 28 U.S.C. § 1291 and of appeal No. 30-7256 pursuant to 28
U.S.C. § 1292(b).
4
STATEMENT OP FACTS
This statement focuses upon the facts which are particularly
relevant to the one general issue of liability left unresolved by
the entry of the Consent Decrees — the legality of the seniority
system. Specifically, it is critical to analyze the facts
regarding the discriminatory effect of the seniority system; the
development of the seniority system; the institutions which were
responsible for the system and their historical racial policies;
and the maintenance of the system.
A. The Problem; Racial Segregation in the Seniority
System
The Bessemer plant manufactures ductile iron pressure
pipe for the water and sewage industries. The plant is divided
into production departments in which the raw materials are
processed into the final products and maintenance departments in
which repair and service of the equipment is performed. Included
among the production departments are those which perform basic
manufacturing functions, for example, the processing of raw
materials into ductile iron (Melting Department), the casting of
pipes (Casting Department), or the machining of pipe to specifica
tion (Machine Shop, deLavaud Pipe Cutters and Drillers Department).
Additionally, inspection functions (Quality Control and Chemical-
Physical Testing Lab Departments) and transportation functions
(Shipping Department) are performed within production depart
ments. The service and repair responsibilities of the maintenance
5
departments, Mechanical Maintenance, Boiler Shop, Electrical Shop
and Carpenter Shop are apparent. Tr. 24-27 (Boswell).
Several departments were closed during the pendency of the
lawsuit. A General Foundry which contained a sand casting
operation for the production of fittings, and a Pattern Shop
which was used for the construction of sand molds for the Foundry
were closed in 1972 when U.S. Pipe moved the production of
fittings to another plant. Tr. 29-30, 41. (Boswell). The
Blacksmith Shop was also closed about this time.
Generally, these production and maintenance departments
operated in a functionally-integrated manner. Tr. 27. However,
superimposed upon these departments was a crazy-quilt pattern of
union representation. The seniority and transfer system was not
based upon the operational departments but rather upon the
7/seniority units. Six separate Unions represented employees
in these seniority units. R. 1170 (Op.). The plant was divided
into thirty-three units: the Steelworkers represented employees
in twenty-four units (into which approximately 135 jobs were
grouped), the Machinists represented employees in five units
(into which approximately 23 jobs were grouped), the Patternmakers,
Molders, Boilermakers and Electricians each represented employees
7/ For purposes of the general discussion the International and
Its Local are referred to as one union. Apart from the Steel
workers, the defendant Unions are referred to as the "AFL Unions".
All of these Unions belonged to the American Federation of Labor
while the Steelworkers belonged to the Congress of Industrial
Organizations. It is incorrect to refer to the "AFL Unions" as
"craft" unions since the Machinists and Molders represented
non-craft workers at the Bessemer plant.
6
in one unit (into which a small number of jobs were grouped). Id.
There was "a history of racial discrimination by the
company in making initial job assignments. Not only were
there virtually no assignments of blacks to positions represented
by the craft unions, but even in assignment to the various
non-craft positions represented by the predominantly black
Steelworkers a color-conscious pattern is obvious." R. 1172
(Op.). As a result "jobs and seniority units ... were for
practical purposes reserved either for whites or for blacks." Id.
The extent of the racial allocation of employment opportunities
is illustrated in Appendix A which lists as of 1971 the racial
composition of each seniority unit and each Union. In 1971 there
were 251 whites and 11 blacks employed in the units represented
by the AFL Unions, whereas 109 whites and 404 blacks were employed
in the units represented by the Steelworkers — blacks comprised
78.8% of the workers in the units within the Steelworkers'
jurisdiction but only 4.2% of the workers within the AFL Unions'
3/
8/ The precise division of the production and maintenance jobs
by unit and by union representation is set forth in plaintiffs'
exhibits 21a-22a, 21b-22b (Plaintifffs' First and Second Requests
to U.S. Pipe to Admit and Responses.)
The district court erred in stating that the Pattern
makers represented four positions, R. 1170; the Patternmakers
only represented the Patternmaker apprentice and journeyman or
"A" positions, pis. exhibits 21a, 21b. Similarly, the district
court erred in stating that the Holders represented "but a single craft position (journeyman and apprentice)" R. 1170. The Holders
represented an additional position, Holder Group 2.
7
jurisdiction. Appendix A.
The intentional division of the plant into "white" and
"black" jobs is illustrated by the racial composition of the
units within U.S. Pipe's operational departments which contained
more than one seniority unit. As the chart in Appendix 3 demon
strate, the unifying thread to the crazy quilt pattern for the
division of the operational departments into seniority units is
apparent. The lower-paying jobs which were stafed almost exclu
sively by black workers were placed into dead-end seniority units
by separating those jobs from the units represented by the AFL
Unions.
Furthermore, the racial allocation of jobs resulted not
only from historical segregation but also from racially •
disparate assignment, transfer, and Dromotion practices during1/the period from 1963-1977. As shown in chart set forth
!£/-below, during the approximate period covered by this
9/ In its Tenth Request for Admission of Fact, the Company
listed each vacancy for jobs within the jurisdiction of the AFL
Unions during the period 1963-1977 and the person by race who
filled that vacancy. The Unions introduced this document into
evidence. Unions exhibit 1.
10/ The number of white and black workers who filled vacancies
within the jurisdiction of the AFL Unions from 1963 through 1977:
Blmks. Elects. Machs. Holders Pattmkers Total
No. whites 10 91 309 1 3 4 432
No. blacks 0 3 49 1 0 58
3
lawsuit, only 58 or 12% of the vacancies in job positions
represented by the APL Unions were filled by black workers
despite the fact that blacks comprised over 50% of the em
ployees in the plant and over 75% of the employees in the
job positions represented by the Steelworkers.
As might well be expected, the black workers suffered
substantial economic loss as a result of the discriminatory
allocation of job opportunity. The following chart shows that
in each year from 1971 through 1974 black workers earned sub
stantially less for each hour worked than white workers despite
the fact that the black workers had greater plant seniority than
the white workers. Pis. exhibit 29d. The black workers averaged
approximately $1.00 less per hour worked than the white workers
even though they averaged more than one year's seniority over the
white workers.
DIFFERENCE
WHITES BLACKS Blacks minus Whites
HEAR Avq Rate Avq Sen Avq Rate Avq Sen Rate Sen
1971 $ 4.56 1959.4 $ 3.77 1957.5 $ -0.79 + 1.9
1972 4.91 59.0 4.05 58.0 -0.86 + 1.0
1973 5.65 57.6 4. 54 56.3 -1.11 + 1.3
1974 6. 1 6 58.6 5. 06 56.3 -1.10 + 2. 3
B. The Institutions Responsible- for the Seniority System
The employment structure at the Bessemer Plant resulted
from the interaction of U.S. Pipe, the AFL Unions and the Steel
workers. Before turning to the development of the seniority
system, it is necessary to generally review these institutions'
policies regarding race relations and fair employment oppor
tunity.
9
U.S. Pipe operated its plant in 3essemer in a manner
consistent with customs and practices of racial segregation:
"Pursuant to industrial practice ... There were jobs
which were typically 'white' or 'black'." Pis. exhibit 32b, ans.
32-33. (Company's Answers to Interrogatories). Historically,
the facilities, bathhouses, drinking fountains and eating areas
were segregated by race. Pis. exhibits 31a, 31b (Company's Ninth
Request to Admit and Response). Even the employee clock numbers
were assigned by race. Clock numbers 1 through 799 were assigned
to black employees and clock numbers above 300 were assigned to
white employees, id. When the industrial customs of segregation
became unlawful in 1965, U.S. Pipe integrated its facilities,
id., and began to institute some changes in the racial assignment
practices. Then, in 1968, U.S. Pipe initiated its attempts to
negotiate some changes in the discriminatory seniority system,
see Section D, infra.
While U.S Pipe appeared motivated by the common adage,
"to get along you have to go along" — in this case, with
the customs of racial segregation — the AFL Unions' deliberate
practices of racial exclusion were fundamental to their basic11/organizational structure. Mr. Palmer who was the personnel
manager at the Bessemer plant for over twenty years, pis. exhibit
11/ "Judicial findings of exclusion from crafts on racial
grounds are so numerous as to make such exclusion a proper
subject for judicial notice." United Steelworkers of America
v. Weber, 443 U.S 1 93, 1 98 n. 1 (19^9).
10
42, pp. 4-5 (Tr. 1973 Hearing), stated that the "... craft
union structure, which has traditionally existed at U.S. Pipe's
Bessemer Pipe Plant has made it difficult for black laborers and
semi-skilled workers to move into craft jobs, when union lines
have to be crossed”. Pis. exhibit 32b, ans. 14. It is importantJ_2/
to review the racist history of each of these Unions since
the intent of the AFL Unions is so relevant to the bona fides of
the seniority system.
The Machinists Union, conceived as a racist organization,
adamantly adhered to its racist origins during the period when
the seniority system developed at the Bessemer plant. The
first Constitution of the Machinists expressly restricted member
ship to "white" persons; the original call for membership by the
machinists solicited "white", free born male citizen[s] of some
civilized country ...." Pis. exhibits 30a, 30b (Pis. First
Request to the Machinists and Response). The Machinists maintain
ed their white-only restriction on membership by specifying in
the secret "Ritual" that only "white" persons would be admitted,11/id.
At the Twentieth and Twenty-First Conventions which were held
in 1940 and 1945, several local lodges introduced Resolutions pro-
12/ Since the liability of the Electricians is not before
tKe Court, the history of this Union is not reviewed.
13/ Specifically the "initiation" section of the Ritual provided that, "any eligible white candidate working at the trade
... may be admitted to membership...." Unions Exhibit 11 (U.S.
Pipe's Request to Produce and Response).
u /viding for the admission of blacks. The Machinists re
jected each of these Resolutions. Id.
Like the Machinists, the Boilermakers historically excluded
blacks from membership. The Union maintained a white-only
provision in its membership Ritual. During the expansion of
shipbuilding activities preceeding the Second World War, there
was an enormous demand for labor in the shipyards on the Pacific
Coast. Consistent with its white-only policy, the Boilermakers
opposed the employment of blacks in any position other than
laborer. In response to protests by blacks, the Government,
and employers, the 3oilermakers established segregated, auxiliary
locals for black workers. Pis. exhibit 64, pp. 19-20 (Final
Report, FEPC). The provisions established by the 3oilermakers for
14/ For example, Resolution No. 98 introduced at the Twentieth
Convention provided in pertinent part:
"Whereas the word 'white' in the obligation
is a class discrimination and un-American, con
trary to the Constitution of the United States;
and ★ ★ ★ ★
Whereas competent machinists .. if colored ... are barred from membership in our Organization;
★ ★ * * ★
Resolved, that the word 'white" be removed from
the obligation of Local Lodges of the International Association of Machinists. Pis. exhibits
30a, 30b.
The Machinists' vehemence in maintaining its institu
tional racism is illustrated by the International's treat
ment of Lodge 751. This Lodge which represented employees at a Boeing Aircraft Corporation plant in Seattle had supported
several of the the Resolutions proposing the integration. The
International took over the direct supervision of Lodge 751 in
order to insure that the Union's racial restrictions would be
enforced, id.
the auxiliary locals created conditions which were racist,
11/humiliating and demeaning. After an investigation of war
industries, the Fair Employment Practices Committee determined
that the racially-restrictive practices of the Boilermakers were
discriminatory and in violation of Executive Order 9346. Pis.
exhibit 63 (Summary of Findings of the FEPC Los Angeles Investi
gation); Pis. exhibit 64, pp. 19-20 (Final Report of FEPC).
Moreover, the California Supreme Court held that the practices of
15/ The auxiliary or black local was organized as an affiliate
or subordinate to a white local which was referred to as the
supervising local. (2) The black members of the auxiliaries were
not, in fact, members of the International Union — the clause in
the Ritual restricting membership to "whites" was maintained.(3) The bylaws of the auxiliaries were "subject to change by the
International Executive Counsel" whereas the rights of the members
of the white locals were guaranteed by the Union Constitution.
(4) The members of the auxiliaries could not send delegates to
the General Convention, or vote at the Convention, or be elected
as Union officers. (5) The auxiliary locals could not have a
business agent the most important union officer, but rather had
to rely upon the business agent of the supervising white local.
(6) The auxiliary locals were denied the right to establish a grievance committee. The auxiliary could elect only one member
of a grievance committee which was comprised of "from two to
five members" from the supervising white local. (7) A member of
the auxiliary could not change his job status, e.g., from helper
to mechanic, without receiving the approval of the supervising
white local. (3) A member of an auxiliary local could only
transfer to another auxiliary local. (9) The insurance coverage
for members of auxiliaries was less than the coverage for members
of white locals. (10) There were no provisions for apprentices
to be included in the membership of the auxiliaries, although
such provisions existed for white locals. (11) There was a
provision in the auxiliary bylaws which punished intoxication,
but there was no comparable provision for white locals. (12)
Whites could be admitted until the age of 70 whereas blacks
could be admitted until the age of 60. Pis. exhibit 59 (Bylaws of Auxiliary Lodges as amended July 15, 1942); Pis. exhibit 58
(Bylaws of Auxiliary Lodges effective January 1, 1938); pis.
exhibit 62 (Northrup analysis.)
13
the Boilermakers were racially discriminatory and in violation of
California labor law. Williams v. International Brotherhood
of Boilermakers, 165 P.2d 329 (1946); James v. Marinship Co.,
155 P.2d 329 (1944). Finally, black workers forcefully protested
against the racist policies of the Soilermakers. A Philip Randolph
eloquently articulated these protests from the floor of the AFL
Conventions which were held in 1941, 1943 and 1944. Pis. exhibit
!£/
65 (Proceedings of AFL Conventions). Despite the findings
of the Fair Employment Pratices Committee and the California
Supreme Court, and the protest of black workers, the 3oilermakers
did not abolish the segregated, auxiliary locals until 1961. Pis.
exhibit 35b, ans. 6 (Boilermakers' Answers to Interrogatories).
The Molders maintained several segregated local unions,
including some in Alabama, until 1967. Pis. exhibit 37b, ans.
10-11 (Molders' Answers to Interrogatories). Tr. 476-77 (Dockery).
While the Patternmakers neither excluded blacks by constitutional
provision nor maintained segregated locals, the Patternmakers
Association of Birmingham did not have a black member until
16/ For example, Randolph at the 1944 Convention, pointed
to the hypocrisy of the United States fighting a war
against racism while practices such as those enforced by
the Boilermakers continued; moreover, he stated, "This talk
about the workers not being willing to be in the same
organization with Negroes is tommy-rot. There are Negroes
and white workers together in a large number of organiza
tions of the American Federation of Labor and there
is no use permitting the 3oilermakers getting (sic) away
with this hypocrisy..." Pis. exhibit 65, p. 493 (Pro
ceedings of 1944 Convention).
In response the President of the Boilermakers stated,
" [w]e will work out these problems ... as fast as it is possible
to do so, if the agitators will leave us alone." Id. , p. 496.
14
1972. Pis. exhibit 36b, answer 3 (Patternmakers' Answers to
Interrogatories). Tr. 446 (Basemore). See also po. 71-73,
infra.
C• The Development of the Seniortv System
1. NLRB Decisions
The employment structure had its origin in the union
certification proceeding conducted in 1939-1940. In June
22./1939 the Steel Workers Organizing Committee petitioned
'■he National Labor Relations Board claiming that they represented
a majority of workers at the Bessemer plant. Pis. exhibit 50,In
the Matter of United States Pipe & Foundry Company and Steel
Workers Organizing Committee, 19 N.L.R.B., No. 102 (1940).
Additionally, five Unions, Boilermakers, Electricians, Machinists,
Molders and Patternmakers, which belonged to the American Federa
tion of Labor, also sought to represent employees at the plant.
T'fr® representational claims' of the AFL Unions did not conflict
among themselves but the claim of each AFL Union conflicted with
the representational claim made by the Steelworkers. As describ
ed by the Board, the representational claims of the Unions were
as follows, id., 19 N.L.R.B., No. 102 at 1019-20:
The Amalgamated, through the S.W.O.C., contends
that all production and maintenance employees at the Bessemer plant, exclusive of supervisory and clerical
employees, constitute a unit appropriate for the purposes of collective bargaining.
17/ The Steel Workers Organizing Committee was a labor organization authorized to act on behalf of the Amalgamated Association of Iron, Steel and Tin Workers of North America.
This Union became the United Steelworkers of America.
("Steelworkers" refers to all of these labor organizations.)
15
The I.A.M. claims that an appropriate unit consist
(sic) of Machinists, apprentice Machinists and
Machinists' helpers. The I.A.M. would include within
its unit employees classified on the November 18,
1939, payroll as toolmen, crane hookers, blacksmith-
shop employees, welders, apprentice welders, and
welders' helpers... Although the I.A.M, does not
admit colored employees to membership, it made no
claim that such employees be excluded from the unit
it claimed to be appropriate. We shall include
colored employees in the unit sought by the I.A.M.
(footnote omitted).
The I.B.E.W. claims that the electricians consti
tutes an appropriate unit....
The Boilermakers contend that an appropriate unit
would consist of employees employed as boiler
makers, Boilermakers' helpers, welders, apprentice
welders, and welders' helpers....
The P.M.A. claims that the pattern makers and pattern
makers' apprentices constitute an appropriate unit.
The I.A.M. claims that all employees of the company, excluding supervisory and clerical employees and
those employees claimed by the other four American
Federation of Labor Unions, constitute an appro
priate unit. (emphasis added).
. A Trial Examiner designated by the Board held a hearing
regarding the contested elections on December 1, 4, 5, and 6,
1939. Pis. exhibit 49 (Transcript of Hearing). The issue of
race was repeatedly raised during the hearing. The Steelworkers
maintained that the five AFL Unions should be barred from repre
senting employees because of their policies of racial discrimina-
!£/
tion; the Steelworkers further contended that the organiza-
18/ For example, Mr. Yelverton Cowherd, the attorney represent
ing the Steelworkers, stated: "We contend in every department of
that plant our members are there, they are there working with them [journeymen], and in many instances they would be certified
journeymen were they not negroes (sic), and that is the control
ling factor — they are not skilled or affiliated, because they are negroes (sic)." Pis. exhibit 49, pp. 72-73.
j_9/
tional campaign of the Unions directly concerned race. Mr.
3aumgardner, the representative of the Machinists, readily agreed
that the Machinists would only admit white workers into the
Union, Pis. exhibit 49, pp. 145-47:
Q. What about helpers, are they eligible for
membership in your union?
A. White helpers.
★ ★ *
Q. ... Now, you made specification with regard to
helpers in the machine shop, that white helpers
were eligible. Now, does that same restriction
aply to all other classes of employment with
regard to color, if a machinist wanted to get
in he could only get in if he is (sic) white?
A. Yes.
Essentially as requested by the AFL Unions, the 3oard
certified five bargaining units. That the ensuing
19/ For example, Mr. Cowherd described the practices of coercion
which the Steelworkers contended the AFL Unions used — in this
case, the holders: "We offer to prove, if your Honor please,that a few journeymen in that plant, where no representation was
offered to the negroes (sic) until he attempted to organize
himself just recently, refused to work with them, the negroes (sic) in that plant last June, unless they would join their
union, and the journeymen just quit work, and then all those
negroes (sic) that were in the CIO Union could not work until they were on the job, because they were all linked in on helping
the journeymen and the plant shut down on that account."
Trial Examiner Smith: "Well, how is that an issue here?"
4r. Cowherd: "It simply shows this, that these men are not
allowed their free choice of bargaining agencies out there; that they have been intimidated and cowed down; that they shut the clant down and stooped their work out there, because negroes
U rik S d Us « tS I .? ? ? S ?5?nH S'p?^hexhf l I t
50, 19 N.L.R.3. No. 102 at 1021.
- 17 -
elections had racial implications cannot
be doubted. The Patternmakers and I.B.E.W. were
selected as representatives by small, all-white,
all-craft elections units. The I.A.M. which barred
blacks from union membership, and the Boiler
makers, which relegated blacks to inferior 'auxiliary'
lodges, were selected by units comprised primarily
of white craftsmen. The bulk of the employees,
predominantly black, were in the fifth unit, and chose the Steelworkers over the Molders the latter
having apparently alienated many blacks by what
were perceived to be discriminatory practices. R.1 175-76 (Op.),. 20/
An additional NLRB-supervised election was held in 1949
at the Bessemer plant. Unions' exhibit 9, In the Matter of
United States Pipe and Foundry Company and International Molders
and Foundry Workers Union of North America, AFL, 84 N.L.R.B., No.
105. After having lost the 1940 election to the Steelworkers, the
Molders petitioned the-NLRB to certify a unit comprised of only
two jobs, apprentice and journeyman, in the General Foundry —
20/ The Board's specific authorization of the bargaining unit
representatives was as follows, pis. exhibit 51 (NLRB Supplemen
tal Decision):
1. Machinists Lodge, 359 was certified as the bargain
ing representative for employees working as
"machinists, apprentice machinists, toolmen, crane
hookers, blacksmith-shop employees, and the
welders, apprentice welders, and welders' helpers
in the repairs, machining and equipment department....
2. The IBEW, Local 698 was certified as the bargaining
representative for employees working as "electricians".
3. The Boilermakers, Local 4, was certified as the bargaining representative for employees working as
"boilermakers and boilermakers helpers and the welders, apprentice welders, and welders' helpers in the boiler
shop...."
4. The Steelworkers, Local 2140 was certified as the
bargaining representative for employees working
in the "remaining production and maintenance"
positions.
1 8
the only two jobs in the Foundry which were staffed exclusively
by white workers. Pis. exhibit 76 (Statistical exhibit), Pis.
exhibit 68, p. 5 (Final EEOC Report). Again the racial implica
tions of the election were apparent; the all-white unit selected
the Holders.
2. Implementation of the 1940 NLRB Decision
Jobs which were staffed with black workers were included
within the bargaining units of the Machinists and the Boiler
makers. However, the 3oilermakers and the Machinists not only
refused to admit these black workers to membership but also they
refused to represent these black workers in direct contravention
of the 1940 NLRB certification.
Mr. Holston, a black employee who worked in the Machine shop
from 1940 through 1975, see section E infra, testified as to the
Machinists' failure to represent black employees. After the 1940
NLRB Certification, the black workers were required to pay dues
to the Machinists and were permitted to attend union meetings.
Tr. 217-19. But the Machinists failed to provide or make avail
able to the black workers documents which were important for
their proper representation, e.g., the Union Constitution, bylaws
of the local, membership cards. _Ic3. , Tr. 218. Moreover, the
meetings of the Machinists were strictly segregated. Tr. 218-19.
Most importantly, the black workers were informed by the Machinsts
that "they couldn't represent us, that it was a craft union and
[they] didn't have helpers." Tr. 230. When Holston returned
in 1946 from four years of army service, no official of the
Machinists offered to represent him or even to request that he
pay dues. Tr. 220. Similarly, in direct contravention of the
19
NLRB. Decision, the 3oilermakers did not represent the black
employees who worked as Boilermaker Helpers. Tr. 296 (Jackson).
During the period 1940-1950, the Boilermakers and Machinists
not only subverted the NLRB Certification by failing to represent
black workers within their bargaining units, but also they
subverted it by representing white workers in the Steelworkers
unit who "apparently preferred representation by an all-white
union." R. 1183 (Op.). The subversion of the NLRB Certification
was formalized by three written agreements dated October 20,
1950, between U.S. Pipe and the Machinists, Boilermakers and
11/Steelworkers, R. 1177-78 (Op.):
. . . jurisdiction over certain positions was altered. The Steelworkers gained juris
diction over boilermaker helpers, over helpers
from the blacksmith department, and over crane
hookers — all of whom were black. The Steel
workers ceded jurisdiction over flask patchers,
over machine and crane operators, and over
"Helpers (white) To be promoted to Millwright
Trainee" — all of whom were white.
. . . the changes were not ... rational. It
will be noted that inconsistent approaches are
taken with respect to helper positions —
separating some (those with black incumbents)
from their related skilled positions, while
joining others (those with white incumbents) to their related skilled positions.
21/ Mr. Baumgardner, a representative of the International Association of Machinists, signed the agreement. Mr. 3aumgardner represented the Machinists at the NLRB Hearing in 1939 and expressly stated that the Union would only admit "white" helpers,
see p. 17, supra. The International Representative of the Steelworkers signed the agreement. Two members of the Union Shop
Committee of the’Boilermakers signed the agreement. Pis. exhibit
41(b). (U.S. Pipe’s Answers to Interrogatories).
20
3. Irrationality and Unfairness in the Seniority
System
The results of the 1940 and 1949 NLRB Decisions and the
transfer of jobs between units under the 1950 agreements created
the seniority system. One result of this development of the
seniority system was that "[t]he IAM and Boilermakers became,
like the other craft unions, all-white — a situation that
did not change until the mid-1960's." R. 1173 (Op.); see Section
A, supra. Another result of the development of the seniority
system was a crazy-quilt and irrational pattern of job progres
sion and unit structure.. The system denied black workers an
opportunity to promote to higher—paying jobs even though black
workers were employed in the same operational departments in
which the higher-paying jobs were located and even though the
black workers had gained experience in functionally-related
jobs.
In the Boiler Shop, the Journeyman and Apprentices were in
one seniority unit, while the Helpers were in another unit. This
configuration thwarted the Boilermaker Helpers, all of whom were
black, from making a normal job progression to Boilermaker. The
Helpers and Boilermakers worked closely together and accordingly,
the Helpers had an opportunity to learn the trade or at least a
substantial part of the trade. Tr. 297 (Jackson); Tr. 139
(Huddleston); Tr. 30-31 (Boswell). In fact, the Helpers taught
the white apprentices some of the "tricks" of the trade. Tr. 138
(Huddleston).
The irrationality of the system is further emphasized
in that it did not operate to preclude promotion of white
21
workers who were employed in positions comparable to the Boiler
maker Helpers. During the 1940's and 1950's, the Boilermaker
unit included the job of Boilermaker C and jobs within the Tools,
Repair and Replacement Department which were staffed exclusively by
white workers. Tr. 304-05 (Hembree); pis. exhibit 91 (employee
card: Vines); pis. exhibit 92 (employee card: Scott). These
employees, as admitted by a former Local 583 Boilermakers'
Officer, "did the same type of helping work that the black
Boilermaker Helpers did." Tr. 304-05 (Hembree). Unlike the
black Boilermaker Helpers, these white employees had the oppor
tunity to progress to apprentice or to journeyman positions
without loss of seniority.
The same pattern of irrationality applies to the Machinists
units. The Machine Operator, Millwright and Crane Operator
positions were in units represented by the Machinists. The
Helpers, Laborers (who in many instances did work similar to that
of the Helpers) and Crane Hookers were located in Steelworkers 22/
units. As in the Boiler Shop, the black Helpers, Laborers,
and Crane Hookers worked closely with the white operators,
received an opportunity to learn at least part of the Operator
22/ This pattern existed in four operational departments
where the Machinists and Steelworkers represented employees
in separate units: Blacksmith Shop (e.g., Machinists represented
Blacksmiths, Steelworkers represented Helpers); Chemical-Physical
.Testing Lab (e.g., Machinists represented Machinists, Steelworkers
represented Laborers); Machine Shop (e.g., Machinists represented
Machinists, Millwrights and Crane Operators, Steelworkers
represented Helpers, Laborers, and Crane Hookers); and Mechanical
Maintenance (e.g., Machinists represented Machinists, Millwrights,
Steelworkers represented Helpers, Laborers). See generally pis.
exhibits 21a, 21b (Pis. First Request to Admit and Response).
22
jobs, and trained inexperienced white Operators, but the senior
ity system denied them the opportunity to make the normal
job progression to Operator. Tr. 30-31 (Boswell); Tr. 220-22
(Holston).
The irrationality of the Machinists units is even more
pronounced in that the system was not neutrally designed. The
district court observed that "inconsistent approaches [were]
taken with respect to helper positions." R. 1178. The white
helpers were placed in the units represented by the Machinists,
whereas the black helpers were placed in the units represented by
the Steelworkers. At the time of the 1950 transfer, the obvious
inequality of this treatment was papered over by designating the
white helpers as "Millwright Trainees." The same basic system
continued by including entry-level, unskilled positions, other
than apprentice positions, in each of the units represented by
the Machinists except for the Blacksmith Shop. In order to work
as a Machinist C, Crane Operator, Pipe Fitter C or D, or Mill
wright D, it was not necessary for an employee to have experience
or skill. Tr. 69-70 (Boswell). The inexperienced white workers
were thus able to progress without the loss of seniority as their
on-the-job training improved their skills, while the black
Helpers, Hookers or Laborers were denied a similar opportunity.
The same irrationality appears in the General Foundry
where Journeymen Molders and Apprentices were represented
by the Molders and the Molders Helpers and Laborers were repre
sented by the Steelworkers. While the Helper position provided
direct experience and training for the Molder and Apprentice
23
positions, Tr. 31 (Boswell), Tr. 183-89 (Green), this rational
job progression was prevented by the seniority system.
The irrationality and unfairness of the seniority system is
further emphasized by examples of the individual work experience
of black employees at the Bessemer plant, see Section S, infra,
and the inconsistency of the system with NLRB precedent, industry
practice and the policies of the AFL Unions at other locations,
see Argument I, 3, 3, infra.
D. The Maintenance of the Seniority System
1• The Parties and Negotiation Process
Having described the origin of the system and its racial
consequences, it is now appropriate to turn to its maintenance
and implementation. The collective bargaining negotiations were
essentially three-way: they involved the positions taken by U.S
Pipe, the Steelworkers, and the AFL Unions. While the AFL Unions
took similar positions, the Company bargains separately with each 23/
of the Unions.
The relationship between the internationals and the locals
adds another factor to the negotiations. First, the Interna
tionals of the Machinists, Boilermakers, Patternmakers and
Steelworkers as well as their locals are specifically listed
23/ In 1971, 1974, and 1977 the Unions sought to arrive at a
Joint negotiating postion before they met separately with the
Company.
24
as parties to the collective bargaining agreements. Pis.
exhibits 1-12, 19-20 (Contracts of Machinists, Boilermakers,
Patternmakers and Steelworkers).
Secondly, the international representatives or other
international officers of the Boilermakers, Machinists,25/
Patternmakers and Steelworkers were intimately involved26/
in the collective bargaining negotiations. In fact, 27/
the international representatives of the Boilermakers,
24/
24/ For example, the 1971 Machinists Agreement provides
tnat "[t]his Agreement dated December 13, 1971, is made and
entered into by and between the UNITED STATES PIPE AND FOUNDRY
COMPANY, BESSEMER PLANT (hereinafter called the Company) and the INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, on
behalf of itself and Lodge 359 (hereinafter called the Union)
___ " (emphasis added) Pis. exhibit 6, p. 3. This_unequivocal
language appears in each of the agreements entered into from 1968
to the present by the Machinists, Boilermakers, Patternmakers and
Steelworkers.
25/ There is no evidence in the Record concerning the role
of the international representatives of the Molders in the negotiation process except for the fact that an international
reoresentative signed the 19^8” Molders Agreement. Pis. exhibit
17', p. 27.
26/ U.S. Pipe enters into collective bargaining agreements
every three years with each of the Unions. R. 1171 n.7. The critical negotiations occurred in 1968, 1971 and 1974 since the
modification of the seniority system was closely reviewed at
these negotiations and since this period is covered by the
lawsuit.
The minutes maintained by the Company for the follow
ing collective bargaining negotiations were accepted into
evidence: 1971 and 1974 negotiations between U.S. Pipe and
the Boilermakers, pis. exhibit 56; 1971 and 1974 negotiations
between U.S. Pipe and the Machinists, pis. exhibit 53; 1968, 1971
and 1974 negotiations between U.S. Pipe and the Steelworkers,
pis. exhibit 54.
27/ Mr. Stone, the international representative of the Boiler-
makers, took "the major role of presenting the union s position during [the 1965 negotiations]." Pis. exhioit 42, p. 32 (Tr. 1973
Hearing, Palmer). Mr. Stone continued in this position until the
- 25 -
28/ 29/
Machinists and Steelworkers played the major role in
presenting the positions of their Unions in the collective
bargaining negotiations with U.S. Pipe. The international
representative of the Patternmakers actively participated in the
1971 negotiations regarding the unsuccessful attempt to alter the
seniority system, see p. 73, infra. Moreover, the international
representatives of the Machinists, Boilermakers and Steel
workers attended the critical intra-union meetings in 1974
which were called to coordinate the Unions' negotiation positions
with the Company. Tr. 109 (Williams).
Thirdly, international representatives of each Union,
except the Patternmakers, signed one or more of the collec
tive bargaining agreements which the Unions entered into with the
27/ cont'd.
1971 negotiations when Mr. Hoover Wilson assumed Mr. Stone's
position. Id_., pp. 32-33, p. 68 (Wilson); pis. exhibit 56.Since 1970, Mr. Wilson has been the international representative
of the Boilermakers as well as the business manager of Local
583; however, he receives all of his salary from the interna
tional. Pis. exhibit 42, p. 63 (Wilson). Moreover, the Boiler
makers' written contract proposals were submitted on the letter
head of the International. Id., pp. 66-67.
28/ Mr. Walters, the Grand Lodge (international) representative
was the principal negotiator for the Machinists in 1971, pis.
exhibit 42, p. 24 (Palmer); Mr. Tucker, the business Representa
tive of Lodge 359, was the principal negotiator for the Machinists in 1974, pis. exhibit 53. The Grand Lodge representative
receives all of his salary from the International; the business
representative receives one-half of his salary from the interna
tional and one—half from the local. Pis. exhibit 42, pp. 91-92
(Tucker).
29/ At least from. 1 959 to the present, the primary negotiator
"for the Steelworkers was the international representative, A.C.
Burttram through 1971 and Jimmie Lee Williams from 1974 to the
present. Tr. 242-43 (Burttram); Tr. 107-08 (Williams); pis.
exhibit 54.
26
30/
U.S. Pipe between 1968 and 1977.
Fourthly, the Constitution and practices of each of the
Unions provide for supervision and control of the locals by the
internationals. See pp. 86-87, infra.
2. The Collective Bargaining Negotiations
" [N]one of the contracts provided for transfers between
seniority units represented by different unions, and it is clear
from the evidence that, when that did occur, the employee was
treated in the new unit as a new employee for seniority purposes."
R. 1171. (Op.) As the district court stated, and as fully
described in Section A, "[s]eniority systems such as in effect at
U.S. Pipe's Bessemer plant since 1968 [and before 1968] ... have
long been recognized in this and other circuits as having a
discriminatory effect in industrial settings where blacks were
discriminated against in initial job assignments." R. 1171. Not
suprisingly, the unifying pattern which connects the collective
bargaining negotiations regarding the modification of the senior
ity system was that "[rlacial considerations were involved in
the 1968, 1971, 1975 and 1977 negotiations ---" R. 1181
31/
30/ An international representative or business represen
tative of the Machinists signed the 1963, 1975 and 1977 contracts,
pis. exhibits 5, 7, 8; see also n.28, supra. The international
representatives of the Boilermakers and the Steelworkers signed
the 1968, 1971, 1975 and 1977 agreements. Pis. exhibits 1-4,
9-12 An international representative of the Molders signed the
1968 agreement. Pis. exhibit 17.
31/ However, the district court states that these•"considera
tions" occurred "in an unusual way." Whether these "considera
tions" were "unusual" or not is unclear since no other negotiations regarding race and the alteration of seniority systems were
introduced into evidence. See Argument I, B,5, infra.
27
At the initial session of the 1968 collective bargaining
negotiations between U.S. Pipe and the Steelworkers, A.C. Burt
tram, the international representative, in an apparent reference
to the 1950 job transfers, see section C, 2, supra, observed that
there had been some "switching around [of jobs]." He complained
that as result of this "switching around" workers may have been
"cut-off" from promotion and the use of "their seniority might be11/limited." Pis. exhibit 54, Sept. 4, p. 1; Tr. 247-48
(Burttram). At a subsequent bargaining session, Mr. Palmer, the
personnel manager of the company, recognized the general problem
which Burttram had raised — that members of the Steelworkers
units would not transfer to higher-paying jobs in other units
because they would have to forfeit their seniority and job
security. Specifically, Palmer pointed out that Molders Helpers
in the Steelworkers unit, who "could do a good job for us," were
not progressing to openings in the Molders unit because they
would face a "loss of seniority." Pis. exhibit 54, Oct. 1, p.6;
Tr. 249-50 (Burttram). Palmer stated that the Company was
considering a change in the seniority system which would permit
employees to transfer from a unit represented by one Union to a
unit represented by another Union. However, Palmer emphasized
that any modification of the system would require the approval of
the "several other unions [the AFL Unions] in this plant." Pis.
32/ When there is a specific reference to the negotiation
minutes, the date of the meeting for which the minutes were
recorded and the page reference to the minutes for that meeting
are listed.
28
exhibit 54, Oct. 1, p. 6; Tr. 249-50 (Burttram). Burttram
demonstrated considerable foresight when he once again raised the
issue of the discriminatory seniority provisions pis. exhibit 54,
Oct. 30, p. 6; Tr. 248-49:
These proposals the union (Steelworkers] was
(sic) making in seniority provisions were for
the purpose of trying to improve it to eliminate
some of the problems we could have over dis
crimination. ... We have discussed this before
. . . Unless we made some changes to have fair
employment opportunities, we might run into
some trouble.
The Company and the Unions did not modify the senior
ity system in 1968; consequently, as 3urttram predicted, they ran
"into some trouble."
During the 1971 negotiations the Company proposed a modifi
cation of the seniority system which would permit employees to
transfer on the basis of their plant seniority. Tr. 307 (Hem
bree); pis. exhibit 42, pp. 25-27, 33-34 (Palmer). As stated
by Mr. Palmer during negotiations with the Steelworkers, the
Company wanted to respond to the problems which had been dis
cussed in 1968 and to other claims of racial discrimination,
pis. exhibit 54, Sept. 9, p. 7, Tr. 250-51 (Burttram):
The Company [Palmer] pointed out that we have
some cases here where some of our people have
a case with the EEOC, stating they did not have
an opportunity to advance and we would like to see some provisions made whereby this could be
corrected....
Burttram reiterated the position which the Steelworkers took
during the 1968 negotiations: the Steelworkers "will not stand in
the way .... [The Steelworkers] are willing to discuss it with
29
other unions ... [But the Steelworkers] would not want to do
it on a unilateral basis." Id.
The Unions met on several occasions in order to attempt to
work out a jointly-acceptable modification of the seniority
system. Tr. 252 (Burttram); pis. exhibit 47, o. 33 (Dep.
33/
Burttram). An "Inter-Union Seniority Agreement" was
drafted for discussion. The proposal was discussed at the
negotiation sessions between the Company and Unions. See e.g.,
pis. exhibit 53, Nov. 17, p. 1; Pis. exhibit 43, p. 25 (Dep.
Palmer); Tr. 39-40 (Boswell). Despite the willingness of the
Company to agree to the proposal, , pis. exhibit 43, p. 25, Pis.
exhibit 42, pp. 25 -2 1 , 33-34, Tr. 307 (Hembree), and the Steel
workers willingness to agree to it if the other Unions concurred,
Tr. 250-51 (Burttram), pis. exhibit 47, p. 33(Dep. Burttram),
the Agreement was not signed. The AFL Unions refused to agree to
any change in the seniority system. Tr. 252 (Burttram); pis.
exhibit 47, p. 45; pis. exhibit 43, pp. 24-25.
Prior to the commencement of the 1974 collective bargaining
negotiations with U.S Pipe, representatives of the internationals
33/ The proposal permitted a transferring employee to initially
retain his seniority in his former unit. However, the worker
would lose his seniority in the former unit in proportion to his
accumulation of seniority in his new unit — for each year of
seniority he would accumulate in the new unit he would lose a
year of seniority in the former department. Pis. exhibit 43 (Dep. Palmer, exh. 1 thereto); Tr. 462-64 (Jaffke). The
proposal was a step, although a small one, in the direction of
removing the adverse racial consequences of the system. The
proposal required that an employee entering a bargaining unit
would begin as a "new" man since the employee would not transfer
his accumulated seniority to the Unit. Id.
30
and the locals met on several occasions in order to prepare a
joint seniority proposal. Tr. 107-09 (Williams); Tr. 269-70
(Long). As admitted by the president of Lodge 359, Machinists,
the Steelworkers proposed that the Onions request total,
plant-wide seniority. Tr. 365 (Harper); see Tr. 110 (Williams),
Tr. 269-70 (Long). However, when making this proposal, the
Steelworkers ran into a "brick wall." Tr. 111-12. The AFL
Unions adamantly insisted uoon the inclusion of "unit oref- 34/
erence." The Steelworkers agreed to the "unit preference"
provision only because the AFL Unions otherwise refused to agree
to modifications in the seniority system. Tr. 133 (Williams),
Tr. 269-70 (Long).
Since the Steelworkers were committed to a joint-Union
position, Mr. Williams presented the "unit preference"
proposal to U.S Pipe. Tr. 130-35 (Williams). In response
to this proposal, Mr. Palmer informed Williams that the
34/ The "unit preference" system provided that if a qualified
employee in the bargaining unit in which the vacancy arose bid on
the job, then he would be initially offered the job regardless of
the seniority or qualifications of employees in jobs which were
in the bargaining units of other unions.
The unit preference system is illustrated by its application
to the filling of a vacancy in the Machine Shop, a seniority unit
which is within the representational jurisdiction or bargaining
unit of the Machinists. If a member of the Machinists bid on the
vacancy he would be offered the job even though he may only
be minimally qualified, only have one year of seniority and only have experience in a Department other than the Machine
Shop and despite the fact that a Steelworker bid on the job who
had thirty years of seniority, was well-qualified, and had years
of experience in the Steelworkers seniority unit in the Machine
Shop. Tr. 19-23 (Boswell).
31
Company preferred a plant-wide system. Williams stated that
"[i]f the other Unions would agree to this the Steelworkers
would, but [the Company knows] they [the AFL Unions] are not
going to agree to it." Pis. exhibit 54, Oct. 1, p. 4; Tr. 114-15
(Williams). At negotiation sessions with both the Machinists and
the Boilermakers, Palmer emphatically presented the Company's
proposal for a plant-wide seniority system. Pis. exhibit 53,
Oct. 3, p. 1, Oct. 23, p. 1; Pis. exhibit 56, Oct. 9,p. 2; Tr.
97—102 (Waddell). In view of the AFL Unions' adamant rejection
of the proposals for plant-wide seniority, the Company accepted
the unit preference proposal. Pis. exhibit 54, Oct. 25, p. 4;
Tr. 116-17 (Williams).
The restricted plant-wide seniority system which was
instituted in 1975 and slightly modified in 1977 is described by
the lower court, R. 1171:
...seniority was to be measured by plant con
tinuous service and vacancies were to be posted
for bids on a plant-wide basis. Use of this
seniority, however, on reductions in force was
basically restricted to positions represented by
the same unions, with bumping across union lines
allowed only at the lowest paid positions, and
journeyman were protected against displacement
by other than journeymen of the same craft.
Moreover, a union preference rule was adopted
for promotions, requiring that vacancies
be "offered first" to members of the union
having jurisdiction over the position. In the
1977 contracts this promotional preference was
reworded as "considered first," and restrictions
on the frequency of transfers were imposed.
This seniority system remained in effect until the Consent
Decree providing for a non-discriminatory system was approved on
January 14, 1980.
32
The Effect of the Discriminatory Seniority System:The Experience of Several Black Workers
The AFL Unions' intentionally-discriminatory practices,
the AFL Unions' resistance to ending the discriminatory effects
of the seniority system, and the harsh, racially-discriminatory
employment structure at the Bessemer plant have been fully
described. However, in keeping with the Supreme Court's observa
tion that "personal experiences ... [can bring] the cold numbers
convinciningjy to life," Teamsters v. United States, 431 U.S. 324,
339 (1977), several work histories of black employees are pre
sented which underscore the tragedy of racial discrimination in
its unfairness and in its waste of valuable human ability.
Holston began working at the Bessemer plant in 1937. Like
other black employees, he worked as a Helper in both the Boiler
Shop and the Machine Shop. In 1942, Holston enlisted in the Army
where on the basis of his plant experience he was enrolled in a
training school for machinists. After he completed the training
program, Holston spent three years as a supervisor in Army
machine shops throughout the Pacific area. Tr. 213-15 (Holston);
pis. exhibit 80 (employee card). In 1946, the Army awarded
Holston an Honorable Discharge and certified Holston as a
qualified Machinist. Pis. exhibit 57 (Discharge Record).
When Mr. Holston returned to U.S. Pipe in 1946, he was
reassigned to the positon of Helper in the Machine Shop. In
contravention of its NLRB obligation, the Machinists did not
represent Holston, see p. 19, supra. Until his retirement in
33
1975, Holston remained in a Helper or similar position in the
Steelworkers unit in the Machine Shop. Tr. 216-17; pis. exhibit
80. During this period he often trained inexperienced white
workers. Tr. 221. As a result of his Army and industrial
training and experience, Holston was confident that he could
operate any machine in the Shop. Tr. 222. However, he was
locked into Helper or Laborer positions in the Steelworkers unit
because the seniority system required the forfeiture of all of
his seniority and job security if he transferred to the Machinist
unit.
Mr. Johnny Jackson was employed in 1947 as a Boilermaker
Helper. When Jackson started working as a Helper he was not
represented by any Union because the Boilermakers failed to
represent black workers within their NLRB-certified bargaining
unit, Tr. 296. Mr. Jackson worked as a Helper for approximately
twenty-five years. Id., pis. exhibit 90 (employee record card)..
As a result of his experience, Mr. Jackson became a skilled
worker. In fact, Mr Huddleston, a white employee who worked as a
Boilermaker Apprentice, Journeyman and Supervisor, testified that
Jackson taught him some aspects of the job, that Jackson was a
good worker and that with a proper opportunity Jackson could have
performed the work of a Boilermaker. Tr. 138-39; pis. exhibit
48, pp. 28-29 (Dep. Huddleston). It was Mr. Jackson's opinion
that, if given the opportunity, he could have performed the,
work of a Journeyman. Tr. 297. The seniority system deprived
Jackson of that opportunity. Id.
From his hire in 1959 until 1976, Mr. Chauncey Holston
worked in several jobs within the Steelworkers units. Tr.
34
236 (Holston); pis. exhibit 88 (employee record card). After the
seniority system was altered in 1975 to permit an employee to bid
for vacancies on jobs across Union-jurisdiction lines, Holston
bid on a Millwright D position. Through his own diligence and
the assistance of his foreman, Holston rapidly progressed.
Within six months Holston moved from the entry-level position to
a Journeyman, Millwright A. Tr. 289-90 (Holston). Terrell Farr,
a Company Supervisor, testified that an employee's progres
sion from Millwright D to Millwright A within six months indi
cates that the employee is diligent and able. Tr. 396. Unfor
tunately, Mr. Holston was prevented by the seniority system from
using his diligence and ability to the fullest extent during his
initial seventeen years of employment.
The employment history of Mr Luther Moore illustrates
the precarious position of the few black workers who sought
to transfer units despite the forfeiture of seniority. After his
hire in 1945, Mr. Moore worked for the next 26 years as a Helper,
Crane Hooker and Laborer in the Steelworkers unit in the Machine
Shop. Tr. 279-80 (Moore); pis. exhibit 84 (employment card).
Despite his having to forfeit 26 years of seniority, Moore
requested an opportunity to move to the Crane Operator position
in the Machine Shop, a position located in the Machinists unit.
Moore began to work as a Crane Operator in February, 1971.
*
Moore successfully performed as a Crane Operator until January,
35/1973 when he was laid off due to a reduction-in-force. Tr.
35/ Moore testified that he moved to the Crane Operator job in
1969 and that he "think[s]" he was laid off in 1971. Tr. 280-81.
However, his employee card plainly indicates that these dates
were 1971 and 1973. Pis. exhibit 34.
35
280-82, pis. exhibit 84. Moore "went to 19th Street" on lay-off
status, Tr. 283, even though there were two white workers, Crowe
and Mullens, who had less plant seniority and less Machine Shop
seniority than Moore. These junior white workers remained on the
job because they had greater seniority in the Machinists unit.
Tr. 282; compare pis. exhibit 84 (employee card of Moore) with
pis. exhibits 35 and 86 (employee cards of Crowe and Mullens).
The difficult plight of the black workers who moved into the
units represented by the AFL Unions is illustrated by the expe-
36/
rience of Mr. Thomas Green. In 1966 Green entered a new
position, Molder Group 11, which was located within the Molders
unit. Tr. 184-86 (Green). Green testified that, Tr. 187,
[supposedly I was a member of the Molders Union.
Of course, now, I question that because I never
did receive my membership card. I asked for a
copy of the Constitution, which I never received....
Mr. Green was repeatedly rejected in his attempts to obtain
representation from the Molders. At one point he requested
assistance from Billy Parker, the president of Local 342,
Molders. Parker responded that "[w]e didn't want you all in
here to start with and that you belong to Gerald Wilson [a
Company Supervisor] to do which (sic) and what ever he please."
Tr. 191-92. Mr. Parker refused to represent Green and other
36/ Before his employment by U.S. Pipe, Green had graduated from
HTgh school, and entered the Army where he received training and worked for several years in the mechanical and electrical maintenance of guided missile systems. Tr. 182-83.
36
black workers on numerour occasions. Tr. 193-95. The Secretary
of Local 342 directly told Green that "if you didn't like the
way we run this Union, get out of it." Tr. 196; see also37/
pp, 71-72, infra.
SUMMARY OF THE ARGUMENT
The seniority system at the Bessemer plant has a substan
tial, adverse racial impact. This impact shifted the burden of
proof to the defendant Unions to demonstrate that the system was
bona -Side and that the discriminatory effects did not result from
an intent to discriminate. Under the standard established by
Teamsters v. United States, 431' U.S. 324 (1977) and interpreted
by this Court in James v. Stockham Valves & Fittings, Inc.,
559 F .2d 310 (1977), cert, denied, 434 U.S. 1034 (1978), the
seniority system was plainly non-bona fide and was the result of
an intent to discriminate.
The seniority system's "genesis" in discrimination and the
system's maintenance with a discriminatory purpose each inde
pendently compel the conclusion that the system was unlawful.
Moreover, this conclusion as to the system's illegality is fur
ther compelled by the fact that the system was not applied
equally and that the system was irrational and inconsistent
37/ Mr. Green was laid-off after the General Foundry was closed in 1972. However, after the Company deposed Mr. Green in
1975, Mr. Boswell, the Company personnel manager, offered Green
an apprentice position. Green has now completed the training
program and currently works as an Electrician, Journeyman A. Tr.
199.
37
with industry practice and NLRB precedent- In general, the
Unions are jointly and severally liable for the economic harm
which the class of black workers suffered as a result of this
illegal seniority system.
The district court erred in holding that the international
unions could not be held liable for acts which occurred prior
to October, 1971 for three independent reasons. The 1969 EEOC
charges, properly interpreted, named the international unions.
The close relationship between the internationals and their locals
subjects the internationals to suit under Title VII when their
locals have been properly named in an EEOC charge. The amended
charges filed in 1973 which unequivocablv name the internationals
relate back to the date when the original charges were filed.
ARGUMENT
I. THE SENIORITY SYSTEM IS UNLAWFUL BECAUSE IT
HAS A SEVERE DISCRIMINATORY EFFECT AND IT
IS NOT BONA BIDE.
A. The Discriminatory Effect of the Seniority Svtem
The district court held that "[s]eniority systems such as in
effect at U.S Pipe's Bessemer plant since 1968 — allowing for
only limited use of plant service in the event of transfers
between seniority units and containing no 'rate retention"
provisions — have long been recognized in this and other cir
cuits as having a discriminatory effect in industrial settings
where blacks were discriminated against in initial job assign
ments." R. 1171. This Court has emphasized that "[i]n any
industry loss of seniority is a critical inhibition to transfer”,
38
United States v. Jacksonville Terminal Co• / 451 F .2d 413, 453
(1971), cert, denied, 406 U.S. 906 (1972), and that systems
such as the one at U.S Pipe "have been condemned by the courts
because black employees must choose to commit 'seniorty suicide'
to enter departments from which they were previously excluded....
James v. Stockham Valves & Fittings Co., supra, 559 F.2d at 343.
It is abundantly clear that at U.S Pipe's Bessemer plant
there was "a history of racial discrimination by the company in
making initial job assignments.... (and that] [t]here were ...
jobs and seniority units that were for practical purposes re
served either for whites or for blacks." R. 1172 (Op.). The
seniority system had so locked this historical racial discrimina
tion into the employment structure that as late as 1974 only 9 or
5.2% of the 175 employees in the seniority units represented by
the AFL Unions were black, whereas 236 or 80.5% of the emloyees
in the units represented by the Steelworkers were black. Pis.
exhibits 28d, 78; see generally St. section A.
B. The non-Bona Fides and Illegality of the
Seniority System
1. The Legal StandardTS7--- ----------
Title VII is a remedial statute designated "to assure
equality of employment opportunities and to eliminate those
38/ This Court has stated that the Title VII standard for deter
mining the legality of a seniority system applies to § 1981. Pett- wav v. American Cast Iron Pipe Company, 576 F • 2d 1 1 57, 1 19 1-92 n•S7
(1§78], cert, denied, 439 U.S 111iTTT979); accord, Johnson v. Ryder
Truck LinesT Inc., i 75 F.2d'471 (4th Cir. 1978), cert, denied,_440
U. S. "979 ( 1 979);" contra, Bolden v. Pennsylvania State Police, 578
- 39 -
+
discriminatory practices and devices which have fostered racially
stratified job environments to the disadvantage of minority
citizens." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800
(1973). In order to attain this paramount public policy,
Congress "proscribe[d] not only overt discrimination but also
practices that are fair in form, but discriminatory in operation.
Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971).
The Supreme Court has stated that were it not for § 703(h)
a seniority system which perpetuates the effect of prior racially
discriminatory job assignments would as a matter of course be
unlawful under the rationale of Griggs. Teamsters v. United
States, supra, 431 U.S. at 349. Section 703(h) of Title VII
provides in part that "it shall not be an unlawful employment
practice for an employer to apply different standards of com
pensation, 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...." The Court interpreted this
section as providing "that an otherwise neutral, legitimate
seniority system does not become unlawful under Title VII simply
38/ cont'd.
F.2d 912 (3rd, Cir. 1 978). The Supreme Court has neither decided
this question nor whether intent is required to prove a violation of § 1981. Cf. County of Los Angeles v. Davis, 440 U.S. 625
( 1 979); Note, Section'1981; Discriminatory Purpose or Dispropor
tionate Impact?, 80 Col. L. Rev. 137 (1980) The appellants ’
respectfully maintain that a seniority system may be held unlawful
under § 1981 even if there is no proof of discriminatory purpose.
However, since this system is plainly unlawful under Title VII, it is unlawful under § 1981 regardless of which standard is applied.
40
because it may perpetuate pre-Act discrimination." Teamsters,
supra, 431 U.S. at 353-54. 3ut the Court emphasized that "§703(h)
does not immunize all seniority systems." The system must be
"bona fide" and, as the proviso in § 703(h) states, "any dif
ferences in treatment [must] not be 'the result of an intention
to discriminate because of race....'" Idk 353.
a. Burden of Proof
Section 703(h) establishes an affirmative defense whereby a
union or employer may demonstrate that even though a system has a
discriminatory impact it is lawful because it is bona fide and
not the result of an intention to discriminate. This affirmative
defense applies in the. same manner as does the affirmative
defense regarding the use of an employment test which has a39/
discriminatory impact. If the plaintiffs establish that an
employment test has a racially discriminatory impact then the
"burden of showing that any given requirement [has] ... a manifest
relationship to the employment in question" shifts to the employer.
Griggs v. Duke Power Co., supra, 401 U.S. at 432; Albemarle Paper
Co. v. Moody, 422 U.S. 405, 425 (1975). Similarly, where the
plaintiffs establish the racially-discriminatory impact of a
seniority system, the burden shifts to the employer or union to
demonstrate that the system is bona fide. R. 1173 (Op.).
39/ Section 703(h) includes a provision regarding a "profes-
iTonally developed ability test" which is comparable to its
provision regarding a bona fide seniority system: "... 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 designated, intended or used
to discriminate...."
41
There is an additional reason which supports the placing
of the burden on the defendants to show that a seniorty system is
bona fide. Having created, operated and maintained the
seniority system, the defendants have a better opportunity than
the plaintiffs to fully develop the facts regarding the system.
As the Supreme Court observed in Teamsters, supra at 359 n.45.
Presumptions shifting the burden of proof are
often created to reflect judicial evaluations of probabilities and to conform with a party's
superior acces to the proof. See C. McCormick,
Law of Evidence §§ 337, 343 (2d ed. 1972);
James, Burdens of Proof, 47 Va. L. Eev- 51,
61 (1961).
See also Interstate Circuit v. United States, 306 U.S. 208,
226 (1934) (When parties fail to present evidence within their
particular control "[s]ilence than becomes evidence of the most
40/
convincing character.”)
b. Analysis
By what standards then must the bona fides of the seniority
system be evaluated? The Supreme Court listed various considera
tions which led to its conclusion that the particular seniority
system presented in Teamsters was protected by § 703(h), 431 U.S.
at 355-56. As this Court has pointed out, Teamsters focuses upon
four factors, James v. Stockham Valves and Fittings, Inc., supra,
559 F - 2d at 352;
40/ Since it is apparent that the seniority system at the Bessemer plant is not bona fide and that it results from an
intent to discriminate, the Court should rule that the system
is unlawful irrespective of where it places the burden of
proof.
42
1. whether the seniority system operated
to discourage all employees equally from transferring between units;
2. 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);
3. whether the seniority system had its genesis in racial discrimination; and
4. whether the system was negotiated and has
been maintained free from any illegal
purpose.
The district court properly placed the burden of proof on
the defendants to establish the bona fides of the system and
properly identified the analysis in James as controlling. R.
1173. However, the district court erred in the application of
the analysis by generally misinterpreting the James and Teamsters
standard, by generally disregarding relevant evidence of intent,
and by specifically misapplying each of the four factors. The
two general errors regarding the applications of the standard and
the proof of intent are discussed in this section, while the
specific errors regarding each of the factors are discussed
in sections 2 through 5.
The district court simply considers the four factors
elucidated in James as "aids for deciding 'whether there has been
purposeful discrimination in connection with the establishment or
continuation of a seniority system', ...." R. 1182 (quoting
James, supra, 559 at 351) (emphasis added). While the district
court's view of the factors as "aids" is partly right, it is
nevertheless, completely misleading. The district court misinter-
43
pretes the Fifth Circuit's observation that the "totality of the
circumstances in the development and maintenance of the system is
relevant", 559 F.2d at 352. The "totality of the circumstances"
is properly analyzed in order to determine by circumstantial
evidence the "intent" of the parties. In James, this Court did
not require, as the lower court misinterpreted, that the four
factors be evaluated only as a group. The district court failed
to identify the critical significance of each factor not only
because the court did not examine the factors as independent
standards but also because the court did not examine the evidence
of intent relating to each factor from the proper perspective,
see section C, infra. These failures in analysis led the court to
the anomalous conclusion that the system was bona fide and lawful
even though the system had its genesis in discrimination and even
though at least a part of the system was irrational and was
negotiated with a discriminatory purpose. R. 1132.
A proper analysis of the factors has three parts. Initially,
a court should analyze each factors in order to determine if
the system had either its genesis in discrimination, or was not
neutrally applied, or was maintained with a discriminatory
purpose. If the answer is affirmative to any one of these
factors, then a court may conclude that the system was not bona11/fide and was unlawful. An intentionally-discriminatory
41/ It would seem that a finding as to the "irrationality"
of the system, would properly lead to an inference regarding
whether there was a discriminatory purpose in the development or
the maintenance of the system. Unlike a finding with respect to
44
creation, application or maintenance of a system removes that
system from the protection of Section 703(h) because the racial
differences would be the result of an intention to discrimin
ate* Myers v. Gilman Paper Go., 556 F . 2d 758, 760 (5th
Cir. 1977), cert, dismissed, 434 U.S. 801 (1977); James v. Stockham
Valves & Fittings, Inc.., supra, 559 F.2d at 351; Acha v. Beame,
570 F .2d 57, 64 (2d Cir. 1978) ("A system designed or operated to
discriminate on an illegal basis is not a 'bona fide' system");
Patterson v. American Tobacco Co., 586 F.2d 300, 303 (4th Cir.
1978) (The system "would not be bona fide if it either currently
served a racially discriminatory purpose or was originally insti
tuted to serve a racially discriminatory purpose."); Alexander v.
Avco Corp., 565 F.2d 1364, 1378 (6th Cir. 1977), cert, denied,
436 U.S. 946 (1978); ChraDliwy v. Uniroval, Inc., 15 FEP Cases
---- ----------
822, 826 (N.D. Ind. 1977).
A system adopted with a discriminatory purpose does not become
lawful simply because it is not specifically maintained with a
41/ cont'd.
the other factors, a determination of "irrationality" would not
independently lead to a conclusion of non-bona fides. This
follows from the fact that Title VII proscribes discrimination
but it does not necessarily prescribe rationality. But there
is a logical inference that an irrational system which has a
discriminatory effect was created with the intent to achieve
that effect.
42/ Moreover, the Supreme Court indicated that the lower court
decisions such as Quarles v. Philip Moris, Inc., 279 F. Supp. 505 (E.D Va. 1969) and Local 189, United Paoerworkers v. United
States, 416 F.2d 98Q (5th Cir. I9b9), cert, denied,( 19 79')', were consistent with Teamsters to the extent
"decisions can be viewed as resting upon the seniority sytera that perpetuates _ the ef^ec>.s cannot be bona fide if an intent adoption." 431 U.S. at 346crimination entered its very
397 TJ73 919 that these proposition that a of pre-Act dis- to discriminate
n. 28.
45
purpose to discriminate; nor is a system that is adopted without
discriminatory intent protected against charges of illegality if
it is applied or continued with a discriminatory purpose.
The second and third parts of the analysis of the James
factors concern the inferences as to discriminatory purpose which
may be raised. The evidence regarding a specific factor may not
be sufficiently strong to determine whether discriminatory
intent was or was not present. In that situation it is appro
priate to examine the inference raised by a factor when viewing
all four factors as a group or to examine the inference which
one factor may raise with respect to another factor. The
district court's analysis of the basic legal question — the bona
fides of the seniority system -- depended solely on the overall
analysis of the factors.
The inference raised by a factor may weigh not only in the
evaluation of the evidence concerning all the factors but also
may weigh directly in the evaluation of the evidence with respect
to another specific factor. For example, as in this case, the
system was not applied neutrally during the period when it was
developed. The non-neutral and racially-discriminatory operation
of the system at the time of its development creates a strong
inference that its development or "genesis" was intentionally
discriminatory, see section 2, infra. Similarly, the defendants'
overtly-discriminatory conduct, during the genesis of the system
raises a strong inference that their conduct during the continua
tion of the system — the AFL Unions' refusal to agree to the
amelioration of the system's racial consequence — was racially
46
motivated, see section 5, infra. Thus, the district court failed
to properly consider the independent significance as well as the
inferential scope of the four factors listed in the James standard
c. Proof of Intent
An evidentiary thread which runs throughout the appli
cation of the James analysis concerns the proper method
for determining intent to discriminate.
"Determining whether invidious discriminatory purpose
was a motivating factor requires a sensitive inquiry into such
circumstantial and direct evidence of intent as may be avail
able." Village of Arlington Heights v. Metropolitan Housing
Develooment Corp., 429 U.S. 252, 266 (1977). Since the proof --------------- - 43/
of discriminatory intent is seldom apparent, or direct,
the "[p]roof of discriminatory intent must necessarily usually
rely on objective factors...." Personnel Administrator of: i-'lass.
v. Feeney, 442 U.S. 256, 279 n.24 (1979). Such objective
evidence includes the fact "that the law [or practice] bears
more heavily on one race than another," Washington v. Davis,
426 U.S. 229, 241-42 (1976), United States v. Texas Education
Agency, 600 F. 2d 518, 528 (5th Cir. 1979), see Teamsters,
supra, 431 U.S. at 339-40 n.40, and that "actions [are under
taken which have] foreseeable and anticipated disparate impact--
Columbus Bd. of Educ.v. Penick, 99 S. Ct. 2941, 2950 (1979);
43/ "In an age when it is unfashionable for state officials
to openly express racial hostility, direct evidence of overt
bigotry will be impossible to find." United States v. 3d.
of School Comm'rs., 573 F2.d 400, 41 2 (7th Clr. ), cert.
435 U."s". 824 ( 1 9 7 8 ) .deniedT
47
Dayton 3d. of Education v. Brinkman, 99 S. Ct. 2971, 2978 n.9
(1979); Personnel Administrator of Mass, v. Feeney, supra, 42
U.S. at 279 n.25; see also United States v. Texas Education
Agency, 564 F . 2d 162, 168 (5th Cir. 1977), cert, denied, 99 S.
Ct. 3106 (1979); Harkless v. Sweeney Independent School District
554 F .2d 1353, 1356-58 (5th Cir.), cert, denied, 434 U.S. 966
(1977).
In addition to the critical consideration of objective
statistical evidence the' inquiry should focus on inferential and
circumstantial evidence including the historical context, the
actions of the relevant individuals or institutions, and the
sequence of events leading to the challenged act. Arlington
HeightsT supra, 429 U.S. at 266-28; United States v. Texas Ed.
Agency, supra, 600 F.2d at 528. Of particular relevance is the
fact, if true, that the defendants have engaged in prior inten
tionally -discriminatory conduct or have engaged in intentionally
discriminatory conduct with .respect to a part of the challenged
practice. Keyes v. School District No. 1, 413 U.S. 189, 207-12
(1973); Columbus 3d. of Educ. v. Penick, supra, 99 S. Ct. at
2946-47; United States’v. Texas Ed. Agency, supra, 600 F.2d at
525; Detroit Police Officers' Assn, v. Young, 608 F .2d 671,
692-94 (6th Cir. 1979).
When properly viewed the evidence requires the conclusion
that the seniority system results from an intent to dis
criminate. For example, the seniority system has discrimina
tory impact and the acts taken to develop, apply and maintain
the system had readily foreseeable discriminatory conse
48
quences. Additionally, the AFL Unions had a history of
blatant discrimination, several officers of these Unions
repeatedly manifested this discrimination, and these Unions
consistently advocated positions which disadvantaged black
workers. Finally, the direct evidence demonstrates that the
AFL Unions manipulated at least part of the system with a
discriminatory purpose. The. district court failed to properly
consider this evidence and to draw the inevitable conclusion
that the system was not bona fide and was unlawful, see sections
2-6, infra.
2* The Raciallv-Discriminatory Genesis of the System
The district court found that the system had its genesis in
discrimination but that this "does not mean that the system
necessarily falls outside the immunity [of § 703(h) because]
[t]his-factor is but one of several focal points for considera
tion and ... is not dependent upon a finding of causative re
lationship between racial discrimination and the seniority system
itself." (footnote omitted) R. 1179. We have previously des
cribed the district court's error in rigidly viewing each factor
as "one of several focal points" and failing to analyze whether
a finding that there is intentional discrimination in terms of a
specific factor, here "genesis", requires a determination that
system is not bona fide. See pp 44—46 supra. Moreover, in its
analysis of the genesis of the seniority system the Court commits
another fundamental error.
The lower court observes that genesis "is not dependent upon
a finding of causative relationship between racial discrimination
49
and the seniority system itself." R. 1179. This observation is
correct to the extent that the system may be determined to have
its "genesis" in racial discrimination even though there is no
substantial circumstantial or direct evidence linking the system
with racial discrimination other than the general fact that the
system developed at a time of widespread racial discrimination.
This determination flows from the logical inference that a
seniority system's development was influenced by a racially-dis-
crimiriatory purpose when that system was developed at a time when
racial discrimination affected other decisions at the plant and
when the system disadvantaged blacks. See e.g., James, supra 559
F.2d at 352; Sears v. Atchison, Topeka & Santa Fe Ry Co., 454
F. Supp. 158, 180 (D. Kans. 1978). If this evidence of general
discrimination provides the only basis for determining that the
system had its genesis in discrimination, then the court is
probably not clearly wrong in ruling that this finding "in favor"
of the plaintiffs should only be used as an inference that
the system is not bona fide.
The district court's fundamental error arose from its
failure to sufficiently analyze evidence regarding the causative
link between the development of the system and racial dis
crimination. When properly examined, the evidence may only
lead to the conclusion that the seniority system was shaped
by parties who acted with a racially-discriminatory purpose.
The seniority system had its origin in 1939 when the Unions
began to organize the workers. The development of the system
50
continued with the NLRB hearing, election and certification in
1940, the failure of the Unions to follow the NLRB certification,
and the Molders1 1949 petition, certification and election.
The development of the system ended with the transfer of jobs in
1950. St. 15-20. This series of acts was directed to the achieve
ment of all-white units represented by the AFL Unions.
The campaign in 1939 and 1940 of the Unions for worker
support and votes focused upon race; naturally enough, the
ensuing election was guided by "racial considerations." Id.
The 1940 election resulted in all-white units represented
by AFL Unions in the Electrical Shop and the Pattern Shop. After
the election the Unions began to subvert the NLRB certification
in order to complete the segregation of seniority units within
the control of the AFL Unions. At first the Machinists segre
gated the black workers at union meetings; then the Machinists
informed the black workers that "they couldn't represent [them]."
The Boilermakers never represented the black workers who had been
J
included within its bargaining unit. St. 19-20. On the other
hand, the Machinists accommodated white workers in the Steel
workers bargaining unit who "preferred representation by an
all-white union" by acting as their Union representative. R.
1183 ( O p . ) .
The Boilermakers, Machinists and Steelworkers formalized the
subversion of the 1940 Certification by entering into three writ
ten agreements in 1950. St. 20. The district court held that
these agreements which transferred jobs staffed by blacks to the
Steelworkers bargaining unit and jobs staffed by whites to
51
the Machinists bargaining unit were racially-motivated and
irrational- R. 1177-79. A further manipulation of the seniority
system occurred when the Molders in 1949 petitioned the NLRB to
certify a unit comprised of the only two jobs in the General
Foundry which were staffed by white workers. St. 18-19. Finally,
after a decade of manipulation the goal of segregation was
attained; the AFL seniority units were now exclusively staffed by
white workers. R. 1178. The segregation was locked into place by
the rule prohibiting employees to "carry" seniority when transfer
ring from a seniority unit within the jurisdiction of one union
to a senioirtv unit within the jurisdiction of another union.
Where a series of acts relfects the constant consideration of
race and leads inevitably to the establishment of a discriminatory
system, the racial purpose of the actors, the defendant Unions, is
manifest. See Arlington Heights, supra 429 U.5. at 267, United
States v. Texas Educational Agency, supra, 600 F .2d at 528.
United States v. Bd. of School Comm'rs., supra, 573 F .2d at 412.
("Even if no individual act carries unmistakable signs of racial
purpose, a clear pattern is sufficient to give rise to a per
missible inference of segregative intent.") The conclusion of
discriminatory intent is further buttressed by the patently,
overt discrimination of the final chapter of the development of
the seniority system, its coup de grace; the inter-unit transfer
in 1950>of various jobs based upon the racial staffing of
the jobs. See Keyes v. School District No 1, supra 413 U.S.
52
at 207-08; United States v. Texas Education Agency, supra,
600 F .2d at 525.
Moreover, the circumstantial evidence strongly supports
the conclusion that the system had its genesis in discrimination.
As the district court observed, the fact that the system devel
oped at a time when there was "widespread discrimination" in
the plant and in the community raises an inference that the
system was influenced by discrimination. R. 1179. The district
court mentions that there was widespread discrimination in the
AFL Unions, id., but the court fails to adequately address its
significance. The establishment of racially-segregated units44/
reflected the institutional policies of the AFL Unions and
thus suggests intentional manipulation by these Unions designed
to achieve these discriminatory policies. Sears v. Atchison
& Topeka & Santa Fe Ry Co., supra, 454 F. Supp. 180; Scarlett
v. Seaboard Coast Line R.R. Co., 21 EPD para. 30,320,
p. 12,729 (S.D. Ga. 1979). This inference of discrimination is
strengthened by the tenacity with which the Machinists and
the Boilermakers resisted change during the period when the
seniority system developed. At its 1940 and 1945 Conventions the
Machinists rejected proposals to integrate the Union. The
vehemance of the Union's racist position is illustrated by its
taking the extraordinary step of assuming the direct supervision
44/ These policies included the Machinists' exclusion of black
workers from membership, the Boilermakers' maintenance of "auxiliary" or inferior segregated locals, and the Molders'
maintenance of segregated locals. The Patternmakers Association
of Birmingham did not have a black member until 1972. St. 10-15.
53
of a local union in order to insure the enforcement of its racial
restrictions. St. 11-12. During the period the seniority system
was developed at U.S Pipe, the Boilermakers refused to change its
discriminatory policies in spite of the requests of the Fair
Employment Practices Committee, the protests by black union
leaders at the AFL Conventions, and condemnatory state court
decisions. St. 12-14.
Furthermore, the conclusion that the system was developed
with a discrimintory purpose is supported by the fact that it
was neither rational nor in accord with general industry or
union practices and that during the period of its development it
was applied in a non-neutral fashion, see sections 3 and 4, infra.
3. The System's Irrationality and Inconsistency With Industry
Practice and National Labor Relations Board Precedents
Not only did the challenged system have its ''genesis1'
in racial discrimination, it was not "rational, in accord
with industry practice, and consistent with National Labor
Relations Board precedents." United States v. Teamsters,
supra, 431 U.S at 356. Contrary to rationality and to practice
and precedent, the challenged system placed functionally-related
jobs in separate units so as to thwart otherwise natural,
job-to-job progression.
The system as it developed at the Bessemer plant depart
ed from that envisioned by the NLRB certification. The NLRB
included the Helper and Crane Hooker jobs in the units of the
Boilermakers and Machinists. Those Unions thereafter refused not
54
only to admit but to represent the black workers who staffed
those jobs. At the same time, those Unions undertook to represent
white workers performing several jobs which had been assigned by
the NLRB to the Steelworkers unit. The Steelworkers, in turn —
as the one labor organization on the scene without racially
exclusive practices — began to bargain for the black workers
whose representation the Machinists and Boilermakers had rejected.
The informal departure from the bargaining unit boundaries drawn
by the NLRB was ratified by written agreements between the
Company and the Unions dated October 20, 1950. St. 20. These
agreements were undertaken, as the Company admitted, "to conform
to the existing ... practices", Pis. exhibit 41, answer 6e,
under which the Unions had redrawn representational boundaries on
racial lines.
At the Bessemer plant the system was glaringly inconsistent
with the general practices of the Boilermakers, Machinists and
Molders. The standard practice of the Boilermakers was to
include Helpers in the Union membership and in Boilermaker-
represented units and to encourage their advancement. The
Boilermakers' Constitutions provided that persons employed as
a "... boilermaker, [or] helper ..." may be admitted into member
ship. The Constitutions in effect from 1910 through 1957 provided
that a certain proportion of Apprentices would be taken from
the Helper ranks: 1910 Constitution, 50%; 1930 and 1957
Constitutions, 75%. Indeed, the very name of the Union, "Brother
hood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers
55
and Helpers" (emphasis added) underscores the inconsistency of
the gerrymandered unit at the Bessemer plant with the Boiler
makers' general, procedures and objectives. Pis. exhibit
75b (Extracts from Constitutions attached to Response to Request
to Produce). Contrary to the unit system in practice at the
Bessemer plant, Harvey Hembree, who had been Local 583, Boiler
makers' Shop Steward for approximately 24 years and a Boil
ermakers member for over 36 years, testified that it was
"standard practice" for Helpers to be included within Boiler
maker-represented units, Tr. 302-03.
As with the Boilermakers, the Machinists bargaining unit at
the 3essemer plant was drawn contrary to the standard practice
established by its Constitution. The Constitution provides .taht
"Ca]ny machinist ... machinist's helpers, production worker,
helper apprentice ... working in the machine or metal industry
may be admitted to membership in a local lodge...." Unions'
exhibit 11 (Constitution, attached to machinists Response to
Request to Produce). The exclusion by the Machinists of Helper
and other production jobs from its unit even though these posi
tions worked closely with machinists in four departments where
the Machinists represented employees, Blacksmith Shop, Chemical-
Physical Testing Lab, Machine Shop, and Mechanical Maintenance,
contravened its standard practice as set forth in its Constitu
tion. The Molders' international representative, Hildredge
Dockery, testified that the Molders' Constitution provides for
the representation of Molders Helpers and other production
56
workers, that it was common practice for Helpers to progress to
Molder or Apprentice positions and that, unlike the bargaining
unit sought and obtained by the Molders at CJ.S. Pipe in 1 949, St.
18-19, the Molders generally sought to represent all Foundry
workers including Helpers, Tr. 473-75.
The practice of the Boilermakers, Machinists and Molders
to regularly include Helpers and/or other production workers
in their bargaining units is consistently reflected by the
45/
decisions of the NLRB in representation proceedings.
The irrationality of the system which resulted from the
1940 and 1949 NLRB Certifications and the 1950 job transfers is
evident. Many "black" jobs provided training and experience
opportunities for "white" jobs. But the seniority system denied
the opportunity for the black.workers to make the logical job
progression. The irrationality of the system was further under
scored by the fact that skilled black workers in Helper or
4_5/ Boilermakers: Sinker-Davis Co. , 58 NLRB 1 547, 1 5 LRRM 117
(1944); Waterman Steamship Corp., 78 NLRB 20, 22 LRRM 1170 ( 1 948); Tennessee Copper £ o7~, tT8 NLRB 1516, 25 LRRM 1 498 (1 950).
Machinists: Star & Crescent Oil Co., 3 NLRB 882, 1-A LRRM 239
(1937); Campbell Machine Co., 3 NLRB 793, 1-A LRRM 212 (1937);
Electric Auto Lite Co. , f(T""NLRB 1 239, 3 LRRM 521 ( 1 939); Dain
Mfg Co., 29 NLRB 526, 7 LRRM 202 (1941); 38 NLRB 528, 9 LRRM 285
198 n*941); Merrill-Stevens Dry Dock Co., 3 5 NLRB 5 87, 9 LRRM
994 (1941); Columbus Bronze Corp., 39 NLRB 156, 10 LRRM 8
(1942); Rose-Meehan Foundaries, 44 NLRB 569, 11 LRRM 50 (1942);
Veeder Root, Inc., 49 NLRB 333, 12 LRRM 1 24 (-1 943); Armour &
Co. , 49 NLRB \9o, 12 LRRM 1 20 ( 1 943); St. Regis Paper Co.', ~80
NLRB 570, 23 LRRM 1098 (1948). Molders: Mascot Stove Co.,
75 NLRB 427, 21 LRRM 1044 (1947); John Deere Dubuaue Tractor
Works, 77 NLRB 1 424, 22 LRRM 1 1 75 (1 948); Copper-^rad Malleable Range Co* , 77 NLRB 250, 22 LRRM T0 17 ( 1948)";J.I Case Co., 80"'NLRB 217, 23 LRRM 1 072 ( 1 948). See also
n.47, infra.
57
other production jobs trained inexperienced white workers who
were placed in jobs within the AFL units. Although experienced
and competent, the black workers were "locked" out of these jobs
by the seniority system. St. 21-23.
The district court recited that the "separation of several
functionally related jobs into different seniority units
casts an obvious shadow upon the system ... under challenge", R.
1175, however, the district court concluded that the original
election units as specified by the NLRB in 1940, pis. exhibit 50,
In the Matter of United States Pipe & Foundry Company & Steel
workers Organizing Committee, 19 NLRB No. 102 (1940), was
rational "when viewed in the perspective of the existing conflict
within the labor movement concerning craft and industrial unions.'
R. 1176. The district court held further that the 1949 restruc
turing pursuant to a special representational election for
certain foundry employees including Molders, Coremakers, and
Apprentices — but excluding Helpers — was rational and con
sistent with NLRB precedents and standard industry and union
practice, see Union's exhibit 9 In the Matter of United States
Pipe and Foundry Company and International Molders and Foundry
Workers Union, 84 NLRB No.105 (1949). In support of this conclu
sion the district court asserted that the NLRB opinion indicates
that no special election would have been approved had Helpers
been included in the proposed new unit. Finally, the district
court declared that the 1950 "... changes were not ... rational"
and that the modification of of board-certified units was not
58 -
shown to have been in accord with practice in the industry. R.
1177-78. In sum, the district court concluded — except for the
jobs involved in the inter-union transfers — the seniority
system was rational and in accord with NLRB precedents and
industry practice.
The district court erred initially by drawing the wrong
conclusion from the involvement of the NLRB in establishing
unit boundaries. The plaintiffs do not dispute that the 1940
NLRB decision had support in NLRB precedent and industry practice
given the existing conflict between AFL and CIO unions.
Plaintiffs' contention has been that the Bessemer plant seniority
system in practice violated the very NLRB decision which was
supposed to have delineated the plant's bargaining units. It was
in failing to abide by the original NLRB certification that the
parties proceeded to establish a seniority system which was not
rational and not consistent with NLRB precedents and industry
46/
practice. The seniority arrangements practiced at the
46/ Moreover the district court's recitation that the outcome
of the representation elections was affected by racial considera
tions establishes that the "genesis” of the seniority system
not only occurred with a backdrop of racial discrimination
but was the result of such discrimination. See Argument I, B,
2, supra.
When the NLRB certified the bargaining units at the Bessemer
plant it simply did not consider whether the Unions had drawn the
proposed units with an intent to discriminate. The transcript of
the NLRB Hearing1 emphatically demonstrates the limited approach
of the NLRB. The Trial Examiner rejected proferred evidence
regarding the intentional discrimination of the AFL Unions by
flatly stating that "[w]e will not try the race problem in this
hearing." Pis. exhibit 49, p. 74. Furthermore, the fact that a
practice may be defensible under the NLRA does not render it
59
3essemer Plant violated not only the terms of the NLRB certifi
cation but NLRB precedent more broadly. In Larus & Bro. Co.
Inc., 62 NLRB 1075, 15 LRRM 242 (1945), the Board declared that
while it lacked power at that time to address orders against
unions, its policy was to refuse to accept petitions from unions
which refused to represent unit employees for racial reasons and
would rescind its certification in appropriate circumstances
where a union's exclusive representational status was used by it
as a tool for discrimination, see Atlanta Oak Flooring Company, 62
NLRB 973, 16 LRRM 235 (1945); In re Bethlehem-Alameda Shipyard, Inc.,
53 NLRB 999, 13 LRRM 139 (1943). While the Machinists and
Boilermakers obtained NLRB certification by making an obligatory
statement that they would represent black unit employees, their
renunciation in practice of such representation rendered their
collectively-bargained seniority system in violation of NLRB
precedent.
The district court also erred in approving as rational
and consistent with NLRB precedent and practice the severance
of a craft bargaining unit in 1949 including Molders, Core
makers, and Apprentices — an all-white group — but exclud
ing the Molders Helpers and other production workers who were
black and were also employed in the General Foundry. In reach
ing this conclusion, the district court simply ignored the
46/ cont'd.
defensible under Title VII. Taylor v. Armco Steel Corporation,
429 F.2d 498, 499 (5th Cir. 1970). Plaintiffs submit that a
seniority system based on "individual choices" stemming from
"prejudice," R. 1176, cannot be bona fide. The "tolerance" of
such "choices" commended by the district court is irreconcilable
with Title VII.
60
evidence establishing the functional relationship between the
two groups of jobs and the Molders' general practice of seeking
to represent helpers along with other Foundry employees.
Contrary to the district court, the NLRB opinion does not make
"apparent" that the Board's permission of the special election
was based on any "policy to allow separate recognition of a
group of skilled craftsmen" and that the Board would not have
allowed the election had Helpers been included. The district
court's Opinion on this point is, at best, unfounded speculation.
Its conclusion erroneously relieved the Defendants of their
burden of proving what the NLRB's policy would have been had the
unit including Helpers been sought. Indeed, the district
court's speculation is contrary to contemporary NLRB precedent.
In Mergenthaler Linotype Co., 80 NLRB 132, 23 LRRM 1055 (1948),
the Board included regularly-assigned Helpers in a craft
unit of skilled electrical maintenance employees. It stated as
follows:
"From the record it is evident that [the
electrical maintenance] employees are con
tinually and exclusively engaged in a work of
a dangerous and specialized type. We commonly
include helpers in such units notwithstanding
the fact that thev are not skilled." (Emphasis
added) 80 NLRB at 136; 23 LRRM at 1056. 47/
47/ While NLRB doctrine has shifted with respect to the condi
tions under which severance of craft units is appropriate, The Developing Labor Law (BNA 1971), pp. 225-231, the 3oard has
consistently held Enat helpers should be included in craft units
where as here with respect to the Molders as well as the Boiler
makers, Machinists and Patternmakers they are regularly
assigned to such units, World Steel Products Corp., 27 NLRB 701,
7 LRPM 84 (1940); Superior Pattern-Co., 16 LRRM 1854 (Nat. War
61
Finally, the district court purported to find additional
support for the rationality of the 1949 change in representation
in the Board's recitation that there has been no interchange
between the positions involved and others in the same department
during the previous period. While the district court may be
correct in inferring that the "Molders and Coremakers had been
treated as a separate seniority unit when represented by the
predominantly black Steelworkers," R. 1177, such an arrange
ment simply indicates that the Steelworkers Union, though not
racially exclusive, was itself party to irrational seniority
configurations which prevented the natural progression of black
employees and perpetuated reservation of craft jobs for- white
employees.
Under Teamsters, a seniority sytem may either be "rational,
in accord with the industry practice, and consistent with
National Labor Relations 3oard precedents" or not so. One
earmark, the Court reasoned, of a genuinely bona fide depart
mental seniority system is that the jobs and the separate senibr-
ity departments or units embody genuinely distinct functions.
The departmental structure involved in Teamsters was upheld, for
among other reasons, because the jobs and the separate seniority
units were genuinely distinct. The Supreme Court did not
47/ cont'd.
L. Bd. 1945) (Patternmakers) ; Safety Motor Transit Coro., 78 NLRB 831, 22 LRRM 1257 (1948) (Machinists); Lverlasc Process Printing Co., 98 NLRB 1313, 30 LRRM 1017 (1952); General Dyescurr corp. , IUU Nlrb
1311, 30 LRRM 1 44 3 (1 952); U.S. Potash Co. , IUU NLRii laT8,30 LRRM 1481 (1952); Standard Oil or CaTifornia, 79 NLRB 1465,23 LRRM 1 01 9 ( 1 948); St. Regis Paper Co., supra_ (Machinists).
See also n. 45, supra.
62
suggest that in order for a system to fail the test of rational
ity all jobs in black or predominantly-black units must be
functionally-related to all jobs in white or predominantly-white
units. In every instance in which blacks and whites at 3essemer
performed functionally-related tasks, the seniority system
placed them in separate units, thwarting natural progress
from Helper or Laborer to Apprentice and Journeyman jobs, rele
gating black employees to the former, and reserving the latter
exclusively for whites. A seniority system with such results
fails the test of rationality and must be held to fail it as
a whole.
4. The Uneven Application of the System
The district court concluded that "the seniority system
here under attack has been 'neutral1, applying equally to
black and white". R. 1174. The court erred both in failing to
consider the evidence which proved that the system did not
always apply neutrally and in failing to apply the proper legal
standard.
a. Disparate Application
During the 1940s and 1950s, the seniority system was
operated in an overtly discriminatory and unequal manner. In
the Boiler Shop the black employees who worked closely with
the Boilermakers as Helpers were prevented by the seniority
system from transferring to the Boilermaker or Apprentice
positions with their accumulated seniority. However, white
workers who "did the same type of helping work that the black
Boilermaker Helpers did" were located in the Boilermaker unit,
63
St. 22, and thus could freely transfer with carryover seniority
to the Boilermaker and Apprentice positions.
Other Helper positions wre also treated unequally by the
seniority system. The Millwright Helper positions were staffed
exclusively with white workers. These Helpers were placed within
the Machinists unit and reclassified as "Millwright Trainees."
St. 23. Of course, the numerous Helper positions and similar
production jobs which were staffed exclusively by blacks were
placed in separate seniority units from the operator or craft
positions with which they were closely related. It is apparent
that "inconsistent approaches [were] taken with respect to helper
positions...." R. 1178 (Op.)
Finally, positions which involved production work as
opposed to craft work were treated unequally. As was the case
with Millwright Helpers, white workers in several production
jobs "preferred" inclusion in an all-white Union. Once again the
Machinists accommodated or solicited this preference. Several
production jobs, Crane Operator, Machine Operator, Pipe Cutter,
which were staffed exclusively with white workers were transfer
red from the Steelworkers unit to the Machinists unit. St. 20;
pis. exhibit 41b, attachments 2a-2c. The inconsistent and
unequal application of the seniority system is demonstrated by
the placement of "white" production jobs in the so-called
"craft" Machinists bargaining unit while the "black" production
jobs either remained in or were transferred to the Steelworkers
unit. Consequently white workers in the transferred production
jobs could promote with their accumulated seniority to other
- 64 -
jobs in the Machinists unit whereas all of the black workers
were "locked" out of these jobs by the seniority system.
Even if a system is applied neutrally since the filing of
the EEOC charges, "evidence that in the past the defendants
applied the system to Blacks in a discriminatory fashion is
relevant to the question of whether the system has been negotiat
ed and maintained free of any illegal purpose." Scarlett v.
Seaboard Coast Line R.R., 17 EPD para. 8428, p. 6277 n.2.
(S.D. Ga. 1978). Furthermore, the unequal application of the
system during the period when it was being developed, 1940-1950,
strongly suggests that this development or "genesis" was directed
by a discriminatory purpose. See cases cited, p. 48, supra,
b. Substantial Disparate Impact
The seniority system, to an overwhelming degree, adversely
affected blacks more than whites. For example, in 1971 only 4.2%
or 11 out of 262 workers in the seniority units represented by
the AFL Unions were black, whereas 78.8% or 404 out of 513
workers in the seniority units represented by the Steelwoerkers
were black. Appendix A. The racial allocation of jobs had a
severe adverse economic impact on blacks. In departments where
there were two seniority units, one black and one white, black
earnings averaged less than white earnings by more than a dollar
per hour. In the Machine Shop the workers in the Steelworkers
unit earned $1.89 per hour less than the workers in the Machin
ists unit. Appendix B. For the years 1971 through 1974 black
workers earned an average of $1.00 less per hour than white
65
workers in spite of the fact that black workers on the average
had more years of service at the Bessemer plant than the white
workers had. St. 9.
The district court rejectes this evidence for three
reasons, R. 1174. Firstly, the district court states that
"this argument has some similarity to a proposition rejected
by the Fifth Circuit in the earlier Swint decision [Swint v.
Pullman Standard, 539 F.2d 77 (5th Cir. 1977)]”. _Id_. The
district court misapplies Swint. In Swint Judge Pointer
held that the plaintiffs had' failed to prove a prima facie
case because the plaintiffs had not shown "that class-wide
economic harm resulted from the departmental assignments...."
539 F.2d at 99. This Court disagreed, id.:
[Judge Pointer's] legal deduction is inconsonant
with the Act.
* * * *
Title VII contains neither requirement nor im
plication that economic harm must be shown before a class can be found to have made out a
prima facie case of racial discriminatory
job assignment.
The Court approved other authority which had "expressed concern
because the blacks had suffered 'the indignities of segregation."'
539 F .2d at 91, citing Reed v. Arlington Hotel Co., Inc., 476
F.2d 721, 726 (8th Cir. 1973). The principle clearly enunciated
in Swint that segregation in job assignment violates Title VII
even if there is no resulting economic loss does not indicate,
as the district court asserted, that evidence of economic harm
is not relevant or probative. In Swint the Court indicated
66
that, to the contrary, the proof of economic harm in Title VII
cases "confirmed the existence of proscribed discrimination....
(emphasis added), 539 F . 2d at 90. It is logical and proper
to infer a discriminatory motive when a disproportionate share
of the economic harm that flows from a seniority system falls
on black workers (or conversely when a disproportionate share
of the economic benefit goes to the white workers).
Secondly, the district court states that the plaintiffs'
argument regarding disparate impact "assumes that all em
ployees would have the requisite abilities and aptitudes
(whatever those may be ) for entry into craft positions,
whereas it may well be that the inhibitions to transfer into a
given craft union had more actual impact upon white craftsmen
in other units than upon black production workers." R. 1174.
For a decade this Court has rejected analyses by district
courts which disregarded statistics demonstrating a racial
disparity for general or hypothetical reasons.
We cannot accept the assumption [made by the
district court] that the Government's statistics have no probative force: i.e., "[t]he Govern
ment's failure or refusal to undertake a com
parative evaluation of the entitlement to job
vacancies of competing Negroes and whites, upon
the basis of individual qualifications, leaves
the record without probative evidence to support [the contention that black employees were not
even considered for jobs to which whites were
promoted or for which they were hired]...." The
trial court's pronouncement cannot function as a
general rule. It becomes valid only when the employer
or union evidentially demonstrates the objective
criteria pertinent to the particular job or the
determinants of who is "best qualified."
67
United States v. Jacksonville Terminal Co., supra, 451 F.2d at
442; Pettway v. American Cast Iron Pipe Company, 494 F .2d 211,
231-36 (1974).
Not only is the lower court's argument legally insufficient,
it is refuted by the evidence. Individual black workers were
shown to be as competent or more competent than the white workers
who received the opportunity to move into the skilled positions
in the seniority units represented by the AFL Unions, see St.
section E. Moreover, most of the seniority units represented by
the AFL Unions contained entry-level positions, e.g., Machinist
C, Crane Operator, Pipe Fitter C or D, or Millwright D, for which
it was not necessary for an employee to have either skill or
experience. Tr. 69-70 (Boswell). Furthermore, the defendants
introduced neither evidence regarding objective criteria pertin
ent to "the determinants of who is 'best qualified" nor competent
evidence concerning the lack of qualfications of the class of
black workers to enter positions in the seniority units rep
resented by the AFL Unions.
Thirdly, the district court states that "[i]n any event,
the plaintiffs' argument on this point is virtually foreclosed
by Teamsters." R. 1174. The district court misinterprets
Teamsters. The Supreme Court stated, 431 U.S. at 355-56,
(i]t [the seniority system] 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 city drivers and service
men who are discouraged from transferring to line-
driver jobs are not all Negroes or Spanish—surnamed
Americans; to the contrary the Qverwhelming
majority are white. (emphasis added).
- 68 -
It is correct that Teamsters indicates that proof of
disparate racial impact is not sufficient by itself to render a
seniority system unlawful. But the lower court errs by further
concluding that evidence of disparate racial impact is not
probative and that evidence of racial impact, no matter how
severe, does not create an inference that a seniority system was
developed or maintained with a discriminatory purpose. In fact,
the Supreme Court in Teamsters examined the severity or lack of
severity of the seniority system's racial impact. The Court
determined that the "overwhelming majority", or approximately
48/
87%, of the employees harmed by the system were white.
At the U.S. Pipe plant the situation was the reverse of the one
in Teamsters. The "overwhelming majority," or approximately 79%
of the employees who were harmed by the system because they were
"locked" into jobs in the Steelworkers units were black.
By misinterpreting Swint, Teamsters and the proper method
of analyzing statistical evidence in employment cases, the lower
court failed to draw the proper inference from the analysis of
the "neutrality" factor. The severe racial impact of the
seniority system raises an inference that the system was develop
ed and maintained with the purpose to discriminate. Evidence
that the practice "bears more heavily on one race than another"
48/ The basic allegation of discrimination in Teamsters concerned the inability of city drivers to transfer to line drivers
Of the 1,284 individuals who were "locked" into the city-driver
positons, 1,117 or 87% were white. Teamsters, supra, 431 U.S.
at 342 n.23.
69
is probative evidence of intentional racial discrimination,
Washington v. Davis, supra, 426 U.S. at 241-42, especially
where, as here, the actions undertaken have "foreseeable and
anticipated disparate impact..." Columbus Bd. of Educ. v.
Penick, supra, 99 S. Ct. at 2950 ; see also cases cited pp. 47-
48, surpa.
5. The Discriminatory Maintenance of the System
A seniority system, which has been maintained with a
discriminatory purpose, as here, is not bona fide even if it had
a non-discriminatory origin. This Court has outlined evidence
which, if established, as in this case, pursuasively indicates
the discriminatory maintenance of a seniority system, James,
supra, 559 F.2d at 353;
[a party's] failure to go along with revisions
in the seniority system must be evaluated in the
context of [that party's] extensive unlawful
employment and practices.... [ the party's]
resistance to revisions in the seniority system
must be considered in the light of [another
party's] firm support for such changes....
In the 1968 and subsequent negotiations the Company and the
Steelworkers repeatedly requested modifications of the rigid
unit seniority system but the AFL Unions consistently opposed
the modifications. St. section D. In 1968 and 1971 the AFL
Unions rejected any alteration of the system. St. 29-30. In
1974, when the Steelworkers at a joint-union meeting requested
that the Unions propose plant senioirty to U.S. Pipe the Steel
workers were met by a "brick wall." St. 31. The AFL Unions
adamantly insisted upon the "unit preference system" which
70
maintained, to a substantial degree, the discriminatory impact of
the system. On several occasions, the Company made clear to the
AFL Unions that it preferred to move to a plant-wide system. But
the AFL Unions persisted and the "unit preference" system was
adopted. St. 31-32.
In light of the blatant history of overt discrimination
practiced by the AFL Unions and the readily foreseeable dis
criminatory impact of the maintenance of the rigid unit system,
the intransigent resistance by the AFL Unions to modifications in
the sytern clearly reflected the discriminatory motivation of the
AFL Unions. Moreover, there is additional evidence which supports
the conclusion that the AFL Unions acted with a discriminatory
purpose. "Racial considerations" were not only involved in the
negotiations from 1968 through 1977, R. 1181 (Op.), but the
discriminatory impact of the system and its "lock-in" effect were
repeatedly discussed. St.27-32.
Furthermore, during the period when the negotiations
occurred officers of the AFL Unions openly expressed discrimina
tory views. In 1969, Billy Parker, the President of Local
49/
362, Molders, attested in an affidavit submitted during
the EEOC investigation, pis. exhibit 70, that,
49/ Parker signed the last two agreements, in 1968 and 1971,
entered into between U.S Pipe and the Molders. Pis. exhibits
17 and 18.
71
So far, 50/havinq the Negroes in the Union has
worked out peacefully. I haven't had any
trouble out of any of them. As long as he
stays in his place, he's (sic) alright (sic)
with me. (footnote added).
Parker, also informed black workers that ”[w]e didn't want you
all in here to start with" and he refused to represent black
workers in grievance disputes. St. 36-37. Mr. 3asemore
who had been the business manager of the Patternmakers Associa
tion of Birmingham "off and on" for 20 years, Tr. 440 (Basemore),
told an EEOC investigator that the Association had no black
11/members because "there were no qualified niggers." Tr.
410, 413 (Davis). Basemore forthrightly testified that,
Tr. 438-39,
I was born and reared here in the South...
and I have colloquialisms.... Now, you see
things change, and I'm a fellow that works for
a living, I live in a small town and I don't
keep up with some of these things.
Unfortunately, some of the leaders in the AFL Unions did not
"keep up with" the changes in the law requiring equal employment
opportunity.
Finally, the procedure of the AFL Unions in rejecting the
1971 Inter-Union Seniority Agreement was peculiar and, at least
with respect to the Patternmakers, in violation of union proce-
50/ Black workers first entered jobs in the Molders unit in
T?64.
51/ In order to join the Patternmakers an individual has to
apply to a local association. Three members of the local asso
ciation have to sign the application and the application must be
approved by a two-thirds vote of the members present and voting.
Tr. 432-35 (Jaffke).
72
dure. A. C. Burttram, the Steelworkers' international
representative, stated that although the AFL Unions rejected the
agreement and that although there was "a vivid discussion of it,"
the AFL Unions gave no "outward signs of not agreeing to it ...
there was no detailed discussion on whether or not they could
accept or reject [it]." Pis. exhibit 47, p. 45. Mr. Jaffke, the
international representative of the Patternmakers, travelled from
Indianapolis to participate in the 1971 negotiations, He testi
fied that the Company presented the Inter-Union Seniority Agree
ment to the Patternmakers, that the membership of the Pattern
makers voted to accept the proposal, that it was his understand
ing that all the unions had been asked to agree to the proposal,
and that it "absolutely" would be included in the collective
bargaining agreement. Tr. 426—28. When Mr. Jaffke was shown on
the stand that the proposal was not included in the 1971 agree
ment he stated that "I don't see why it shouldn't be... I'm
greatly disturbed that it isn't." Tr. 429. Mr. Jaffke's distress
was understandable since a modification of the Patternmakers' prior
approval of the Agreement "would have been a violation of our
bylaws." Tr. 462.
The district court erroneously failed to find that this
substantial evidence, both direct and inferential, demonstrated
that the system was maintained with a discriminatory purpose. In
finding that the system was not maintained with a discriminatory
purpose the district court primarily relied upon its finding that
the opposition of the AFL Unions to modify the system "was not
due to a fear of black encroachment —— it was rather to protect
73
against competition from other white craftsmen.” R. 1182. This
argument does not withstand analysis. The rejected Inter-Union
Seniority Agreement required that a transferring employee enter a
unit as a "new" employee for purposes of promotion. St. 30.
Accordingly, the incumbent craft workers would never have been
surpassed for promotions by the transferees if the Agreement had
52/
been adopted. More importantly, the district court's
analysis does not make sense because white workers who are
trained as, for example a Millwright A, would have little incen
tive to move from that position to, for example, a position as a
Boilermaker A. Even if the Millwright was fully trained as a
Boilermaker (and it is unlikely that an employee would be a
journeyman in two crafts) there is no financial incentive for the
53/
move. In fact, it is likely that a Journeyman in one craft
would have to take a pay cut in order to move into another craft
because the Journeymen would not be fully trained in the second
craft.
.1
52/ Moreover, the protection regarding layoffs of craft workers
which was placed in the partial plant-seniority system adopted
in 1975 was included to insure the presence of qualified Journey
man for the Company. See e.g., pis. exhibit 7, p. 23 (Machinists
1975 Contract). The provision simply permits the Company during
a reduction—in—force to retain a qualified Journeyman A on the
job even though there is a senior employee unless that senior
employee is also a qualified journeyman. The district court's
apparent reference to this provision in support of its assumption
that the white workers were concerned only about competition from
white craft workers is misplaced. R. 1132.
53/ For example, on October 31, 1974, a Millwright A and a
Boilermaker A were paid the same hourly wage, $4,907. Compare
pis. exhibit 7, p. 33 with pis. exhibit 11, p. 34.
- '74
Finally, there is no credible evidence to support the
district court. The "racial considerations" in the negotiation
sessions were apparent but the reasons why the AFL Unions
54/
opposed the modification of the system were not articulated.
In view of the substantial evidence which demonstrated that the
system was continued for discriminatory reasons and the failure
of the AFL Unions to offer any credible evidence to the contrary,
the Court should hold that the sytem was not bona fide.
54/ The district court also relied upon the fact that movement
from one Steelworkers seniority unit to another Steelworkers
seniority unit was not based upon plant seniority. R. 1180-81.
Firstly, it is spurious to imply without analysis that because
one departmental system may be lawful another one must also
be lawful — Teamsters neither condemned nor condoned every
departmental system. The evidence regarding the illegality of
the inter-bargaining unit seniority system is overwhelming; the
illegality or legality of the intra-bargaining unit system does
not affect the legality of the inter-bargaining unit system.
Secondly, there are practical differences between the effects of
the two systems. The earning and training opportunities within
a bargaining unit are much more homogenous than the opportunities
between the Steelworker-bargaining unit and the bargaining unit
of an AFL Union. The disadvantage, if any, of being denied
transfer to a seniority unit within the jurisdiction of the
Steelworkers is much less than the disadvantages of being denied
an opportunity to transfer to seniority units within the jurisdic
tion of the AFL Unions. Thirdly, the district court's argument
overlooks the substantial differences between the systems.
Unlike the inter-bargaining unit system, the system for the
seniority units within the jurisdiction of the Machinists
and the Steelworkers provided that a worker could transfer
during a reduction-in-force without forfeiting his seniority and
that a worker could transfer into units to fill a vacancy which
was not filled by workers in the unit where the vacancy arose.
Moreover, further differences between the system arose when in
1971 the Steelworkers intra-bargaining unit system was changed to
provide a transferring worker with seniority retention in his former department and when in 1975 the system was changed to
provide for the full use of plant seniority within the bargaining unit . See pis. exhibits 1—8 (Steelworkers and Machinists
contracts).
75
6. Conclusion: The Defendant Unions' Liability for the
Unlawful Seniority System
The discriminatory genesis and the discriminatory main
tenance of the system each independently establish that the
system is neither bona fide nor lawful. The system's irra
tionality and inconsistency with industry and union practices
and with NLRB precedents adds pursuasive inferential support to
the conclusion that the system is unlawful. When the evidence
relevant to each of the factors is viewed in its entirety, the
conclusion that the system is illegal is compelled.
In order to be held liable for a violation of Title VII
or § 1981 a union need only be signatory or party to an unlaw
ful collective bargaining agreement. Johnson v. Goodyear Tire
and Rubber Co., 491 F.2d 1364, 1381 (5th Cir. 1974); Guerra v.
Manchester Terminal Co., 498 F.2d 641, 655 (5th Cir. 1974);
Carey v. Greyhound Bus Co., 500 F .2d 1372, 1379 (5th Cir. 1975);
Gamble v. Birmingham Southern R.R. Co., 514 F .2d 678, 686-87
(5th Cir. 1975); Macklin v. Spector Freight Systems, Inc., 478
F.2d 978, 989 (D.C Cir. 1973); Russell v. American Tobacco Co.,
528 F .2d 357, 365 (4th Cir. 1975); EEOC v. Detroit Edison, 515
F.2d 301, 314 (6th Cir. 1975), vac. and rem. on other grounds,
431 U.S. 951 (1977). The participation of a union in an unlaw
ful seniority agreement may result not only in the issuance of an
injunction against its continued participation, but also in the
liability of the union for back pay and attorneys' fees. See
e.g ., Johnson v. Goodyear Tire and Rubber Co., supra, 491 F.2d
at 1381-82; Russell v. American Tobacco Co., surpa, 528 F .2d
at 365; cf. Sabala v. Western Gillette, Inc., 516 F .2d 1251,
76
1265-67 (5th Cir. 1975), vac. and rem. on other grounds, 431
U.S. 951 (1977).
Of course, in this case the AFL Unions' liability is based
upon substantially more evidence than their agreement to an
55
unlawful contract. "A union may not bargain away minority
employees' rights to equal treatment ... and, indeed, it must
'negotiate actively for nondiscriminatory treatment' of its
minority workers." Patterson v. American Tobacco Co., supra,
535 at 270; Mvers v. Gilman Paper Co., supra, 544 F.2d at 851;
United States v. N.L. Industries, 479 F .2d 354, 379 (8th Cir.
1973). Not only did the AFL Unions
55/ As the bargaining agreements provide, the International
Unions were clearly parties to the agreements. St. 24-25.
(The Molders Union is the only International which is not unequivocably a party to the agreement; but the International
reviewed the contracts of the Local, the international rep
resentative signed the 1971 agreement, and provisions of the
agreement applied expressly to the International.) However, even
if the Internationals were not parties to the agreements they
would still be liable in this case because .of the close connection between the Internationals and their Locals. St. 24-27, see
pp. 86-87, infra.
".... [T]he international established a close
relationship with its locals, under which the
internationals would generally provide advisors who would review and often comment upon the local's
bargaining position. An additional aspect of the
relationship was the international's requirement
that locals submit contracts to it for its approval.
The international obviously expected benefits,
tangible and intangible, from this relationship.
It cannot now claim that it limits the relation
ship's scope to encompass only the benefits and not
the burdens."
77
"not actively negotiate for non-discriminatory treatment" but
their overt practices of discrimination, their gerrymandering of
the NLRB certification decision, their refusal to represent black
workers assigned to their bargaining unit, their failure to
follow policies consistent with their own Constitutions, and
their intransigent opposition to modifications in the system,
directly caused the intentionally discriminatory development,
application and maintenance of the system. The lower court
should be directed "consistent with the purpose of [Title VII, to
enter a] judgement ... against [all the unions], jointly and
severally ... so as to insure that ... an employee entitled to
back pay shall be made whole by obtaining a judgment against a
financially responsible party." United Transportation Union
Local No. 974 v. Norfolk and Western Railway Companv, 532 F .2d
336, 342 (4th Cir. 1975), cert, denied, 425 U.S. 934 (1976).
55/ cont'd.
Myers v. Gilman Paper Corp., 544 F .2d 837, 851, mod. on rehear
ing^ 556 F .2d 758,~cert. "dismissed, 434 U.S. 801 (1977);
Patterson v. American Tobacco Company, 535 F .2d 257, 270-71
(4th Cir. 1976); see Sagers v. Yellow Freight System, Inc.,
529 F.2d 721, 737 (5th Cir. 1976). In reaffirming this
principle, the Fifth Circuit observed that it "is probably
an exceptional" situation where the international is not held
liable for a contract entered into by one of its locals in
violation of the fair employment laws. Sinyard v. Foote and
Davis, 577 F .2d 943, 947 (1978).
56/ As has been set forth in this Brief, the factual circumstances involving the Steelworkers differ from those involving the
AFL Unions. The district court may be directed to consider on remand
whether these differing factual circumstances require that the AFL Unions should bear all or most of the liability for back pay
and attorneys' fees. See United States v. United States Steel
Corporation, 520 F . 2d 1043") 1 060 (5th dir. 1 9 7 5) , cert. denied*7
4 z y ‘ u . s . ai7 (1 976). The difference in conduct between tne A r’b
78
II. THE DISTRICT COURT ERRED IN HOLDING THAT THE
INTERNATIONAL UNIONS COULD NOT BE HELD LIABLE
FOR ACTS OCCURRING PRIOR TO OCTOBER 4, 1971.
The District Court observed that under Title VII it could
consider claims arising within 180 days prior to the filing of an
EEOC charge and under Section 1981 arising within one year prior
to the filing of suit, October 4, 1972. It proceeded to apply
these limitations as follows:
Upon a consideration of the filing of charges
with the EEOC ... it appears that the following
are the earliest dates on which liability can be
premised: December 23, 1968, as to Molders' Local
342; January 13, 1969, as to IAM Lodge 359; January
26, 1969, as to Boilermakers Local 583 and as to
the Patternmakers Association of Birmingham; and October
4, 1971, as to the four international labor organiza
tions . (Emphasis added). Rl 1 1 (>8.
For at least three separate reasons, the Court's establish
ment of a shorter liability period for the internationals was
erroneous.
A. The 1969 Charges, Properly Construed,
Name the Internationals as Well as the Local Unions as Parties Respondent.
The EEOC charges filed against the unions in 1969 can only
56/ cont'd.
Unions and the Steelworkers was not fully explored below because,
in part, all the Unions, who were represented by the same counsel
in the district court, took similar positions at trial.
Moreover, the district court may be directed to consider
the varying positions between the AFL Unions. For example, the
Patternmakers represented only a small bargaining_unit and that representation ended in 1972, while the Machinists represent a large bargaining unit. Any assignment of liability whether
the violation of their civil rights and thus to obtain "judg
ment against a financially responsible party.
- 79 -
be properly construed as .naming the international, as well as the
local union entities. The charges actually refer to each inter
national and, moreover, refer to the general discriminatory57/
practices of the "Unions". The district court's narrow
reading of these charges as naming only the locals is contrary to
decisions of this Court and others emphasizing that "[c]harges
filed with the EEOC must be liberally construed because they are
made by persons who are unfamiliar with the technicalities of
formal pleadings and usually do not have the assistance of an
attorney. Tillman v. City of Boaz, 548 F .2d 592, 594 (5th Cir
1977); Sanchez v. Standard Brands, Inc., 431 F.2d 455, 465 (5th
Cir. 1970). The rule of liberal construction applies not only to
the scope of the discrimination fairly asserted in an EEOC
57/ The charge of Johnny Long states that "[t]he Company and
the Union, along with other Unions, are party [sic] to a dis
criminatory division of the plant and its departments into
different bargaining units". The charge of Walter Dudley lists the "International Association of Machinists & Aerospace Workers,
Lodge 359" as the discriminatory party or parties. The charge of
Sam Walker lists the "Patternmakers Association of Birmingham,
affiliated with Patternmakers League of North America, A.F.L." as
the discriminating party or parties. In the description of discriminatory practices, Mr. Walker states "[t]here are no
Negro members of the Patternmakers Union at U.S. Pipe....
The Patternmakers Union, along with other Unions, and the
Company, have the departments divided up so Negroes would
lose their seniority if they bid on some better jobs". The
charge of Johnny Jackson listed the "Brotherhood of Boilermakers,
Blacksmiths, Forgers, & Helpers, Local 583" as the discriminating
party or parties and sets forth that "[t]he Boilermakers Union
does not admit Negroes and is party to a contract and a distribution of bargaining units that perpetuate segregated departments
and dead-end jobs for Negroes." The charge of Albert Mason lists
the "International Molders & Applied Workers, Local 342" as the discriminatory party or parties. Pis. exhibit 66 (1968 and
1969 EEOC charges).
80
charge but also of the parties named as respondents. Tillman
v. City of Boaz, supra; Gibson v. ILWU Local 40, 543 F .2d
1259, 1 263 n. 1 (9th Cir. 1 976); Kap-lan v. IATSE, 525 F . 2d
1354, 1359 (9th Cir. 1975).
Kaplan is directly on point. The plaintiff in
his EEOC charge named "IATSE Local 659 - International Photo
graphers of the Motion Picture Industries" as discriminat
ing parties. The Ninth Circuit reasoned that since the charge,
although imprecisely drawn, named the International IATSE and
described the general discriminatory practice for which IATSE
was partly responsible, the referral of workers, the charge
was properly construed as naming IATSE. The plaintiffs here did
no less than the plaintiff in Kaplan. They too named the inter
nationals, although imprecisely, and specified the discriminatory
practices for which the internationals were partly responsible,
the seniority system and the structure of the bargaining units.
While Kaplan is directly in point and flows inevitably from
this Court's decision in Sanchez, the district court's Opinion
H ? ---failed even to address it.
Here, there is added reason to construe the charges as
naming the internationals even beyond that in Kaplan. The
58/ Going even further than Kaplan is Trent v. Allegheny Airlines. 431 F. Supp 345, 350 (W.D Pa. 1977). There, tne
EEOC charge explicitly named only the employer as a discriminat
ing party. Nevertheless, the court concluded that the subject
matter of the charge should for practical purposes have apprised the EEOC of the union's involvement and that, therefore, the
union was properly named as a defendant to the litigation.Here, not Only was the internationals' involvement apparent, but
the charges referred to the international unions.
81
same ambiguities are apparent in all the 1969 charges, each
of which was sworn to and drafted in the hand of a single,
EEOC Field Representative, Jerry Swift. Pis. exhibit 66 (1968
and 1969 EEOC charges). Thus, it was the EEOC Field Represen
tative who failed precisely to distinguish between the respective
locals and internationals and unambiguously to name both as
discriminating parties. As clear as it is that plaintiffs should
not be penalized for laymen's lack of verbal precision, it
is equally unfair to penalize them "for administrative laxity
or ineptness on the part of EEOC." Thornton v. East Texas
Motor Freight, Inc., 497 F .2d 416, 424 (6th Cir. 1974).
B. The Close Association Between Local and ;•
International Union Entities Allows an
International to be Joined as a Title VII
Defendant Even Where Only the Local has
been Named as a Discriminating Party in
any EEOC Charge._____________ ___________
Even if the 1969 charges could be properly construed as
naming only the locals, the close association between the
locals and their parent bodies permits joinder of the latter
as Title VII defendants subject to the same limitation periods
governing the locals. Courts have regularly indicated that where
a local union has been named in an EEOC charge the unnamed
international may be joined as a Title VII defendant. Evans v .
Sheraton Park Hotel, 503 F .2d 177, 180—84 (D.C Cir. 1974); Glus
v. C.G. Murphy Co., 562 F.2d 880, 888 (3rd Cir. 1977); Stevenson
v. International Paper.Co., 432 F.Supp. 390, 396 (W.D. La.
1977); Taylor v. Armco Steel Corp., 373 F. Supp. 885, 911 (S.D.
Tex. 1973); Tippett v. Liggett & Myers Tobacco Company, 316 F.
82
Supp. 292, 296 (M.D. N.C. 1970), reaff'd., 11 FEP Cases 1290
(M.D. N.C. 1973); Roberts v. Western Airlines, 425 F. Supp.
------------- 5 V ----------------------------
416, 429 (N.D. Cal. 1976); cf. Gilmore v. Kansas City
Terminal Ry. Co., 509 F .2d 48, 53 (8th Cir. 1975).
The filing of an EEOC charge serves two purposes: it
provides the basis for the EEOC to investigate and to con-60/
ciliate and it serves notice to the charged party. The goal
of conciliation must be balanced with the goal of enforcement:
[W]e are not convinced that the value of conciliation supersedes the value of enforcement....
We do not believe that the procedures of Title
VII were intended to serve as a stumbling block to the accomplishment of the statutory objective.
59/ Some Courts, arguably, have ruled to the contrary.
However, these decisions erroneously consider the filing
requirments to be strictly jurisdictional, see e.g.,
Donnell v. General Motors Corp., 15 FEP Cases 242 (E.D Mo.
1977), and/or do not review the equitable considerations
for permitting the joinder of the international, see e.g.,
Le Beau v. Libby-Owens-Ford Co., 484 F .2d 798 (7th Cir.
T5TTH This Court, however, has declined to view the filing requirements as strictly jurisdictional. As stated
in Reeb v. Economic Opportunity Atlanta, 516 F.2d 924, 929
(5th Cir. 1 975)",“ "it is clear that the Supreme Court and this Court have not treated time limitations in Title VII
of the Civil Rights Act of 1964 as inflexible 'jusridic-
tional1 absolutes, but have modified them in the interest
of giving effect to broad remedial purposes of the Act.
As such, this Court analogized the Title VII filing re
quirements to statutes of limitations to which equitable modifications apply. Accord, Bethel v. Jefferson, 589 F.2d 631,
641, n.64 (D.C. Cir. 1978); Hart v. J.T. Baker Co., 598 F .2d
829, 832-33 (3rd Cir. 1979); Leake v. University of Cin
cinnati, 605 F .2d 255, 259 (6tn Cir. 19/9).
60/ It is established law that there is no prerequisite for
filing a lawsuit that conciliation must have been undertaken,Dent v. St. Louis-San Francisco Ry., 406 F .2d 399 (5th Cir.
19'fj9"i or that the charge or notice of the charge must have b U n i . w e d m the respondent, Russell v. Mnencan Tobaccp.Company, supra; moreover, there is no requirement^that_tne^scop_̂ of the lawsuit must conform to the scope of the EEOC investigation,
Gamble v. Birmingham Southern R.R. Co_. , supra.
- 83 -
To expect a complainant at the administrative
stage, usually without aid of counsel, to fore
see and handle intricate procedural problems
which could arise in subsequent litigation,
all at the risk of being cast out of court
for procedural error, would place a burden
on the complainant which Congress neither
anticipated nor intended. Evans v. Sheraton
Park Hotel, supra, 503 F.2d at 183; see also
Glus v. C.G. Murphy Co., supra, 562 F .2d at 888.
Accordingly, courts have stated that it is unnecessary to
name an international in a charge where the local has been
named, where the international and the local have an ap
proximate identify of interests, Stevenson v. International
Paper Co., supra, 434 F. Supp. at 396, Taylor v. Armco Steel
Coro., supra, 373 F. Supp. at 911, Tippett v. Liggett &
Myers Tobacco Company, supra, 316 F. Supp. at 296, or where
the international has received notice of the charge and
the investigation, see Evans v. Sheraton Park Hotel, supra,
503 F .2d at 183 n.4, Roberts v. Western Airlines, supra,
425 F. Supp. at 429.
The Third Circuit set forth the type of factors which
courts should consider in determining whether it was necessary
to name a party in an EEOC charge, Glus v. C.G. Murphy Co.,
supra, 562 F .2d at 888:
... (1) whether the role of the unnamed party
could through reasonable effort by the com
plainant be ascertained at the time of the
filing of the EEO complaint; (2) whether,
under the circumstances, the interests of a
named party are so similar as the unnamed party's that for the purpose of obtaining
voluntary conciliation and compliance it would
be unnecessary to include the unnamed party in
the EEOC proceedings; (3) whether its absence
from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party;
84
(4) whether the unnamed party has in some way
represented to the complainant that its relation
ship with the complainant is to be through the named party.
In sum, courts should make availale "complete redress of legitim
ate grievances without undue encumbrance by procedural require
ments especially when demanding full and technical compliance
would have no relation to the purposes for requiring those
procedures in the first instance". Id.
In this case, the Internationals are closely identified
with the Locals concerning the matters in issue — the collective
bargaining agreements, the structure of the bargaining units, and
the negotiation process. There is some variation in the relation
ship between the AFL Internationals and their respective Locals.
However, as the Court held in denying the Motions for Summary
Judgment filed by the Machinists and the Boilermakers, Terrell v.
U.S Pipe & Foundry Co., 6 FEP Cases 1027, 1028-29 (N.D. Ala.
1973),
[TJhese differences between the unions...
tend to wash out in that there are certain
pluses and minuses as relates to each
separate union from the standpoint of this
question of responsibility....
* * *
While it is not clear that the local is an agent
of the international nor that the international is an agent for the local in either union, some
features of both type relationships can be
found. That is, to some degree the international serves as an agent for the local, and in
other respects the local is subservient to the
international.
The Internationals have been involved in the establish
ment of the discriminatory seniority system and in its con-
85
tinuance. St. sections C, D. The Internationals are identified
as parties to the collective bargaining agreements. Interna
tional representatives signed the agreements. St. 25-26. There
are provisions in each contract which the Unions signed from 1968
through 1977 which expressly bind the Internationals to certain
responsibilities regarding the authorization of strikes and other
forms of concerted activity. Pis. exhibits 1-20. International
Representatives undertook significant roles in the bargaining
sessions. St. 25-26, Argument 73. Moreover, the Internationals
have been involved "to some degree in the solution of grievances
61/through arbitration." Finally, the Constitutions for each of
the Unions orovide for close supervision and control of the
6 2 /
Locals by the Internationals. In brief, the Locals are
required to provide the Internationals with information concern-
62/ Terrell v. U.S Pipe, supra, 6 FEP Cases at 1028 (Boiler
makers and Machinists); see pis. exhibit 42, pp. 43-43, 73-74
(International representatives f-or Boilermakers and Machin
ists are at times involved in the the grievance procedure)
(Tr. 1973 Hearing). Additionally, the personnel manager of the Company and the international representatives of the Boilermakers
and the Machinists have met periodically in order to attempt to
resolve problems at the Bessemer Plant. Id., pp. 13-15.
62/ The pertinent provisions of the Constitutions are numerous.
Boilermakers: see e.g., Article 1, section 3; Article 5, sec
tions 2-3; Article 8, section 1; Article 16, section 1, Article
17 section 1; Article 18, section 3; Article 23, section 2;
Article 24, p. 102; Article 34, p. 133; see also pis. exhibit 42,
pp. 60-62. Machinists: see e.g., Article 1, section 3; Article 6,
section 7; Article 7, section 5; Article 11, section 3; Article 18, pp. 64-65. The Constitutions of the Boilermakers and Machin
ists were admitted into evidence as exhibits 2 and 3 at the October 23, 1973 Hearing, pis. exhibit 42, p. 16. The evidence
introduced at that Hearing was included in the Trial Record. Tr
484-85. Patternmakers: see e.g., sections 4, 17, 27, and Laws of
the Patternmakers Association, 1 967, Unions exhibit 23-b. Molders:
see e.g., sections 4, 5, 27, 43-46, 50, 52-56, 77, 120-147,
204-63, Unions exhibit 17.
86
ing their actions, including the submission of all collective
bargaining agreements, and the Internationals reserve the power
to insure that these actions comply with the provisions of the
63 /Constitution.
In its Opinion, the District Court ignored the extensive and
uncontradicted evidence establishing intimate association between
the respective parent and subsidiary unions, overlooked its own
prior recognition of the agency-like relationship between those
entities, and failed to perceive the legal consequences of such
64/
relationships as established by the above-cited authorities.
The direct participation by the parent bodies in the discrimina
tory practices alleged in the charges and the close parent-sub
sidiary associations made it unnecessary for the charging parties
separately to name the international unions. There can be no
suggestion— and there has been none— that the charges failed to
provide a reasonable basis for the EEOC to investigate and to
conciliate regarding the seniority system and the bargaining unit
structure. Naming the internationals more precisely would have
63/ In fact, the Machinists International once placed a local under
its direct supervision in order to enforce the policies of
segregation of the International. St. 12. The international
representatives of the Boilermakers and Machinists indicated
that it is now their responsibility to insure that locals do not
discriminate. Pis. exhibit 42, pp. 61-62, 97 (Tr. 1973 Hearing).
64/ Indeed, the District Court simply ignored those de
cisions which establish that the failure to name an international
union as a discriminating party in an EEOC charge does not automatically preclude its being named as a Title VII defendant—
just as it ignored Kaplan, supra, which held that ambiguous
charges, like those here, should be construed in favor of the
complainant as naming the parent union.
87
served no purpose; neither the EEOC investigation nor concilia-
65/
tion would have been furthered. A proper interpretation of
Title VII and attainment of its goal of enforcing equal oppor
tunity requires that the Title VII claims against the AFL Interna
tionals be permitted.
C. The filing of Amended Charges Should be
held to Relate Back to the Dates of the
Original EEOC Charges._____________ •
In August 1973, several months after suit was filed,
the named plaintiffs amended their original charges to clarify
identification of the AFL Internationals as alleged discriminat
ing parties. Pis. exhibit 71. The EEOC procedural regula
tions, first issued on July 1, 1965, provide as follows:
A charge may be amended to cure technical de
fects or omissions, including failure to verify
the charge, or to clarify and amplify allega
tions therein. Such amendments.... related back
to the date the charge was first received." 66/
(footnote added)
This Court has repeatedly approved the EEOC's regulation
and held that amendments to charges must be treated as having
been filed as of the date of the original charges. Weeks v.
65/ The Boilermakers International admitted that it was served
with a copy of the charge. Pis. exhibit 35b (Boilermakers Answers
to Interrogatories). The business manager of the Patternmakers
who is charged with reporting weekly to the General President,
Unions exhibit 23b, section 16, clause 13, was directly involved
in the EEOC investigation see p. 72, supra. Given the close
association between the Locals and the Internationals and the
direct involvement by the Internationals with the collective
bargaining agreements, the other Internationals must be presumed,
especiallv since there is no evidence to the contrary, to have had constructive knowledge of the charges. The 1971 negotiations
which focused specifically on equal employment matters and on
expanding inter-unit transfer possibilities demonstrate that all
of the Internationals had knowledge of the charges. St. section D.
66/ 29 C.F.R. § 1601.12(5)(b) (effective February 20, 1979);
this provision amended § 1601.11(a) which was originally issued
in 1965. The 1979 amendment did not alter the substance.
88
Southern Bell Telephone & Telegraph Co., 408 F .2d 228, 230-
31 (5th Cir. 1969); Georgia Power Co. v. EEOC, 412 F .2d 462,
466 (5th Cir. 1969); Sanchez v. Standard Brands, supra, 431
F.2d at 465. Without addressing any of these authorities, the
district court conclusorily recited that the amended charges
would be "recognized as effective against the internationals when
filed" and that "it would be improper to treat them as 'relating
back' for limitations' purposes to the earlier charges." R. 1169,
n.3. The district court made no attempt to reconcile its view
that relation back would be "improper" with the pertinent EEOC
regulation and decisions of this Court which have upheld and
applied that regulation. Instead, it purported to find sig
nificance in the fact that the 1973 charges were prepared for
Plaintiffs by counsel, id. :
"It is clear from the reading of the amended EEOC
charges dated August 2, 1973, which were prepared
with the assistance of counsel experienced in discrimination matters, that the international unions
were being added as respondents." (Emphasis in
original).
Nothing in the amended charges supports the district dourt's
insistence that the charges were filed "to add" the interna
tionals rather than-to clarify the earlier ambiguity. The
district court's emphasis on counsel's preparation of the 1973
charges is more than a little ironic in view of its erroneous
failure to consider the original charges' preparation by laymen
untutored, and an EEOC Field Representative inept, in the tech
89
67/
nicalities of formal pleading.
67/ Furthermore, the Internationals have waived any conten
tion that claims against them were governed by limitation dates
separate from and later than those governing claims against the
Locals. The district court rejected this argument on the grounds
that the potential problem regarding the naming of the Interna
tionals in the original charges was raised at the October 1973
Hearing. R. 1169 n.4. However, the waiver results from the
failure of the Internationals to raise or preserve the issue at
the three pre-trial conferences which were held subsequent to
October, 1973. R. 446-52, 773, 784. Issues regarding the jurisdiction of the court and the compliance with Title VII
procedures were raised at the pre-trial conferences, R. 446, 449,
784, but the Internationals never raised their claim that they were governed by limitation dates separate and later than
their locals.
In allowing the Internationals to raise the limitations
issue, the district court undermined the effectiveness of the
pre-trial conference procedure. It also unfairly prejudiced the
plaintiffs. Had plaintiffs known that the issue was in dispute,
they could have undertaken discovery of evidence relevant to the
issue: for example, whether the Internationals had actual or
constructive notice of the original charges and whether the
Internationals had been represented during the EEOC investigation either directly or indirectly. Cf. Canavan v. Beneficial Finance Coro., 553 F . 2d 860 (3rd Cir. 1977); Gibson"v. xlwlJ Local 4u, suora, 543 F . 2d at 1 263, n. 1 ? Colev vT H 5 Mars, m e ., 4ol c. Supp.
1 0T l "(M.D. Ga. 1 978).
90
CONCLUSION
Thus, the plaintiffs respectfully request the Court to
reverse the Judgment and Order of the lower court and to hold that
the seniority system was unlawful, and to assess liability upon
the defendant Unions for the economic harm suffered by the class
of black workers as a result of the unlawful seniority system.
Respectfully submitted
/\ .
JOSEPH P. HUDSON
1909 30th Avenue
Gulfport, Mississippi 39501
BARRY L. GOLDSTEIN
Suite 940
806 15th Street, N.W.
Washington, D.C. 20005
DANIEL B. EDELMAN
Yablonski, Both & Edelman
Suite 500
1150 Connecticue Avenue
Washington, D.C. 20036
JACK GREENBERG
Suite 2030
10 Columbus Circle
New York, New York 10019
DEMETRIUS C. NEWTON
2121 8th Avenue North Birmingham, Alabama 35203
Attorneys for plaintiffs
91
Union Seniority Unit Whites Blacks
Steelworkers 109 404
Blacksmi th 0 1
Boiler Shop 0 4
Carpenter Shop 7 0
Cement Lining 10 87
Chem./Phys. Lab 1 3
DeL.Annealing & Cast. 22 48
DeL. Cores 4 7
DeL. Mold Shells 0 2
DeL. Pit Conditioning 0 13
Electrical Shop 0 3
General Foundry 2 21
General Foundry Yard 1 15
Janitorial Services 0 2
Machine Shop 1 20
Mechanical Maint. 0 6
Melting 10 51
Pattern Shop 0 2
Quality Control 35 65
Sand Test Lab. 0 0
Shipping 1 1 23
St. Gauge Railroad 3 2
Storeroom 0 2
Wash/Locker 0 1 ’
Yard 2 26
Rate
3. 87
Appendix B
THE AVERAGE HOURLY WAGE FOR THE SENIORITY UNITS IN THE EIGHT
OPERATIONAL DEPARTMENTS WHICH HAD TWO SENIORITY UNITS
Difference
(Ave. Rate
Department
Steelworkers
Averaqe Rate
AFL
Union
Average Rate
For Workers
In the
AFL Unit -
in AFL Unit
Minus Ave.
Rate in Stee
worker Unit)
Blacksmith Shop $3.67 IAM $5.10 $1 . 43
Boiler Shop 4. 10 Boilermaker 5.61 1.51
Chemical/Phys.
Testing Lab 3.63 IAM 4.01 1.38
Electrical 3.53 IBEW 5.1 0 Jj 1.57
General Foundry 3.71 Molders 4.28 .57
Machine 3.42 IAM 4.31 1. 89
Mechanical
Maint. 4.02 IAM 4.83 .81
Pattern Shop 3. 30 Patternmakers 5.04 1 . 74
*/ Plaintiffs exhibits 28d, 77a, 77b
CERTIFICATE OF SERVICE
I hereby certify that on the 21st day of April 1980 copies of the
Brief of Appellants for appeals nos. 80-7107 and 80-7256 have beent-
served upon all parties by depositing copies of the Brief in the
United States mail, postage pre-paid, upon the following counsel:
James P. Alexander, Esq.
Bradley, Arant, Rose & White
1500 Brown-Marx Building Birmingham, Alabama 35203
N. Daniel Rogers, Esq.
Corretti, Newson & Rogers
529 Frank Nelson Building
Biormingham, Alabama 35203
George C. Longshore, Esq.
Cooper, Mitch & Crawford 409* North 21st Street
Birmingham, Alabama 35203
Thomas F. Phalen, Jr., Esq.
2312 Korger Building
1014 Vine Street
Cincinnati, Ohio 45202
Williams B. Peer, Esq.
Suite 7011899 L Street, N.W.
Washington, D.C. 20036
Louis P. Poulton, Esq.
1300 Connecticut Avenue, N.W.
Washington, D.C. 10026
John Blake, Esq.388 Brotherhood Avenue, N.W.
Washington, D.C. 20036
J.R. Goldthwaite, Jr., Esq.
Adair, Goldthwite & Daniel 600 Rhodes-Haverty Building Atlanta, Georgia 30303
Zj O /V i^
At torrrey for Plaintiffs-AppelTants
CONCLUSION
We respectfully urge the Court to grant our motion and
instruct us that Louis Swint is the only appellant and here
only in his individual capacity.
Respectfully submitted,
1600 Bank for Savings Building
Birmingham, Alabama 35203
THOMAS, TALIAFERRO, FORMAN, BURR & MURRAY
1600 Bank for Savings Building
Birmingham, Alabama 35203
OF COUNSEL
CERTIFICATE OF SERVICE
I hereby certify that I have served two copies of the above
and foregoing Brief upon each of the following, U. S. Mail pro
perly addressed and postage prepaid on this 13th day of March, 1975
Mr. U. W. demon
Adams, Baker & demon
Suite 1600 - 2121 Building
Birmingham, Alabama 35203
Ms. Marilyn Holifield
10 Columbus Circle
New York, New York 10019
Mr. John Falkenberry
Cooper, Mitch & Crawford
Suite 201
409 North 21st Street
Birmingham, Alabama 35203