Long v. Georgia Kraft Company Opinion

    IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

N o .  3 0 4 5  3

LINELL LONG, ET AL.,
Plaintiffs-Appellants,

versus

GEORGIA KRAFT COMPANY,
Defendant-Appellee.

LINELL LONG, ET AL.,
Plaintiff s-Appellants,

versus

INTERNATIONAL BROTHERHOOD OF PULP, 
SULPHITE AND PAPERMILL WORKERS, AFL-CIO,

ET AL.,
Defendants-Appellees.

Appeals from the United States District Court for the 
Northern District of Georgia

(November 12, 1971)



2 LINELL LONG, ET AL. v. GEORGIA KRAFT CO.

Before RIVES, GOLDBERG and MORGAN, 
Circuit Judges.

RIVES, Circuit Judge: Plaintiffs, three Negro em­
ployees at Georgia Kraft Company’s Krannert Divi­
sion in Rome, Georgia, filed this class action based 
upon Title VII of the Civil Rights Act of 1964, 42 U.S.C. 
§§ 20Q0e, et seq., against Georgia Kraft and the de­
fendant unions. The case was tried to the court on the 
issues: (1) whether a system which incorporates job
seniority rather than mill seniority in promoting and 
laying off employees is discriminatory under Title VII; 
and (2) if so, what is the appropriate remedy for such 
discrimination? The district court after a full trial, 
including a view of the plant in operation, entered de­
tailed findings of fact and an able and extensive opin­
ion. See Long v. Georgia Kraft, et al., 62 CCH Lab. Cas. 
If 9437 at pp. 6714, 6715.

The district court decided the first issue for the 
plaintiffs, concluding:

“ (5) The employment policies and practices 
of Georgia Kraft Company prior to May 15,
1963, described above, constitute racial dis­
crimination against Negro employees at the 
Krannert Division. If practiced after the ef­
fective date of the Civil Rights Act of 1964, 42 
U.S.C.A. §2Q00e et seq., such discrimination 
would be an unlawful employment practice 
under the Act. 42 U.S.C.A. §2000e-2(a).



LINELL LONG, ET AL. v. GEORGIA KRAFT CO. 3

“Because of the situation engendered by such 
racial discrimination, a seniority system in­
corporating ‘job security’ as a substantial fac­
tor in promoting and laying off employees at 
the Krannert Division of Georgia Kraft Com­
pany has the present effect of unlawfully dis­
criminating against Negro employees at the 
Mill, whenever members of the affected class 
compete against white employees for promo­
tions or during layoffs, in that:

“ (A) under such a system, some Negro em­
ployees previously discriminated against would 
be unsuccessful in bidding against white em­
ployees with less mill seniority for available 
job vacancies higher in the lines of progres­
sion, solely because the junior white employees, 
on the basis of their race and color, had ob­
tained greater seniority on jobs in lines of pro­
gression previously closed to Negroes;

“ (B) additionally under such a system, some 
qualified Negro employees who have greater 
mill seniority, would remain perpetually be­
neath less senior white employees in terms of 
pay and place in the lines of progression, be­
cause the opportunity of obtaining seniority on 
jobs in; such lines of progression had previously 
been denied Negro employees solely on the 
basis of race1.

“Such a seniority system is a ‘term, condition 
and privilege of employment’ that discrimi-



4 LINELL LONG. ET AL. v. GEORGIA KRAFT CO.

nates against Negro employees on the basis 
of race in violation of Section 703(a) of the 
Civil Rights Act of 1964. Local 189, United 
Papermakers and Paperworkers v. United 
States, 416 F.2d 980 (5th Cir. 1969), affg  282 
F. Supp. 39 (E.D.La. 1968); see also 301 F. Sapp.
906 (E.D. La. 1969).”

(App. 259a-260a).

As to the second issue, the appropriate remedy, the 
district court said in part:

“ **** [I]t is plain that competition on the 
basis of mill seniority must supplant a job 
seniority system from which members of the 
‘affected class’ have been lacked out in the 
past. The court will so order.

“Over and beyond such relief, the plaintiffs 
insist and the EEOC has recommended that 
other remedial steps be taken by the court to 
equate instantly the starting point for the new 
promotion system by the device of ‘advanced 
level entry’ and ‘job skipping’ within the es­
tablished lines of progression. While the court 
is impressed by the arguments and evidence 
in this respect, it is most; reluctant to initiate 
any such action. Most judges lack the industrial 
expertise to restructure a going business in 
this fashion. Here, an investment of close to 
$100,000,000 and the jobs of some 800 unionized 
workers lie in the balance. The complexity of



LINELL LONG, ET AL. V . GEORGIA KRAFT CO. 5

the testimony in this case, even when aided by 
a trial by view of the mill operation, emphasizes 
the problem. While it is true that the task can 
technically be accomplished by a judge’s re­
action to expert testimony, it resolves itself 
into yet another area of a court functioning 
in the role of a supervisory administrator 
for which few, if any, are qualified. On princi­
ple and as precedent, then, the court does not 
feel that such remedies are anticipated by the 
act nor are they a wise: course for the courts to 
pursue. Our law has a strong policy in favor of 
the resolution of such questions through the col­
lective bargaining processes. 291 U.S.C.A. §141; 
29 U.S.C.A. § 158(d). That favored system has 
been in operation at this mill since its con­
struction over 15 years ago. In the area of job 
classification, lines of progression, and the 
orderly functioning of labor-management re­
lations, the courts are particularly admonished 
to abstain. 29 U.S.C.A. §185; N.L.R.B. v. In­
surance Agents’ Int’l. Union, 361 U.S. 477 (1960). 
The court is aware of the results in ‘Local 
189 #2 ’ at 301 F. Supp. 906 (E.D. La. 1969). 
However, as yet there is no definitive authority 
requiring such a course of action. The enormity 
of the problem in terms of General Motors, 
Lockheed, and other large employers is over­
whelming. Thus, while the court is sympathetic 
with these particular plaintiffs in their efforts 
to ‘catch up’ in, the system, it declines to in­
stitute such drastic procedures except where 
there has been consent by the parties.”



6 LINELL LONG, ET AL. v. GEORGIA KRAFT CO.

(App. 261a-262a).

The district court retained jurisdiction, saying: “The 
Court will retain jurisdiction of this cause for a period
of two years. During such time, any party may by 
motion request modification of this Order in light of 
new factual or legal developments.” (App. 268a).

It appeared that the collective bargaining agreement 
in force at the time of the district court’s decision 
would expire on August 28, 1971. Consequently, under 
date of August 5, 1971, the Clerk of this Court requested 
counsel for the various parties to file by stipulation 
on or before September 10, 1971 a copy of any col­
lective bargaining agreement which became effective 
on or after August 28, 1971. In response dated Septem­
ber 10,1971, this Court was advised:

“ (a) that no new contract has yet been 
signed; and,

“ (b) that those who are participating in the 
contract negotiations do not know when 
agreement will be reached.

“Should a new contract be reached prior to 
the Court’s determination of this matter, I am. 
certain that we can inform the Court as to its 
details.”

Apparently agreement has not yet been reached on 
a new collective bargaining contract.



LiINELL LONG, ET AL. v. GEORGIA KRAFT CO. 7

On this appeal there is no contest as to the first issue. 
The law relating: to that issue has been fully and ably 
explored in the cases relied on by the district judge. 
Local 189, United Papermakers and Paperworkers v. 
United States, 416 F.2d 980 (5th Cir. 1969) ajfg  282 F. 
Supp. 39 (E.D. La. 1968); see also 301 F. Supp. 906 (E.D. 
La. 1969). In the second Local 189 case, supra, Judge 
Hee.be had discussed the principles upon which the 
issues of advance level entry and job skipping should 
be decided1 and had given mill seniority practical ap­
plication:

“4. Title VII of the Civil Rights Act of 1964 
requires that opportunities to hold better pay­
ing jobs be made available to all employees 
equally without regard to race. So long as there 
are institutional systems or procedures which 
deny to Negroes advancement to better paying, 
more desirable: jobs which are held by whites 
with comparable mill seniority and ability, 
this legal obligation is not satisfied. The com­
pany is not required to forego its legitimate 
interest in maintaining the skill and efficiency 
of its labor force. Consistent with these two 
safeguards, however, removal of any structural 
impediments which delay the attainment by 
Negroes of jobs generally as good as those held 
by their white contemporaries or which force 
Negroes to pay a price for those opportunities 
are required by law to be removed.

“5. For positions which provide training and 
experience which are necessary for the1 per-



8 LINELL LONG, ET AL. v. GEORGIA KRAFT CO.

formance of higher jobs in the line of progres­
sion, the company may lawfully invoke a rea­
sonable residency requirement — i.e., a period 
of time which must be served before an em­
ployee is eligible to bid for higher jobs in 
the line of progression. However, as the stipula­
tion of the parties demonstrates, many of the 
jobs in the mill do not provide any such train­
ing and experience, while in others the neces­
sary training and experience can be obtained 
in less than six months. Accordingly, the resi­
dency requirement should not be a fixed period, 
such as six months for each, job in the mill, 
but should be fixed at the minimum time re­
quired to provide necessary training and ex­
perience for each job, as stipulated to by the 
parties. Any longer period would unnecessarily 
retard the advancement of those in the class 
discriminated against and would be unlawful.

“6. Negroes in the class discriminated a- 
gainst are entitled to compete for jobs on the 
basis of their competence and mill seniority, 
and thus may skip such jobs in the lines of 
progression which do not provide training and 
experience necessary to the performance of 
the job for which they are competing.

“7. For the same reasons Negroes in the 
class discriminated against are entitled to com­
pete for jobs in, lines of progression on the 
basis of their competence and mill seniority 
above the entry level in those lines where the



LINELL LONG, ET AL. v. GEORGIA KRAFT CO. 9

present entry level job does not provide train­
ing and experience which are necessary to the 
performance of higher positions in the lines 
of progression.

“8. Negroes in the class discriminated a- 
gainst may obtain the training and experience 
necessary to the performance of higher jobs 
in the line of progression, by virtue of their 
temporary assignments, which are common in 
the mill, at least where such assignments a- 
mount to 64 or more hours per month. Accord­
ingly, qualified Negroes in the affected class 
who have served in a position in such incre­
ments for sufficient time to acquire the train­
ing and experience necessary for performance 
of higher jobs in the line of progression are 
entitled to bid for those jobs on the basis of 
their mill seniority, notwithstanding they may 
never have held such a position on a permanent 
basis.”

(301 F. Supp. 917-918).'

It was the duty of the district court, so far as possible, 
to eliminate the present effects of past discrimination.* 2

’ See also Quarles v. Philip Morris, Inc., E.D. Va. 1968, 279 F. Supp. 
505, and the writings referred to by Judge Wisdom in footnote
2 of Local 189, supra, 416 F.2d 982, 983, particularly the note 
in 80 Harv. L. Rev. 1260 (1967).

aLocal 53, Asbestos Workers v. Vogler, 5th Cir. 1969, 407 F.2d 
1047, 1052, 1053. Accord: Louisiana v. United States, 1965, 
380 U.S. 145, 154.



10 LINELL LONG, ET AL. v. GEORGIA KRAFT CO.

The discriminatory job seniority system should be re  ̂
taxed to the extent not forbidden by considerations of 
safety and efficiency, the component parts of business 
necessity. Local 189, supra, 416 F.2d at 693. That extent 
will, of course, vary from, case to case. As the EEOC 
says in its amicus curiae brief, “ The crux of the prob­
lem here and in similar cases cited is how far is ‘far 
as possible’ ?”

Under the most recent collective bargaining agree­
ment there are eleven lines of progression in force, 
that is, series of jobs in which an employee progresses 
by promotion to successively higher paying jobs. The 
district court found that the jobs in a line of progres­
sion are sometimes, but not always, arranged in such 
a way that experience in a lower job is necessary for 
performance in the next higher job. (App. 257a, 258a).

The Georgia Kraft Company and the two Interna­
tional Unions, after some four days of meetings and 
discussions under the auspices of the Equal Employ­
ment Opportunity Commission, agreed on a tentative 
settlement which contained eight specified instances 
in which advance level entry and job skipping should 
be instituted as to members of the class previously 
discriminated against. The first two instances which 
concern the formerly all black lines of progression 
were consented to by all three defendant local unions. 
The two defendant white local unions would not consent 
in the other six instances. By stipulation in the district 
court (App. 184a) and by their brief in this Court (Ap­
pellants’ brief, p. 8), the plaintiffs-appellants confine 
their insistence on advance level entry and job skip­



LINELL LONG, ET AL. v. GEORGIA KRAFT CO. 11

ping to the six instances contained in the EEOC’s tenta­
tive conciliation agreement. In the district court the 
Company’s position was thus expressed:

“GEORGIA KRAFT COMPANY believes 
that the provisions of the tentative agreement, 
if adopted by the Court as its final decree, 
would be a fair, proper and lawful disposition 
of the two pending cases.”

(App. 46a-47a). In brief on this appeal, the Company 
states:

“This remains the position of the Company, 
and for that reason it does not oppose the ap­
peal. The Company would oppose any addi­
tional relief, and such additional relief would 
in fact be precluded by the restriction of the 
issues litigated in the hearing before the Dis­
trict Court. See the stipulation contained on 
pages 182a through 184a of appellants’ appen­
dix.”

Confining the issues to those six instances should al­
leviate the enormity and complexity of the problem 
which the district court viewed with such appre­
hension. We share the district court’s preference 
that the parties who are most familiar with the prob­
lem should reach an understanding either under the 
auspices of EEOC as was attempted or through ordi­
nary collective bargaining processes. However, failure 
or refusal of some of the parties to reach such an un­
derstanding cannot operate to relieve the district court 
of its duty under Title VII of the Civil Rights Act of 
1964, 42 U.S.C. § 2000e, et seq., to eradicate past dis­



12 LINELL LONG, ET AL. v. GEORGIA KRAFT CO.

crimination effects to the extent not forbidden by con­
siderations of safety and efficiency. We agree with the 
plaintiffs that the defendants have the burden of show­
ing that business necessity justifies any continuing 
effects of past discrimination.3 From the record before 
us, we doubt very much whether the defendants have 
met that burden. The district court made no specific 
findings of fact or conclusions of law as to whether 
the remedies of advance level entry and job skipping 
in the instances contained in the tentative concilia­
tion agreement were borbidden by business necessity. 
We think such findings and conclusions should be made 
in the light of the evidence already introduced, and 
also of the district court’s view of the operation of the 
plant, and of any additional evidence which the district 
court in its discretion may permit. It is not clear that 
the district court has applied the standards of law 
which have been expressed in this opinion. The district 
court is in far better position than is this Court to find 
to what extent, if any, business necessity forbids the 
remedies of advance level entry and job skipping in 
the six pertinent instances. Unless the parties without 
further delay reach a collective bargaining agreement 
which renders that issue moot, we think that the dis­
trict court should hear and decide the issue promptly.

REVERSED AND REMANDED.

sWeeks v. Southern Bell, 5th Cir. 1969, 408 F.2d 228; United States 
v. Richberg, 5th Cir. 1968, 398 F.2d 523; Jones v. Lee Way 
Motor Freight, 10th Cir. 1970, 431 F.2d 245; North Carolina 
Teachers Ass’n v. Asheboro City Bd. of Education, 4th Cir. 
1968, 393 F.2d 736.

Adm. Office, U.S. Courts— Scofields’ Quality Printers, Inc., N. O., La.