Swint v. Pullman-Standard Brief for Defendants-Appellees

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tt?:/TFD STU1U-S COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

NO. 74"372 £

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LOUIS SUI1TT, FT AT.

P1 a 1 n * i _. r ' .i..

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P v; i, t ,\]AN -- S T A NDA R D ,

Doter,d3 n c5- Ap pe11 e e s

or: APPEAL FROM THE UNITED STATES DISTRICT COURT FOR 
THE NORTHERN DISTRICT OF 'i 

SOUTHERN DIVISION

AND
UNITED 

LOCAI

BRIEF FOR DEFENDAN 
5T, STEELWORKERS OF AMERICA, 

JNITED STEELWORKERS OF1466
AFL-CIO, 
AMERICA, At■’L -CIO

John C. Falkenberry 
COOPER, MITCH & CRAWFORD 
409 North 21st Street 
Birmingham, Alabama 35203

OF COUNSEL:
Bernard A. Kleiman
452 Ten South LaSalle Street
Chicago, Illinois 60603
Michael H. Gotteaman
b tik DHO:• ■' . CL.; • . > t ^ m -n. . _ C . :N . -7 i i.
1 00 0 C o n n e c t ! ... h v  i n a o

h i n n  t o n ,  D . C . N̂.' oe '.'

COHEN

*. u. i.. -  y. r.  - j ,  ,  -• r  C  • '  *’?• ?  " i  }  • ' O S



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 74-3726

LOUIS SWINT, ET AL,
Plaintiffs-Appellants

v.

PULLMAN-STANDARD, ET AL,
Defendants-Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR 
THE NORTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION

CERTIFICATE OF INTERESTED PARTIES

The undersigned counsel of record for Appellees 
certifies that the following listed parties have an interest 
in the outcome of this case. These representations are 
made in order that the Judge of this Court may evaluate 
possible disaualifications or recusal pursuant to Local Rule
13(a):



Plaintiffs-Appellants:
Louis Swint and Willie Johnson

Plaintiff-Intervenor:
Clyde Humphrey
The class of black employees at the Bessemer Plant of 
Pullman-Standard company.

Defendant-Appellee:
Pullman-Standard Company, a division of Pullman, Inc. 

Defendants-Appellees:

United Steelworkers of America, AFL-CIO, and its Local Union 
No. 1466.
International Association of Machinists and Aerospace ’Workers, 
AFL-CIO, and its Local Lodge 372.

United Steelworkers of America 
AFL-CIO and Local 1466, United 
Steelworkers of America, AFL-CIO



TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..............................  1
COUNTER-STATEMENT OF THE CASE.....................  2
COUNTER-STATEMENT OF THE FACTS ............ ....... 6
ARGUMENT.........................................  2 0

I. the DISTRICT COURT CORRECTLY DETERMINED 
THAT THE DEPARTMENTAL SENIORITY SYSTEM
WAS NOT DISCRMINATORY...................  22

II. THE DISTRICT COURT CORRECTLY DETERMINED 
THAT THERE WAS NO RACIAL DISCRIMINATION 
IN THE WORK WITHIN THE SAME JOB CLASS,
OR BECAUSE OF THE FAILURE TO POST JOB 
VACANCIES...............................  2 6

A. WORK WITHIN THE SAME JOB CLASS
("JOB PICKING").....................  27

B. JOB POSTING.........................  30

CONCLUSION........................................ . 31



TABLE OF CASES AND AUTHORITIES

CASES

Page
Bradley v. Southern Pacific Co., 486 F. 2d 516,

517-518 (5th Cir. 1973)..................... 21
Chaney v. City of Galveston, 368 F. 2d 774 (5th

Cir. 1973)................................  21
Franks v. Bowman Transportation Co., 495 F. 2d 398

(5th Cir. 1974)...........................  23
Heard v. Mueller Company, 464 F. 2d 190 (6th Cir.

1972).......   23
Local 189, Paoermakes v. United States, 416 F. 2d

980 (5th Cir. 1969).......................  23
Martin v. Thompson Tractor Co., 486 F. 2d 510

(5th Cir. 1973)...........................  21
Smith v. Delta Air Lines, Inc., 486 F. 2d 512

(5th Cir. 1973)...........................  21

STATUTES

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

The Civil Rights Act of 1866, 42 U.S.C.A. § 1981.



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 74-3726

LOUIS SWINT, ET AL,
Plaintiffs-Appellants

v.

PULLMAN-STANDARD, ET AL,
Defendants-Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR 
THE NORTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION

BRIEF FOR DEFENDANTS-APPELLEES 
UNITED STEELWORKERS OF AMERICA, AFL-CIO,

AND LOCAL 1466, UNITED STEELV70RKERS OF AMERICA, AFL-CIO

QUESTIONS PRESENTED

1. Did the District Court correctly find and determine 
that the defendants' contractually established seniority,



-2-

transfer and oromotion practices, as modified by an affirmative 
action program, neither presently discriminate nor perpetuate 
any past discrimination?

2. Did the District Court correctly determine that 
black employees were not discriminated against because of the 
failure of the Company to post job vacancies?

3. Have Appellants failed to establish that the findings 
of the District Court were "clearly erroneous"?

We submit that each cruestion should be answered in the 
affirmative and that this Court therefore must affirm the 
decision of the District Judge.

COUNTER-STATEMENT OF THE CASE

The initial complaint, filed by plaintiffs Louis Swint 
and Willie Johnson on October 19, 1971, contained typical, 
broad-based individual and class allegations that defendants 
Pullman-Standard, a division of Pullman, Inc. (hereinafter 
"Pullman" or "Company"), United Steelworkers of America,
AFL-CIO (hereinafter "Steelworkers") and Local 1466, United



-3-

Steelworkers of America, AFL-CIO (hereinafter "Local") were
guilty of racially discriminatory employment practices violative
of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A.
§ 2000e, et sea, and the Civil Rights Act of 1866, 42 U.S.C.A.

2
§ 1981.

A final pre-trial conference was held on June 4, 1974, 
and the broad, general issues were narrowed by the District 
Court to five specific claims, four of which were class issues 
and one relating to allegations by individual employees, as 
follows:

1

(1) Whether the departmental seniority system, 
even as modified by an affirmative action agreement 
with the Department of Labor, perpetuates past dis­
crimination in the assignment, of black employees to 
less desirable departments.

(2) Whether the Company has discriminated in 
the assignments of work to persons having the same job 
classification (JC) or job title.

(3) Whether the Company has discriminated in 
the selection of blacks as supervisory employees.

(4) Whether the Company's failure to post job 
vacancies or changes in job assignments discriminates 
against blacks.

1. Both the Steelworkers and its Local 1466 may be referred 
to collectively throughout as "the Union".
2. Plaintiff Johnson's complaint was filed under 42 U.S.C.A. 
§ 1981 only.



-4-

(5) Was there discrimination in the individual 
discharge cases of Plaintiff Swint and Intervening 
Plaintiff Clyde Humphrey?-^

The District Judge also permitted Dlaintiffs to join
the International Association of Machinists and Aerospace
Workers ("IAM") and its Local Lodge 372 as parties defendant,
inasmuch as the overcill class relief sought by the plaintiffs
involved possible, though limited modifications of the collec-

4
tive bargaining agreement between the Company and the IAM. 
These parties did not resist joinder, despite the fact that 
they had never been named in any EEOC charges or directly 
involved in the specific issues of the case.

The case proceeded to trial on July 8, 1974. At the 
close of the plaintiffs' evidence, both the Steelworkers and 
Local 1466 filed motions for involuntary dismissal pursuant to 
Rule 41(b), Federal Rules of Civil Procedure, as to the indi-

3. Humphrey was granted leave to intervene as a party plaintiff 
under 42 U.S.C.A. § 1981 to protest his reinstatement from dis­
charge without backpay.
4. Both the IAM and Local Lodge 372 were added as defendants 
pursuant to an express provision in the June 4th pre-trial order 
that no claim for monetary relief was made against them. (R.
Doc. 7 & Doc. 8). Both defendants appeared and participated at 
trial, to the limited extent that the evidence concerned the IAM 
bargaining unit.



-5-

vidual claims of Swint and Humphrey that the Union had failed
to fairly and aderruately represent them following their dis-

5
charge by the Company. Plaintiffs' counsel confessed the
Union's motions to be well-taken, and the Court dismissed the
claims against the Union by the two individuals. (Tr. 1220-21,

6
1224).

The entire trial consumed some 16 days in July and
August, 1974. On September 13, 1974, the District Judge filed
his Memorandum of Opinion, which expanded the "affected class"
seniority remedy of the Department of Labor affirmative action
agreement to include several additional departments, and ordered
that agreement binding on the Union defendants. (R., Doc. 16,

7
pp. 19-20). As to all remaining issues, however, the Court found

5. Grievances for both individuals were appealed by the Union 
to separate arbitration hearings. Following a lengthy hearing, 
Swint's discharge was sustained by the arbitrator. (Co. Exh. 257, 
259). The Union was successful in reinstating Humphrey to his 
former job, but the arbitrator denied the Union's claim for back­
pay. (Co. Exh. 247). This issue is not on appeal.
6. "Tr." refers to the trial transcript. "R" will refer to 
the official record on appeal.
7. Although the Steelworkers and Local 1466 never formally 
signed the agreement, neither opposed its implementation by the 
Company.



6-

that the defendants' contested employment practices were not 
discriminatory, and entered judgment for the defendants.

Plaintiff Louis Swint filed a timely notice of appeal 
on September 16, 1974. (R. Doc. 18).

COUNTER-STATEMEMT OF THE FACTS

The Steelworkers' Union has a long-standing collective
bargaining relationship with Pullman-Standard, dating back to
the 1940's, when, under the leadership of black Pullman
employees, the Union won the right to represent most of the
production and maintenance employees at the Company's Bessemer

8
plant. (Tr. 3499-3500; R. Doc. 16, p. 20). From the Union's 
very beginning, blacks have played a major role in the life of 
Local 1466 and have shared the responsibilities of leadership 
with their white counterparts. As the District Court found, 
the policies of Local 1466 "over the years have been shaped as 
much by blacks as by whites." (R. Doc. 16, p. 20).

8. Maintenance employees in two deoartments. Tool and Die 
IAM and Maintenance IAM, are reoresented by the International 
Association of Machinists and Aerosoace Workers and its Local 
Lodge 372. All other oroduction and maintenance jobs fall 
within the Steelworker jurisdiction.



-7-

Black steelworkers have held virtually every major 
elected office in Local 1466, as well as many appointed posi­
tions, including president, vice-president and chairman of 
the grievance committee. (Tr. 1883, 3500-03). In addition, 
both blacks and whites have serviced Local 1466, as the 
representatives of the International Union. (Tr. 3522). It 
is against this background that the trade union movement and 
the push for Negro rights have progressed together at Pullman- 
Bessemer.

The Steelworker bargaining unit is composed of a highly 
fluctuating work force, which may vary from as few as 200 
employees to as many as 2800, depending on the size and 
frecruency of orders for railroad cars received by the Company. 
Seldom does the level of employment remain constant for much 
more than a week at a time. (R. Doc. 16, p. 2, n. 4). 
Approximately one-half of the employees are black, a ratio 
that has existed since 1965. (Id., p. 4; Pi. Exh. 10, 20).

Departments of varying size are found at the Bessemer 
facility, although most employees are assigned to six major



-8-

departments of a total of 25 departments. Departmental 
seniority, the total length of service by an employee in a 
particular department is, and has long been, the standard by 
which employees compete for promotions, layoffs and recalls. 
Although no formal lines of progression exist in any of the 
departments, and despite the fact that blacks traditionally 
have been assigned to all but a few of the smaller departments, 
a number of jobs within various departments became segregated 
by race, because of the Employer's assignment practices, not 
governed by the collective bargaining agreement.

In 1963, the Union successfully negotiated the first 
"non-discrimination clause" into its collective bargaining 
agreement with Pullman, which proscribed racial discrimination 
and for the first time permitted grievances of a racial nature 
to be submitted to arbitration. (Tr. 1396-97; Co. Exh. 264).
As ear3y as the 1950’s Local 1466 had, without success, filed

9

9. The Court found that almost 77% of the employees were 
assigned to work in the Welding, Steel Erection, Paint &
Shipping Track, Punch & Shear, Steel Construction and Maintenance 
Departments, with more than 50% being employed in Welding and 
Steel Erection. (R. Doc. 16, p. 2). Of these, only the 
Maintenance Department is not in the Steelworker unit.



-9-

grievances for blacks who desired to train for and promote to 
jobs held only by white men. (Tr. 3505).

In November, 1964, the Union took the initiative to 
again attempt to desegregate white-only jobs and filed a 
grievance on behalf of five black buckers, requesting that 
they be given the opportunity to work as riveters, jobs never 
held by blacks. (Union Exh. 507). When the Company denied the 
grievance, the Union appealed to arbitration, and obtained a 
favorable award from Arbitrator Whitley McCoy, which forbade 
the continuance of segregated job classifications and ordered
the Company to allow blacks access to the riveter classification.

10
(Tr. 3507-09; Union Exh. 508).

The McCoy decision thus became the "ground-breaker" 
for the desegregation of jobs throughout the plant (Tr. 3510), 
and was shortly followed by a similarly successful grievance

10. The opinion of the District Court leaves the erroneous 
impression that the non-discrimination clause was part of the 
contract, but without vitality and not enforced by the Union, 
for many years prior to the McCoy Award. (R. Doc. 16, p. 5, 
n. 13). Actually, the rivet driver grievance was filed during 
the first year after the non-discrimination clause became part 
of the agreement.



-lo­

ll
for black welder-helpers who desired to become welders.

In 1968, the Department of Labor, through its Office of
Federal Contract Compliance ("OFCC"), as the result of its
compliance reviews at Pullman under the Executive Orders,
identified four "low-ceiling" departments, to which predominately

12
blacks were assigned, and five traditionally all-white depart- 

13
ments, and began negotiations with Pullman to disestablish 
the racial characteristics of these departments. (Tr. 1423-24). 
The Union was neither advised of nor invited to the 1968 
negotiations, and was never consulted until after a memorandum 
of understanding had been signed between the Company and OFCC 
in January, 1969.

The OFCC then allowed the Company 60 days to obtain 
union concurrence since the agreement was inconsistent with 
portions of the then effective labor agreement primarily 
seniority. (Tr. 1435, 1457-58, 1464-65). In November, 1969,

11. Despite the fact that Plaintiffs, in brief, refuse to give 
credit where credit is due, it was the Union alone who opened 
the door to improving job opportunities for black employees by 
demanding an end to racially segregated classifications.
12. Janitor, Tool & Die, Truck, and Steel Miscellaneous 
Departments.
13. Template, Powerhouse, Airbrake Pipe Shop, Inspection, and 
Plant Protection Departments.



-11-

at a meeting attended by OFCC, Pullman, and the Union, the 
Union presented its own proposals for modifying seniority, 
which were considerably broader than the remedies provided in 
the Memorandum. (Union Exh. 502). The proposal was flatly 
rejected by the OFCC. (Tr. 1462).

Frustrated because of OFCC's insistence that it accept 
seniority changes that it was neither invited nor permitted 
to negotiate about, the Union had no alternative but to refuse 
to sign the Memorandum. (Tr. 1457). Subsequent negotiations 
were held to update the agreement, and the Union was again 
largely, though not entirely, ignored. (Tr. 1458-59). These 
negotiations resulted in the 1972 Memorandum of Understanding, 
which provided an affected class seniority remedy for blacks 
transferring out of the four low-ceiling departments or to the 
five predominately white ones, and which is described in detail 
in the opinion of the District Court. (R. Doc. 16, p. 6).

Although the Union never signed either OFCC Memorandum, 
neither the Steelworkers nor Local 1466 has opposed the imple­
mentation of the affected class remedies contained in the 
documents and members of the affected class have received full



-12-

benefit of such remedies just as if provided by the collective 
bargaining agreement. (Tr. 1445). The District Court's 
opinion, making the 1972 Agreement binding upon the Union, 
creates no additional substantive rights for members of the 
class.

Appellant's brief represents that there were 1,645 
white employees in the Welding Department in 1964 assigned 
to JC 10 jobs. (Pi. Br. p. 10). No citation to the record is 
made for this misstatement, which is refuted by the 1964 
seniority list (Pi. Exh. 2) which contains the following infor­
mation concerning JC 10 employees (Welders, Arc Production; 
Welders-Burners, Production; and Burners) in the Welding 
Department;

(1 )
On List 
6-1-64

Names 580
Lined out 
(terminated by 
6-1-65) 62

Promoted to salaried 
Foreman 3

Those remaining 
6-1-65

(2 )
New Hires 6-1-64 
to 6-1-65______

325

152
0

Total
_CLL-±.-(2.)

905

214
3

515 173 688



-13-

This list contains the names of 130 persons who were hired 
between June 1, 1965, and July 9, 1965, nine of which are lined 
out. No doubt the seniority list continued to be used while 
the June 1, 1965, seniority list was being prepared. The 
total number of employees who held JC 10 positions at any time 
during the 13 month period is 1,035. One page in the list 
appears twice by mistake in the exhibit, which lists 14 names 
as JC 3.0, and which if added by mistake would make a total of 
1,049. The figure given in the brief of 1,646 is at least 
60% above any reasonably correct figure, and actually appears 
to be off by more than 300% from the total as of June 1, 1964, 
and over 200% from the total as of June 1, 1965. There appears 
to have been a big turnover during this year with from 500 to 
700 on the seniority list at all times, many of whom were often 
on layoff. The representation is simply a gross inaccuracy, and 
is explained only as being the result of improper addition.
The same error appears in Plaintiffs' Exhibit 61, supposedly 
an analysis of the 1964 work force.

This error might be passed off as insignificant except 
that it reoccurs at page 44 of the brief (see the table in 
footnote 62), appearing as the absurd assertion that 61.7%

t



-14-

of all whites in the plant in June, 1965, worked in the 
Welding Department. This statistic misses the mark by about 
200% and renders the entire table meaningless. This table 
purports to demonstrate "clear error" in the trial court's 
statistical findings, but as such, it appears to be of little 
or no value, and instead indicates the correctness of the 
District Judge's decision.

Similar inaccuracies appear in brief at page 12, foot­
note 17. There, it is represented that in 1964, in the Paint 
and Shipping Track Department, there were 98 white and 44 
black employees in JC 7 classifications. The true fact, as 
shown by Plaintiffs' Exhibit 2, is that as of June 1, 1964, 
there were only six JC 7 employees, all of them black Helpers- 
Shipping Track, and two other employees, both black, were 
promoted from Spray Painter (JC 6) to Helper-Shipping Track 
(JC 7) between June 1, 1964, and June 1, 1965. There was a 
large turnover during 1964-65 in the classification of 
Helper-Paint (JC 4), involving both black and white employees 
and the Appellants appear to have arbitrarily and erroneously 
called over 100 of these employees Helpers-Shipping Track.
The latter is always a small classification, and new hires 
generally come into the department at JC 4, as Helpers-Paint.



-15-

(Pl Exh. 1-10). In 1964 there was a large turnover of 
Helpers-Paint and none involving Helpers-Shipping Track. Com­
pare the numbers of Helpers-Shipping Track as shown by 
Plaintiffs' Exhibits 11-20:

'62 '64 '66 '67 '68 '69 '70 '71 '72 '73
Black 5 44 0 8 9 6 6 6 5 9
White 1 98 0 0 0 0 0 1 1 1

Total 6 142 8 8 9 6 6 7 6 10

This tabulation or addition error as to 1964 stands out like a 
sore thumb, and if the least effort had been made to check the 
figures, it would have been discovered that seme 136 Helpers- 
Paint had been erroneously counted as Helpers-Shipping Track 
in Plaintiffs' Exhibit 12. A complete audit of the figures
would no doubt reveal countless additional errors. The table
in footnote 17 with this one error corrected would show:

JC 11 10 9 8 7 6 4
White 5 4 2 1 0 4 127
Black 0 0 0 0 8 22 107
% Black 0 0 0 0 100 84.6 41.5

The suggestion is erroneous, therefore that the median JC for



-16-

whites was 7 and for blacks was 6. The corrected table shown, 
assuming the other figures are accurate, that the median job 
class for both races would be JC 4. However, the table is 
helpful for any purpose inasmuch as it does not reflect the 
size of the work force at any particular time, nor does it 
show any promotions, new hires, or terminations, during the 
year. The record shows, as to Helpers-Paint. (JC 4) of both 
races on the 1964 seniority list (pi. Exh. 2):

On List Added to List
6-1-64 6-1-64 to 6-1-65 Total

Names 94 142 236
Lined out (terminated
between 6-1-64 and
6-1-65 20 79 99

Promoted 33 8 41
Those remaining 6-1-65 74 63 137

Comparison suggests there are other errors in footnote 17 as well 
because the 100% turnover apparently was not taken into consid­
eration at all.

There are numerous other erroneous and meaningless 
statistics scattered throughout the brief, but space does not 
permit factual rebuttal of each such inaccuracy.



-17-

Plaintiffs' assertion that blacks have been discrimina- 
torily passed over for promotions is the subject of further 
inaccurate factual statements. As an example of this alleged 
discrimination, they cite the supposed desire of Louis Pinkard, 
a black employee and a member of the grievance committee of 
Local 1466, to receive a riveter's job. (Pi. Br. p. 26). The 
suggestion that Pinkard "has constantly requested a riveter's 
job" (Id.,- p. 26) is pure fabrication. The sole record ref­
erence cited in support of the assertion establishes only the 
following testimony.'

0. [By Hr. demon] Mr. Pinkard, have you ever been offered 
ci riveter's job?

A. No, never have been; I asked for one.
Q. When did you request a riveter's job?
A. I think it was 1968, I think it was running a wood chip 

car ^̂ nd they were needing a lot of rivet buckers.
Foreman Moss came to me and asked me to buck rivets 
[a temporary promotion from JC 6 to JC 8]. I told him 
I didn't have a desire to buck rivets, but I would li.ke 
to drive them. [JC 11] He said I would have to buck 
them first. I said, I didn't want to do it. (Tr. 1214)

Pinkard's failure to become a riveter has nothing to do with 
race, and there is no foundation for the claim that pinkard 
has been "passed over in favor of several junior whites" who 
became riveters. What plaintiffs neglect to mention is that



-18-

their own exhibit shows eleven black riveters and only two 
white riveters who are junior to Pinkard. The difference is 
that they desired to learn how to drive rivets; he did not.
(Pi. Exh. 10).

Plaintiffs' "Statement of the Facts" is so fraught with 
incorrect, misleading, and contextually inaccurate statements 
that specific rebuttal of each such instance is impossible. 
However, some obviously erroneous representations must be dealt 
with, particularly with regard to Appellants' analysis of 
statistical evidence.

Likewise without support is the suggestion that "only 
on one occasion" has Pullman "notified ACs of possible vacancj.es" 
under the OFCC Memorandum. (Pi Br. p. 32). Again the record 
citation given (Tr. 1570) does not support this contention; 
rather, the transcript shows that members of the affected class 
received seven formal interviews and numerous informal ones.
(Tr. 1542-48; 1804-25).

One of the trial issues, the claim that blacks are dis- 
criminatorily assigned to less desirable positions within the 
same job classification than are whites, revolved around the 
recurring though totally false assertion that "senior black 
riveters are frequently assigned the undesirable job of riveting



-19-

the tar-covered roof of railcars ahead of junior whites".
(Pi Br. p. 21). The record citation once more not only fails 
to contain the fact suggested, it conclusively establishes
(1) that tar compound does not cover the tops of boxcars,
(2) that welders on the roof position do not crawl around on 
"the tar-filled roof of a (sic) 8-10' railcar" (Pi. Br. p. 59), 
and (3) that only a bead or seam of tar is used to seal water 
out of the cars. (Tr. 1314-19). Such "red-herrings" confuse 
and cloud the actual, important facts throughout.



-2 0-

ARGUMENT

Of the five issues decided by-the District Court, two 
require no detailed response by these Appellees. The individual 
claims against the Union by Plaintiff Swint and Intervenor 
Humphrey were disposed of by motion at the conclusion of the 
plaintiffs' evidence and are not on appeal.

The allegations regarding the failure of Pullman to 
appoint blacks to supervisory positions is not, as it has 
never been, directed to the Union. Selection of foremen and 
other supervisors is solely a management function, not affected 
by the Steelworker bargaining agreement in any way. The Union 
simply has neither rights nor responsibilities regarding foremen.

The Union's argument will thus be limited to the remaining 
issues -- seniority, job assignments and job posting, although 
only the seniority issue directly relates to the collective 
bargaining agreement between the Steelworkers and Pullman. Job 
assignments and posting are however of interest to the Union, 
and some response is thus appropriate.

This case does not involve complicated issues of law.
This Court must decide only v/hether the opinion and order of



-21-

the District Judge was based on the evidence presented or 
whether, as Appellants suggest, the findings are "clearly 
erroneous" under Rule 52(a), Federal Rules of Civil Procedure. 
Accordingly, a careful reading of the Memorandum of Opinion 
reveals that the findings of the court below are indeed based 
on the evidence presented at the lengthy trial and can lead 
only to the conclusion that the case must be affirmed.

That the "clearly erroneous" rule applies to discrimina 
tion cases in the same manner that it applies to all other 
types of cases is now well-settled. Martin v. Thompson 
Tractor Co., 486 F. 2d 510 (5th Cir. 1973); Smith v. Delta 
Air Lines, Inc., 486 F. 2d 512 (5th Cir. 1973); Bradley v. 
Southern Pacific Co., 486 F. 2d 516, 517-53.8 (5th Cir. 1973)

In Chaney v. City of Galveston, 368 F. 2d 774 (5th Cir. 
1973), this court articulated the standard to be applied in 
determining whether findings of fact are clearly erroneous as 
follows:

"A finding is clearly erroneous when, 
although there is evidence to support it, 
the reviewing court on the entire evidence 
is left with a definite and firm conviction 
that a mistake has been committed. Where



-22-

the evidence would support a conclusion 
either way, a choice by the trial judge 
between two permissible views of the 
weight of the evidence is not clearly 
erroneous, and the fact that the judge 
totally rejected an opposed view im­
peaches neither his impartiality nor 
the propriety of his conclusions" 
(Footnotes omitted.) [368 F. 2d at
776) .

Plaintiffs' lengthy brief attempts only to discredit 
the findings of the trial judge by re-arguing only their 
interpretation of the statistical evidence. That, interpretation 
was carefully weighed by the District Court, but was ultimately 
rejected based on the evidence as a whole. Appellants have 
utterly failed to show clear error as they must.

I. THE DISTRICT COURT CORRECTLY DETERMINED 
THAT THE DEPARTMENTAL SENIORITY SYSTEM 
V7AS NOT DISCRIMINATORY.

It has become fashionable for plaintiffs to insist, 
in virtually every Title VII case, that an existing seniority 
system be amended to cure presently existing effects of 
historic racial discrimination. Here, in seeking a change



-23-

from departmental to plant-wide seniority, plaintiffs lose 
sight of the most elementary requirement of the Act -- that 
seniority provisions are illegal only if they tend to per­
petuate or lock in the effects of past discrimination.
Heard v. Mueller Company, 464 F. 2d 3.90 (6t.h Cir. 1972).
T3ie decisions of this court are in accord. See, e.g. Local
189 Papormakers v._United States, 416 F. 2d 980 (5th Cir.
1969); FrarVks v. Bowman Transportation Co. , 495 F. 2d 398 

(5th Cir. 1974).
Indeed, the Act itself does not proscribe any facially 

neutral, "bona fide" seniority system, one which does not 
have a . discriminatory effect. 42 U.S.C..A. § 2000e-2(h).
Unable to prove any present effects of pact discrimination, 
plaintiffs nonetheless seem to argue that any departmental 
seniority system is per se violative of Title VII and thus 
due to be modified. As the District Court specifically 
recognized, this is not the lav;. (Opinion, p. 9). CF.
Heard v. Mueller Co., supra, at 193.

At the heart of their contention that departmental 
seniority should be eliminated at Pullman-Bessemer is plaintiffs' 
continued reference to the existence of "one-race" departments.



-24-

In 1964, goes the argument, there were eight all-white depart­
ments which somehow perpetuate historic discrimination. Of the
eight departments listed, one (Boiler House) has not operated

14
since 1966, two (Maintenance IAM and Tool A Die IAM) are 
not in the Steelworker bargaining unit, and the remaining five 
were made subject to the "transfer-in" provision of the OFCC 
agreement. Under the agreement, black employees hired prior 
to April 30, 1965, may transfer into vacancies in any of the 
five departments, with the privilege of taking their plant 
seniority with them.

Similarly, employees in the four so-called "all—black" 
or "low ceiling" departments receive, under the OFCC Agreement, 
the right to transfer out to any vacancy in any department with 
the carryover of full plant age. Although the District Court 
found past discrimination in the Company's assignment of 
employees to these departments along racial lines, any such 
discrimination was remedied by the transfer provisions of the 
OFCC plant.

14. The two IAM Departments are accessible with full seniority 
carryover to qualified affected class members. (Opinion p. 6, 
n. 18).



-25-

All of the other departments at the Bessemer facility, 
where the vast majority of the work force and the greatest job 
opportunities may be found, were always open to employees 
without regard to race. Thus, black employees have accrued 
seniority in all of the non-OFCC departments comparable to 
whites employed there.

That blacks earned seniority in virtually every depart­
ment -- and all major ones -- at Pullman may explain the 
absence from this trial of the now traoitional cl.aim that black 
employees were deterred from interdepartmental transfers 
because of the accompanying loss of seniority. Testimony of 
this nature was almost totally absent from this trial. Mô .t. 
black witnesses who desired additional job opportunities pre­
ferred higher rated joes in their own department.

If historical job discrimination existed at Pullman 
it took the form of segregated job classifications within 
desegregated departments, brought about by the employer's 

assignment practices. F'or example, employees of both races were 
assigned to the Steel Erection department, but only whites were 
permitted to become riveters? blacks were relegated to lower



-26-

rated positions such as assembler or bucker.
Because blacks did accumulate seniority in the depart­

ments, in 1965 when the Union won for black buckers the right 
to drive rivets ending job segregation forever, those blacks 
received the full benefit of their departmental seniority.
With it, they gained the vehicle needed to propel them to their 
"rightful places" —  jobs, rather than departments, previously 
denied them. Surely the Act requires no more.

Little can be said to amplify or explain the expertly 
written discussion of the seniority issue by the District Court 
The opinion itself is so obviously well-grounded in the evidene 
of the case that this court must conclude, as did the trier of 
fact, that this contractually - established departmental 
seniority system, as modified by the OFCC agreement, is free of 
the taint of any racial discrimination.

II. THE DISTRICT COURT CORRECTLY DETERMINED THAT 
THERE WAS NO RACIAL DISCRIMINATION IN THE 
WORK WITHIN THE SAME JOB CLASS, OR BECAUSE 
OF THE FAILURE TO POST JOB VACANCIES.

Plaintiffs do not directly attack the Union regarding 
either of these issues, primarily because neither arises from 
the collective bargaining agreement. Indeed, both are claims



-27-

against the Company which alone controls the employement practice 
complained of. However, because both issues do directly affect 
bargaining unit members, some brief comment as to each is 

warranted.
A. WORK WITHIN THE SAME JOB CLASS ("JOB PICKING")
Pullman, in the exercise of its management perogatives,

has retained the right to assign work within any job classifica-
15

tion and department, with a single exception. The company has 
doggedly resisted regular efforts by the Union over the years 
to secure for all employees the right to use seniority to select 
his work assignment. As it now stands, the vast majority of 
production and maintenance employees have no right to choose 
any job, but are rather assigned to positions by foremen.

"Job Picking", to use the language of the shop, has long 
been a major issue between the Company and the Union (Tr. 3420- 
29) and is likely the most hotly contested single bargaining 
issue in any recent contract negotiation. The Union, in addition

15. The Local Working Agreement permits employees performing 
sub-assembly jobs in the Welding Department to select their 
assignments, using seniority, at tne start-up of production on 
all orders for 100 railroad cars or more. (Co. Exh. 262).



-28-

to having bargained regularly but unsuccessfully for broadened 

"sign-up" rights, has also pursued a number of arbitration 

cases hoping to expand the right to select job assignments.

These have likewise resulted in failure; but for the welainq 

sub-assembly eigreement, employees have no right to select any 

job.
The right to select jobs, more than any other single 

subject, has been the focal point for union solidarity in bar­

gaining, among both white and black members. Not surprisingly 

then, job picking was the trial issue if the volume of testimony 

is a valid indicator. Far more complaints were aired that 

foremen refused to assign employees to jobs they preferred than 

on all other issues combined, including plant seniority. The 

real issue for the class members was unquestionably the right 

to sign up for the job they liked best.

Also without surprise, the Union agreed with plaintiffs 

throughout this litigation that broadened rights of job selection 

using seniority was desirable, not only for blacks, but for all 

bargaining unit employees. On the other hand, the Union consis­

tently disagreed with the plaintiffs' contention that the issue



-29-

was a racial one. and held to the position ultimately adopted 

by the District court, that "dissatisfaction with work e a s e ­

ments at Pullman is basically an employer-employee dispute, 

not a black-white problem".
Many meters of Local 1460. white and black. were frankly 

aismayed that the trial Judge did not deliver to them the 

coveted brass ring never reached in bargaining. Despite the 

frustrations of such members, the Union recognises that the 

court's decision was eminently correct and that it merely re­

flected a position often taken by the steelworkers in Title 

VII matters -  that the Court’s jurisdiction is limited to 

enforcement of the antidiscrimination laws, and beyond that not 

to interfere with the collective bargaining process. The Court 

did not, as indeed it may not, substitute what it believed 

to be a better, more beneficial system absent discriminatory 
practices which might otherwise compel judicial action.

Plaintiffs’ claims of discrimination in job assignments, 

such as the "tar-covered roof" contention, were simply 

supported by the testimony. The court properly found no dis­

crimination by Pullman in assigning work within the same job .

class.



-30-

B. JOB POSTING
Even less need be said about the failure to post job 

vacancies than earlier issues. The District court, though 
somewhat surprised, found that the informal, word-of-mouth 
method of advertising job vacancies v/ns a satisfactory and 
workable system from the point of view of both white and black 
employees.

The Local, more than any other party, knows the procedure 
to be successful from its enforcement of seniority rights for 
employees of both races to insure that vacancies are indeed 
filled by the most senior, qualified employee, according to the 
bargaining agreement. The Union's role in seeing that vacancies 
are properly filled is vital to the success of the system.
The Court found.

"It should be noted in this regard 
that at Pullman's Bessemer plant the union 
officials {day a far more active role in 
monitoring and ferreting out violations of 
employees' seniority rights than this court 
has found at other plants, and that these 
union positions are shared rather evenly 
between blacks and whites." (Opinion, 
p. 32).



-31

Plaintiffs do not dispute this finding, that the Union 
has enforced seniority rights of all employees in the filling 
of vacancies. In brief, they have retreated frOm their origi­
nal position regarding formal posting, now suggesting that 
only vacancies in "all-white" departments need be publicized. 
However, the record does not support that the failure to post 
vacancies has been discriminatory or that it perpetuates past 
discrimination.

To require such a practice, while perhaps desirable 
from the point of view of all employees, is not required to 
redress any violation of the Act.

CONCLUSION

Based on the record and on the opinion of the District 
Court, which is soundly supported by the record, one conclusion 
is inescapable —  this Union has done its job at Pullman-



-32-

Bessemer. The Court should affirm the findings of the court 

below.

COOPER, MITCH & CRAWFORD 
409 North 21st Street
B i r nui-Rgh am,

(John C.

Alabama 35203

Falkenberry (j

OF COUNSEL:
Bernard A. Kloiman
452 Ten South LaSalle Street
Chicago, Illinois 60603
Michael H. Gottesman
BREDIIOFF, CUSHMAN, GOTTESMAN A COHEN 
1000 Connecticut Avenue, N .W . 
Washington, D. C. 20036
Attorneys for Appellees, United 
Steelworkers of America, AFL-CIO, 
and Local 1466, United Steelworkers 
of America, AFL-CIO

CERTIFICATE OF SERVICE

I hereby certify that I have served two (2) copies 

of the foregoing Brief for Appellees, United Steelworkers of 
America, AFL-CIO, and Local 1466, United Steelworkers of



-33-

America, AFL-CIO, upon the following counsel of record in this 

case by depositing same in the United States Kail with postage 

prepaid:

C. V. Stelzenmuller, Esquire 
Thomas, Taliaferro, Forman, Burr 

£: Murray
1600 Bank for Savings Building 
Birmingham, Alabama 36203
U. VJ. demon, Esquire 
Adams, Baker & demon 
1600 - 2121 Building 
Birmingham, Alabama 35203
Marilyn Holifield, Esquire 
10 Columbus Circle 
Suite 2030
New York, Ncw York 10019