Swint v. Pullman-Standard Brief for Plaintiffs-Appellants

    /

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

NO. 74-3726

LOUIS SV7JUT, et &1. ,
* p 1 a i n c. iff s - App Glia n t s,

and
HUMPHREY,

Intervenor-Appellant,
vr,.

PULLMAN-• STANDARD, a division of 
UNITED STEELWORKERS of AMERICA,

Pullman, 
AFL-CIO,

Inc. •
st ale. ,

D e f e n d a n t s-Appe11ees.

Appeal frora the United 
.for the Northern District

States District Court of Alabama, Southern Division

BRIEF FOR PLAINTIFFS-APPELLANTS

• U. V7. CLEMONAdams, Baker A Clcmon 
1600 - 2121 Building Birmingham, Alabama 3520

JACK GREENBERG 
MORRIS 0. BALLER 
BARRY L. GOLDSTEIN 

• MARILYN ITOLIFILLD10 Columbus Circle 
Suite 2030New York, New York 10019

Attorneys for.' Plaintifxs— 
Appellants



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

NO. 74-3726

LOUIS SWINT, et al., 

and
CLYDE HUMPHREY, 

vs.

P 3. a i n fc i f f s - Appel 1 a n t s,

Intervenor-Appellant,

PULLMAN^STANDARD, a division of Pullman, Inc.; UNITED STEELWORKERS OF AMERICA, AFL-CIO, et al.,
Defendants-Appellees.

Appeal from the United States District Court _ _ _
for the Northern District of Alabama, Southern Division

brief for plaintiffs-appellants

statement OF THE CASE

This'case involving racial discrimination in employment is 
n appeal from the decision of the United States District Court 
or the Northern District of Alabama rejecting in all substantive 
espects plaintiffs-appellants' claims of discriminatory em- 
,loyment practices on the part of their employer and pertinent labo 
inions, defcndants-appellees here. ihis Court hc.s jurisdiction
he appeal pursuant to 28 U.S.C. § 1291.

plaintiffs-Appellants are three black workers, two of whom 
ire presently employed by Pullman-Standard Company and one of



Defendants are Pullman-Standardwhom is a discharged employee.
Company, .the United Steelworkers of America, AFL-CIO and its 
Loca] 1466. By leave of the court the International Association 
of Machinists and. Aerospace workers was added as a defendant 
subsequent to the filing of the complaint. (R.I.[7] ).

The complaint to this action grew out of a series of 
charges of discrimination filed between 1969 and 1970 by Mr.
Louis Swint with the Equal Employment Opportunity Commission 
(hereinafter "EEOC"). (R.I.[7) p.4; [4] p.8) This litigation
was timely commenced by the filing of a complaint on October 19, 
1971 under Title VII of the civil Rights Act. of 1964 and 42 U.S.C.
§1981. j/

By supplemental pretrial order dated June 5, 19/4, the court 
below defined the class represented by the named plaintiffs as 
" . . .  all black persons who are now or have been employed, within 
one year prior to the filing of any charges under Title VII 
against the defendant company as production or maintenance em­
ployees represented by the United Steelworkers." (R.I[7]) Since 
black employees first filed charges on April 11, 1967 2/  the cIass

1/ Plaintiff Johnson's cause of action is premised upon 42 U.S.C. 
§1981.' The Court permitted Mr. Clyde Humphrey to intervene as a 
party—plaintiff on July 4, 1974. (R.X[/])
0 / On Anril 11 1967 Jessie B. 'ferry, Edward Lofton and Spurgeon
l^als filedcharges o racial discrimination with the Equal Employ- me ^OpportunityCommission against their employer. Pullman-Standard 
in":,pLLuant to 42 U.S.C.A. §2000e et seg,, alleging drscrxmaiatron 
against blacks in the assignment of work in the paint doparan o , 
the company. (PX 58, 60) In addition, three months oarlier^.„o,,, 
Tanuarv 1967), two of the Commissioners of the EEOC had ill- 
charges* against the company, alleging the maintenance o tfacilities reprisals against blacks who voiced opposition again..t 
unlawfui°employment practices, and discrimination in hiring and pro-
motion. (PX 60)

2



consists of all black persons who are now or have been employed
at Pullman since April 11, 1966.

The case was tried before the Honorable Sam C. Pointer, Jr., 
United States District Judge for the Northern District of 
Alabama, in July and August 1974. (R.I[1], P*3) At trial plain­
tiffs challenged discrimination-in defendants' seniority system, 
job assignments, promotions to salaried positions, lack of job 
posting and the' discharge of two named plaintiffs. Following 
sixteen days of trial, the district court, on September 13, 1974, 
issued its memorandum of opinion. (R.Ifl] , P-4) With virtually 
no exception, 3/ the court denied all of plaintiffs' claims for 
relief including costs and an award.of attorneys' fees. (R.I [1] , 
p. 34-35)

Notwithstanding its finding that until mid-1965 racial 
segregation of jobs at Pullman significantly discriminated against 
black employees and the effects thereof persisted over the sub­
sequent years, the district court concluded that in 1965,

"there was no pattern of favoritism to whites.- in the 
departmental assignments. Indeed on JaalanceJ_bj^_gks 
as a group appeared to receive .Tn such assiqnraents. " 4 / (emphasis supplied )

3 / The district court expanded the classes of blacks eligible 
for transfer to certain formerly all-white departments, and sug­
gested the possibility, though improbability, _of a limited amoun- 
of back pay for a few black employees. Tins issue was severed for 
subsequent proceedings. (R.I[16], P• 19, fn. 3o)
4/ (R. I [ 16] , p. 11)

3



Therefore the court-found that Pullman's departmental seniority 
system did not carry forward the effects of past discrimination, 
thus it was not in violation of Title VII; that there was no dis­
crimination in the assignment of employees to departments, job 
classes or to occupations within a job class; that there was no 
discrimination in the use of subjective judgment in the selection 
of foremen; that the failure of Pullman to post vacancies neither 
-discriminated nor perpetuated the effects of any past discrimination; 
and that there was not the slightest evidence of racial discrimination 
in the discharge of plaintiffs Louis Swint and Clyde Humphrey. .In./

On September 16, 1974, plaintiffs filed a timely notice 
of appeal seeking reversal of the blanket rejection of their 
claims. (R.I[1]/ P-4)

STATEMENT OF THE FACTS 
Introduction •I!

The Pullman-Standard company (hereinafter "Pullman" or the 
Company") operates a railroad carbuilding plant in the City of 
Bessemer, Alabama. The Pullman operation at Bessemer is the 
largest freight car manufacturing plant in the world, occupying 
an area of 108 square acres. (Tr. 1247) A variety of types of 
cars is manufactured at Bessemer; Boxcars, Flatcars, gondolas, 
open hopper cars, closed hopper cars, and variations of these.
(Tr. 1229) Orders from the railroad companies vary in size from 
twenty-five cars to several thousand cars. (Tr. 1228) Because 
of the different sizes of orders, there is a cyclical employment 
pattern and lay-offs are frequent. (Tr. 1229) *

4a/ R. I [ 16) , PPS- 20 • 23 • 26, 32, 33.

4



All the production and maintenance employees at the Bes 
semer plant are represented by either Local 1466 of the United 
Steelworkers of America (hereinafter "Steelworkers") or by the 
international Association of Machinists (hereinafter "IAM") .§_/

Within these departments, the Company has not maintained 
formal lines of promotion or progression or job to job sequences; 
rather employees advance up a ladder of pay groups (£riL_' 3°^
classes) embracing one or more jobs each. Each job or occupation 
in the production and maintenance departments is given a job 
classification, which determines the base hourly rate of pay for 
the job in question. (CDX 263) Steelworkers job classes (herein­
after "JC") range from 1-20, with accordingly ascending wage 
wages. _6/ With respect to the IAM jobs, job classes are not 
utilized; rather a base hourly wage rate is negotiated for each
occu.jpei i* xo n  •

in addition to production and maintenance and IAM bargaining 
•unit jobs, this case involves salaried supervisory positions, not 
represented by any union, into which hourly wage employees 
h is tor ical 3.y have been promoted. 5

5 / The IAM is the bargaining agent for employees in the Main̂ . 
finance IAM and Die and Tool IAM departments (PX 2, 12), the 
maining production and maintenance employees, who work among twenty-five departments, are represented by the steelwork r_.
(PX 10)
r/ The pay rates for the job Classes in 1964 ranged from $2-10 
V c  1-2) to $3.36 (JC 20) per hour. In 1973 the pay rates r«i g 
from $3.63 (JC 1-2) to $6.39 (JC 20). (CDX 262)

5



1. Historical Segregation of the Departments and Jobs

Pullman employed nearly 2,324 persons in 1965, almost evenly 
divided between blacks and whites; (PX 2, 12) however the size 
of its work force fluctuates due to the cyclical pattern of 
employment at Pullman. Just prior to trial (July, 1974) the 
company employed 2,800 workers, of whom roughly half were
black. Ij (PX 10, 20)

prior to 1965, most of the jobs at Pullman were segregated 
fcy race. (PX. 2, 12) In the twelve one-race P&M departments 
existing in 1962, there were 35 segregated, jobs. (PX 41) In 
the remaining sixteen P&M departments, 134 of 148 occupations were 
occupied by members of one race only. (PX 1, 11, 41) There
were instances in which certain occupations were occupied by 
whites only in some departments and blacks in others. _9_/ The 
pattern of racial segregation in'employment is clearly revealed 
in the 1964 seniority roster and was confirmed by trial testimony.

7 / in the City of Bessemer, with a population of 33, 42B in 3970, 
“52.2% of the total population is black. (PX 216, P--W.
8 / This is based on the seniority rosters verified by the testi­
mony of witnesses in deposition and at trial.
JL/ For example, all of the cranemen in Die J Tool I*M^were^ whites 
in 1964. in the same year, all of the cr • ‘ dri] x res5 operator
cellaneous department were blacky ( X ) ^  Punch and Shear
in Die and Tool IAivi were wnius, m  .departments the drill press was a black occupation. (PX 11)

6



0■ fr

(PX 1-10) As shown below, ].(/ in 1964 over three-fourths of the 
jobs in which four or more persons worked were segregated by race.

NO. OF NO. OF TOTAL JOBS
IQ/ department BLACK JOBS WHITE JOBS DEPT. WITH 

OR MORE
Air Brake Pipe shop 0 1 1
Die & Tool CIO 2 ' 0 2
Die & Tool IAM 0 5 5
Forge 2 3 6
Inspection 0 1 1
Janitors 1 0 1
Lumber Stores 0 0 2
Mai n tenanee CIO 1 5 10
Mai n tenanc e IAM. 0 2 2
Miscellaneous Stores .0 1 1
Mobile Crane 1 0 1
Paint & Shipping Track 1 3 6
Plant protection 0 2 2
Press 1 2 3
Punch & Shear 2 0 4
Railroad 0 1 2

4Steel Construction 2 1
Steel Erection 2 1 4
Steel Miscellaneous 3 0 4
Steel Stores 3 1 4
Templa te 0 2 2

1Truck 1 0
Welding 0 3 4
Wheel & Axle 2 2 4
Wood Erection . 2 3 8
Wood Mill 1 2 4

27 41 88

IN
4

Source: (PX 12, 42)
See also PX 41, which shows that in 1962 sixty-three (88%) 

of the 72 jobs with four or more occupations were filled by 
members of one race.

7



t .

a. The All While Departments

in 1964 there were eight all white departments at Pullman: 
Template, Power House, inspection, Plant Protection, Air Brake.
Pipe Shop, Die and Tool IAM, Maintenance IAM, and Boiler House.
(PX 2, 12) Not surprisingly these eight departments contain the
highest earning opportunity and/or -the best working conditions 
of Pullman's departments. Five of the ten white employees in 
Template held JC 18 jobs while the rest held jobs ranging from 
JC 12 to JC 16.' (PX 2, 12) The first and only black was as­
signed to this department in 1970. (R. PX 7, 17) Despite the
occurrence of several vacancies in the Inspection Department be­
tween 1965-1971, it was only after the filing of this lawsuit, 
that blacks were assigned to the inspection department , where in 
1964 its twenty one white employees held either JC 12 or JC 13 
jobs. (PX 1-9, 10-19)

in 1964 the fourteen whites in plant protection held JC C 
or JC 6 jobs and no blacks entered plant protection until 1968.
(PX 3-5, 11-15) The first black was not assigned to tliis department 
until 1968. (PX 1-5, 11-15) The maintenance IAM and die and tool
1AM departments JJ/ which include approximately sixty jobs,ex­
cluded blacks until 1969 and was near totally white at the date

11/ several of the occupations in the all-white IAM die and toolto the forgedepartment (e.cr., drill press, craneman), are common to tnc r 
shop tho skcl miscellaneous, steel stores, end wheel and axle 
departments - to which blacks were assigned. (PX 12)

8



of trial. (PX 1-10, '"11-20) No black'was assigned to the air 
brake pipe shop until 1968; and the boiler house, a single man de­
partment, having a JC MO occupation was always reserved for whites. 
(PX 1-10, 11-20) These departments were all white in 1964 and 
have continued to remain virtually all white. (PX 1-10, 11-20) .jj?/

b. Mixed Departments

Roughly half of the production and maintenance departments 
at Pullman in 1964 were mixed - i.e. , both whites and blacks were 
assigned to the departments. As of 1965, most of the occupations 
in the mixed departments were segregated by race with blacks con­
centrated in the lower paying positions. (PX 2, 12)

Included among these mixed departments were the largest 
departments of the company - welding (with nearly half [47%] of 
all the production and maintenance workers) , steel erection (8% oi. 
the employees), paint and shipping tract (1% of the workers), 
steel construction (5% of the workers), wood erection, punch and

12 J  ■ The racial breakdown of the employees actually working on 
May 8, 1973, is as follows:
Department
Inspection
Plant Protection
Power House
Air Brake pipe Shop
Maintenance IAM
Die & Tool IAMTemplate

V}h i te s Blai
11 0
10 1
2 0
io 0
44 5
44 1
2 1

NOTE: Boi]er house was not operating after 1966. (PX 2, 3)
SOURCE: CDX 274, pps. 11-16

9



shear, maintenance CIO, and steel miscellaneous. 13/ (PX 2, 12) 
Each of these departments, with three exceptions, had at least 
one occupation rated as a job class 10 or above. (PX 2, 12)
With the exception of the welding and maintenance CIO departments, 
however, none of the departments had. a significant number of 

.employees assigned to occupations rated above a Job Class 7.
(PX 2, 12)

The welding department, the largest production and maintenance 
department at the company, offers the most attractive job op­
portunities to the greatest number of employees. Occupations 
in the department range from a JC 1 (Clean-Up Man) to JC 14 (craft 
welder). (PX 12) The overwhelming majority of the jobs in the 
welding department (90%) are in Job Class .10 or above and the 
median job class 14/ i.n the department is JC 10.

However, a racial breakdown of the job classes in the welding 
department in 1964 is as follows:

Job Class Whites Blacks % Black
14 5 0 0
10 1646 0 0
6 4 198 98%

Blacks constituted only 10.7% of this department in 1964. (PX 22)

13 / The wood erection, punch and shear, maintenance CIO, and 
steel miscellaneous departments had 100 or more employees each and 
together accounted for 15% of the company's production and main­
tenance workers. (PX 2, 12)
14 / The median job class is derived from PX 12, by computing the 
job class belowwhich exactly one-half of the employees in a depart­ment are assigned, and above which exactly one-half of: the employees 
in a department are assigned. The mid-point is the median. See 
chart infra at 44, showing median job class of departments.

10



Doubtless, Pullman’s rigid policy of excluding blacks from welding 
positions contributed to the relegation of Jill blacks in the 
department to JC 6, while the 1651 of the 1655 whites in the
department were JC 10 or above.

While the maintenance department CIO has the highest median 
job class (e.g., JC 13) of any mixed department, in 1964 only 13% 
of the department was constituted by blacks having a substantially 
lower median job class (e.g., job class 4) (PX 2, 12) 15/ Con­
sistent with defendants' practices favoring whites, between 1964 
and 1966, some thirty white employees were initially assigned to 
jobs above JC 10 in the department:. (PX 2-4; 12-14) Eight blacks,
however, who were assigned to the maintenance department during 
the same period came in JC 2 or JC- 4 positions. Despite the 
transfer of five blacks to maintenance in the latter half of 
1973 this department remains predominantly white. (PX x-lO, J.1--20, 

in the forge department 81.1% (43 out of 53) of the white 
workers were assigned to occupations in JC 8-15 in 1964. While 
nearly 97.6% of the blacks were assigned to JC 6 and below

15/ in 1964, the racia by job class was as follows:
job Cla ss

18
14
13
12
11
6 •4

il breakdown of the maintenance department 

Blacks % BlackWhites
19 0 0
13 ' 1 7
40 0 0
28 0 0
4 0 0
0 3 100
2 28 93.3

SOURCE PX 2, 12

11



occupations. There were no blacks above job class 7 in steel 
erection while jc 11 was held exclusively by fifty whites. 16/ 
Similarly, in the paint and shipping tract 17/ department the media 
job class for the department was JC 7, while the median job class 
for blacks was JC 6. The departments: railroad, 18/ punch and

Steel Erection 
Job Class

1.1
7
6
5
1

Whites Blacks % Black
50 0 0
0 27 100%
13 21.1 94. 2%
0 2 100%
0 1 100%

SOURCE: PX 2, 12
17/  paint and Shipping Tract

Class Wh i. te s Blacks % Black
11 5 0 0
10 4 0 • 0
9 2 0 0
8 1 0 0
7 98 44 30.9%
6 4 22 84.6%
4 29 63 68.5%

SOURCI PX 2, 12
18/ In 1964, the median job class for whites was JC 11; for 
blacks it. was JC 7. (PX 2, 12)

12



0

shear, 3,9/ and lumber stores 20/ repeat the motif of racial 
stratification within the departments, 2l/ accomplished in part 
by practices permitting junior whites to enter departments at higher 
job classes than senior blacks. 22/ (PX 2, 12)

19/ Blacks constituted 01.8%  of the workers in punch and shear and 
held jobs in job class .1-8 only. Whites, however, were assigned to 
the two highest occupations, JC 11 or JC 12.
20/ The median job class was JC 3 and was 41.6% black.

The remaining mixed departments - steel stores, wood erection, 
and.wood mill are indistinguishable from the steel miscellaneous 
department from the promotional opportunities point of view. in 
each of them, as in steel miscellaneous, the median job class for 
blacks is JC 2; indeed, in steel stores the median job class for
the department is JC 2. While technically the wood mill has one 
occupation rated above a JC 9, in fact this occupation was not 
worked until 1966 and it was discontinued after 1969. The wood
erection department has one occupation rated above jc 9, but only 
two. white employees were assigned to this occupation in 1964, and 
only one white employee lias occupied it since that time.
22,/ Between 1965 and 1968, Pullman promoted at least six junior 
whites (each having a department seniority date subsequent to 1963 
and four of whom were relatives of white foremen) to the hignese­
ra ted jobs in the steel erection department without offering these 
vacancies to senior black assemblers in the department. (PX 5;
DCS 278; PX 1-10, 11-20) At least two junior whites were promoted, 
ahead of more senior black assemblers. (PX 5, PX 7; DCX 278; PX 1-10, 1.1-20) Indeed it was the promotion of a junior white employee,
11. Thomas ton, ahead of senior blacks which was the subject of plain 
tiff Swint's original EEOC charge. (PX 5) The court, however, 
failed to consider the testimony of a number of witnesses which 
verified these incidents.

The racial. breakdown of employees actually working on May 8,
1973 (CDX 274, pps. 11-16) is as follows:

%B in %B in
Dept. B W Dept. Dept. B W Dept.
Welding 113 364 23.7^ M. Stores 6 2 75.
Maintenance 23 80 22.3 W. Mill 1 3 2 5.
Paint & ST 57 34 62.6 Punch & Shr. 46 6 88.5
S. Erection 117 .10 92.1 Wood Ercc. 38 28 57.6
S. Constr. 44 21 67.7 Press 16 5 76.2
Wheel & Axle 7 11 38.9" Steel Strs. 24 3 88.9
Forge 8 16 33.3"

13



c. All Black- Departments

The die and tool CIO department, (JC 6, JC 2), janitors 
department (JC 1), and steel miscellaneous department (JC 2-9) 
were all black in 1964. The court below found that the company 
had continued to discriminatorily assign blacks to the janitors 
department until June 1, 1967; that blacks were discriminatorily 
assigned to the truck department until June 1, 1968; and that they
were discriminatorily assigned to the die & tool (CIO) department 
until June 1, 1971. (R.I[16]) The court, however, disregarded
the fact that these departments -remained intact as essentially 
"black" departments as late as May 1973. _23/

d. Other segregated Departments

In addition to the all-white production and maintenance 
departments at Pullman, the exempt departments were all segre­
gated by race. The thirty-three employees in the accounting 
department, seventeen in the manufacturing department, and the 
fourteen employees in the purchasing and stores department were 
all white in 1966. (PX 12) These departments were still all- 
white in 1966. (PX 13) By 1968, there was one black out of

23/
May

The racial breakdown of the employees actually v
1973 is as follows:

Department Whites Blacks
Die & Tool CIO 0 5
janitors 0 9
Steel Miscellaneous 0 50
Truck 0 9
SOURCE: CDX 274, pps. 11-16

14



*

thirty employees in the accounting department; no blacks among 
the five employees in the engineering drafting department, one 
black and fifteen whites in 'the manufacturing department, and one 
black among the twelve employees in the purchasing and stores . 
department. (PX 5) As of the date of trial these departments 
were in harmony with Pullman's tradition of segregated jobs and 
departments and were unmistakably white.

CONCLUSION

The pattern of racial segregation .is crystal clear. Blacks 
were totally excluded, from the choice all-white departments.
Those blacks who worked in "mixed" departments were relegated to 
the lower paying jobs while the higher paying jobs were reserved 
for whites. Indeed, the segregationist barriers against the 
entry of black workers into higher job classes or raxxed departments 
operated to disproportionately exclude blacks from departments 
offering the most attractive employment opportunities, 
welding, maintenance). Moreover, the traditionally all-black 
departments, to be sure, contained the lower paying job classes 
and offered little opportunity for advancement (e_.J2w  janitors,
die and tool CIO).
2. Promotion And Transfer Practices And seniority

Pullman has never had a systematic procedure, which includes 
written standards, for filling job vacancies. In theory promotions 
to vacant jobs within a department go to the most senior qualified 
person in the department. (PX 71) According to the local union 
rules, seniority is determined by the length of continuous service

15



in a particular department and is exercised in competition with 
all other employees in the department. (CDX 262)

There are no standards governing the determination of an 
employee's qualifications, and there is no set length of time 
an employee must work in a higher occupation before he is shown 
on the seniority roster as being qualified and entitled to work 
the occupation. (PX 71) Vacancies are not announced or pub­
lished. (CDX 262)There are no lines of promotion or progression 
in any department, and job class levels govern promotions. (PX 
71)

Departmental age is used to determine who is promoted or re­
called (assuming the ability to do the work) in the event of 
vacancies or who .is rolled-back or la id-off in the case of 
reductions. (CDX 262) Department heads (all white) are ultimately 
responsible, for determining which employee obtains the promotion. 
(CDX 262)

The company maintains a seniority roster listing for each 
department, reflecting the name, badge number, seniority, and. 
occupation of each employee assigned thereto. (PX 1—9) These 
rosters are updated annually; and each roster covers the period 
of June 1 of one year to May 31 of the following year. (PX 1-9, 
Tr. .14) The occupations listed for an employee on the seniority 
roster indicates the highest job.on which the employee has quali­
fied. Once an occupation is listed on the seniority roster op­
posite an employee's name, his ability to perform the job may not 
thereafter be questioned and he is entitled to the job ahead of 
all other persons in' the department except senior employees in 
the same occupjition in the department. (Tr. 1730, 1/31, 1 /32,
17 30)

16



In other, words, to the extent: that work is available for a 
particular occupation, the employees whose names appear on the 
seniority list in the said occupation are entitled, to- work the 
job on the basis of their department seniority, and before an 
employee can exercise his plant seniority on a job, he must have 
attained that job - using department seniority. While an employee 
will frequently work in an occupation below that shown for him 
on the seniority roster, the occupation listed for him on the 
seniority roster represents the very highest occupation to which 
he is entitled, assuming available work. The seniority desig­
nations indicate the predominant occupation of employees during 
normal periods of employment. (CDX 2.74, p.!0)

For those j c 's, particularly the higher JC's, in which few 
to no black employees are listed, it is clear that blacks were 
not deemed "qualified" for those'positions and thus did not have 
an opportunity or contract right to work in .them.

Foremen's discretion regarding the assignment of employees
to temporary vacancies is extremely important: in the acquisition 
of qualifications required to perform in a higher job class. The 
evidence shows and the district court found that temporary pro­
motions, while affording some increase in compensation, provide
"the principal avenue by which an employee can obtain recognition 

beingas/capnble of satisfactorily performing the job." 24/ (CDX 264)

24/ (R.I. [16] p. 5 n . 14

17



At Pullman, foremen have absolute discretion, subject to 
no written constraints, to assign employees to temporary vacancies 
of three days or less.’ (0X254) Three day temporary assignments 
therefore can be made by foremen in complete disregard of 
seniority or other standards, and the union contract does not 
permit employees to grieve these temporary assignments. (PX 71) 

Whenever an employee transfers from one department to 
another, except on the orders of management, the transferee re­
linquishes seniority in the department from which he transfers 
and enters the new department as a new man. (PX 71, "Local 
Working Conditions", pp. 1-2) Consistent with classic.depart­
mental seniority systems, the transferring employee does not 
carry over any of his accumulated seniority for promtion, re— 
duct ion in fcicc, oi Didain^ purposeo* ^j. ^

wage progression structure and transfer practices, it is almost 
a certainty that a transferring employee moves from a higher to 
a lower paying job. (Tr. 1/67) in general, Pullman does not 
provide for protection of the transferring employees' wage rate. 
IX 71) Thus, in ordinary circumstances, an employee who had pro­
gressed any significant distance up the wage group schedule in 
one department and then transferred to a different department, in 
order to improve his chances for eventual advancement, higher 
pay, or better working conditions, can expect to be required to 
take a wage cut as a condition of transfer.

3. Discriminatory Assignments of Jobs Within the Same job Class

Prior to 1965, it was an admitted policy of the Pullman company

10



to segregate its occupations by race. The record further- 
established that, for the most part, blacks were assigned to 
the least desirable, least remunerative occupations. (AI, No.
32) The all-white foremen, whose duties included the assignment 
of workers, implemented this discriminatory policy.

These foremen have absolute discretion to assign work among 
employees working in a given job class in a department except 
for welding. (WHD, p. 59)

With one exception, the seniority provisions of the contract 
do not apply with respect to assignments of work in occupations 
in the same job class. The exception to the ordinary pattern 
of job assignments at Pullman obtains in its largest department, 
welding. ' in this predominantly white department covering nearly 
half of the company's workers, employees are entitled to bid on 
job assignments for all car orders of 100 cars or snore. (CDX 
262, 263, "Local Working Conditions") Because blacks were ex­
cluded from the welder occupation in the department prior to 
1965, and nearly all of the jobs therein are welder I jobs, the 
b iddi-ng system here admittedly results in whites choosing the 
best welding jobs. 2d7 Employees of the Pullman plant at Butler, 
Pennsylvania also exercise seniority to select job assignments

2f/ By the same token, if this system were instituted in the 
sTeel erection department, to which pre '65 whites were assigned 
only to the relatively few jobs in JC 11, blacks would have the 
edge in choosing the most desirable jobs. See also R.I. [16] p. 26 
n. 44.

19



at the beginning of each job. (PX 206, p. 3, 9, 15, 19, 22, 25, 27, 

31, 32)
in the pro-1965 era, the foremen of the company admittedly 

exercised their discretion arbitrarily to exclude whites from 
certain occupations in the various departments. (AI, No. 32;
PX 57) The company has listed some forty-two occupations to 
which the foremen had never assigned whites prior to 1965. (a .l,

No. 32) 26J  In the absence of objective standards requiring 
otherwise, foremen can and do continue to arbitrarily exercise 
their discretion to maintain the status quo as of 1965.

The paint department furnishes perhaps the most vivid examples 
of the arbitrary abuse of discretion to exclude blacks from more 
desirable jobs. Prior to 1965 the spray painter occupation (J'C 6) 
was an all-black one. (AI No. 32, Tr, 887, 889) This job is 
unquestionably one of the least-desirable at the company. To 
ward off some of the most dangerous features of their working 
conditions, spray painters must grease their faces, hood their 
heads, and wear uniforms and respirators while spray painting, 
inter alia, the undersides of railcars. (Tr. 171, 888, 1342, 1343)

9r/ bhnrtlv before trial, the company amended its earlier answer 
Tr/.hi? interrogatory to show that whites had, at one time worked 
ebvenkf the previously listed 42 4iphlach occupations Tnr^_

in ftelwo's whites and blacks had worked some occupation, 
iSich had reverted, by the late 1940's, to one-race occupation...
(CDX 288, 289, 290)

-• 20 -

r



c

The stencillers' job, a cleaner occupation in JC 6, remained
until 1970 an all-white job. (PX 6, 16, PX 58, p. 9; Tr. 158,
59, 167, 176, 341, 889, 901) The spray painter helper's job
(JC 4) is basically a black job; the stenciller helper's job
(JC 4) is a white job. The EEOC investigator found

" . . .  that the work of the stencillers and 
stencil helpers was markedly cleaner than that 
of Spray Painters and Painter Helpers. These 
differinq condItions were particularly evident 
TrT~[The fey e'f 'of pa i n t fumes and particulates 
in~~the '' a j r~.~~ The physical appearance of Spray Painters and Painter Helpers also contrasted 
to that of Stencillers and Stencil Helpers.
The former were covered with thick coats of 
paTnt7"~whi'i~The~Ta~tte~r were" relatively free 
of parnt7~r "(PX 60) (emphasis supplied)

As of 1973, 2 7 / 16 of the 19 stencillers were whites -
five of whom have been appointed since 1966; 24 of the 31 spray
painters were blacks. (PX 10, 20; Tr. 166)

In the steel erection department, senior black riveters 
are frequently asigned the undesirable job of. riveting the 
tar-covered, roof of railcars ahead of junior whites. (Tr. 442, 
454, 457, 473, 483, 13.14-1319, R. Tr. 50) White foremen have,
on occasion, removed senior black riveters from more desirable 
jobs and replaced them with junior whites, pretextually due to 
the white riveter's alleged greater experience on the job, his
aged, condition, and/or his kinship to the foreman. (e. g. , Tr. 
454-55, 471-73; R. Tr. 46-48)

2_1 /the
Of the employees actually working as of May 

stencillers were whites. (CDX 274)
8 , 1973 all of

21



In addition to the work in the shear room of the punch 
and shear department being physically heavier than that in its 
punch room, the incentive rates for the machines in the shear 
room are lower than those in punch. (Tr. 55, 56, 1389, 1390)
As late as 1970, all of the 26 shear operators were black. (PX 7, 
17) The white foremen in the punch and shear department have 
passed over, at best, and at worst, denied senior blacks an 
opportunity to train for the traditionally white machines in the 
press room, while affording such training to junior white employees. 
(Tr. 56, 103, 104, 105)

Similarly disparate job assignments are made by foremen in 
the forge department, one of whom determines the qualifications 
of blacks to perform certain jobs by physical observation (Tr. 131, 
122-127; PX 1-19; AI, No. 32); the wood erection department 
(Tr. 194-195; PX 1-20; AI, No. 32); and on orders of less than 
100 cars in the welding department. (Tr. 201, 202, 686, 756-/61;
R. Tran. 210-212)

4. Rcicial Discrimination In Selection For Supervisory Positions

The department heads ("C" foremen') at Pullman select the tract 
supervisors ("B" foremen), production foremen ("A" foremen), and 
the hourly ("temporary") foremen. (PX 1-10; WHD, pp. 3 5-40) In 
turn, the department heads are chosen by the plant manager and 
superintendent. (WHD, p. 36) Prior to_,1965_, t^j^.had^ji^crj3Gcn 
a black foremen at Pullman, in any of its....depâ buen'ts. In 1966, 
the company promoted its first black to the position of salaried 
.foreman. (PX 33) In that year, there were 142 white foremen. (PX



' s i

Four years later, there were 9 black salaried foremen and 151 
white salaried foremen at the company. (PX 38) At that-time, 
there had never been any black tract supervisors or department 
heads; and with the exception of one black tract supervisor out 
of a total of 25, the situation today remains much the same.
(PX 10; Tr. 2399, 2400)

The department heads select tract supervisors and production 
foremen from the ranks of Pullman's hourly workers. In their 
selections, these department heads exercise complete discretion; 
with no objective criteria controlling the exercise of such dis­
cretion. (WIID, pp. 37-38) Not infrequently, the white foremen 
choose their relatives in hourly jobs to fill foremen vacancies. 
(Tr. 35, 209, 402, 472-476, 521, 1058; R. Tr. 6-7; PX .10) Hourly 
employees are not notified of vacancies in foremen positions.

Qualifications for supervisory positions have never been 
articulated by the company. The lack of formal education presents 
no barrier to the promotion of hourly workers to such positions 
at Pullman. In commenting on testimony regarding the apparent 
illiteracy of one of the white foremen (Tr. 404, 405), the depart­
ment head, himself having completed th'e ninth grade, (Tr. 2410) ,
stated:

"Q : (by Mr. Stelzenmuller) Do you have -  youhave some people of limited capabilities 
that way, don't you?

A: (by Mr. Moss) Well, that's right. Townsend
don't have too much education but he has got 
a lot of car building experience. I got two 
blacks at this time don't have much education, 
got a lot of car building experience, they 
are good foremen." (Tr. 2371)

23



The record is devoid of any evidence from which it may be 
inferred or concluded that blacks are unfamiliar, in any respect, 
with the range of job skills necessary for the performance of 
supervisory duties.

Blacks in thirteen departments have never been offered either
28_/~

temporary or salaried foremen positions.
Blacks have on occasion worked as temporary or salaried 

foremen, and have never refused promotions to temporary foremen, 
in the punch and shear, steel construction, wood mill, wood erec­
tion, and maintenance CIO department. (Tr. 31, 842, 3340; CDX 278, 
338)

In 1973, for the first time eleven blacks were offered tem­
porary foremen jobs in the truck department. Nine of the blacks 
refused the offer. (CDX 2 78) The hecid of the welding department 
testified that six blacks have refused promotions to temporary 
foremen (Tr. 2986-2988), but two of the six have subsequently 
accepted promotions to salaried foreman and a third to a temporary 
foreman. Numerous other blacks have accepted temporary foremen 
vacancies in the welding department. (CDX 278)

Company records indicate that only three blacks have declined 
to fill temporary foremen vacancies in the steel erection depart­
ment. (JMD, 35, 57, 58; CDX 278) Two of these have accepted such 
promotion on subsequent occasions. (CDX 278) One black in the

28 / Forge, wheel and axle, plant protection, janitors, press, air 
brake pipe shop, die and tool.CIO, lumber stores, power house, mis­
cellaneous stores, inspection, maintenance JAM., and die and tool IAM. 
(Source; PX 1-10, 31-40; CDX 278, 286, 334) Six of these department 
are the traditionally all whi.te departments; two of the departments 
arc* flie all-black departments.

24



paint department has refused a temporary foreman's job. (CDX 278) 
Although white hourly workers are frequently transferred 

from an hourly job in one department to a salaried foreman's job 
in another (PX 7; LSD 24; Tr. 043, 2870, 2871,- CDX 334; 1-ID 10, 14),
the few-blacks chose■n as foremen are largely assigned to the pre
dom.inately black dep.artments in which they have worked as the
following chart indicates :

ASS IGXPLENT OF BLACK FOREMEN (1973)
No. of Black %
Black Total of Total

Department % B1a ck Foremen Foremen Foremen
Steel Erection 72.9 5 16 31.25
S to e1 Misce11aneous 62.6 2 12 16.67
Punch & Shear 67.2 2 16 12.50
Welding 2 9.4 2 34 5.88
Steel Constructi on 83.0 1 9 11.11
Paint 49.5 1 11 9.09
Maintenance CIO 25.0 1 15 6 .6 7
All Others 0 162 8.64

(SOURCE: PX 30, 40)

The company's discriminatory selection procedures continued 
unabated, until this suit was filed. At least 59 vacancies in 
salaried foremen positions at Pullman have occurred since 1966; 
blacks have been chosen to fill twelve of these - 4 out of 41 
vacancies in the 1966-69 period, and S out of 12 vacancies since 
this litigation was commenced. (CDX 282, 334; R. I [16] p. 29)

25



5. The Discriminatory Effects Of The Failure To Post Vacancies

The failure of the Company to post vacancies in any department
other than the one (Welding) containing nearly half of its workers
has created a situation in which any employee ascertains the
existence of a vacancy by after-the-fact observation (i.e., seeing
a new face on the job.) (Tr. 143-147?- Ans to Interrogatory 39(a))
With the frequent lay-offs at Pullman, the constant vacations, ill-
necces and management transfers ordinarily to be expected in a
work force of some 2500 employees, the expectation that employees
will ascertain the existence of vacancies by self-help alone is
far from realistic. The Matthew Hunter experience is illustrative
of the problem. Hunter, a pre-'65 Forge Shop black confined to a
JC 4 occupation, commenced in 1965 to move up to the all-white
craneman (JC 9) job. Some nine years later, after observing a
younger white employee on the crane'within the grievance period,
he grieved his foreman's disregard of his seniority and ultimately
received the job as craneman. (Tr. 124-131, 143-146, CDX 278)
In the interim, several younger whites had been placed on the

2 9/
craneman's job by the foreman.

29/ Spurgeon Seals, a pre-'65 paint department black, has sought 
a" tool repairman's job for nearly a decade. (Tr. 165) Yet several 
vacancies have occurred since his initial request, and with one 
exception, they have all been filled by younger whites. (Tr. 165,166) Louis Pinkard in steel.erection has constantly requested a 
riveter's job? but he has been passed over in favor of several 
junior whites, with no explanation. (PX 10; Tr. 1214)
Junior Wormley, a pre-‘65 black assigned to the steel erection depart 
ment, has sought to transfer to the predominately white maintenance 
CIO department. Since vancancj.es in the department are not posted, 
Wormley today remains in steel erection while severeil vacancies

26



As late as the most recent seniority roster and Contract 
Compliance reports, (PX 10; CDX 282) white foremen continued to 
assign junior whites to higher-rated occupations ahead of more 
senior black employees. In 1973, a white helper (JC 4) in the 
punch and shear department, entered as a wheel borer 
(JC 9), and thereafter became an axle grinder (JC 10). (PX 10,
CDX 282) This white employee leapfrogged over eight more senior 
blacks in lower occupations and the wheel borer and axle grinder ^ 
jobs were not offered to these blacks. (PX 10; CDX 278; CDX 282)

6. Changes In The System Of Segregated Job Assignment 
a . The Arbitration Awards

Pullman's first steps to ease the rigid system of racial 
segregation were triggered by an arbitration decision issued 
March 23, 1965, sustaining the grievance of throe black buckets. 
in the steel erection department who sought promotions to the 

• traditionally white positions of riveter. In ruling m  favor of

2 9/ (cont'd)
have been filled in the maintenance CIO department. _ (Tr.. 1004) At
an earlier date, due to the non-posting of jobs, a junior whi c 
(nephew of the foreman) had been placed in the higher rated jo 
which he had previously on a temporary basis. U r * 513
30/ other forge shop examples include a white drill press opc.raboi 
TJC 8) who in February, 1973 moved up to a Job_Class 9 occupation - upsetter operator, bypassing at least fryo senior blacks pome w - 
as many as twenty years of seniority). (CDX 2,8, CDX 28 , 'R Brook, a white wheel, recorder, (JC 4) became an axle centercr, 
drill and tapper (JC 8) in November, 1972 ahead of live senio 
blacks who were not offered the job (PX 10; CDX 2/8; CDX 282)

27



1

the black workers the arbitrator noted:
"No colored man has ever held the job of 
Riveter. In spite- of this non-discrimination provision [referring to Section III D7 of the 
collective bargaining agreement], there con­
tinue to be jobs known as "white jobs" and other 
job s known as "colored jobs." . . . The existing
situation must be faced; evasion is no longer 
possible in view of the Contract and the laws 
recently enacted. "
(UDX 508) (emphasis supplied) (PX 7)

After an award sustaining a. similar grievance by. black welder 
helpers, Pullman initiated a series of trial tests to determine 
the blacks qualified for the exclusively white welder's position. 3 

No blacks passed the trial test. Pullman, upon opening 
the) welder's job to blacks, instituted the requirement of formal 
welder training as a prerequisite for even taking the company's 
welding test despite the fact that whites were previously per-

31/mitted to learn to weld on the job without the requirement of 
formal training.

fo . The OFCC Agreement

Pullman in May 1972 entered into an affirmative action pro­
gram with the Office of Federal Contract Compliance of the United32 /
States Department of Labor (hereinafter "OFCC") (R.i.[16]).
The unions were not parties to the agreement, and as found by the

31 / (R.I.. [16] p. 6) n.16.
32/ Despite the fact that this suit was pending, plaintiffs were 
not consulted regarding any of the negotiations or'provisions of 
the agreement.
32a/ R.I[16] p.6 n.16

28



court, the unions never adopted the cxgreeraent. (R.I[16] )
Further, failure of the company to comply with provisions of the 
agreement docs not necessarily constitute a violation of the 
agreement. (R. i[16]) At any rate, the agreement purported to 
compensate blacks hired prior to April 30, 1965, who had un­
deniably suffered from Pullman's blatant policies of racial dis­
cs imination -

(]) Transfer Provisions Under The Agreement

Under the: agreement, members of the: affected class were given
the right to transfer to any other department at the company, upon
the occurrence of a vacancy. (R.l.[16]) The agreement however does
not require Pullman to post vacancies. .(R.T.[36] ) Transferring
affected class members are entitled to utilize their plant seniority
in the new departments for purposes of promotions, layoff and
recall, except where a transfer is made to a department over which
IAM has "jurisdiction, plant seniority may not be used foi promo-34/
tional purposes. (CDX 2 727, pp. 2, 3, 9) The urfected class
member may choose to retreat from a new department to his former 
department, in cases of layoff, dissatisfaction with the new job, 
or an inability to promote in the new department. (CDX 2 72, 3, 4, 10)

33 /

33/ There is no evidence in the record that the unions, at anY time, acknowledged or verified, in practice, the validity of^the 
agreement. Of the few blacks (less than five) who transferred 
under the agreement, the seniority rosters indicate that they forfeited their plant seniority and entered the departments as 
"new"ivion. ( PX 3.-10)
34/ Affected class members who transfer to IAM departments forfeit 
.their retreat rights after their'pension funds have been released 
by the steelworkers to the 1AM. (CDX 2/2, p. 10)



Upon a transfer to the virtually all white IAM departments 
(maintenance JAM, die and tool IAM), affected class members, 
indeed like employees outside the purview of the agreement, must 
forfeit accrued seniority and enter’ the department as new men.

The .1972 agreement contained no provision for rate retention 
hence transferring employees were given no assurance that, upon 
the transfer they would riot be required to move into a lower job 
classification or otherwise lose pay as a result of the transfer.

The agreement does not require Pullman to use job related, 
written standards to determine the qualifications of .AC's who 
transfer to new departments. Those blacks transferring into the 
traditionally white departments are, of course, subject to
standardless determinations of qualifications by white department

3J3 /
heads.~ Thus advancement to higher job classes once the transfer 
is made continues to depend significantly on the whim and fancy 
of the near totally white supervisory staff. Similarly job 
assignments within the job class are governed by no written 
standards and white foremen have unlimited discretion. Indeed, 
the failure of the agreement to include provisions for the pro­
motion of blacks to foremen positions leaves untouched a critical 
dimension of the promotion framework.

35/ Under the agreement temporary vacancies for each month are 
to be made in a manner that reflects the ratio of blacks to whites 
in the departments as a whole. The failure to give a preference 
to blacks means that the effects of the lop-sided ratios of the 
departments will be embodied in the temporary vacancy ratios, 
provided by the agreement.

30



(2) The Scope Of The Affected Class

For purposes of the agreement, the "affected class" of
employees was limited to workers employed by Pullman prior to
April 30, 1965 and assigned to the janitor, die and tool CIO,
truck and steel miscellaneous departments (CDX 272). Not included
in the affected class, an! therefore not granted any rights under
the aereement, were black employees, hired before April 30, 196536 /
into other low ceiling "black" departments and into inferior 
black jobs in supposedly "mixed" departments, or any blacks 
hired after April 30, 1965, even those hired into departments 
which remained predominantly black or all black and those hired into 
black jobs in "mixed" departments. Consequently, of the more than 
a thousand blacks (i.e., 1200-1300) who were disadvantaged because 
of Pullman's discriminatory policies, only 105 black employees 
were included in the affected class as denned by the agreement.

(3) Implementation Of The OFFC Agreement

The company under the agreement was required to list all
affected class members (hereinafter "ACs") hired and to offer the
ACs an opportunity to transfer, in order of plant seniority, to
the formerly all white departments in the steelworkers1 bargaining
unit: template, power house, inspection, air brake pipe shop and37 /
plant protection, as vacancies occur. The transferring ACs

36/ E.g., steel erection.
37/ The agreement placed no obligations upon the company requiring 
it to provide ACs with carry-over seniority to "mixed" departments.

-  31 -

/



wore not required to forfeit accrued seniority, however there
was no assurance that upon transferring the ACs would not be
required to move into a lower classification or lose pay as a
consequence of the transfer. (Tr. 1767)

Only on one occasion, December 1973, since the agreement was38/
entered has the company notified ACs of possible vacancies.
(CDX 279; Tr. 1570) The affected class members were informed
that the company planned to increase production in early 1974, and
that work would possibly be available in other departments..

39/
(Tr. 1570)

In fact, the Contract Compliance Officer, in response to the 
court testified, "I imagine they [ACs] understood they could lose 
money shortly after the transfer." (Tr. 1767, 1768) Not sur­
prisingly, of the affected class members who were informed of the
impending vacancies, 65 refused the tentative offer to transfer

4 0 /
to the steel erection department (CDX 279) One AC however,
indicated a desire to transfer, and two others actually trans­
ferred to the welding department on their own initiative, apparently

38/ Black employees, not within the ambit of the agreement, have 
never been formally notified of the terms of the agreement nor cf . 
vacancies at the plant.
39/ The record does not disclose- any effort by the Contract Com­pliance Officers to inform ACs of vacancies, as they occurred in 
other departments.
40/ Steel erection was traditionally black, except for the riveter 
and tool repairman job. Further, more than fifty persons in steel 
erection had twenty-five years or more seniority while the great 
majority of the invited transferees had less than 25 years seniority. 
Hence there was substantial vulnerability to roll-backs in case of 
a reduction in force.

32



entering welding as "new" men. (CDX 279, PX 10) In sum, the 
record discloses that less than five black employees, have opted 
to risk the loss in pay, the possibility of elusive advancement, 
and in some cases, the threat of roll-backs and transfer under 
the agreement.

41 /

(4) Failure Of The Agreement

AJ.though its purpose and design was to remedy past discrimina­
tion, the agreement's results show minimum change in the status 
of black employees gene.ra3.ly and affected class members in par­
ticular. As of the date of trial more than 95% of the black
employees were in the same racially stratified dcp 
classes as before the agreement became effective, 
not improbable since at the time of trial some 22 
retired, reducing the class to 83 black employees 
greater than a thousand blacks in the work force, 
limited relaxation on the risks to transfer (i.e.,

artments and job 
This result is 

of the ACs had 
out of the 
The agreement1s 
no rate

retention) coupled with the exclusion of "mixed" and JAM depart­
ments; the lack of effective provisions for publication of 
vacancies; the omission of provisions "regarding the promotion of 
blacks to foreman positions; and its failure to include written
job related standards to determine qualifications of employees42/
for the purpose of promotions, resulted in a mere handful of

43 / The Contract Compliance Officer testified that the company did 
not subsequently offer to any blacks, including ACs, an opportunity 
to transfer to other departments under the terms of the agreement.
.42/ Promotion standards and access to proper work experiences are 
of particular importance to the black worker transferring to a 
traditionally white department or job class. Sec n. 24 .supra at 17

33



transferees and virtually no progress toward the dismantlement 
of racially imbalanced departments and job classes at Pullman.

7. The Discharges Of Louis Swint And Clyde Humphrey

Louis Swint started working for Pullman in 1964 and until he 
filed his first charges with the EEOC against Pullman, he had had 
no real trouble with the 'company. (Tr. 1054-1060) This charge 
was prompted by the foreman's recall and subsequent promotion of a 
junior white employee, nephew of a foreman, ahead of Swint.
(Tr. 1059-1061) After filing the charge, Swint became a member 
of the Union-Company's Civil Rights Committee, where he persisted 
in raising issues of racial discrimination. (Tr. 1078-79; AI. 79, 
Exhibit "K") For two years after his initial EEOC charge, Swint 
was harrassed by his supervisors, and finally he was fired, pre- 
textually based on his entire record. (Tr. 1065-1079; PX 79; PX 00)

Clyde Humphrey likewise began his work at Pullman in 1964.
(Tr'. 975) He was fired after filing EEOC charge against Pullman 
alleging verbal abuse by white foremen. (Tr. 975-987) Though 
an arbitrator's award required his reinstatement, it did not 
require the company to pay his back wages. (Tr. 986, 987)

The EEOC found that the company has on occasion taken reprisal's 
against an employee who sought the address of the EEOC. (PX 58, 
p. 11)

34



0■ f

ARGUMENT

Introduction

The discriminatory employment policies ana practices presented 
for review in this case involve well established principles of 
law in a factual context quite common to an industrial employer 
based in a southern location for more than thix'ty years. Con­
sistent with the commands of custom, the operations of Pullman's 
Bessemer plant were segregated by race, with blacks confined to 
less desirable jobs and departments offering less pay and ad­
vancement opportunities. Even when blacks were located in pre­
dominantly white departments, compliance with tradition resulted 
in the relegation of blacks to the more menial and lower paying- 
job classifications. Despite the company's renunciation of formal 
barriers to equal employment opportunities for blacks, the
system of segregation was maintained and reinforced by the near 
totally white supervisory staff, the use of a departmental 
seniority system, the reliance on word of mouth notification of 
job vacancies, discriminatory job assignments and the failure of 
defendants to engage in effective affirmative remedial action.

The District Court Erred In Its Conclusion That Pullman's Departmental Seniority System Was Lawful

Pullman has continuously maintained the typical departmental 
seniority system which requires any employee, who changes 
departments, to forfeit all his department seniority for purposes

-  35  -



of promotion. 43y as this Court so clearly mandated in its land­
mark decision, Local .189 v. United States, 416 F.2d 980 (5th Cir. 
1969) cert, denied, 397 U.S. 919 (1970), a departmental seniority 
system imposed on a prior policy of racial allocation of jobs is
an unlawful employment practice.

"Every time a Negro worker barred under the old 
segregated system bids against a white worker in his job slot, the old racial classification re­
asserts itself, and the Negro suffers anew for his 
employers' previous bias." Id. at 988.

Sea also Rodricfuez v. East Texas Motor Freight, 505 F.2d 40, 61-63
(5th Cir. 1974); Franks v. Bowman Transportation Co., 495 F.2d 398
(5th Cir. 1974); Johnson v. Goodyear Tire and Rubber Co., 491 F. 2d
1364 (6th Cir. 1974) ; United States v. Dothlehem_ 446
p. 2d 652 (2d Cir. 1971); United States v. United States Steel Corp.,
371 F. Supp. 1045 (.1973) ? United States v. Hayes International, 456
F. 2d 112 (5th Cir. 1972); United States v . Jacksonville Terminal,
451 F.2d 418 (5th Cir. 1972) cert, denied 406 U.S. 906 (1972);
Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir. 1971), cert. di_s-
rnissed 404 U.S. 1006.

The district court denied seniority relief on the ground that
there was no past or present discrimination at Pullman; therefore, 
the departmental seniority system was not in violation of Title 
VII. The lower court's finding of no past or continuing dis­
crimination is neither supported by law or the evidence in the record

!?_/ See P* 13, supra.

36



The court Belov; Erred In Its Determination That The_Maintenance 
Of One-Race Departments At Pullman Was Not A Violation Of 
Title VII

In complete disregard of the firmly established doctrine 
that "separate but equal" offends the Constitution ana laws

' 44/against racial discrimination, . the district court, in full
view of facts showing separate and unequal one-race departments 

45/
at Pullman,"" found the company to be free of any unlawful 
discrimination in this regard. (R.I[16] p. 20) Essentially, the 
district court found, despite the undisputed existence of one-race 
departments at Pullman, that: (1) departmental segregation before
X9G5 did not deprive blacks of employment opportunities; (2) that 
racially discriminatory assignments to departments ended by June 
1, 1971; and (3) that the OFCC Agreement, effective May 2, 1972,
sufficed to eliminate all continuing effects of past departmental 
segregation.

The view of the district court contravenes rulings of this 
Circuit which have consistently held that statistics showing 
racially disproportionate work units constitute a prime facie 
case of Title VII violations. united Stcttes v. Jacksonyxl_lc_ 
Tenn.inal Co. , 451 F.2d 418 (5th Cir. 1.971), cert, denied, 406 U.S. 
906 (1972); United States v. Hayes International, 456 F.2d 112 
(5tli Cir. 1972); Rodriguez v. East Texas Motor Freight, 505 F.2d 
supra at 53-54 (5th Cir. 1974) where before 1965, the one-race

44/ Brown v. Board of Education of Topeka, 347 U.S. 483, 495 
‘(1*954).'
45/ See pp. 8, 14 , supra.

417

37



' l

departments constituted a part of a formal system of racial 
segregation and the "black"' departments were undeniably inferior, 
a presumption of such illegal discrimination continues until the- 
racial exclusion reflected in "lop-sided" ratios is eliminated.
Id.

The evidence in the record plainly establishes that one—iace46/
departments persisted at Pullman until June 1973. The district
court, however,, failed to acknowledge that the existence of one-race
departments constitues a prima facie ease of unlawful disenmina-

47 /tion.—  From that error, the court below proceeded to conclude 
that the departmental seniority system which tended to lock black 
employees into the "black" departments by its failure to permit 
transfers with carryover seniority and wage rate retention was 
without unlawful dimensions.

46/ >ee pp. 23, supra.
47/ The Court's finding that the predominantly one-race depart- 
ments were "closer in 1973 to the racial ratios of the plant, as a 
whole" is unsupported by the evidence in the record or tnxs case, 
in reaching this conclusion the Court relies on certain charts, 
not presented in the opinion or entered into the record of this 
case. The failure of the Court to include this and other unrepro­duced charts in the opinon or to append them as supplements to the 
record, seriously frustrates the efforts of plaintiffs on tnxs appeal! in that plaintiffs are cut off from discussing and pointing 
out to this Court the manner in which the charts are defective or 1  

rebutting- assumptions of the unappended charts. Plaintiffs therefore 
submit that the unreproduced charts and the findings therefrom must 
be disregarded.

38



It is virtually impossible for past and presently segregated 
black employees to remove the shackles of Pullman's discriminatory 
practices and obtain their "rightful place" in "white" departments 
and job classes. To be sure, Pullman's various unlawful practices 
all conspire to produce this result. The most familiar of the^e 
practices, however, is the departmental seniority system.

Both of the lower court's holdings were in error and must
be reversed.

The District Court's Conclusion That Pullman's Employment 
Practices Favored Blacks In 196b Is Without Support In The 
Record And Is Grounded upon Ill-Founded Assumptions Of 
Its Chart

In view of the undisputed evidence of racially segregated
jobs and departments at Pullman, the district court concluded,

"Indeed, until mid-1965, such practices 
[segregation of jobs] signifrcantly dis­criminated acjainst: black employees; and 
the effects thereof lingered with diminish­
ing extent, over the following years. 1 41k/

Despite this finding the Court, in the same breath concluded
that, except for the one-race departments, "the evidenc_e_dojes_
not indicate any past or present policy of ragial_ly_.- 4y"/
assignments." (emphasis supplied) Notwithstanding iu->
unequivocal finding of racial segregation at Pullman and the 
resulting relegation of blacks to inferior Departments and joo_>, 
the Court's separate arrangement of some of the facts of this cas< 
in various charts, only one of which is reproduced in the opinion,

jHK R. I [ 16] p. 16 
49/ R. I [ 16] p. 20 
5 C/ S e e  110 6 0 4 7  , s u p r a , a t  3 8 ,

- 39 -

50 /



caused it to reach this remarkable conclusion. An ex am i n at ion o f

the court's arrangement of these facts, therefore, is crucial.
The chart reproduced in the opinion purports to represent 

a ranking of departments' desirability in terms of earning 
potentials as well as the accumulation percentage of employees 
in the departments. In an accumulating percentage chart, unless 
the ranking is reasonably free of defects, necessarily the 
"accumulations" will result in arbitrary, and in mis instance 
anomalous, configurations. In other words, the ranking is cj. iticu.l 1\ 
related and indeed determines the accuracy and atr11ty or the 
resulting percentage accumulations.

There are, however, a number of severe defects in the chart
of the district court. First, the court attempts to rank the various
departments of Pullman by job class range in an effort to show
comparative earnings potential. The use of JC range as the basis
of the ranking does not in any way indicate the actual dismibution.
or the ]ike]y distribution of employees in the JC's included xn 

51/
the range.

In the chart, therefore, the Forge Department is rated as the 
third most desirable department at the company. As shown elsewhere 
in this brief, the median job class in the Forge Department is 
JC 6; for blacks in the department the median is JC 2i There ai c 
at least six departments which have both a higher median job class

52 / implicit in the use of range of JC as the has is for ranking 
the departments is the assumption that employees within the depart 
ment have a reasonable opportunity to rise to the coiling. This 
assumption, however, is contrary to the facts, and employees 
earnings potential is significantly affected by the average JC 
customarily obtained in the department and the number of persons 
within a JC.

40



and a larger work force.
The welding department, on the Court's chart, ranks as No. 16

53/
on the scale of 25 departments. Yet, with two exceptions- the 
welding department ha.s a higher median job class than all the depart­
ments listed above it, and is the largest department at the 

54/
company.

Moreover, the substitution of JC range for average wage or
median job class of blacks and whites obscures the critical fact
that in 1965 blacks were essentially confined to less desirable
departments and the lower paying job classes while whites enjoyed
the benefits of the more renumcrative departments and higher job55/
c1ass occuput ions„

Second, the Court arbitrarily excludes some job classes to 
determine the highest job class in the department and includes 
others. In footnote 27 of its opinion, the Court explained that 
since the highest indicated job class in the welding department 
(JC 14) applied to an occupation to which less than one percent 
of the department's employees were assigned, it would be disregarded. 
However, in other departments where the highest rated occupation 
was filled by less than one percent of the department's employees,

_52/

52/ see Median JC. chart, infra at 44.
53/ The maintenance department has a median JC 16, and 
inspection has a median jc 12.
54/ Because of the size of the welding department, its place in 
the ranking is critical.
55/ Compare, Petty;ay v. American Cast_Iron and Pipe Co., 494 P.2d
211, 230 (5th Cii.. 1.974 ), see chart E.

41



Thisthe Court included such job classes in its chart, 
arbitrary exclusion of some job class boundaries and inclusion of 
others inappropriately alters the ranking of the departments.

Third, it should be noted that the Court's chart improperly 
omitted three highly paid all-White departments,- Die and Tool IAM,

57/Maintenance IAM, and Boiler House.
Fourth, despite the fact that a number of departments include 

exactly the same range of JC's, the Court's chart assigns a different 
ranking to departments having the same range. For instance,

56/ For example, the range of job classes in the Wood Mill is 
shown as JC 1-11. The occupations worked in that department for 
the years 1962-1965 were ail in JC 1 - JC 9; only in the period 
1966-1969 was a JC 11 occupation worked —  and then by a single 
white employee. Since that time, the occupation has not been 
worked. in Wood Erection, the only JC 11 occupation has been 
manned by a single white employee for ten of the past eleven years.
(PX 11-20) In the Paint Department, containing some 272 employees, 
only five (all of whom were whites) occupied JC 3.1 jobs. (PX 11-20) 
Less than one percent of all the employees in the Steel construction 
Department worked in a PC .11 occupation in the pre-1966 period.
( PX 1-10 ) Yet the Court listed all from departments as having
JC ranges up to 11. (R.I[16] p. 10)
57/ The company has total responsibility for assigning employees 
to all departments, including the IAM departments; there is no 
reason to exclude them from the ranking. (R. I [7] [13]]

42



(

s. const., paint ST, s. erection, w. erection, w. mill are 
ranked 11-15, respectively. Each of these five departments, 
however, has the same range of JC's, i. e. , 1-11 58/ in no way 
does this scheme account for the assignment of greater earnings 
potential to steel construction (ranked #11) than to wood mill 
(.ranked 15) . By definition this assignment of different weights 
to departments having the same so-called earnings potential dis­
torts the accuracy of the "ranking" immeasurably.

Fifth, the court, in contradiction with undisputed facts and
in contravention of plainly established law excluded the welding
and: maintenance CIO departments from Column III of the chart.
The basis for the exclusion - the court's finding that a high
proportion of the jobs in welding and maintenance require
special training - is in conflict with unchallenged evidence. The
evidence shows and the court finds, in another part of the opinion

59/
that " . . .  due to job segregation, there were only white welders." 
The evidence further shows, and the court finds that during the 
pre-1965 era whites were not required to possess any formal 
or specialized training in welding and acquired the welder 
position with only on-the-job training at the company.60 / There

58/ This occurs in three additional instances. That is, welding 
and wheel and.axle are "ranked" 16 and 17, respectively, yet both 
contain the same range, 1-10. steel mice, and s. stores are "ranked 
18 and 19, respectively, and each includes the range 2-9. Lumber 
stores and raise. Stores are ranked 21 and 22, respectively, and too 
have the same range of JC's.
59/ R. I [ 16] n. 16
60/ R. I [16] n. 16 -

- 43 -



is no evidence whatsoever in the record which even suggests 
that employees in maintenance CIO were required to demonstrate 
special training as a prerequisite for entry into the department 

As a result of its erroneous perception of the reason for
blacks' exclusion from welding before 1965, the court excludes 
welding, containing nearly half the employees at Pullman, from 
Column III of the chart, and retains the mobile crane department; 
with 5 employees, to present a "more realistic picture." 61/

Finally, the accumulation of percentages, using job class 
.range as the basis for ranking, disregards the racial imbalance 
within departments and the concentration of blacks in the lower 
JC's of the range. 62/

61/ R. I [16] p. 12
62/ The chart below ranks the departments in column III of the 
district court's chart according, to job class median, Departmen 
having the same job class median are rankeci, in descending oi ch.r 
according to size, maintenance CIO and welding are included whil 
the mobile crane department is not.

Median Job Classes of "Mixed" Departments 
As of June, 1965

Dept.

Maint. CIO 
Welding 
Paint & ST Railroad Steel Erectio) 
Steel Constr. 
Wheel & Axle 
Forge
Misc. Stores 
Wood Mill Punch R Shear 
Wood Erection 
PressLumber Stores Steel Stores

Job Class Median JC % Blacks Accum.AA
Median Blacks in Dept. B w

13 4 21.0 2.5 8.9
10 6 19.2 18.3 70.6
7 6 52.0 27.2 78.2
7 7 44.4 28.0 . 7 9.1

1 6 6 87.6 56.4 82.8
6 6 87.3 68.5 84.4
6 6 30.2 69.8 87.1
6 2 37.5 71.0 88.9
6 7 53.8 71.7 09.4
5 2 29.2 72.4 90.9
4 3 81.1 84.1 93.4
4 2 65.0 90.5 96.6
4 4 7 3.8 95.2 98.].
.3 3 41.7 95.7 98.7
2 2 81.8 100.1 99.6

PX 2, 12, 51 CDX 26244 SOURCE:



These statistical manipulations led the Court to the 
astonishing conclusion that blacks held a favored position as 
to departmental assignments in 1965. That patently erroneous 
finding is the basis for the court's erroneous legal conclusion 
that Pullman's departmental seniority system had no "lock-in" 
ef feet*
The District. Court Mistaken] y Failed to Grant Plaintiffs Full 
Relief by Denying Their Claims for Carry-Over Seniority and. Wage 
Rate Retention.

Contrary to the view of the district court, Pullman's De­
partmental seniority system unlawfully locks black employees into 
inferior jobs and departments. The facts show, in actuality, the 
lot of black workers at Pullman scarcely improved in the decade 
following Title vil's enactment. In 1964, virtually all (90.04%) 
of the blacks at Pullman were confined because of their race to 
occupations in JC 8 or below. (PX 61) Only one black held a 
position above JC 10 (PX 61) Less than a fifth (18.4%) of the 
v.'hite employees occupied jobs in JC 8 or below; nearly three- 
fourths (79.7%) were assigned, to occupations in JC 10 or above. 
(PX 61) 63_/

By June, 1973 nearly three-fourths of all the black production 
and maintenance workers were still confined to occupations in JC 
8 or below. (PX 55) At the same time, only 15.8% of the white 
workers were assigned to such occupations. While four-fifths 
(80.7%) of the white occupations wore assigned to occupations 
rated as JC 10 or higher, less than one-fifth (19.9%) of the
black workers were so assigned.. 6%
H Y  A-ct^cTTIyhe pe~rcontage of whites in JC 10 (or its equivalent 
or above is higher than indicated on PX 61, since most of the JAM 
craft jobs are excluded from the exhibit.
64/ The Court, stating in fn. 31 that PX 55 showed "that 19.9% of

45



I 0

ijL'he lower court's suggestion thet blcicks earned, approximately 
96. 8% of the average total for whites in 1973 falls to account, 
for the fact that older black employees must work overtime to 
equalise their income with whites. (CDX 351, p. 52) Defendants 
evidence showed that blacks indeed obtained more overtime work 
than white workers. (Tr. 3706, 3707; CDX 351, p. 63) To the 
extent, therefore, that any study of comparative earnings of 
black and white workers does not take into account the factor

. 6<y (Cont'd)
the whites held positions on the rosters above JC 10 as compared wit): 
only 12 2% of the blacks," misquotes plaintiffs' exhibit 55. Plain­
tiffs' Exhibit 55 derived from seniority rosters shows that as or
June 1973:

74.1% of the black employees were in JC 8 or below;15.8% of the white employees were in JC 8 jobs or oe..ow,
3. 80.7% of the white employees were in JC 10 or above;
4. 19.9% of the blacks were in JC 10 or above.

Moreover, information derived from CDX 274 indicating actual work 
assignments on May 8, .1973 reveals:

1. 74.53% of the black employees actually working on tnot date were assigned to occupations in Job Class 8 or be-
1OW;

2. 18.18% of the white employees working on that date were 
assigned to occupations in JC 8 or below;

3. 79.01% of the whites actually working on that date were 
assigned to occupations in JC 10 or above,

4. 19.10% of the blacks working on that date were assigned 
to occupations in JC 10 and above.

NOTE- These figures arc limited to employees with si^ or rnorw 
years of seniority in June 1973. Similarly, the May 8, 19b 
figures include only those employees with six i car^ mor - 
seniority as of that date.

Despite the lower court's attack on plaintiffs ex 
hibits derived from seniority rosters, comparison of data based 
on seniority rosters (PX 55) and actual work assignments (CDa 27.)
discloses a great deal of correlation.

46



of greater relative seniority of blacks which both hedges them
from the frequent more lay-offs of younger workers and simul­
taneously accords them greater overtime opportunities, the 
study is misleading.

Clearly the court failed to comprehend the law when it 
accounts for racial imbalance in the departments in fn. 20, 
by stating, "absent a conscious effort to achieve racial balance 
in departments, the existence of disproportionate racial com­
positions in departments is to be expected. To che contrary, 
the law requires affirmative action on the part of employers to
"eliminate employment discrimination, iiTClndrng racial imbalance.
See u.S_. v, Hayes international, supra at 12 0.

Moreover, the court apparently suggests that employees' 
preference to work in departments with family members or friends 
may remove the specter of racial, motivation regarding the racial 
disparities in the departments, (r . I [16] p.1.1 n. 2.8) Thrs "explanatiox 
fails to acknowledge that practices embodying nepotism may per­
petuate racial isolation and therefore be violative of Title VII, 
rather than serve as an excuse for maintaing racially imbalanced 
departments. See Clark v. American Maring_-gQ£BjL.' 304 F* Supp.
603 (E.D. La. 1969); Rock v. Norfolk and VJe ster ' 4/J
F.2d 1344, 1347 (4th Cir. 1970), cert, denied 43.2 U.S. 933 
(1973) ; T.ea v. cone Mills Cory. , 301 F. Supp. 97 mod. on other-
grounds 467 F. 2d 2 77 (4th Cir. 19/2) „ In pcttway v . 7/1 j_I_Cp,
supra, this Court set forth the two factors which together 
constitute an unlawful seniority system: (1) racially discrimina­
tory assignment practices, (2) a seniority system that locks

64a/ R.I[16] p. 11 n.28
47



employees into departments. It can not be disputed that Pullman 
has engaged in racially discriminatory practices. See statement 
.of Facts.

The racially discriminatory assignment practices led to 
exclusively or predominantly white jobs and. departments and ex­
clusively or predominantly black jobs and departments. Sec state­
ment of Facts, pp. 9m  . 3.2, 13m 22,14n. 2 3,

The seniority system at Pullman is exactly the t̂ -pe o±. 
system that has repeatedly been held to be discriminatory. See 
Johnson v. Goodyear: Tiro & Rubber Co. , sum:a at 13 73. The de­
partment seniority system at Pullman locked blacks into depart­
ments to which they were assigned in the following, ways. (1/ 
workers in the department in which the vacancy arose had prior 
knowledge of.it and the first opportunity to move into the 
vacancy? (2) workers were required to forfeit a a. I their accumu­
lated seniority and, thus, their job security, when they trnns- 

• ferred departments; (3) workers are "new" for promotion and 
regression purposes in the departments which they transfer tu,
(4) transferees may have to take an initial cut in pay in order 
to move into a department. See pot bray v. ACT.PCO, supra..

The discriminatory impact of Pullman's departmental seniority 
system coupled with the subjective discretion by white supervisory 
staff regarding promotions and tpmporary assignments, severely 
limit the opportunity of blacks to move into high-paying and/or 
otherwise desirable jobs. indeed blacks electing to transfer 
at Pullman must suffer the loss of their plant seniority, a 
likely initial wage cut, and no guarantee of advancement once 
the transfer is accomplished. As indicated in the Statement of

48



0

Facts, pp-17-i« supra, foremen, unassisted by guidelines and un­
constrained by the union contract, determine at will assignments 
to three day temporary vacancies in which employees can acquire 
experience and therefore qualifications for a higher job.
Clearly the black transferee is doubly handicapped as a new 
man in the department, subject to the whim and fancy of the 
predominantly white supervisory staff. See pp. 2.5, supra.

The appropriate relief in circumstances such as these has 
often been stated by the Fifth Circuit. The Pettway opinion
catalogues the necessary relief:

"Therefore, the district court should issue an 
injunction requiring: (1) the posting of vacancies
plant-wide; (2) the selection of 'qualified per­
sonnel for the vacancies oir the basis of HliiUtl wido seniority; (3) transferring members of the 
class shall retain their plant-wide seniority for 
all purposes including promotion, lay-off, R e ­
duction- in-force, and recall; . ■ • \$) °c"
circling of members of the class, 
notes omitted) 65_/ Id.*

" (foot-

The law clearly provides that a discriminatory departmental 
"seniority system should be relaxed to the extent not forbidden 
by considerations of safety and efficiency, the component parts 
of business necessity," and that black employees are entitled to 
acquire their "rightful" place utilizing plant seniority in their 
new jobs and departments. IfUillliiL-X.*-
pany; supra; Johnson v. Goodyear Tix^J^J^bjPL-Co^ 
wav v. AC I PC-0, supra .

65/ The footnotes to the text authoritatively set forth the law 
relating to each form of relief.

49



A heavy burden is squarely placed on the defendant to
establish that because of a "business necessity" the court in 
a specific instance, is prevented from implementing the strong
public policy of terminating racial discrimination in' employment.

"The Terminal was required to prove not only 
that the seniority systems and restrictions 
promote safe and efficient operation but also 
that they are essential to these goals."
(ernphasis added) United States v. Jacksonville 
Terminalf supra at 451.

Griggs v. Dube power Co., 401 U. S. 424, 432 (1971); Local 18 9 v.
U._S supra at 989; Robinson v. Lorillard, supra at 789; United 
States v. Bethlehem Steel, 446 F.2d 652, 662 (2d Cir. 1971)
("necessary connotes an irresistible demand").

The evidence simply does not 
necessity rule 66/ to deny plant 
sary to terminate the effects of 
The District Court therefore was 
over seniority to members of the 

This Court, as well as other 
that red-circling is a proper and

justify the use of the business 
seniority relief which is necos- 
Pullman's discriminatory policies, 
in error in its denial of carry- 
c1ass who transfer.
Courts, has consistently held 
necessary form of relief.

66/ The district court notes that black and white union members 
have apparently voted against the company's proposal to implement 
plant-wide seniority in several departments.(R. I[16] p.20) But see 
Rodriquez v. East Texas Motor Freight, supra at 60, where this 
Court ̂ rejected' the"contention that union votes were necessarily 
reflective of the desires of class members and that, in any case, 
the responsibilities of unions were not consonant with require­
ments of Title VII.

50



United states v. Bchtlehcm Steel Corporation, supjra at 661?
United States v. Local 189, 301 F. Supp. 906, 910, 92.o (L.D. I,a . 
1969) , aff 'd sub nom., bocal 189 v. United States, supra; Robinson 
v. Lori Hard, supra; Clark v. American Marine_Corp_̂ ., 304 F. Supp.
603, 603 (E.D. La. 1969).

Despite the established legal precedent for rate retention
and the
attain
There i

obvious need for such relief to allow black workers to 
their "rightful place," the lower court denied relief. 6,7/ 
s no "business necessity" established in the record

justifying the denial of rate retention? therefore, the court 
plainly erred in not granting red-circling relief.

Full relief here also requires that goals and timetables be
provided for the promotion of qualified blacks until the effects 
of past and continuing discrimination at Pullman has been termi­
nated. Buckner v. Goodyear Tire &..Rubl?2£-gQ-.> 339 F* Supp* 1108'
1125 (N.D. Ala. 1972) aff’d per curiaro 476 F.2d 1287 (1973)? Fhjb.
v. U.S. Steel Corp., supra? NAACP v. Allen, 493 F.2d 614 (5th Cir 
1974); Morrow v. Crisler, 491 F.2d 1053 (5th Cir. 1974).

67/ The district court's suggestion that it is unlikely that 
transferees would lose money is not supported by the evidence,
See pp. 32, supra.

51



f

The District Court Erred in Concluding That the OFCC Agreement, Fully And Adequately, Remedied the Discrimination m  Production
and Maintenance J o b s . _

1. The District Court's Erroneous Finding 
of Limited Discrimination at Pullman _
Colored Its View As To Necessary Relief 
Due plaintiffs.

The lower court's misperception of the evidence showing 
across-the-board discrimination, caused it to conclude that 
racial discrimination at Pullman was limited to certain one-race 
departments, encompassing only a fraction of the black work 
force, 69/ it follows that the court's view of the relief neces­
sary to vindicate the employment rights of black workers was 
founded upon and limited by its erroneous conclusion that, out­
side of the one-race departments, there war, no past or continuing 
discrimination at Pullman. Hence the court approved the May 1972 
OFCC agreement as the appropriate remedy to completely eliminate 
discrimination at Pullman.

However, where past discrimination and its continuing ef­
fects are as clear and tenacious as revealed in tin r-cord of 
this case, the law requires ' that the discriminators take ef- . 
fective remedial action. This Court must decide on appeal whether 
under the doctrine of Rowe v. Genera^Motors__Cqnk_, 457 F*2d 
348, 355 (5th Cir. 1972) the defendants have done enough to 
eliminate the effects of their past discrimination.

68/ The scope of the Agreement was expanded by the court to in 
elude an additional segment of the black work force.
69/ The Agreement covered approximately 105 black worker^out 
of the thousand or so blacks at Pullman. Sec pp. ■ .....

52



2 The Agreement. Failed to Dismantle Barriers to B1 ack 
Workers' Advancement Toward Tiieir Rightful Place.

The inadequacies of the agreement are several. First, the 
agreement placed no clear obligation on defendants that, .failure 
to comply with its terms would constitute a violation of the agree­

ment , and the unions never adopted the agreement. 70_/ Further, i-ts 
definition of affected class members is so narrow that the over­
whelming majority of blacks at Pullman are completely excluded 
from the limited benefits of the Agreement. 71/ Moreover, the few 
blacks who are within the scope of the agreement are grven no 
guarantee that their wage will not be cut as a consequence of 
entering a new department or that they will have equal access to

promotions. 72 /
To require AC's to accept a pay cut, even temporarily, would 

discourage or deter victims of discrimination for monetary reasons 
from moving into jobs formerly closed to them for racial reasons. 
United States v. Bothj^emJStgGl Corp. , 446 F.2d supra, at 661;

States v. N.L. Industries, 479 F.2d 354, 375-376 (8th Cir. 
1973). ■ To avoid that result, the courts have routinely mandated

70/ xt should be noted that, the agreement became effective seven 
years after the enactment of Title VII and Pullman*s#supposed abandon 
ment of formal segregation of its operations. certainiy ACfe n
titled to any money loss they may have suffered curing 
period. See Johnson, supra; pet.twhy v .... ACIPCO., pupra.

71/ Supra at 31 .
72/ Supra at 30-31.

53



"red-circle" rates which give transferring affected class employees 
wage rate protection when they work in lower paying jobs on the 
way up to their rightful position. Pettway v. ACIPCO, sjopra 494 
F.2d at 248-49; Local 189, etc, v. United States, 301 F. Supp. 906, 
918, 923 (E0D. La. 1965); nicks v. Crown zellerbach Corp., 319 F. 314 
(L.D. La. .1970); Robinson v. Lorillard, 444 F. 2d 791 (4th Cir. 1971) .7

The. failure, to provide ACs who transfer with promotion pro­
tections of written, job related standards and a fully desegregated 
supervisory staff, clearly inhibits their capacity to advance to 
their rightful place in the new department. 74/ Rowe_yn^_Genercal_

Pot or s Corp., supra. 
lianee officers noti

Only on one occasion has the company’s covn- 
icd ACs of impending vacancies. 75/ Not .sur­

prisingly the pattern of racially strut 
persists and the results of the agreerae. 
far short of the command of Title VII.
& Rubber Co., supra 49.1 F. 2d at 1367-68

ified. jobs and departments
t have been m in i: aa 1, i n d e o d

Sc.:e Johnson v. Goodyc.ar 'lire

Z V See discussion infra at 49
74 / Pp. .18 / 25 supra.
11/ Pp. gg , supra.

54



NJ

t . o

The District Court Failed to Apply the Appropriate Legal 
Standards In Determining That the Company Had Not Discriminated 
Against Blacks In Its Supervisory Positions

plaintiffs' uncontroverted statistical evidence established
a prime facie case of racial discrimination by the company in 
the selection of its foremen. J76,/ Prior to 1965, there were no 
black hourly or salaried foremen at the company. In 1967, only 
three of the 150 foremen were black. When this lawsuit was 
f i] ed in 1971, there were only nine black foremen among the 
160 foremen at the company. All of the black foremen in 19/1
were at the lowest level for salaried foremen. Even at the time 
of trial, only one black foremen had been promoted lo the position 
of "B" foremen; there were 25 such white foremen.

7\s of the date of trial, nearly half (13) of the departments
had never had a black hourly or salaried, foreman. Included 
among such departments were two .of the four all black departments 
and, of course, all of the all-white departments.

The company's evidence indicates that in the 1966-69 
period, 37 whites and 4 blacks were appointed as foreman. (CDX
282, 334); and the court below found that in the 1971-74 period, 
8 blacks and 12 whites were selected by the all-white department
heads as foremen.

76/ Unless otherwise indicated, the term "foremen" as used in 
this discussion excludes hourly foremen.



Foremen are chosen by the all-white department heads at the 
company. (R.I[16] pp. 29-30) There are no written standards 
governing such selections. Icl. Many of the foremen, including 
some of the recently appointed ones, are members of the same 
family. There is no notification of vacancies in foremen positions; 
there are no written qualifications for such positions. See pp.23,20 
supra.

Even if the trial court's discussion of the weight of the 
statistical evidence be viewed as the company's explanation of 
the grossly disparate ratios of white-black foremen, such ex­
planation is totally inadequate to rebut plaintiffs-appellar.ts' 
jxrima facie case. First, with respect to the court's "literacy • 
factor", the evidence requires a conclusion that the department 
heads do not rely on educational criteria in selecting foremen.
The undisputed testimony of the head of steel erection department 
was that some of his "good" foremen, white and black alike, are 
uneducated. (Tr. 2410) Moreover, not a single witness - plant 
manager, department head, nor any of the exhibits - testified or 
revealed that blacks had not, been offered hourly forcmanshlps be­
cause of their alleged low literacy rates. The court's finding 
that such consideration overcame the presumptive weight of ap­
pellant's statistical case is clearly erroneous, as it lacks 
evidentiary support in the record. Cf. Hester v. Southern Railway, 
497 F. 2d 1374, 1381 (5th Cir. 1974).

The court's conclusion that
" . . .  due to the pre-1965. segregation of jobs, it 
lias taken some time for blacks to learn the range 
of job skills necessary in many cases to performance 
of supervisors duties," (R.I[.16] p. 28)

5G



fares no better under the "clearly erroneous" doctrine. Id.
Here again, there is simply no evidentiary basis for such a 
conclusion.

The third rationale utilized by the court to support its 
disregard of plaintiffs' statistical prime facie case is similarly 
ill-founded. The court suggested that blacks had refused offers 
of temporary foremen in grossly disporportionate numbers. How­
ever, the "Blue-Book," listing each instance of employees' non- 
acceptance of proffered foremen's jobs, reflects that only 18 
blacks and 13 whites have turned down such offers. (CDX 2 78)
More than half of the blacks who initially declined foremen's 
positions have subsequently accepted such positions (se.o p.24 
supra). Even where blacks have infrequently declined to accept 
foremen's positions, such refusals were do minimus in nature.
For example, in the truck department 38 blacks actually worked as 
temporary foremen between 1966-1974; but none have been promoted 
to a salaried position. In the welding department, thirty-one 
blacks have worked as temporary foremen since 1966; only two 
have been promoted to a salaried position. 13 7 blacks he.y’C worked 
as temporary foremen in the steel erection department since I960. 
Since 1966 roughly 548 blacks have satisfactorily worked as 
temporary foremen at Pullman. (CDX 282, 286, 334)

The law of this circuit requires reversal of the district 
court. In the seminal case of Rowe v. General Motors, 457 F•2u 
348, 358-359 (5th Cir. 1972) this Court, on fact patterns virtually
identical to those at bar, recognized that foremen selection pro­
cedures which depend almost entirely upon the subjective evaluation 
and favorable recommendation of all-white supervisors are a "ready



mecliamism" for c3i.scjri.ini nation against blades. .I.T* > ^t 3a9. rlic 
conclusion of the court below that the lack of objective criteria 
in such procedures is not evidence of discrimination (R.I[16] p.
30) reflects that court's basic misapprehension of the applicable 
law; and it requires reversal. Id., pettway v. American Cast 
iron Pipe Co., 494 F.2d 211,supra.' 77/ Russell v. American Tobacco,

F. Supp. , 5 EPD '318477 (D.C. N.C. 1973); Brown v. Gaston 
County Dyeing Machine Co., 457 F.2d 3.3 7 7 , 3.382, 1383 (4th Ci.r.
3.9 7 2) ; Lo cal 53 of _int ’ 1 _A ssn. of Heat Frost Insulators and As- 
bestos Workers v. Vog.l.er, 407 F. 2d 1047 (5 th Cir. 3.969).

T-he district court's conclusion that the statistical evidence 
in tine case is not supportive of a c3.arm of discrimination is a 
further reflection of that court's misapprehension of the law, 
for it is settled that unrebutted statistical evidence in a 
Title VII case may establish a prima facie case; it is oft-times
decisive. pettway, supra, at 225 fn. 34; IT. S._~.
national, 456 F.2d 112, 120 (5th Cir. 1972); R.S^^^cksmivillo 
Terminal, 453. F.2d 418 (5th Cir. 1971);
Bo3 1, 43 3 F. 2d 421, 426 (8th Cir. 1971).

77/ The district court's reliance on Pettway for t3ie proposition 
That the lack of objective criteria is not evidence of discrimi­
nation is rather curious. T3ie most cursory reading of JiOj.Aiddl 111 dicat.es that the Court there lield that if, in fact, subjective 
evaluations by all white foremen were the basis for selection of foremen, tine system would fall in light of Rowe, supra. Tne remand 
was necessary because the evidence indicated that perhaps testing 
alone resulted in the exclusion of blacks. The question was whether, aside from the testing, the subjective evaluations by all white foremen operated independently to produce the disparity, 
pettway, supra, at 241.

58



The Company's Job Assignment: Policies Freeze in the Effects Of 
Past Discrimination And permit The Utilization Of Subjective 
Criteria 13y A Basically All-White Supervisory Force.

The record belies any contention that job assignments 70/ at 
Pullman, prior to 1965, were based on objective criteria. Rather, 
the all-white supervisory force exercised their unbridled dis­
cretion to assign blacks to certain jobs and whites to others.
There can be no doubt but that whites, at that time, were assigned 
to the better jobs - both in terms of wages and working conditions. 
Unquestionably, pre-1965 whites became experienced on the better
jobs.

It is incredible that anyone, with only a passing familiar­
ity with the jobs of spray painter and paint stone.i.Her, could 
conclude that the stenc.i H e r ' s job is objectively no better than
that of the spray painter. 79_/

It is difficult to imagine that any stenciller would volun­
tarily exchange his job for that of a spray painter. Again, 
some few may derive pleasure from welding, riveting, or pinning 
the tar-filled roof of a 8-10' railcar; most employees would 
probably opt for positions nearer the earth. In short, certain

78/ "job assignments" as used in this section, refer to as­
signments by foremen of employees to occupations, or posi .ions, 
within the same job class.
79/ The stenciller merely paints letters or insignia on a rail- -~r paint fumes are minimal. The spray painter,particularly 
on the SidersiSe of the railcar, becomes so thoroughly covered with paint that he must grease his body, wnar -a hood anesp c; 1 
coveralls; and because of the intensity of panic fumes, h?_mHi 
wear a respirator.

59



jobs are demonstrably more desirable than others.
At no time subsequent to 1965 did the company reasses its 

workers and their occupations/posi t.ions with an eye towards 
thawing the'effects of past discrimination. Rather, these 
frozen-in effects are further solidified as "[f]oremen . . .
tend to keep an employee on a particular job so long as he is 
doing satisfactory work." (R.I[16] p.24)

The argument that foremen select only the "best qualified" 
men for assignments to particular jobs, in the absence of ob­
jective standards, falls under its own weight. For as Judge 
Dyer noted in Jacksonville Terminal,supra:

"Assuming that an individual is "qualified" for a 
certain position or class of positions, further in- 
cruiry concerning the degree of his skill becomes un- 
neccsTwiry. Longevity rather than qua 1 if.ication be- 
comes the critical factor: the most senior qualified
worker receives the job desired^ Realistically, then, 
in seniority hierarchies established by collective bargaining agreement, comparative and superlative 
adjectives are superfluous: qualification, like per­
fection, is an absolute," Id., 451 F.2d 418 at 452 
(emphas.is supplled)

There is no evidence in this record, nor finding by the trial 
court, that blacks were not qualified for the more desirable 
j ob a ssignment s.

The Pullman practices of employee job selection procedures . 
in its welding department in Bessemer and in the entire plant at 
Butler, Pennsylvania are convincing "proof of the pudding."
In both such instances, job selection is based, not on the 
subjective judgments of foremen as to which employee is "best 
qualified;" but on seniority alone. 80/ There has been no show­
ing in this case that- the same procedures could not be followed

00/ At Bessemer, the court found that . . some welders can do
certain types of welding better than others, and, indeed some welders 
cannot satisfactorily do certain types of welding at all." (r .I[16] p. 24). But whatever his degree of skill, each welder is entitled to

- 60 -



throughout the Bessemer facility.
This court in Pettway, supra at 232, re—cmphasj.zed the 

teaching of Jacksonville Terminal to the effect that the "best 
qualified for promotion" argument is valid only where the em­
ployer demonstrates that objective criteria pertinent to the par­
ticular job are the determinants of who is "best qualified." The 
record shows that no subjective criteria lias ever been de­
veloped or relied on by the Pullman supervisors. Accordingly, 
fie foremen simply look at a man and determine whether he can do 
a particular job. Relatives of white foremen, regardless of the 
greater seniority of black workers, are seemingly "best qualified" 
for certain jobs; or, alternatively, such relatives are "too 
old" to be doing certain kinds of work traditionally assigned to 
block workers. (Tr. 454, 455, 471-473; Tr. 46,-47, 48) such 
highly subjective standards by white foremen, at a company where 
racially based job assignments were the order of the day prior 
to 1565, cannot withstand the commands of Title vil and the 
applicable case law. United States v. Local189, 416 F.2d 900, 
cert, denied, 397 U.S. 919 (1970); Stamps v. Detroit Edison, 365 
F. Supp. 07 (E.D. Mich. 19/3) Bidding of jobs, based on seniority 
and ability, is required to redress this long-standing, frozen-in 
policy of discriminatory job assignments.

00/ (Coat'd)
select liis job on sub-assembly orders based solejy on his senior­ity. ---- ^

61



^ ' -o-
.... • i . 0 ^

0
The District Court's Restrictive perception Of The Historic 
Disparity Of Treatment Of Blacks At Pullman, And Its Mis­
apprehension of Significant Legal Principles Require Remandment 
Of the individual Claims of Plaintiffs Swint and Humphrey.

In reaching its decision on the individual claims, the 
district court never considered the "marked historic disparity 
of treatment" of blacks at Pullman. Rowo, supra, at 360. Hence, 
the court's restrictive view of the context of the discharge, and 
its misapprehension of significant principles of Title VII law - 
all require that these claims be remanded to the district court 
■for a fair consideration of all of the individual claims under 
applicable legal standards. Rowe, supra, at 360; Franklin v. 
Troxell Mfg. Co., F.2d 10.13 (6th Cir. 1974); McDonnell Douglas 
Corp. v. Green, 4.11 U.5. 792, 93 S.Ct. 1817.

The Court Below Failed to Grant Appropriate Relief, including 
Back Pay, to the class of Blacks Found By It To Have Been Un­
lawfully Discriminated Against.

The court below expressly found that an "affected class" 
of black employees had been discriminatorily assigned, to four all 
black departments; and that the company maintained this policy 
until as recently as June 1, 1971. It further found that the 
company had discriminatorily excluded blacks from certain all- 
white departments until June 1, 1971. Although it sanctioned the 
remedial right of the affected class of blacks to transfer into 
other departments with seniority carryover, the court failed to 
grant appropriate relief in three significant respects: it failed
to require that the discriminatees be made whole for their

62



discriminatory treatment, by an appropriate award of back pay; b 1/ 
it failed to require rate retention for blacks transferring from 
one department to another; and it failed to require that affected 
blacks be notified of vacancies as they occur in the traditionally 
white departments.

The court did not articulate a reason for its denial of 
back pay to the discriminntecs. It concluded that rate retention 
would be inappropriate because there are no lines of progression, 
residency requirements, training jobs at the company, and there 
are frequent fluctuations in its work force, (Opinion of the 
Court Below, pc 17 ) While the Court's opinion does not address 
the question of notification of affected, class members of im­
pending vacancies, it concluded that posting was unm.ce&.ery 
because " . . .  the lack of formal procedures for notification 
neither discriminated,-nor perpetuated the effects of any past 
discrimination, against blacks.". (Opinion of the Court- Below, 
p. 31 )

Failu:ee_to Award Back

The district court's denial of back pay to blacks who were 
found by it to have been discriminated against was "clearly er­
roneous. " Here, liability commenced in 1966; the OFCC Agreement

81/ The court, in broadening the OFCC Agreement to cover blacks 
who were discriminatorily assigned to the black departments until 
1971, noted an "unlikely possibility" that a few or newly covered 
blacks may have a claim for back pay. It severed that d ssuo. lor subsequent trial. Three blacks have filed back pay claims subse­
quent to the decision.



providing for limited remedial relief was executed six years 
later and well after the instant action had been commenced.
In Johnson v. Goodyear 'fire & Rubber Co., 491 F. 2d 1364 (5 th 
Cir. 1974) this Circuit held that where the evidence establishes 
that a class of blacks have been victimized by unlawful employ­
ment practices

"• • . as a matter of lav/ the members of this 
class of discriminatees are presumptively en-
titi .ed to an appropr.i ate_award. of back uav. . . "
Yd. / at 1374 (emphasis supplied)

The opinion of the court below reflects a startling nonrecognition 
of this now firmly-established principle of law in this and in 
other circuits. pettwav v. American Cast Iron Pipe Co., 494 F„2d 
211 (5th Cir. 1974) ; Robinson v. Loril.Iarc Corp»•, 444 F.2d 791, 
801-802 (4th Cir. 1971); Bowe v. Colgate-Palmolive Co., 416 F.2d 
711-720 (7th Cir. 1969). The decision is therefore cue to be re­
manded for a determination of back pay for the affected class 
members embracing the period 1966-1972. Head v, Timken Ro.13.er 
Bearing Co., 486 F.2d 870 (6th Cir. 1973).

Failure to Require Rate Retention

In the earliest circuit court decision on the matter of rate
retention, Judge peinberg observed that

"Unless some rate retention and seniority carryover 
is granted to a transferee, the incentive to trans­
fer will remain low for the very reasons that the 
seniority and transfer provisions of the plant were 
found to have perpetuated discrimination. That is, 
a_d:i scriminatorily assigned employee will haye_
1 i113.e__incentive to_transfor if 3io_ loses money or 
job seniority by' doing so." United States v.
Beth] chem Steel, 446 F.2d 652, 663. (2d Cir. 1971)
(empha sis s upp 1 ig:d)

Other circuits, including the Fifth, have followed tliis reasoning 
so that by now, as the court below admitted, rate retention is a

64



standard remedy in cases of past discrimination. The remedy 
becomes applicable where the job from which the affected class 
member transfers pays more than h i.s new job, and where the new
job is in a department where the top wage rate is greater than 
the rate of the old job. pettway, supra, fn. 99; United States 
v. N. L. Industries, 479 F.2d 354, 375, 376 (8th Cir. 1973)

Neither of the reasons advanced by the court below will sus­
tain a denial of rate retention. For the clearly established, 
indeed, uncontroverted fact, is that blocks who transfer to higher- 
rated jobs at Pullman may very well lose money in the transfer and 
the Contract Compliance Officer of the company so testified at 
trial. (Tr. 1267, 1268) Astonishingly, affected class members in 
the case sub judico have been offered occupations in a new de­
partment which were three job classes lower than their current

(Tr. 1556) It is not therefore shocking that the bl3°
workers, in the absence of a rate-retention provision, declined 
the "promotion."

The district court's reference to "frequent, fluctuations in 
the employment levels" of Pullman in support of its denial of 
rate retention is a double-edged sword. For just as employment 
opportunities are created by the fluctuations, so are cutbacks, 
reductions to lower positions, and lay-offs. A discrimi.notee 
who would presumably transfer to a new department during a period
of high employment may well end up in a much lower-rated occupation, 
or indeed, on lay-off status,.in the next downward fluctuation 
of the work force. obviously, the need for rate retention in

such situations is pressing.
The district court's denial of rate retention for the dis— 

crimininatees was manifest error.

65



Failure to Require Notifj.cntj on of Job Vacancies in the 
AlT-White Departments

The OFCC Agreement recites that the contract Compliance 
Officers will advise all pro-'65 black employees of the right 
to .a priority transfer to the five formerly all-white departments, 
and the company is obligated thereunder to make "special efforts" 
to place blacks in the formerly all-white IAM departments and 
the maintenance CIO department. However, the relevant exhibits 
and the testimony of the compliance officer at trial conclusively 
reveals that in fact blacks have not been notified of vacancies in
these departments as provided in the agreement. In instances too 
numerous to mention, particularly in the inspection, the IAM 
departments, and the maintenance CIO department, vacancies have 
been filled by newly hired or transferred, white workers, with
no notification to the pre—*65 class of black workers. The 
statistical evidence (CDX 278, 282, 334) shows that the "word,
of mouth" and "personal observation" approaches are relatively 
ineffective in eradicating the present effects of past all-white 
d. epa r tmen t s.

To be sure, the failure to notify pre-'65 blacks of vacancies 
in the traditionally white departments is not discriminatory per 
so. "Here, however, we do not begin with a clean slate since the 
[affected class members] were subjected to past discrimination." 
Head, supra, at 8780 Where the statutory command is to eradicate 
the residual effects of past discrimination, a facially neutral 
system which effectively -freezes in the past discrimination must 
fall. Cf. Griggs v. Duke Power Co., 401 U.S. 424, 430; 91 S.Ct.
849 (1971)

66



The company here has not hinted that business necessity 
precludes such notification. In the absence or failure of such 
a defense, the law clearly requires that the company must pro­
vide notification of vacancies in the traditionally white depart­
ments to the affected class members. Head, supra, at 879, 880; 
Stamps v. Detroit Edison Co. , 365 F. Supp. 87, 116-117; Pettway,
supra, at 248. " . . .  fD]elay in learning about a vacancy in an
all-white category may in itself discriminate against a black 
employee who hears of it only after it has been filled." Brown v. 
Gaston County Dyeing Machine Corp,, 457 F.2d 1377, 1383 (4th Cir. 
1973)

CONCLUSION

Based on the record in this case, the Court should reverse 
the -judgment of the district court, and require the entry of an 
order providing appropriate relief for the class of black workers 
victimized by the defendants. Such relief .should commence with a 
study of the feasibility of merging the traditional one-race 
departments with alternate predominantly white and black depart­
ments.

Full relief also requires that all black discriminatees be 
given the right to transfer to any other department where the 
median job class is higher than the department to which they are 
presently confined, with seniority carryover and rate retention.

Because of the company's traditionally segregated jobs and 
assignments thereto, this' Court should require an objective system 
of filling vacancies. Plant-wide posting of job vacancies by 
department .is entirely appropriate. Moreover, a system of job 
preference should be implemented based on plant-wide seniority

67



»
and objectively-measured ability to perform the vacant job. It 
would, of course, be reasonable to permit seniority-based job
selections at the outset of each order, consistent with the
present policy of job selections 
the company.

The district court should be 
to develop objective' criteria for 
and to post these criteria and the

in the welding department of

directed to roqui.ro the company 
the selection of its foremen, 
a e t u a 1 o r a n t i c i p a t e d v a c a r 1 c. i e s

in supervisory positions.
Further, the district court should, consider the imposition 

of goals, timetables, and ratios for the filling of such vacancies 
as occur in these positions.

The. district court’s denial of the individual claims of 
plaintiffs Swint and Humphrey should be reconsidered in light of 
the company's historical po.li.ci.es of racial d i sc rim in a t ion town jxl s 
blacks.

Finally, the district court should be directed, to proceed with 
back pay determinations fox- the class of black oisci'lva.i nateos in 
this case, based on the principles of Pettway, supra, 251

A remand order from this Court, incorporating the above 
provisions, and its implementation.by the court below will hasten 
the long-awaited day when present discriminatory policies, as 
well as continuing effects of past discrimination by the Pullman 
Company, will no longer be felt by its black workers.

Respectfully submitted,
lx. i 1: (  ! !■KihiHf \ ! . v \ \ :/L> ' •.
ju .:  UT. CLEMON 
/Adams, Bakmr ft demon 

1600 - 2.12.1 Building 
Birmingham, Alabama 35203

-  68



*f

♦

J.ACK GREEKBI'RG 
MORRIS O'. BABLER BARRY L. GOLDSTEIN 
MARILYN IIOLI.FIELD 10 Columbus Circle 

Hew York, New York 1003.9
Attorneys for Plaintiffs—A

CDRTIFICAri,'E OF.SERVICE

1 hereby certify that 
of the foregoing Brief for 
counsel of record in this

on this 7th clay of March, 1975 
Plaintiffs-Appe11ants were ser 

case by depositing same i.u the
States Mail, postage prepaid.

C. V. Stelzenmuller, Esq.Thomas, Taliaferro, Forman, Burr 
& Murray1600 Bank for Savings Building Birmingham, Alabama 35203
John C. Falk.enbe.rry, Esq. 
Suite 201409 North 21st Street Birmingham, Alabama 35203 i ,

I t  1  i  n  f |  j

•

1 .
- -

1 h f - b .  ' M

j

1
l \ , . U .  M l ;  v ' . ; - ;

M A R I L Y N  I I O L I I P I E L D

Opellanto

, copies 
ved upon 
Un ited

69