Stamps v. Detroit Edison Co. Opinion and Order

    CIVIL ACTIONDARNNY STANFIELD, INDIVIDUALLY 
AND ON ) '.HALF OF ALL OTHER PERSONS 
SIMILARLY SITUATED,

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NO. 3 651.5

Plaintiffs *irw or tq7

DETROIT EDISON CO., et al.,
Defendants

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UNITED STATES OF AMERICA, CIVIL ACTION.NO. '38479
Plaintiffs

v.
DETROIT EDISON CO., et al.,

Defendants

/ OPINION AND ORDER

I_.__INTRODUCTION

The Complaint in Civil Action No. 36512 was filed by the 
above captioned plaintiffs-^on May 17, 1971. The Complaint in 
Civil /action No. 38479 was filed by the Government on June 22, 
1972. This Court on July 21, 1972 ordered the cases consolidated 
after finding there to be common issues of law and fact. The

f

Court has previously made a finding that the remaining plaintiffs 
have standing and may prosecute this class action lav/ suit under 
the statutes and court decisions .invoked and specified by 
plaintiffs. Jurisdiction is conferred on thas. Court inasmuch as 
the cases arise under the Civil Rights Act of April 5, 1866, C.

1/ At the time o E filing, there was an additional party plaintiff 
in Civil Action No. 36512, namely, the Association for the Better­
ment of Bln eh Edison Emp.l oyecs. The Association was dismissed on 
Jan. 2i>, 1973 as a parly j > I n.i n l i I.!’ for 1 net o I: s landing.



4*

3.1, 14 Slat;. 140, 4 2 U.S.C.A. § 1981; the Civil Rights.Act of 
1964, 78 Stat. 259, 42 U.S.C.A. § 2000-5(c); the National Labor 
Relations Act, 61 Stat. 136, 29. U.S.C.A. § 151 and 185; and 28 
U.S.C.A. § 2201 and 2202o

II. THEORIES OF THE PARTIES

The Final Pretrial Order entered by this Court and signed
by all parties dated January 12, 1973, states the following
theories of the litigants:

A. THEORY OF PLAINTIFF UNITED STATES:

The following is a brief statement of the government's 
theory:

Until recent years, the defendant Detroit Edison Company 
discriminated against its black employees by excluding 
them from its desirable jobs except in token numbers. 
Prior to the end of 1968 the Company employed a rela­
tively small number of blacks in a few jobs, primarily 
as janitors and servicement in the Building and 
Properties Department, as utility servicemen and more 
recently as laborers and stockmen in the Stores and 
Transportation Department0 These few jobs in which 
blacks were employed offered lower pay than most of its 
skilled trade occupations and little or no advancement 
opportunities. Some whites were also employed in these 
low opportunity jobs, but virtually nd blacks were em­
ployed in high opportunity, skilled jobs. Many black 
employees who were limited to low opportunity jobs 
possessed qualifications equal to or greater than many 
of the whites whom the Company hired without prior 
skills or experience and trained for specific trades 
or crafts within the Company. Since 196b, when Title 
VII of the Civil Rights Act became effective, the 
Company has hired blacks in some formerly all white jobs, 
especially in clerical jobs, in increasing numbers; but 
its high opportunity hourly paid occupations remained 
virtually all white until after 1968, and blacks re­
mained concentrated in low opportunity jobs.
The collective bargaining agreements between the 
Company and the defendants, Local 17 and Local 223, 
grant preference to employees already in high—oppor­
tunity departments and occupational groups in



1

competition for vacancies in those departments and 
occupational groups and a.l.low employees who trans­
fer to new departments and occupational groups no 
credit for time spent in their former departments 
when competing for future promotions or retention 
against layoff. A transferring employee who begins 
at the bottom of a new line of progression or occupa­
tional group must also work at a reduced pay rate if 
this new position pays less than his former position.
Although racially neutral on'their face, these 
collective bargaining provisions carry forward into 
the present and future the effects of the Company's 
pattern of excluding blacks from high opportunity jobs 
by allowing whites the benefit of seniority and pre­
ferred bidding positions obtained during a time when 
blacks were not able to acquire the same advantages.
The Courts have uniformly held that where the effects 
of such a pattern of discriminatory job assignment are 
carried forward by the operation of such a seniority 
system, Title VII of the Civil Rights Act of 1964 re­
quires that the responsible defendants provide the 
class of affected black employees with the employment 
opportunities they would have received but for the 
pattern of racial assignment or exclusion. Therefore, 
the government requests an injunction providing an 
affected class of black incumbents (i.e., those who 
were assigned to lower paying jobs on the basis of their 
race) with opportunities to compete for positions in 
high opportunity occupational groups on the basis of 
their Company seniority, to transfer, if successful, 
without loss of earnings, and to carry their Company 
seniority with them to such new occupational groups for 
all purposes, including future promotions and protection 
against layoff. The government also requests a determina­
tion that the defendants2 are liable to pay back pay to 
those affected class members, who in an ancillary pro­
ceeding, may be shown to have suffered financial loss as 
a result of the pattern of racially discriminatory assign­
ment <,

2. The government expects,the evidence to demonstrate 
that the Company is primarily responsible for the discriminatory 
practices which have resulted in lost earnings to black employees. 
Section 706 (g) of Title VII provides for such’ a determination of 
responsibility. However the government is not prepared at this 
time to waive all back pay claims against the defendant Unions, 
fFootnote quoted from Government's TheoryJ ...



Until the commencement of Title VII enforcement pro­
ceeding, and until the present in the case of some 
practices, the defendant Company has discriminated 
against black applicants and potential applicants for 
employment in its recruiting and hiring practices.
Despite recent increases in the number of blacks hired, 
in 1972 the Company employed approximately 060 blacks, 
making up only 7.5% of the Company's total employment 
of approximately 11,500„ Approximately 55% of the 
Company's work force is employed in the City of Detroit 
which has a black population pf 44%. Approximately 
75% of the Company's work force is employed within Wayne 
County which has a black population of 27%; and approxi­
mately 85% of its work force is located within the three 
county area.
The Courts have held in Title VII cases that where 
blacks traditionally have been excluded from employment, 
affirmative steps are necessary to recruit and employ 
qualified applicants. The government therefore requests 
an injunction requiring the Company to cease relying on 
recruiting through friends and relatives of incumbent 
employees; to exercise more direct control over the hir­
ing decisions of its department supervisors; to remove 
test st;ndards as a barrier to black hiring; and, subject 
to the. availability of qualified applicants, to recruit 
and hire blac];s throughout the Company and in specific 
occupational groups in accordance with numerical goals 
sufficient to overcome past exclusion of blacks within 
a reasonable time.

B. THEORY OF PRIVATE PLAINTIFFS:
The theory of private pi: intiffs Complaint is as 
follows:
Racial discrimination with regard to both hiring and pro­
motion is proved by the small number of black employees- 
employed at Detroit Edison. The percentage of blacks 
employed in the work force of Detroit Edison —  particu­
larly in the classifications of. official/, manager, and 
skilled craftsmen —  is substantially smaller than the 
percentage of blacks in the City of Detroit. Overt and 
active racial discrimination has been practiced by 
defendants against individual black employees through 
1973.
Certain practices, arguably neutral and non-discriminatory 
on their face -- have the effect, of perpetuating past 
discrimination and embody such discrimination in the 
present system:

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.1 . Ward of mouth referrals by incumbent white 
employer: of Edison and flic compilation of
lists of employees who have been recommended 
by such incumbent whites by various Edison 
Department Heads.

2. An interview system which does not put employ­
ees on notice as to the job opportunities in 
the company and which accordingly has the effect 
of denying blacks higher paying jobs because 
their friends and relatives are blacks, and un­
likely to have held sucli jobs or to know of such 
jobs in any kind of detail.

3. A departmental and job seniority system utilized 
for competitive status jobs which penalizes the 
black employee who has seniority granted in a 
lower paying job or department because a past 
discriminatory hiring policy has relegated blacks 
to such jobs and departments. Moreover, some 
black employees would be required to take wage 
cuts in order to transfer.

4. Non-job related tests utilized for both hiring and 
promotion which have the effect of screening out 
blacks disproportionate to whites and/or preserve 
the discriminatory status quo.

5. Educational and other non-job related requirements 
which screen out blacks disproportionate to whites 
and/or preserve the discriminatory status quo.

6. Subjective criteria and interview system which 
screens out blacks disproportionately both from 
employment and better paying jobs and/or preserve 
the discriminatory status quo.

7. Subjective criteria utilized by supervisors and 
other responsible corporate officials and/or pre­
serve the discriminatory ptatus q\io.

8. The existence of all white and near all white super­
visory workforce has the effect of excluding black 
employees from consolidation for both hiring and 
promotion.

Defendant unions liability are specifically predicated
upon the following factors:
The negotiation of the above-referred-to-seniority sys­
tem which embodies within it the effects of past dis­
crimination;
The failure to take any kind of affirmative action through



negotiation, arbitration, or any other means to alter 
defendant Edison's' discriminatory hiring and testing 
policy;

Individual instances of discrimination against black 
employees who had appropriate seniority credits under 
the collectively negotiated system but who neverthe­
less were excluded for other reasons and for whom the 
union refused to act affirmatively;
Black employees denied promotion because of discrimina­
tion:

The difference between the amount of pay in the job or 
department where discrimination has prevailed and the 
amount of pay that such employee has in fact received.
Black employees denied hiring because of discrimination:
The difference between the amoun of pay in the job or 
department in which discrimination prevailed and the 
amount of pay that such individual earned or might have 
earned with reasonable diligence.
Edison, through its supervisory and other employees has 
retaliated, intimidated and interrogated Black employees 
because of the filing of the original complaint with 
the Equal'Employment Opportunity Commission and the sub- 
s< quent suit filed in the District Court.

c. THEORY OF DEFENDANT EDISON COMPANY:
The vaguely-worded allegations, charges, and claims made 
against Defendant Detroit Edison Company (hereinafter 
referred to simply as Defendant) are without basis in 
fact or law. Defendant continues to deny each and e,rery 
one of them.
Affirmatively, Defendant says that its employment 
practices have been and are free from racial discrimina­
tion. If any of its employment practices have resulted 
or do result in differential racial impact (and Defendant 
does not admit that they have or do), such practices have 
been and are necessary to the business in which Defendant 
engages. Defendant has and does recruit, hire, transfer, 
and promote qualified persons, according to their avail­
ability and their ability without regard to race or color. 
Any exceptions to this policy have been and are in favor 
of black persons pursuant to the standards set' down by 
federal and state government.

Furthermore, Defendant has and docs vigorously, attempt

6



to further the interests of black persons in equal em­
ployment opportunity over and above what is required 
by law or regulation. True to this goal, Defendant has 
pursued and will continue to pursue the development of 
an effective affirmative action program at the Detroit 
Edison Company.

D. THEORY OF DEFENDANT I,OCAI. 223 :
Local 223 continues to adhere to the denials 'and affirma­
tive defenses set out in the answer heretofore filed.
It denies engaging in any act, pattern or practice viola­
tive of Title VII. It denies that the collective bargain­
ing agreements it has negotiated with the Detroit Edison 
Company violate the law. It denies that it has failed or 
refused to represent any person or group of perso 3 em­
ployed by the Detroit Edison Company or has differen­
tially treated any person or group of persons for which 
it is the recognized collective bargaining agent employed 
by the Detroit Edison Company because of the race of that 
person or group of persons.

E. THEORY OF DEFENDANT LOCAL 17:
Local 17 continues to adhere to the denials and affirma­
tive defenses set out in the answers heretofore filed.
It denies engaging in any act, pattern or practice viola­
tive of Title VII. It denies that the collective bargain-' 
ing agreements it has negotiated with The Detroit Edison 
Company violate the law. It denies that it has failed or 
refused to represent any person or group of persons em­
ployed by The Detroit Edison Company or has differentially 
treated any person or group of persons for which it is 
the recognized collective bargaining agent employed by The 
Detroit Edison Company because of the race of that person 
or group of persons»

III. SUNMtRY OF THE FINDINGS. AND 
CONCLUSIONS OF THE COURT

Plaintiffs have alleged, among other things, that The Detroit
»

Edison Company has traditionally excluded blacks in a discrimina­
tory manner from its high opportunity skilled trades and supervi­
sory positions and that it con Lin ..-s to discriminate against blacks

7



1

in its hiring and promotion policies and practices. The plaintiffs 
have also alleged that the Defendant Unions, which are jaarties to 
collective bargaining agreements with the Company, have aided and 
abetted the Company in its discrimination.

This Court has listened carefully to the presentation of 
evidence in the course of a three month trial in this cause. The 
evidenc was overwhelming that invidious racial discrimination in 
employment practices permeates the corporate entity of The Detroit 
Edison Company. The Court finds as proven facts that upward mobility 
of blacks presently employed at Detroit Edison is almost non-existent, 
and that qualified potential black employees are refused employment 
or refrain from applying for employment because of the Company's 
reputation in the Black Detroit Community for racial discrimination. 
The Company has taken the position that if any inequities exist be­
tween blacks and whites at Detroit Edison, such inequities have acci­
dentally evolved and have not resulted from deliberate discrimination. 
While this Court believes' that the lav/ would require it to find that 
Detroit Edison has violated the law if it ha-s, without intent to 
discrimim e, fostered practices which have resulted in a racially 
discriminatory impact, the evidence in this case demonstrates that 
the Company's discrimination has been deliberate, and by design.-?/

2/ "Proof of actual intent to discriminate is not a prerequisite to 
a finding of an unlawful employment practice. Intent is inferred 
from the totality of the conduct. All we need to show is that 'X' 
intended to engage in the practice that has a discriminatory impact, 
not that 'X' intended to discriminate. 1X ~ may not even be aware that 
the result of his or her practices are in fact discriminatory. ’idle 
relevant test for determining whether a practice is discriminatory is 
whether the effect of it serves to exclude; a disproportionate number 
of persons in a protected class. An employ cm ent practice which is based

f!



It is the conclusion of the Court that Defendant Detroit
Edison must alter its posture in the area of race relations and
immediately begin to deal with the problem of racial discrimina-%
tion seriously and with moral integrity if it is to fulfill its 
obligation under the law. It is a matter of public knowledge in 
this community that new leaders have tpken over the management of 
this important Company. It is imperative that, if this Company 
is to move forward economically and competitively as its manage­
ment wants it to, equal employment opportunity for all must be 
one of the yardsticks, as well as increased sales and profit 
margins, by which the Company measures its achievements and 
accomplishments.

It is unfortunate in the view of the Court, that the Company 
has consistently refused to admit, much less see1: to remedy, that 
its employment practices perpetrate racial discrimination. Indeed, 
the Company at trial simply denied that it has ever engaged in 
racial discrimination in Employment:

"The Court: Is it your position on behalf
of Det oit Edison, Mr. Ford, that 
as you have checked the records, 
and you have done it very master­
fully and meticulously, that Edison 
has never been* guilty of any racial 
discrimination in its employment 
policies?

Mr. Ford: Yes sir.

in part on unlawful considerations is not saved by the fact that 
other non-discriminaLory considerations may also have been present." 
William II. Brown, Chairman, Equal Employment Opportunity Commission, 
"The Changing Concept of Discrimination," Contact, July 1972, p. 33. 
S<. e generally Griggs v. Duke Power Co., 401 U.S. 424 (1971).

9



The Court: TheL is your position?
Mr. Ford: That is my position, and anybody

that thinks differently is certainly 
invited to come forward with the 
evidence of it and I don't believe 
they can do it." [Transcript, pages 
113-114.3

It is the conclusion of the Court, in light of the evidence 
adduced, that the Company is refusing‘to acknowledge the obvious 
and has therefore adopted an intractable position. Its denials 
of culpability only serve to indicate the myopia in the history 
of the Company with regard to its recognition and treatment of 
the ignoble disease of racial discrimination. Implicit in these 
Findings and Conclusions is the guiding principle that the Company 
will not be allowed to continue to violate thj law with impunity 
and will, instead, be required to implement corrective measures 
designed to treat .the root causes of the conditions which bring 
the Company in violation of the law0

With regard to the Defendant Unions, the Court has heard evidence 
during the course of the trial that the collective bargaining engaged 
in by these Unions has resulted in agreements‘perpetrating racial dis 
crimination and preventing affirmative action to eliminate racial dife 
crimination and the vestiges of such discrimination. The Unions en­
couraged black employees to withdraw or not press grievances pro­
testing discrimination practices. Collective bargaining agreements 
define seniority in a way that represses the possibility of advance­
ment by black employees. Defendant Local 223 lias misinformed black 
members with advice that unsuccessful bids involving jobs outside

10



their departments. cannot be put through the grievance procedure 
under the collective bargaining agreement. Defendant Local 223 
has insisted upon adherence to seniority where black members 
were involved to a much stricter degree than for whites. Defendant 
Local 223 and the Company have deliberately gerrymandered seniority 
districts so as to deny black members ̂ promotional opportunities in 
the better paying jobs. Defendant Local 223 and Defendant Local 
17 have negotiated for and acquiesced in procedures which lock 
blacks into low opportunity jobs and have never protested the 
obviously discriminatory practices of the Company. The President 
of Defendant ^ocal 223 has insisted upon rerun elections solely 
for elected black officials, has attempted to exclude blacks from 
leadership positions, and has failed to take steps against threaten 
ing and hostile actions and attitudes of white members expressed 
towards black members. Defendant Local 17, by referring workers 
to the Company ha directly aided and abetted the Company's dis­
criminatory hiring practices. The unions have an especially heavy 
burden to represent the best interests of all of their members.
The evidence clearly demonstrates that they failed to do so in this 
case.

The long and short of the evidence with respect to the De-
f

fondant Unions is simply that the Unions have promoted the interest 
of its white members without regard to the interests of its black 
members, and have ignored the plight of the black members in gain­
ing the equal employment opportunity that xs ‘their due 'under the 
Constitution and laws of the United States. Tragically, the Unions 
which one would look to for leadership in improving the lot of this 
sector of the population, have instead become an obstacle to human 
progress (o the point where the 'Court, lias reluctant ly concluded
lli.it th arc just it i a I > J y made delonda nI s .in this law suit.



and the statutes enacted byThe Constitutional provisions
Congress on the subject of equal employment opportunity aid find
their objective in the brief and eloquent phrase of Thomas
Jefferson in the Declaration of Independence:

"We hold those truths to be self-evident, that 
all men are created equal, that they are en­
dowed by their Creator with 'certain unalienable 
Rights, that among these are Life, Liberty and 
the Pursuit of Happiness. ***"

In the modern industrial society which is the United States, 
and certainly in the modern industrial urban society which is 
Detroit, to be denied an equal chance at decent employment, and 
an equal chance at advancement within one's employment, is to be 
denied that equality so nobly articulated by Jefferson. It is in 
this context unthinkable that a person would be den' d equal em­
ployment opportunities at The Detroit Edison Company when employ­
ment to a man means earning a living which will enable him to pro­
vide adequately for his family and provide a good education for 
his children. Being denied a job is demeaning to a person and 
strips him of his dignity and assurance. A person has a right to 
extend his God-given working abilities to their fullest without 
being encumbered by artificial, irrelevant, insignificant and

fsuperficial barriers, and reasons such as the color of his skin.
The Company and the Unions by their individual and collective 

actions arc guilty of denying this fundamental equality to the 
members of the class who are the plaintiffs in this law suit, and 
the Court will accordingly move on to consider and put into effect 
suitable remedies. ...

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IV. FIN))IUGS OF FACT
A. Preliminary Findings

1. Defendant, Detroit Edison Company, is a public utility, 
incorporated under the laws of the State of Michigan and doing 
business in a 7,600 square mile area in southeastern Michigan, 
where it furnishes electric power to homes, businesses and offices 
in the Metropolitan-Detroit area. The Detroit Edison Company em­
ploys approximately 11,000 employees.

2. Defendant Local 223, Utility Workers Union of America, is 
an unincorporated association doing business in the State of 
Michigan and is the exclusive -bargaining representative for approxi­
mately 4,000 employees working in job classifications represented
by Local 223 and grouped in approximately 28 bargaining units.

3. Defendant Local 17, International Brotherhood of Electrical 
Workers, is an unincorporated association doing business in the 
State of Michigan and is the exclusive bargaining representative 
for approximately 800 hourly paid employees working in job classi­
fications in the Underground Lines and Overhead Lines, Field 
Division, of the Transmission and Distribution Department and tlie
Elevator Division of the Building and Properties Department.(

4. The Standard Metropolitan Statistical Area (SMSA) racial
statistics for 1970 indicate that 44% of the City of Detroit is

»

composed of blacks and 18.2% of the SMSA total population is black.
** ».As of 1971, 73.28% of Detroit Edison's employment positions w< .:e 

in Wayne County and 84.11% were in the Tri-County area. As of 
1966, 304 of Edison's 9,475 employees were black. At that time,



4 of Edison's 1,722 officials and managers were black (I960 EEOC 
Report).

R. Edison Emplc iient. Pract-lces — General]y
5. Testimony shows that for many years Edison employed only 

a few blacks and only in menial jobs such as janitor, porter, shoe 
shine boy, elevator operator, and utility servicemen. In the 
1940's, '50's and '60's prior to and subsequent to July 2, 1965,
Detroit Edison had a reputation of hiring few blacks. Defendant 
Detroit Edison lias had a reputation of limiting those blacks who 
were hired to low-opportunity jobs such as those which are knowr 
as of this time to be 1) In the Property Right of Way Department 
—  Building Cleaner, Janitor, Porter, Serviceman, Wall Washer,
Lamp Changer, ElevaJ )r Operator and Attendant; 2) In what is now 
the Stores and Transportation Department - - all jobs except for 
Mechanic; 3) In the Production Department - - Plant Cleaner; 4)
In the Central Heating Plant, Coal and Ash Handler. Such jobs 
are low-opportunity jobs because of certain posting, bidding and 
seniority provisions which give an almost ab’so1 ute preference to 
employees already in high opportunity jobs, units and departments.

C . Union Representation - Background Facts
6. The record reflects that all collective*bargaining repre­

sentatives for Local 223, Utility Workers of America; Local 17,
International Brotherhood of Electrical Worters; and Detroit Edi-

*

son are white with the exception of plaintiff Willie Stamps. All
* *  • .

collective bargaining representatives of all throe parties have 
always been white except for plaintiffs Stamps, James Atkinson
and William Armstead, all of whom have been division chairmen in



Locu 1 U t i l i t y  Workers o f  Amer ica . o f  Defendant

Detroit De i son 
S t a mps wa r • the 
Local 22? and

All officers
are white. At the time of the trial in this cast ,
only black out Qf approximately 28 chairmen from
the only black on either side of the bargaining table.

D._Spec.iflc Indicia of Racial
Discrimination

7. The evidence submitted in this case indicates that 
defendant Detroit Edison Company has in the past assigned those 
few blacks who were hired almost exclusively to the low-opportunity 
jobs referred to in Finding No. 5, supra. Defendant Detroit Edison 
employed no black linesmen in Transmission and Distribution Over­
head Lines until 1963. It employed no black sub-station operators 
until 1968. It employed no black meter readers unti.'1 1964. The 
stated reason of Detroit Edison Company for not employing black 
meter readers was that the white community was not ready. Defendant 
Detroit Edison or ployed no black appliance repair servicemen until
1962.

8. Beginning in the mid or late 1950's, Detroit Edison 
Company had it:. personnel interviewers use a racial code or ident’ - 
fication system to identify the race of applicants on application 
forms. The system consisted of the interviewers placing a bladei
dot on the application forms of black applicants so that the race 
of a black apxxlicant could be easily ascertained at any point in 
the hiring process. This Court finds’that the racial code or 
identification system was used by Detroit Edison to racially dis- 
criminate against black applicants. The defendant Detroit Edison 
assorted and maintained through the course of the trial"that this



black clot system war; inaugurated to insure that more blades be­
came employed at the Company. The record and testimony in the 
case negates this position, and indicates very clearly that the 
black dot system was used to perpetuate and maintain blacks in 
low paying positions in the Company and exclude them from 
others. This coding system was known to and acquiesced in by the 
highest levels of Detroit Edison Company's employment office and 

management.
9. The disparity in numbers of whites and blacks hired at 

Detroit Edison has a historical basis which continues to exist 
to this day. In 1955, 232 whites and 4 blacks were hired. In 
1956, 199 whites and 5 blacks were hired. In 1957, 97 whites 
and 3 black were hired. At some point between 1955 and 1957, the 
racial coding system came into being. In 1958, 18 whites and 1 
black were hired. In 1959, 29 whites and 1 black were hired. In 
1960 39 whites and no blacks were hired. In 1961, 52 whites and 
2 blacks were hired. In 1962, 74 whites and 2 blacks were hired. 
In 1963, 142 whites and 9 blacks were hired. In 1964, 229 whites 
and 33 blacks were hired. In 1965, 481 whites and 34 blacks were 
hired. In ligh of the fact that so few blacks were hired, sub­
sequent to the implementation of the ra.cia 1 coding system, this 
Court can only infer that the racial coding system was instituted 
for some purpose other than that of achieving racial equality in 
the employment pi. notices of the Edison Company. Indeed, during 
the six years subsequent to the introduction_of the racial coding 
system the percentage of blacks hired by Defendant Detroit Edison 

declined.

16



10. Testimony demonstrates, and this Court finds, that in 
many eases black employees with work experience and education 
superior to that of white employees in skilled trades, were 
denied high opportunity jobs and were assigned to and refused 
transfer from low-opportunity jobs, referred to above. White em­
ployees lacking a high school diploma -or related work experience 
were and continued to be frequently promoted ahead of black em­
ployees with high school diplomas and work experience superior to 
said white employees.

11. The foregoing-described practices may be illustrated by
a few representative examples. Horace Henry, a black high school
graduate with credit hours at Detroit City College and an inspector
for the government during World War II was refused transfer from
utility serviceman from 1345 through 1962 or 1963. Local 223
Utility Workers Union of America encouraged Mr. Henry to withdraw
grievances protesting transfer refusals. McKinley Ogletree, a
black employee, was hired as a utility serviceman in 1945 and was
an apprentice electrician from 1950 through 1955. Mr. Ogletree
filed numerous requests for transfer to an electrician's job from
1950 to 1969 and was always denied the right to transfer, being
advised by Detroit Edison representatives that "You know you're
not going to get the job." Catherine Gafford and Mary Harris,
black female elevator operators and high school graduates filed

»

numerous applications for transfers in the 1940's, '50's and 
‘60's without being given the opportunity tc transfer.

12. Both prior to and subsequent to July 2, 1965, plaintiff 
James Atkinson was discriminator!ly assigned to low-opportunity

- 1 7  -



and pro­jobs. In connection will) his applications for transfers 
motions, James Atkinson was advised by Detroit Edison representa­
tives that it was futile for him to apply and that a'decision 
had been made concerning who would get the job before bids were in­
vited. In some situations, Atkinson had observed the job performed 
whereas the successful white applicant had not. In other situations, 
Atkinson had actually performed the work which he sought whereas the 
successful white applicant had not.

13. Plaintiff Willie Stamps, a high school graduate with 
further education at the Dunbar Trade School in Chicago and 
Worshin College of Mortuary Science was discriminatorily refused 
employment on at least five occasions at Detroit Edison Company in 
1956 and between 1965 and 1967. In 1965 and 1966, Stamps was de­
prived of employment on the pretext that he was not properly 
dressed and that he was over-weight. On approximately fifteen 
occasions between 1967 and 1972, Stamps was denied transfer be­
cause of his race. In no instance has the Company contended that 
white employees who were selected instead of Stamps possess superior 
or equal qualifications. Among the pretexts used to discrimin; te 
against Stamps was the contention that he was over qualified for 
the job for which he applied. Stamps was also harassed and dis­
criminated against by Defendants Detroit Edison and Local 223 be­
cause of his civil rights activities at Detrcit Edison.

*

14. The record in this case indicates that in order to im- 
plcment and perpetuate discriminatory policies and practices,
Detroit Edison relied heavily on its transfer policies with re­
spect to low-opportunity and high-opportunity jobs. High- 
opportunity jobs possess pay grades and working conditions

- IE



demonstrably higher and superior to the pay grade of low- 
opportunity jobs. High-opportunity jobs for blue collar em­
ployees at Detroit Edison are in, for instance, Construction 
and Maintenance, the Transmission and Distribution Departments 
and the Production Department. Starting pay grades in Construc­
tion is generally pay grade 5 ($4.32 per hour). Skilled trade

»

jobs such as Brickmason, Carpenter, Electrician, Mechanic Fitter, 
Plumber, Rigger and Welder enable journeymen to receive wages be­
tween pay grades 16 ($5,935 per hour) and 18 ($6.27 per hour).
In Transmission and Distribution, the pay grade for Maintenance 
Cable Splice;, reaches 18 ($6.27 per hour). In Production and 
Senior Plant Operator it reaches 17 ($6.13 per hour).

15. In low-opportunity jobs - - out of which transfer to
high-opportunity jobs is precluded because of Detroit Edison's 
posting, bidding and seniority as described below - - the highest 
pay '.grade is 5 ($4.32 per hour). For example, Building Cleaner 
is pay grade 2 ($4.03 per hour) and Building Attendant begins at 
pay grade 0 ($3.89 per hour). Coal-Ash Hardier in Production 
(Central Heating) is pay grade 3 ($4,125 per hour) and Plant
Cleaner begins.at 2 and can advance to 3. High opportunity jobs 
have been and remain nearly all white.

16. As of April 24, 1973, there were 832 blacks out of
10,630 employees. As of April 24, 1972, there were 12 blacks

*

and 1,099 whites in supervisory positions by the Defendant Detroit 
Edison Company. As of April 24, 1972, there were 73 blacks and 
1,785 white's in professional and technical jobs. As of April 24, 
1972 the 24, 1972, in bargaining unit jobs represented by bocal

.1 9



223, at the Delray Plant, there were 14 blechr. and 113 whites. 
There are 9 white firemen earning $4.9 to $5.46 but there arc no 
black firemen. There are 20 general mechanics A employees earn­
ing $5.26 to $5.93 but there are no blacks. There are seven 
white instrument men but no black. The greatest percentage of 
blacks at Delray are to be found at the plant cleaner classifica­
tion where there are 4 whites and 2 blacks. At the Conner Creek 
Plant there are 156 whites and 20 blacks. There are 21 general 
mechanic A white employees but no blacks. There are 6 general 
mechanic apprentices but no blacks. There are 9 white instrument 
men but no black instrument men. Once again, the most significant 
percentage of blacks is to be found among plant cleaners where 
there are 7 white plant cleaners and 3 blacks. In the Marysville 
plant there are 142 white employees and 5 blacks. There are 22 
white power plant operators and one black. There are 29 white 
assistant power plant operators and two blacks. There are no 
blacks in the classification of turbin< operator, auxilliary, 
combination firemen, senior plant operator, -water tender, switch­
board operator 1st, yard equipment operator, coal handling equip­
ment operator, general mechanic A, general mechanic A apprentices, 
instrument man, plant warehouse man, and senior .tool crib man.

17. In the Trenton production plant there are 225 white 
employees and 3 black employees. Once again there are no black 
employees with such classification as general mechanic A, and 
general mechanic A apprentice, and instrument man. The only 
classification in which blacks arc present arc plant cleaner,
tool crib man and coal handling yard operator. In the St. Clair



P.1 mt, LJioro arc 178 white employees and 4 black employees.
Three of these black employees are in the classification of 
plant cleaner and fourth is a serviceman. There are no blacks 
in the classification of general mechanic A, general mechanic 
A apprentices and instrument man.

18. In the River Rouge plant there are 99 white employees 
and 12 black employees. There are 17 white general mechanic A 
employees and one black general mechanic A.employee. There are 
6 general mechanic A white apprentices and one black general A 
apprentice. There are 17 white instrument A men and no black 
instrument employees. However, there are 3 white plant cleaners 
and 6 blade plant cleaners, tliis classification once again pro­
viding the highest percentage of black participation. At the 
Industrial Power Plant & Penn Salt there are 52 white employees 
and 4 black employees. There are seven general mechanics A white 
employees and no general mechanic A black employees. There are 
2 general mechanic A white apprentices and one general mechanic 
A black apprentice. At the Port Huron plant there are 13 white 
employees an I no black employees. At the Monroe plant there are 
100 white employees and 2 black employees. There are no black 
general mechanic A employees in these jobs at thp Monroe plants. 
The 2 blacks are in the classification of plant cleaner and 
utility man. At the Wyandotte North Industrial plant there are 
37 white employees and 5 black employees. At the Wyandotte South 
Industrial plant there arc 50 white employees and 1 black em­
ployee.

Ir* 21



s
19. At central Heating there arc 07 white employee a and

16 black employees. In the meter department there are 116 white 
employees and 10 black c. ployees. Until, approximately 1960 it 
was the practice of defendant Detroit Edison Company to deliber­
ately exclude black employees from the meter department because 
of the fear of community reaction. Although seniority was not

t

always adhered to in connection with job assignments in the meter 
department prior to the time that blacks were hired, once blacks 
were hired and protested the undesirable route into which they 
were placed beca’ se of their low seniority, defendants Detroit 
Edison Company and Local 223 refused to alter such assignments 
even though seniority was not uniformly adhered to in the past 
in connection with such assignments.

20. In the Stores Department there are 201 whites and 34 
blackso In the Transportation Department there are 92 whites 
and 22 blacks. The highest percentage of blacks is to be found 
in the Utility Servicemen classific 'ion where there are 1. 
whites and 13 blacks. Until some point subsequent to July 2,
1965, the Utilities Servicemen classification was one of low oppor­
tunity classifications to which blacks were assigned in the over­
whelming number of instances. There are 47 white auto mechanics

c

and one black auto mechanic. There are 4 white mechanic appren­
tices and 1 black mechanic apprentice.

21. In the electrical substatiohs represented by Local 17, 
International Brotherhood of Electrical Workers, there.are 334 
whites and 15 blacks. There arc no black journeymen first or

2 2 -



second class and out of a total of 67 journeymen positions 3 
are held by blacks. In the transmission and Distribution and 
Overhead Department, represented by Local 17, IJ3EVJ, there arc 
741 whites employed and 21 blacks. There arc 221 white journey­
men linemen employed and 4 black journeymen linemen. Ninety- 
one apprentice linemen are employed and 6 blacks are so employed.

0
There 105 white journeymen linemen B Crew and 2 blacks„ In most 
classificalions in the department, no blacks are employed.

22. In the Transmission and Distribution Underground repre­
sented by Local 17, IBEW, there are 337 white employees and 30 
blacks. In the journmen and apprentice categories for cable 
splicers, there are 170 whites employed and 8 blacks. The most 
significant percentage of blacks in the department is to be found 
in the labor category where there are 5 blacks and 20 whites. In 
the construction field division represented by Local 223, Utility 
Workers of America, there are 851 whites employed and 50 blacks. 
Among electrical journeymen and apprentices there are 176 whi '-.es 
and 8 blacks. Among journeymen apprentice carpenters, there are 
34 whites and 3 blacks. There are 34 whites and 4 blades employed 
in the Pipe Cover Category. There are 31 white painters and 2 *
black painters. There are 24 Sheetmetal workers and 1 black Sheet

i

metal worker. There are 69 white welders and 3 black welders. 
There are 269 white mechanic fitter journeymen apprentices and 
11 blacks.

23. In construction Shops Department-represented .by Loca.1 
223, there are 14 2 whites and 21 blacks.

-  23

There are no black shop



In the Customer ServiceThere are no black shop machinists.
Divi: ion there are 236 whites and 22 blacks^ In the Metier Read­
ing Department Districts there are 378 whites and 10 blacks. Ex­
cept for 1 black at the River Rouge Plant, the classificaition of 
general mechanic A is all white. The classification of general 
mechanic A apprentices remains almost completely white0

24. In Transmission and Distribution and Overhead Depart­
ment journeymen and apprentice linemen are almost all white. The 
same is true for most other classifications in the department. In 
Transmission and Distribution Und- 'ground, journeymen and appren­
tice cable splicer are almost completely all white classifications. 
In Construction, electricians/ journeymen and apprentice, journey­
men and apprentice carpenters, pipecoverers, sheetmetal workers, 
welders, and shop machinists are almost all white classifications. 
It would be fair to say that there is an almost complete statis­
tical absence of blacks in most classifications.

25. In Buildings and Properties Department there are 141
whites and 78 blacks. The overwhelming majority of the blacks 
work as janitors, servicemen and elevator operators, which are 
the other categories in addition to those of utility servicemen 
and others referred to above, to which blacks were restricted in 
the overwhelming percentage of instances until some point subse­
quent to July 2, 1965.

#

26. Testimony at trial clearly shows that subsequent to
July 2, 1965, defendan. Detroit Edison Company J d, and continues
to have, a reputation in the black community in the Metropolitan



area a.s an employer that generally does not hire blacks and con­
tinues to assign those blacks that are hired to low opportunity, 
non-promotable jobs such as those described above. Many blacks 
who have been hired at Detroit Edison believe that they are for­
tunate to be employed with Edison on any basis and they are afraid 
to protest the absence of blacks at Detroit Edison in numbers rep­
resentative of their presence in the Detroit City population.

27. It is important to observe that until some point sub­
sequent to July 2, 1965, all hiring interviewers who hired em­
ployees for defendant Detroit Edison Company were white. Through 
the present date no attempt has ever been made with either black 
or white interviewers to determine whether such interviewers are 
racially prejudiced nor have any steps been taken to correct such 
prejudice if it exists.

28c Applicants are asked if they have relatives employed by 
the Company. A percentage of employees hired by Detroit Edison 
have been hired as the result of contacts through friends and 
relatives. A study of the Federal Bureau of Investigation in the 
course- of which 06 white employees were contacted indicates that 
43 of such employees had friends and acquaintances who were em­
ployed by Detroit Edison and discussed job opportunities with such 
friends and relatives. Since a disproportinate percentage of em­
ployees at Detroit Edison Company are white and since the over­
whelming percentage of employees in the higher opportunity jobs

** ..
referred to above are white, such a hiring practice in this instanc 
had the effect of perpetuating the exclusion of black applicants

25



from employment with Detroit Edison Company and from the jobs 
referred to above.

29. Interviewers and sup rvisory personnel in high oppor­
tunity jobs and departments make the final decision regarding 
who is to be employed in such departments. Hiring takes place 
as the result of word-of-mouth recruitment. In order to advance 
to high opportunity jobs and departments such as Production, Con­
struction, Transmission and Distribution and Electrical Substa­
tions, employees must be hired into those departments at an entry 
level in practically every instance. All interviewers and super­
visory personnel in departments which contain higher opportunity 
jobs are white. Supervisory personnel in departments which con­
tain higher opportunity jobs are white. Supervisory personnel 
in such departments have no personal and social contact with 
blacks. Thirty-five and four-tenths percent of white employees 
who applied to Detroit Edison Company in 1969-1970 had relatives 
employed by the Company. Sixteen and three-tenths percent of such 
white employees had relatives in the same department where they 
sought employment. Thirty-seven and one-half percent of white 
employees have relatives employed by the Company. Fourteen and 
two-tenths percent of the white employees have relatives employed 
. n the same department. This phenomenon in practice perpetuates 
the racial composition of the work force. Until September, 1972,
Edison
viewer

s applicants were asked if they had arrest records. Inter- 
, until the eve of the trial of this case, have been re­

quired to make extremely subjective judgments about an applicant's 
per so1 nl.ity, appear, ace, dress and speech. There is no structured



or written format for questions to bo auk eel of applicants 
which is provided interviewers by the Company. Defendant 
Detroit Edison did not list employment vacancies with the 
Michigan Employment Security Commission until required to do 
so by law in late 1971 or early 1972.

30. After an employment application is rejected by Edi­
son, an employee may renew his application by expressing con­
tinued interest in employment with the Company. An interviewer 
may mark an application "unrated". This generally means that 
the applicant cannot be considered further. If an interest -
in renewal of the application is not expressed by the applicant, 
the unrated application will be destroyed at the end of a 6 
month period. If a renewal of interest is expressed the unrated 
application will be held for another 6 month period. In 1968,
12.5 percent of white applicants and 22.5 percent of black appli­
cants were unrated. In 1969 it was 10.9 percent for whites and
18.5 percent f- r 4 blacks. In 1970 it was 17.9 percent for 
whites and 26.9 percent for blacks. In 1969 ani 1970, blacks 
hired at Detroit Edison Company continued to' be disproportionately 
assigned to low opportunity jobs.

E . Testing
31. The only standards which Edison docs apply uniformly 

in the selection of applicants arc standards of performance on 
written mental ability tests which arp administered to nearly all 
applicants who reach the final stage of consideration in the era- 
ploymc . department before referral to line department super­
visors for final consideration. (Tr. Vol. IX, pp. 1297.130,; Vol.

-  27 -



VII I., p. 44-4G)
32. The Company administers a variety of test, batteries, 

each consisting of one or several tests, in its selection of 
new employees for entry level hourly paid and clerical jobs. 
The following table shows the test batteries which are admin­
istered to candidates for those 

Test Battery 
Mechanical Placement

Clerical Placement

Apprentice Lineman 
Apprentice Draftsman

Customer Serviceman 
Substation Operator 
Apprentice Cable Splicing 
Meter Reader 
Power Plant

Ilenry Ford Comm. College 
Proficiency Tcst

(Cov

entry ..level jobs at issue here
Entry Level Job

Utility Serviceman, Appli­
ance Repair, Meter Reader, 
Janitor, Construction Laborer, 
Warehouse & Yard Laborer,
Metal Shop Helper, Stockman
Messenger, File Clerk,
General Clerk, Telephone 
Clerk, Customer Telephone 
Rep., Commercial Office 
Rep., Computer, Programmer,
FT Steno, FT Typist, 
Switchboard Operator, Tab 
Machine Operator, Janitor, 
Warehouse & iard Laborer
Apprentice Lineman
Draftsman General, Junior 
Draftsman, Rodman
Customer Serviceman
Substation Operator
Laborer Conduit

r

Meter Reader
Assistant Power Plant 
Operator, Subs tat:' m  
Operator Trainee, Coetl 
Ash Handler
Construction Laborer

. ■ b . 19)



33. A larger percentage of the black applicants for em­
ployment have failed these tests than the percentage of white 
applicants for employment who have failed them. Edison's em­
ployment department relies on its psychological service's sec­
tion for test administration and evaluation. (Tr. Vol. VIII, 
pp. 44-46). This section ordinarily evaluates an applicant's 
test performance by either reporting him as "acceptable" or 
"not recommended" depending on whether he has given sufficient 
numbers of right answers and thereby passed certain fixed 
standards of performance. (Tr. Vol. XXI, p. 27) . The following 
table shows for each test battery listed above, except the 
apprentice lineman's battery, 'the approximate proportion of 
white and black applicants taking each test who received evalu­
ations of "not recommended" and were not hired in 1970 and 1971

1970 1970
Test White Black White Black

Cable Splicer 31.8 66.7 29.2 67.3
Meter Reader 26.7 66.7 0 50.0
Draftsmen 0 0 . 15.8 25.0
Customer Serviceman 51.9 85.7 57.6 61.1
Power Plant Operator 37.8 77.0 37.5 61.9
Substation Operator 
Helper 44.6 '78.9 '42.9 69.8

Mechanical Placement 25.2 68.5 24.8 52.8
Clerical Placement 21.4 . 6 3.2 21.7

(Gov. Ex. 91) „
34. Although insufficient numbers oi blacks have taken



the apprentice lineman's battery to conclude from their per­
formance that blacks have failed this battery more often than 
whites (Gov. Ex. 83), this test would exclude a greater per­
centage of blacks than whites if increased numbers of blacks 
were measured by it. This battery consists only of tests 
which are also included in several other batteries which blacks 
have taken at Edison frequently, and they have consistently 
scored significantly lower on each of these tests in such 
batteries (Tr. Vol. IX, pp. 82-86; Gov. Ex. 8j).

35. For most applicants, both black and white, meeting 
the prescribed cut-off scores or performance standards on test 
batteries they are given is a prerequisite for employment.
While a small fraction of those applicants hired into some entry 
level jobs have not met all of the standards of performance on 
all of the tests in the batteries administered for their jobs, 
(Gov. Ex. 100) , the overwhelming majority of those applicants
who do not meet these standards are not employed in the occupa­
tions for which they are tested (Glv. Ex. 100; 91)„

36. The Company has also administered an entrance examina­
tion for the Henry Ford Community College on which a passing 
score has been required as a condition of admissrion to courses 
offered there as part of the Construction and Maintenance Depart 
ment apprenticeship training„ Obtaining such a passing score ha 
been an additional prerequisite for entry into these apprentice- 
ship programs. (Tr. Vol. VII, p. 122). Among those employees

-  30 -



iI

who could bo race idontilled who have taken this college en­
trance examination, the fail’'.re rate among blacks lias been 
significantly higher than that among whites (Gov. Ex. 92).

37. Under guidelines promulgated by the Equal Employment 
Opportunity Commission, an employer may use a test which has 
the effect of excluding significantly larger numbers of blacks 
than whiles only if the test has been shown to be a valid pre­
dictor of job performance. "Validity" as used by the Equal Em­
ployment Opportunity Commission means that the r lationship of 
test scores to an appropriate criterion of job performance must, 
at a minimum, be statistically significant at the 95 percent 
level of confidence. Stated another way, this means that there 
must be no more than one chance in 20 that the relationship be­
tween test scores and the measure of job performance occurred
by chance. Guidelines on Employee Selection Procerh res (revised) , 
35 Fed. Reg. 12333, 29 G.F.R. 1607.5 (c) (1)

38. The EEOC Guideline s also require that validity be 
established separately or "differentially" for blacks where ab­
sence of sufficient numbers of blacks among those employed makes 
such differential validation infeasible, the tests in question 
may be regarded as Vcilid on the basis of other evidence only pro- 
visionally until separate evidence of validity for the minority 
group is produced. A test which otherwise has the effect of 
under predicting the job performance of blacks should be scored
in such a way as to correct this. 29 C.F.R. 160,.5 (b) (5)

39. Measurements of such relationships, often expressed

3 1



us correlation coeficien ts, are determined by compar.i non of test 
scores and performance criteria measures for groups of individ­
uals who have been tested and also rated on the job. ' A correla­
tion coeficient is high or low depending on whether individuals 
in the group tend to have test scores and criterion ratings of 
corresponding levels (Tr. Vol. XXIII, pp. 156-160). It is posst- 
ble for such a correlation to achieve the level of statistical 
significance required by the EEOC Guidelines while a substantial 
number of the individuals in the group among whom the correlation 
is computed have combinations of test scores and performance cri­
terion rating: contrary to the trend, that is substantial numbers
receiving high test scores may have lower performance ratings 
than others who received lower test scores and substantial numbers 
who received low test scores may ha\a received higher performance 
ratings than those receiving higher test scores (Tr. Vol. XXIV, 
pp. 4-5, 96-98, 101-109, Gov. Ex. 103, p. 345, Gov. Ex. 107).

40. The EEOC Guidelines, also require that cut-off scores 
or test standards must be related to "normal, expectations of 
proficiency" in the work force and that they be reasonable, 29 
C.F.R. 1607.6. Unless the relationship, or correlation, between 
test performance and criteria of job performance^ is very high,
a reasonable cut-off score should eliminate only those applicants
who are likely to be insufficiently qualified to perform the job

»

satisfactorily (Tr. Vol. XXV, pp. 85-88).
41. None of the test batteries described in the proceeding 

findings has been demonstrated both to Ido valid predictors of



job per Tor iri an co/ a:.; measured by statistical comparison to cri­
teria of job performance, and to bo used witli performance 
standards, or cut-off scores, reasonably designed to eliminate 
those app] cants who are unlikely to perform satisfactorily in 
the jobs for which they are being considered and tested.

42. Differential validity, that,is separate validity for 
blacks -as a group apart from the general population of appli­
cants and employees, has not been demonstrated for any of the 
batteries in issue here. Differential validation was attempted 
or evidence tending toward differential validation was presented, 
in only four of the studies described, the clerical and mechanical 
placement battery studies done b> National Compliance Company 
(Gov. Ex. 102 pp. 115-139): the meter reader battery study and 
the assistant power plant operator studies done by Ed'son (Gov.
Ex. 99, 101, Tr. Vol. XXII, pp. 22-23). These studies were in­
sufficient to establish validity for whites or blacks, and there­
fore they are deficient in evidence of differential validity
(See Findings 99-105, 110, 113-114). • .

43. The customer serviceman battery, which is found to 
have been valid at the time of the study, apart from the lack 
of justification for its cut off scores,, has not'been demon­
strated to be different:? lly valid for blacks as there is no 
evidence that there were blacks in the study group in 1965 (Tr.i
Vol. XXI pp. 69-93).

44. Edison has made no effort to validate the Henry Ford 
Community College entrance examination (Tr. Vol. XVIII, pp. 6- 
133, Vol. XXI, Vo.1 . XXII, Vol. XXI II, pp. 5-47).

33



The only sLanciarein for selection of applicants for'll!.
employment or transfer which arc uniformly applied by the 
Company have been passing scores on batteries of mental abil­
ity tests administered by the Company. Because blacks gener­
ally score lower than do whites on many such tests, several 
of the test batteries used by Edison hdve screened out larger 
proportions of black applicants than of white applicants. With 
one exception, none of these test batteries are valid predic­
tors of job performance; and without exception none of them are 
valid for blacks as a separate group. One of the batteries in 
fact may be "unfair" to blacks in that it under-predicts their 
performance relative to whites. Also without exception, all of 
these batteries are admin:stewed with cut-off scores which are 
unreasonably high, in that they screen out applicants whose 
scores are comparable to former and current employees who were 
not shown to be unable to perform in their jobs.

F. Specific Indicia of Union InvoIvement
46. Evidence submitted in this case show's that seniority, 

as definied by the collective bargaining agreement between Detroit 
Edison Company and Local 17 IBEW, is occupational group seniority 
and is the measure of seniority to be considered'in matters of 
layoffs, rehiring, promotions and transfer within and among the 
occupational groups covered by the agreement. Promotions within 
each bargaining unit are awarded to the senior bidding employee 
possessing the required skills, abilities and/or adaptability.
In a small percentage of the cases, less than .10 percon.t. of them, 
the junior employees successfully bid for the job. The posting

-  34



provisions of tiro agreement between defendants Local 17 and
Detroit Edison Company provide that all permanent vacancies in
the bargaining unit will be posted in all divisions of the de-

%

pertinent in which the vacancy occurs except in the case of the 
journeymen linemen classification. The promotion and posting 
provisions establish a priority f. * employ es who are within 
the bargaining unit and the department for filling bargaining 
unit vacancies. If the Company is unable to fill the vacancy 
through either employees in the bargaining unit or department, 
the vacancy is posted for company-w:: de bidding. No preference 
is given to an employee who is not in the bargaining unit in 
which a vacancy occurs.

47. The record further reflects that under both the Local 
223 agreements, an employee bidding from outside the bargain­
ing unit or the department, should he be successful, is unable 
to carry with him any of the seniority he might have accumulated 
in his former job for purposes of both future promotions and 
bidding on vacancies in which the occupational group bargaining 
unit. His competitive status is lower than chat of employees 
who are junior to him in the Company's service but who are 
nevertheless senior in the occupational group and/or bargaining

f

unit or department seniority. Both Local 17 and Local 223 agree 
ments with Detroit Edison Company do not protect the rate of an

9employee who is transferring to a high opportunity job is a new 
bargain! 'g unit which has a rate lower than the job from which 
he is transferring. Accordingly, such an employee may suffer a



reduction in economic benefits under this system, which pro­
vides for complete loss of seniority and pay reduction for 
black employees assigned to low opportunity jobs. Such blacks 
arc being discouraged from applying for high opportv ity jobs. 
Moreover, in many instances such black employees do not even 
have the opportunity to bid.

48. Seniority as defined in the collective bargaining 
agreement between Local 223 Utility Workers Union of America 
and Detroit Edison Company is once again occupational group 
seniority for the purpose of layoff, rehidng, promotions and 
transfers between bargaining unit- covered by the agreement. 
Promotions to vacancies within an occupational group within 
the bargaining unit are awarded on the basis of occupational 
group seniority. In less than 10 percent of the bidding situ­
ations a junior employee is chosen over a senior employee. 
Under the Local 17 agreement, the junior employee is success­
ful in even fewer instances. The posting provisions of the 
collective bargaining agreements between Local 223 and Detroit 
Edison Company provide the vacancies within a bargaining unit 
which are not filled by an employee within the occupational 
group itself in which the vacancy occurs shall first be posted 
in the bargaining unit where the vacancy exists. When a va­
cancy is not filled through employees in the bargaining unit 
it may be posted in other bargaining units in the same depart­
ment and, at that point, the measure of seniority considered 
is Company service. If vacancies are not filled through this

-  3G -



procedure the vacancy ir. pouted companywide. This procedure 
makes it unlikely that blacks, who have been and are dispro­
portionately assigned to lower opportunity jobs, will ever 
have the opportunity to bid for high opportunity jobs under 
either the Local 223 or Local 17 contract.

49. It was repealed at trial thdt under the Local 223
agreement those blacks in low opportunity jobs who are for­
tunate enough to have the opportunity to transfer must sacri­
fice seniority credits previously accumulated as well as their 
wage rate if the entry level in f: high opportunity department
pays less than the job which they hold. In most instances 
blacks in low opportunity jobs do not have the chance to trans­
fer to high opportunity jobs because of the bidding and post­
ings listed above. Seniority loss and wage reduction discourage 
transfers for those few blacks who obtain the chance to apply 
for transfers. Supervisors, more than 99 percent of whom are 
white, must sign a transfer bid before blacks can attempt to 
transfer from a low to a high opportunity job.'

50. Defendant Detroit Edison Company claims that it 
follows a policy of promotion from within. Yet its collective 
bargaining agreements make unlikely or impossible promotion 
from within of blacks who continue to be disproportionately 
assigned to low opportunity jobs and v/ho are either completely 
exc1 ided from or have taken responsibility in the high opportun­
ity jobs described above. Rather than promote blacks from within

-  3 7



ski1led tradesmenthe Company, Detroit Edison sometimes hires 
from Canada who cannot even speak English. Additionally, Detroit. 
Edison deliberate]/ recruits blacks with poor employment records, 
When it has on its payroll blacks with gc d employment records 
who cannot obtain promotion and transfer because of the inten­
tional and unintentional discrimination on account of race.

51. Defendant Utility Workers Union, Local 223, has misin­
formed black members by advising such members that unsuccessful 
bids involving jobs outside their departments cannot be put 
through the grievance procedure under the collective bargaining 
agreement. Black employees have been discouraged from filing 
grievances and have not sought to use the grievance procedure 
to obtain relief from discrimination because of their lack of 
confidence in defendants local 223 and Detroit Edison Company. 
Local 223 has insisted upon strict adherence to seniority for 
black meter readers consigned by that system to undesirable 
routes when seniority had not been followed uniformally for

i.white meter readers before blacks were hired. Defendant Local 
223, Utility Workers Union of America and Detroit Edison Company 
have delibcrately gerrymandered seniority districts so as to 
deny black union members promotional opportunities in the better

i

paying jobs. Defendant Local 223 has negotiated and acquiesced
in discriminatory seniority, bidding and posting procedures

*which have the effect of locking blacks into low opportunity 
jobs. Defendant Local 223 apparently has never protested Detroit

-  30 -



Edison Company's hiring or promotional policies with the Company 
itself, before any administrative agency —  federal or state; or 
before any court.

52. The president of Local 223 was th only member of the 
Utility Worker's Executive Committee to vote against the establish 
merit of a human rights committee for that Union. The Loca- presi­
dent, Pete Johnson, has insisted upon rerun elections only for 
blacl officials of Local 223. Johnson and Local 223 have 
attempted to exclude blacks from leadership positions and Local 
223 has failed to take action to discourage the hostility and 
threats of white members from -Local 223 made against black 
members of Local 223.

53. Defendant Local 17 IBEW has negotiated seniority and 
posting provisions in its collective agreement which have the 
effect of locking blacks into low opportunity jobs. Defendant 
Local 17 has never protested Detroit Edison Company's hiring or 
promotion policies with the Company itself; before an administra­
tive agency - - federal or state; or before any court. Defendant 
Local 17 refers workers to defendant Detroit Edison Company and 
thus directly aides and abets Edison's discriminatory hiring.

G. Deficiencies of 7- ffirmative Action Prog ran.

54. Detroit Edison Company's ; ffirmative action program 
involves a sporadic and occasional effort to publicize job



opportunities in the black community in the Metropolitan 
Detroit Area and is therefore inadequate. The Detroit Ed'son 
Company has never made use of l̂ lack radio stations to adver­
tise employment opportunities at Detroit Edi on Conpuny; in 
fact, the Company lias done nothing at all which has produced 
fruitful results. Defendant Detroit Edison has at various 
times rejected the suggestions of the plaintiff Stamps and 
other employees that the Company establish a training program, 
if blacks were indeed unqualified and that a special coordinator 
be assigned to deal with problems of black employees.

V, Discussion of Applicabl.e Lav;.
The courts have recognized that racial discrimination in 

employment is class or group discrimination. See, e.g., Jenkins 
v. United G->s Corp. 400 F. 2d 28 (5th Cir. lf 5C) ; Otis v. Crov. . 
Zellerbach 398 F. 2d 496 (5th Cir. 1968); Blue Dell Boots v.
EEOC 410 F. 2d 355 (6th Cir. 1969). It is Title VII of the 1964 
Civil Rights Act which provides the broadest legislative mandate 
for eliminating racially discriminatory practices in emp>loymcnt.

Courts have frequerbly relied on statistics in the employment 
discrimination area because of the difficulty involved in establish 
ing unlawful action in connection with a wide variety of individual 
acts where both records and witnesses may not be available after ' 
a substanti 1 period of time and where the employe r or union lias 
primary or exclusive access to the relevant information. See, 
e.g., Mabin v. T.cnj. Siwgl or, Inc. 457 F. 2d 806 (uth Cir. 1972) .
Tlie principle that "the prepondc ranee of Negroes in lower-paying 
and inferior jobs, while white workers have the better work,

4 0



for Title VII violationought to establish a primn facie case 
has now Iwen accepted in connection with promotion as well as 
hiring by most of the U. S. Circuit Courts of Appeal. Gould, 
"Seniority and the Black Worker," 47 Texas L. Rev. 1039 (1969). 
There is virtur 1 unanimity on the proposition that the statis- .ical 
absence of blade., disproportionate to whites makes out a Title 
VII and Civil Rights Act of 1866 violation. Se<s for instance, 
Mabln v. Lear Stegler, Ire., supra; United States v„ St. Louis- 
San Francisco Ry., 454 F. 2d 301, 307 (8th Cir. 1972) cer. 
denied 93 S. Ct. 913 (1973); Brown v, Gaston County Dyeing Mach.
Co. 457 F. 2d 1377, 1382 (4th Cir. 1972); United States v, Hayes 
International Corp. 456 F. 2d 112 (5th Cir. 1972); United Spates 
v. Ironworkers Local 86 443 F. 2d 544, 550 (9th Cir.), cert, 
denied 404 U.S. 984 (1971); Jones v . Lee Way Motor Freight, Inc. 
431 F. 2d 245, 247 (10th Cir. 1970) cert, denied 401 U. S. 954 
(1971); IJ. S. v, Chosaocake & Olio Ry. Co. 5 FEP Cases 311 (4th 
Cir. 1972).

Sign:' ficantly, the United States Court of Appeals for the 
Eighth Circuit has gone further than the above-cited cases, stat­
ing in Parham v. Southwestern Bell Telephone Co. 433 F. 2 421 
(8th Cir. 1970) as follows:

"We hold as a matter of law that these statistics, 
which reveal that an extraordinarily sir 11 number 
of black employees, except for the most part as 
menial laborers, established a violation of Title 
VII . . . "  Id. at 426.

Parham, then, concludes that statistics showing "an extraordinar­
ily" small number of blticks proves a violation rather than merely 
establishing a prima facie case. Even when statistics are not

-  41 -



tal;on to conelurvivcly establish discrimination - - though the
percentage of black workers may be extremely small - - they
should be given proper effect, by the court when valid, and
should be weighed by the court together with the testimony of
witnesses. See Jonn: v. Leo Way Motor Freight, Inc., supra at
247. In Jones, a case that differs frgin the instant case in
which statistics have been buttressed by witnesses' testimony,
the court set forth the following language:

"True, no specific instances of discrimination 
have been shown. However, because of ne histor- • 
ically all-white makeup of the Company's line 
driver category, it well may be that Negroes 
simply did not lather to apply." Id. at 247.

The Court in Jones, therefore, seemed to conclude that 
"statistics establish a prima facie case even in the absence of 
the kind of testimony which in the a’ sen e of the kind of testi­
mony which is in the record in the instant case. Id. at 247.
Also pertine; is United States v. Sheet Metal Workers, Interna­
tional Local Union 36, 415 F. 2d 123 (8th Cir. 1969), where the 
court, once again finding violation where tire record was "void 
of sp ;if ic instances of discrimination" sub: quent to July 2,
1965, the effective date of Title VII, stated that

"The Act, in our view, permits the use, of evidence 
of statistical probability to infer the existence 
of a pattern of practices of discrimination,," Id. 
at 127, n . 7.

Statistics in this case establishing prima facie.discrimina­
tion demonstrate the following: (1) a severely disproportionate
and small number oL blacks k the labor market area; (2) a 
severely disproportionate and small number of blacks employed in

4 2



V

Edison high opportunity jobs an deparLmonts; (3) the. number
and percentage of blacks hired declined subsequent to the intro­
duction of tlie race identification system in the 1'950's; (4) a
higher percentage of black applicants continue to be unrated as 
compared to white applicants.

The statistics indicate that prima facie violations were 
made out with regard to defendants not only in the past but in 
the present as well. Unlike Parham, for instance, whore present 
discrimination could not be found because of the substantial im­
provement in the company's hiring patterns, in this case present 
as well as past discrimination is made out on the basis of sta­
tistics. This is dramatically demonstrated not only by the con­
tinued absence of blacks from professional, supervisory and skilled 
trades jobs, but also by Government's exhibit 65 which indicates 
that employees hired during the years 1963 and 1970 into the high 
opportunity jobs - - especially in departments like Construction 
and Maintenance, Transmission and Distribution Ovc head Lines and 
Underground Lines - - continue to be predominantly white. (Indeed, 
most of the improvements in Detroit Edison's hiring policies took 
place subsequent to January 6, 1971, the date when plaintiffs 
filed administrative unlawful employment practices charges with 
both the U. S. Equal Employment Opportunity Commission and the 
Michigan Civil Rights Commission.)

i

No attempt was nude by the defendants to rebut and over-
come plaintiffs' prima_fache case. No attempt was made, as was
done in United States v. Jacksonville Terminal Co. 45.1 F. 2d 418

4 3



( !j Ui Cir . 1971) cert. denied 400 U 90G (1972), Lo int reduce
evidence showing that whiter with superior qualifications or 
qualifications at least arguably equal were chose for jobs from 
which blades were excluded. This approach would have been com­
pletely futile for the defendants for two principal reasons:
(1) defendants testified that employees arc trained for posi­
tions of responsibility including skilled jobs without having 
to possess prior experience in advance of applying inasmuch as 
employees are promoted to supervision and skilled trades posi­
tions from within the Company. Ac c rdingly, unlike Jack sonv.l lie 
Terminal where defendants were attempting to pick the "best 
qualified" employees on the basis of selecting those who had had 
previous experience in the industry or related work in other 
industries, defendants select employees whom they will train:
(2) Government exhibits make clear that a substantial number of 
black employees who are held into low opportunity jobs had quali­
fications based upon both prior work experience and education 
which are demonstrably superior to a substntial number of whites 
who had been selected for skilled trades jobs. See Government 
Exhibits 14 and 15. Thus, the defendants - - as was generally 
the case with regard to their respcn.se to testimony by individ-

r

unis -- did not rebut any of the inferences of discrimination 
that were created by virtue of statistics. Discrimination on the 
pa t of defendants can be found on the basis of the statistics 
rioted above alone. - ..

Although none of the statistics' wore rebutted, the Government

-  4 4  -



and private plaintiffs went further and .introduced evidence 
of both unintentional and intentional discrimination which sub­
stantially buttressed the statistics. Defendant Detroit Edi­
son's only response to the statistics has been its argument 
that a disproportionately small numbe. of blacks is not employed 
at Detroit Edison since the area that must be considered is the 
area to which Edison supplies electricity rather than the labor 
market area. Private plaintiffs correctly point out that under 
this inadequate theory, the conq station of statistics for a 
General Motors plant in Detroit, for instance, would not be based 
upon the working population in the Dctroit are but raher any por­
tion of the United States to which General Motors products were 
shipped. Significantly, the Ninth Circuit Court of Appeals in 
U.S. v. Ironworkers Local 86, supra, indicated that where a 
union's jurisdiction covered the Seattle Metropolitan area that 
only the City of Seattle might be considered on the theory that 
most members carae from the City itself. The notion that the 
construction ind'str s product market should be utilized was not 
even considered. The defendant Detroit Edison seeks to rely on
the distract court's citation in U. S, v. Virginia E.l-ctric_&
Power Co. 327 F. Supp. 1034 (E.D. Va. .1971), of the fact that the

t

area served by the utility in that case was 18.6 percent black. 
But the court in that case did not rely on the figure to derive 
a statistical imbalance which would create a prima facie case of 
a violation. Indeed, a careful reading of"the opinion- indicates 
that such statistics wore not relied upon in any way.

4 5 -



Deft : l )d.  Ill t: 1). ( I  o i l I ' d i s o i l  C pany nmph.iys subjective crlLeii.i for both 

purposes of hiring and promot i ng it:; employees and it:: bargaining uni t and super- 

v.i sory personnel - - inasmuch a a no npcc.if.ic instructions arc given to interviewers 
to determine the qualifications of applicants end no objective criteria in employed 

by the Company an it decides who should be promoted to supervisory positions. An 

the Fourth Circuit Court of Appeals has said in Drown v. Gaston County Dyeing Machine 

Com vany, supra:

"Elusive, purely subjective standards must give way to objectivity 
is statistical indicia of discrimination arc to be refuted. . . .
[I]n the absence of objective criteria applied to all workers alike, 
the statistics indicate that race is the only identifiable factor 
explaining the disparity between the jobs held by white employees and 
jobs held by black employees. The proof discloses no objective^stand­
ards based upon education, experience, ability, length of service, 
rel 'ability, or aptitude to account for the actual employment of white 
workers. . . .

In sum, the lack of objective guidelines for hiring and promotion 
and the failure. . . . are :badges of discrimination that serve to 
corroborate, not to rebut, the racial bias pictured by the statistical 
pattern of the Company's work force." Id. at 1382-83.

This skepticism of subjective criteria can well be understood in the context

of this case where high opportunity departments are staffed by an all white inter-''

viewing and supervisory staff and where permission prerequisite for applying for a

transfer must be granted by an almost entirely all-white supervisory workforce. As
i nm,. ‘‘

stated by Judge Brown, speaking for an unanimous court/Rowe v. General Motors Corn.

457 F. 2d 348 (5th Cir. 1972):

". . .Blacks may very well have been hindered in obtaining recom­
mendations from their foremen since there is no familial or social, 
association between the ;a two groups. All we do today is recognize 
that promotion/trensfor procedures which depend almost entirely upon 
the subjective evaluation and favorable recommendation of the immediate 
foreman are a ready mechanism for discrimination agaii blacks much of 
which can be covertly concealed and, tl'or that matter, not really known 
to management. h’c and others have expressed a skepticism that black 
persons dependent directly upon decisive rcconuwndations from whitoa 
can expect non-discriminatory action." Id."at- 359.

Chief Justice Burger, speaking for an unanimous Supreme Court.in. Griggs v.

Dv!it ■ I'man: Co . , 401 V. . 424 (V>71), held tie i: in Lite area ol employhi,ant d.i.rcr i n ij:

ties, »/o» ''d inlent or Lee ah.;, ■.uce el d i st'r.i in i n /lory intent, does, not re,( /< ’I III l 'll!j
J'l ( ){)('(ha/-:; <>: 1 i :,t ir.g /.» ■<i ‘lb III l . /.;/<■./ to ini i: ;ui i n-: 'jt 4 •i.\ ip.ihil 1 t i; . "

ini i/ III: 1 it ie.i lien 1 in :( . / // </. .ids and j ■> i .i . dii i i■. 1.71 i i li in. it/, • \ a -n i ii.nlvoi t , 'll! 14, o!i. i



( ) r  ;>i(  • j w l  i c e  m i  n o r  i  t .y • n r i / i  c u p  1< >y> '<

f rom  , i r im inn l o r y  /c ; ; ./  Limats

Corn., supr.t, at: 354. The Court in

• business necessity." Howe v. f'l'ncr ■) I Hot or:; 

Crioan was careful to emphasize that

.in tli.il :;uch mdsmlank; or  pvociyhivo:; art.;  ••

"Congress directed the thrust: of the Act at the cnnsc.r"---nr -s of 
employment practices — - not s 'mply to moti vation. More i -an that,
Congress has place1 ur>on the employer the burden of showing that 
any given require nt must: have a manifest relationship to the 
employ:, nt in question.” Id. at 432.

»
The record in this case amply evidences the kind of situation that can 

develop when a large employer relies upon subjective criteria and utilizes employ­

ment procedures which have no business necessity. The record in the instant case 

demonstrates that Detroit Edison has an all white management and a nearli <ill-white 

supervisory workforce. The record further demonstrates the management is represented 

in its dealings with defendant unions only by whites and, with the exception of 

plaintiff Willie Stamps, the unions are represented only by whites.

This Cour;. certainly has the authority to grant relief in a case such as 

this where there is racial discrimination in employment based on the use of subjec­

tive criteria. The Sixth Circuit Court of Appeals in V. S. v. IBEW, Local 38, 428

F. 2d 144 (1970) cert, denied 400 U. S. 943 (1970), has indicated that district 

courts may utilize broad affirmative relief under Title VII to e: join the "continu­

ation of effects of past discrimination resulting from present practices (neutral 

on their face) which have the practical affect of continuing past injustices." Id. ̂ 

at 149. The Sixth Circuit in local 38 indicated that one such practice - - present 

in the instant case as wall - - is the "administration of qualification examinationsi

which had no objective standards and which produced unexplained discriminatory result. 

Id. at 150.

The defendant Detroit I'dison discriminates in numerous ways in addition

t o i t s  u t i l i ir a t i o n  o f  s u ' n j a c t  i V C : c  r i  t c r i a T h e C o v e •n m e n t s 1 e x h i b i t s c l  c a r l y

J< : i l o n s t r a  t o t h a t  p r e :f( • d J I C c  i n l o t h  h i r . i i ' ( J a n d a n : : . !  r n m c n t  t o d e s i r a b l e : d e p a r t m e n t s

i s < r i v e n  t o t h e  f l i c n < ! : . t i n d  r e h i !  I V c S  O l i i 3C l U i i l n t :  c m p l o y i / o s . T h i s  r e s u . l  l  s  f r o m

t h e • J . i c t  L b . : i  , i  s u b : ; f . i r.if...' ; i I m i m l or o f  a  p i *7 / ■ :  w h o a r e  h i r .• d  a r e  n o t J  1 i  i  d  u i  j o b

O p ] ’ n r t  i n  ■ i  1 i t i n  H u * ('« n y  o p a r t  i <  : u  1 u < ! ' 7' •!  1 /:.« I I I s  b y  I r i e n d : :  o r  l e ] n t .  i  V i

C t  m ■ m y  i/i l l . h n  i  i i t • i / 1 U  . l »’ h■« / < • h i  r < - . J i n t o  i i i < i !  i  i 77 - o i  1 r n i I y  j o b s  a n d

i . 1 1 :  . . . j  i , )  ;  t 1 ( > 1 ' i 1 .  ■ i i  . : n  1 ■ ! i i  V 1 t • i  o d e d  i n . l l l i e u  1 f a  1 1 ■ i  . . .  ■/ i ,  •,



W i l . i w l n l  wh< r< e n g a g e , !  i n  w i t h i n  t in- c o n t e x t  a !  p a s t  <1 i s c r  im in . i i  i o n ;  o w l  w o r d

oi mouth hiring .,is to he condti,’in, xl when i I!: produces such re.suits <is it do' in

this: cast See, c.<i. Parham v. Southwest.!?rn Dell Telephono Co., supra; Heati- r.

Frost In: la tors v. Vera lor 407 F. 2d 1047 (5t.h C.ir. 1969). As noted by the court

in U. S■ v. Carpenters Local 169 457 F. 2d 2 1 0 2 1 5  n. 8 (7th C.ir. 1972), whore 

defendant: "opens its doors to a token number of blacks, nepotism applied evenly 

tends to solidify the miniscule percentage of blacks."

There is also much testimony in the record by numerous individuals as 

to individual acts of intentional discrimination and such testimony was not rebutted 

in any way by the defendants. The amount of evidence indicating intentional dis­

crimination is surprising because intentional discrimination is usually difficult to 

demonstrate; proof of "overt racial discrimination in employment is seldom direct." 

Brown v. Gaston County Dyeing machine Company, supra, 518. The weight of the evidence 

presented by the testimony of blacks indicating that they possessed work experience 

and qualifications for the jobs for which they applied but were rejected, constitutes 

a pr.ima facie violation of the law - - inasmuch as no attempt was ever made by the 

defendants to introduce any evidence showing that the witnesses' testin' ny was incor­

rect or incomplete or that white employees with superior or equal qualifications were 

chosen (or that black employees were chosen for such jobs). Sin- a no rebuttal evidence 

was offered, the testimony of the individually named private plaintiffs and other 

blacks who testified stands uncontrad.ictcd, and the allegations of discrimination 

must be sustained under the standards established by the Supreme Court for non- 

class individual discrimination cases in McDonnell Douglas Corp. v. Green 5 FEP Cases 

966 (May 14, 1973). The Court in Green stated that once thp employer decided to seek 

someone with the respondent's qualifications, the burden then shifts to the employer

to articulate some non-discriminatory ; ason for respondent's rejection. Id. at 

970. It should be noted that the intentional or deliberate discrimination demon­

strated by this record is not necessary for a violation..and the ordering of relief 

unde-i Title VII. That such discrimination l:Ts occxu tod, and, in some .instances,

contilives, to occur subsequent to the filing of the charges in this case, demonstrates 

how flagrant has berm, and continues to be, Defends * (■ Detroit: Edison's violation of

the law.

-  4; :



Thr' t'vjdcnui' in this. case shows. that hl.it']havi~ ht'en rtawaged by ’ll 

of the collective ha r gaininj agreements. negotiated by Detroit Edison Company, the 

effect of which is to give preference for job bidding inside all the predominantly 

white departments to the employees in such departments and job classification. Since 

blacks have not been hired into such jbbs and departments as Construction and Main­

tenance, Trar. nission and Distribution Overhead and Underground Departments, the effect 

is to make it impossible or extremely unlikely that blacks will have an opportunity 

to be considered for promotion at all. This makes the instant case much more severe 

in terms of limiting black promotion opportunities than the leading and traditional 

seniority cases like Quarles v. Philip Morris Inc. 279 F. Supp. 505 (E.P. Va, 1969) 

and Local 189 United Penermakerr v. United States 416 F. 2d 980 (5th Cir. 1969) cert, 

den. 397 U. S. 919 (1970). Those cases dealt with fact situations where defendant 

unions and companies were willing to pezmdt unimpeded transfer right for black 

employees who had been hired into low level jobs - - the disputes concerned simply 

union and company insistence upon the denial of seniority credits to blacks and the 

refusal to preserve their wage rate upon transfer. Here there is much more than that. 

For in this case, the effect of the collective 1 rgaining agreement is not only to 

depi ivc incumbent black employees of seniority credits which they have acc> :lated in 

previously segregated jobs, but also to completely preclude the opportunity to trans­

fer by kidding procedures which provide preference for incumbents and in most instances, 

no notice of job opportunity for employees in other departments. See Ping v. Roadway 

Express, Inc. 444 F. 2d 687 (5th Cir. 1971); Witherspoon-v. Mercury Freiglk Lines

457 P. 2d 496 (5th Cir. 1972). Pelt v. Johnson Motor Lines,_Inc. 458 F. 2d 443 .

(5th Cir. 1972); Jones v. Lee Way Motor Freight Co. supra; U. S. y. St. Louis,-San 

Fr nc.isco Ry, Co. , supra and U. S. v. Jacksonville Terminalf supra.

Additionally, it is clear that if a black incumbent is fortunate enough 

to have the opportunity to Lid on the all white skilled trades jobs and to surmount 

the considerable ob:;t. clcs involved i: bidding .<. 'ccssfully, the employee must 

give up seniority credits previously accumulated in the job or department to which 

he Ins h e m  consigned. Since the black employees locked into lo opportunity jobs 

at Detroit: Faison until somet ime' . ibr.equont to July 2, 1965, wore discriminated 

against in hiring by being consigned to certain jobs, loss of seniority ci~ed.it:: when 

/ ran:; 11 rod to l.h « ill I while s.K.ilJrd trades, t],. part. tu. nt~s. p, ~na l i v; IkI.h 'I. * .../•/ eg. os 

and di:., >urg. s. them I i < apply i ng i<y depriving t hem ol i~, »i:j:el .11 ive. st., it. us. senior i t y



t;t < •</ i I. s \:!iich w s !•! b. iv- • hi •. •/» i /•< ; / it: lint >u lot tin- hirili-J <1 i in i i:.; l >< ;j
which exist i<1 in t.tf- l ir.;t inst.incc. Thin .in in say, had there been no d.iscrimino­

tary hiring pc.. .icy which roJeg ated blacks to the low opportunity jobs, black employees 
would be fairly represented throughout Edison, having been given an equal opportui. ' ty 

in the first instance, in other departments. Once hiring discrimination is in evidence 

as is reflected from the record and testimony in this ease, a seniority system which 

d.i scourges and makes unlikely a transfer for blacks is unlawful.

.As stated by Judge Ccor go Edwards for an unanimous court: in Dailey v.

American Tobacco Co. 4 PEP Cases 916 (6th Cir. 1972):

"It is clear tin t a present non-discriminatory seniority provisions, 
iv.' reh has no race discrimination features on its face, m y  nonthe- 
less be a violation of the Equal Employment Opportunities Act if it 
serves to preserve the long-standing el .ect of past discrimination."
Id. at 917.

"When an employer or union has discriminated in the- past and when its present policies 

renew or exaggerate discriminatory effects, these policies must yield, unless there 

is an overriding legitimate, non-racial purpose." Local. 1S9 United Papermal s v. 

United States, 416 P. 2d 980, 989 (5th Cir. 1.960) cert. den. 397 U. S. 919 (1970) d * 1

See also U. S. v. IDEM, Local 38 428 F. 2d 144 (6th Cir. 1970) cert, denied, 404 

U. S. 943 (1971); EEOC y. Plumber, Lo: al 189 438 F. 2d 408 (6th Cir. 1971) cert, 

denied, 404 U. S. 832 (1971); U. S. v. Roadway Express Inc. 4 FEP Cases 643 (6th 

Cir. 1972).

Plaintiffs have contended throughout the proceeding in this case that
1

son Company violates Title VII and does 

Power Co., supra and the Equal Employment 

do that Detroit Edison had used its written
J

>f past discrimination and that such has 

ic races. by demonstraLing a "freezing" of 

upon the races, plaintiffs have met the 

'e-fondant: Detroit Edison has come forth 

'()(' du.idte.liu' ':; to subs tanl iat e the unsuppor t 

I written e'.i.n.iinat ions at Piiisr-n Live keen

the u•ri t ten tests utilized by Dc Lroit j
not n.;OCt the standards of Grit.'' 1 o 1 r . Du.

Opi or tunity Guideline:::. It is i V ? y.rju

era mi.nation:: to "freeze• the sLVi Lus quo'

r< -ull:■ in a different ini ii:q)<iCt upon

the rtatus quo and a diffaren■J  it 1 ii j ui
bun!'.-a. imposi.-d ]>y Crisis 11 Or.\ 'Vi -r, th

iv i 1 11 no writ Li ii n  j 'C'.rt : ■: as r>",[!/ ;,eJ by

t i. ai <>! its . • //■ Ion'• d pry '}h i'.It■; i: •! l ivr i: t: 'it



v a  7 i > ! • !  I  < I ( . 1 . 1  s h o u l d  ) • ■  • n o t  < : < !  l h : l  G r i a a r .  a j ' p r o v *  > < t  o t  t i n  • >C t i n  i d e . l  i l i e s .  )  T h e  

writ tfii exam.i nations ai<' un.sa L i:: fac lory \;ith regard to d.i. I reranLial validity as 

well or, other tircas. hen EEOC Guidelines 35 C.R.R. 8 1907.5(b). Soo also 

U. r>. v. Ct snm’ia bower Co. 6 FED Coons 587 (5t.h C.ir. 1979); U. S. v. Jacksonville 

Ter nine 1 Co. 451 I'. 2d 418, 456 (5th C* c .  1971) Moody v. Albemarle Vapor Co. 5 FEE 

Casas 613 (4th Cir. 1973); Rob)noon Lorillard Corp. 444 F. 2d 791, 798 n. 7 

(4th Cir. 1971). See generally, Cooper and Sobol, "Seniority and Testing Under Fair 

Employment Laws; A General Approach to Objective,2 Criteria of Hiring and Promotio ," 

82 Harv. L. Rev. 1598 (1959); Comment, "Employment Testing; The Aftermath of Griggs 

v. Duke Po ' ' Co.," 72 Colum. L. Rev. 900 (1972).

Although the National Labor Relations Act is applicable in cases of 

this kind to the unions conduct in the area of racial discrimination in employs at, 

the Taft-Hartley A.ct rakes the employers liable as well for the conduct engaged in 

this case. Both unions have violated the National Labor Relations Act by failing to 

represent fairly all employees within the bargaining unit. Steele v. Louisville 

<C National Ry Co. 323 U. S. 192 (1944). The practices of Local 223 are comparable 

to those descril sd in Steele that they involve intentional well as unintentional 

discrimination; the refusal to process grievances of b) cks, the negotiation of 

discriminatory seniority provisions, the failure to accord black meter readers the 

rights that whites had, the gerrymandering of seniority districts, and the exclusions 

of blacks from political office all contribute a pattern' that make this case

similar to Steele. Doth Local 223 and Local 17 are liable for their negotiation of., 

discriminatory seniority provisions and for acquiescen ~e in racial discrimination.

T h e  u n i o n  h a v e  f a i l e d  i n  t h e i r  o b l i g a t i o n  u n d e r  t h e  N a t i o n a l  L a l x e r  R e l a t i o n s  

A c t  a n d  T i t l e  V I I  t o  p r o t e s t  r a c i a l l y  d i s c r i m i n a t o r y  e m p l o y e r  h i r i n g  p r a c t i c e s  w h i c h  

i n t e r f e r e  w i t h  t h e  r i g h t  o f  b l a c k  a p p l i c a n t s  o r  b l a c l i  e m p l o y e e s  o u t s i d e  o f  t h e  u n i o n '  

o w n  b a r g a i n i n g  u n i t  t o  b n  h i r e d  o r  t o  b e  p r o m o t e d .  A ; ;  o b l i g a t i o n  i s  i m p o s e d  o n  L o c a l  

2 2 3  a n d  L o c a l  1 7  t o  r a i s e  t h e  s u l j e c t  m a t t e r  o f  r a c i a l  d i s c r i m i n a t i o n  i n  h i r i n g !  u n i  v  

t i n • N a t i o n a l  La Lor F i l i a t i o n s  A.ct as p. Tl of. t h e  d u t y  of f a i r  r e p r e s e n t a t i o n  d o c t r i n e  

a s  w e l l  a s  u n d e r  T i t l e  V I I .

I n  7 • t- of t h e  for going legal a u t h o r i t  f i n d i n g s  of fact , it is obvious 

t hat  t i l ,1, -1 i nil.nit.:: / ■ v i o l e t , ,  T . i U o V t f  o l  t h e  C i v i l  N i g h t s  r. ■!. o f  ! “ e 1 e n d  t h e

Net  i l l : . ,  i l . i l o l  d e l  I h i :  del . ,  as  w e l l  ; t. ; < ■on I I o l  t h e  Ci \ i !  R i g h t s  , i d  o ! { “ ,

w h  /. 7; ( s'tI i . ' u s :



• VI • C( )NC I ,V!\:i ()_N G_C. )V_ _T AW
1. This Court has jurisdiction of this action under Section 

707(b) of the Civil Rights Acl of 1964, 42 U.S.C. 2000e-6(b).
2. The Attorney General of the United States is authorized

to institute this action on behalf of the United States under
Section 707(b) of the Civil Rights Act of 1964, 42 U.S.C. 2000c-

*

6 (b) to obtain relief from a pattern or practice of resistance on 
the part of the defendants to the full enjoyment of the rights to 
equal employment opportunity secured by Title VII of that Act.

3. Defend-.nt Detroit Edison Compary is an employer within 
the meaning of 42 U.S.C. 2000e-(b) and is engaged in an industry 
affecting commerce within the meaning of 42 U.S.C. 2000e- (h) .

4. Defendant Unions are labor organizations within the mean­
ing of 42 U.S.C. 2000e- (d) and are engage in an industry affect­
ing commerce within the meaning c" 42 U.S.C. 2000'-(h).
A. Unlawful Assignment Discrimination

5. Defendant Detroit Edison's practice of failing to con­
sider blacks for its high opportunity jobs, while assignment them 
to the low opportunity jobs of: building cleaner, lamp changer,
janitor, elevator operator, wall washer and serviceman in the Build­
ings and Properties Department; plant cleaner and coal and ashf
handler-Central Heating in the Production Department, and any job 
in the Stores and Transportation Dep -tment on opt for the jobs in

i
the auto mechanic group, while lit the same time assigning large 
numbers of white employees who are not better qualified to highly 
paid, high opportun.ity jobs m 1 lines of progression, is an unlawfu



employment practice 'in that it classifies and segregaton those 
employee- in such a way that they are deprived of .equal employ­
ment opportun:ties in violation of Section 703(a)(2) of the Civil 
Right: Act of 1964, 4 2 U.S.C. 2000e-(2) a (2) . Local 1.89, United 
Papr rmaters v. United States, 416 F. 2d 980 (5th Cir. 1969), cert, 
denied, 397 U.S. 919; Clark v. American Marine Corp., 304 F. Supp. 
603 (I1..D. La., 1969), aff'd per curiam, 437 F. 2d 959 (5th Cir.,
1971) .

6. Statistical evidence is sufficient to establish a prima 
facie case of racial discrimination in job assignments. United 
States v. Chesapeake & Ohio Railway Co. 471 F. 2d 582 (4th Cir.
1972) ; United States v. Hayes 'International Corp., 456 F. 2d 112 
(5t. Cir. 1972) ; IJnl ted States v. Ironworkers Local 86, 4 .3 F. 2d
544 (9th Cir. 1971); Jones v. Lee Wav Motor Freight,_Inc., 431 F.
2d 245 (10th air. 1970).

7. The fact that some whites as well as blacks were 
assigned to some of the low opportunity jobs to which bracks were 
assigned does not overcome the inference that blades were assigned 
to those jobs because of their race. Jones v. I.ee V7ay Motor Freight, 
Inc., 43.1 F. 2d 245 (10th Cir. 1970), cert, denied, 401 U.S. 954 
(1971); Uni ted S ta te s v. Bethlehem Steel 312 F. pupp. 977 (W.D. 
N.Y., 1970) reversed in part on other grounds, 446 F. 2d 652 (2nd 
Cir. 1971).

8. The systems of job posting and seniority established by
a# • .L'di son's Genera.! Order 203 and by its collective bargaining agree­

ments with Local 17 and Local 223, grant preference to whites



already employed in high opportunity occupational groups, bar­
gaining units and departs -nts over blacks assigned to low oj por- 
tunity jobs who seek to transr r to high opportunity jobs. The 
seniority systems also penalize blacks who transfer by denying 
them credit for time spent in their former occupation groups, 
bargaining units and departments. Such posting and seniority 
systems, although racially neutral on thei • face, are unlawful 
in that they perpetuate the effects of past discrimination in 
assignment. Bailey v. American Tobacco Co., 462 r. 2d 160 (6th 
Cir. 1972) ; Local 189 v. United States, supra.; Quarles v.
Phi111p Horris Inc., 279 F. Supp. 505 (E.D. Va., 1968): United 
States v. Bethlehem Steel, 446 F. 2d 652, (2nd. Cir. 1971); United
States v. N.L. Industries , ________F. 2d____________ (7th Cir. 1973)
5 I-CCr] EPD 51 8529; Bowe v. Colgate Palmolive Col, 416 F. 2d 112 
(5th Cir. 1972).

9. Each defendant, subsequent to the passage of the Civil 
Rights Ẑ ct of 1964, has negotiated and executed collective bar­
gaining agreements which provide for an occii rtional group and 
bargaining unit seniority syste,,. and has contributed to the con­
tinuation and operation of the system, and has therefore inten­
tionally engaged in unlawful employment'practices within the 
meaning of Section 707(a) of the Civil Rights Act of 1964, 42
U.S.C. 2000e-6(a) Loon 1_189 v. United States, supra.; Robin son
v. P_._IrrriJ_ljprd, 44 4 F. 2d 791 (4th Cir. 1971) .

10. The job posting and seniority systems in effect at 
Edison are u n l a w f u l  despite the fact that they may not have boon



a total detorrunt to b.l acty,' a) tempi:;; to tram:Cor and some bl acl:• 
lurvo overcome their disadvantages to progress from low opportun­
ity occupation groups and departments. United .States v. Beth.1 diem 
Steel Corn. 446 F. 2d 052 (2d Ci . 1971).
B. Unlawful H.irinn D.iscrlmlnation

11. Where Edison's work force is 92 percent white and
t

qualified blacks are available in the relevant labor market in 
far gre ter proportion, its reliance on frier* *s and relatives of 
incumbent employees as its principal recruiting source for much 
of its hiring and for a majority of hourly paid positions and 
its preference for them over ether applicants is a failv a to hire 
and a limiting < f applicants for employment which adversely affect 
their opportunities because of their race :in violation of Section 
703 ( M1) and (2) of Title VII, 42U.S.C. 2000 (2) (a)(1) and (2).
United States v. Chesapeake & Ohio Railway, supra; Local 53 As­
bestos W rk- *s v. Vogler 407 F. 2d 1047 (5th Cii . 1969) , Parham 
v. Southwestern Bell Tel :phone Co. 433 F. 2d 421 (8th Cir. 1970).

12. In light of Edison's practice of friends and relatives 
recruiting, its failure to advertise job opportunities generally, 
and ius reputation of excluding blacks, Edison cannot claim a lack 
of black applicants as a defense for its failure to hire them.

f

United States v. Shect Metal Workers Local 36, 416 F. :1 123 (8th 
Cir. 1970); Jones v. Lee Way Motor Freight, supra; Cypress v. 
Newport Ni -s General and Non-:\qc1.inn IIor.plt:; 1, 37 5 F. 2d 648 
(4th Cir. 1967). " -

13. Where few blacks are hired overall and none have been



hired in some departments and ultimate hiring authority in left 
wildi white supervisors, it must be inferred that these super­
visors have resisted the hiring of blacks for reasons of race, 
and the continuation o " this practice is unlawful. Rowe v.
General Motors, 457 F. 2d 340 (5th Cir. 1972).
C . Un .1 awfu .1 Tcs 11 ng Prac tices

14. Because the following test batteries: mechanical
placement, clerical pi cement, cable splicer, apprentice lineman, 
meter re ;der, substation operator, assistant power plant operator, 
customer serviceman, and the Henry Ford Community College entrance 
exam' ation, used by Edison in select! g among applicants for hire 
or for transfe , are demonstrated to have the effect of screening 
out greater proportions of black applicants than of white appli­
cants, it becomes Edison's burden to prove that these test batter­
ies are valid predictors of job performance, for blacks as a 
separate group where feasible, and that the cut off scores or 
selection standards applied are related to a level of proficiency 
reasonably to be expected of employees on the job. Guidelines on 
Employee Selection Procedures, 29 C.F.R. 1G07.3, 1607.5, 1607.6; 
Griggs v. Duke Power Co. , 401 U . G . 424 .(1971); United Sfates v .
Georgia Power Co., _______F. 2d________, 5 EPD [ CCI-j] 3 846 0 (5 th
Cir. No. 71-3447, 1973); Moody v. /vlbomarlo Paper Co. 474 F. 2d 
134 (4 th (ir. 1973); U . S . v. Jact sonville Term 1 na.1, 451 F. 2d 418
(5th Cir., certiorari denied, 406 UG 906). ̂

15. The level of "validity" as predictor of job performance 
which a test must have should be demonstrated by evidence of a
coni'],it.b n a ,i s i gni i Lean t sample of: employees ’ test: scores



and their rating's on a measurement of an .important criterion 
of job success which correlation can be demonstrated to have 
both statistical significance at the 5 percent level and practi­
cal significance. Guide 1 inos, 29 C.F.R. 1607.5 (c) (1) and (2) . 
United States v. Georgia Power Co. supra.

16. Any demonstration of validity should include the 
presentatic of written results of a validation study including 
graphical and statistical information and objective descriptions 
of the procedures followed and reasonably complete reporting of 
the data on which the study is performed and how it was gathered. 
Guidelines 29 C.F.R. 1607.6. In addition any validation study, 
in order to be probative, must compare performance criteria rat­
ings with test results as they are actually used rather than with 
test results evaluated by a hypothetical model. Uniied States v. 
Georgia Power Co., supra.

17. Unless a test can be demonstrated to have an extraord­
inarily high relationship to job performance, reasonable cut-off 
scores should eliminate only those applicants .who are likely to 
be una)i to perform sufficiently well on the job to be consistent 
with the necessities of safety and efficiency. Guidelines 29
C.F.R. 1607.6; Griggs v . Duke Power Co., supra. ,

18. None of the test batteries which were demonstrated to
have the effect of screening out higher percentages of blacks

»

than of whites, with the exception of the customer serviceman's 
battery, were proved to be valid pm-dietors of job performance 
in accordance with the Guide! incus, supra , by means of probative

17



show-evidnnco, inc lucli ncj writ Lon reports of.' validation studies, 
in-j statist '■ 1 .ly and prue Lie.. 1 ly significant rolati< .ships be­
tween job performance and test scores as they are'actually used. 
The continued use of these test batteries without such proof of 
validity is unlawful. Griggs v. Duke rower Co., supra; United
States, v. C orqia Power Co., supra; Moody v. Albemarle Pr1 -r Co.,

»

supra.
19. None of the test batteries here in issue were demon­

strated to be administered with cut-off scores which are reason­
able in that they screen out only, those applicants likely to 
possess insufficient ability to perform on the job. On the con­
trary, in the case of each of -these test batteries the cut-off 
scores were demonstrated to be so high as to reject applicants 
whose scores are equal to the scores of employees who have been 
sufficiently able to perform in the past. The contini d use of 
these test batteries, even if demonstrated to be valid predictors 
of job success, without adjusting their cut-off scores to a more 
reasonable level is unlawful. Griggs v. Duke Power Co. supra.

20. In the three job areas, general mechanical occupations, 
general clerical occupations, and the power plant operator group, 
where sufficient numbers of blacks are employed to make differential 
validity studies technically feasible, Edison attempted such 
differential studies bu! failed to establish differential validity
beeause 
general. 
ompIoyod

the studies were insufficient to e 
In those area where insufficient 
to make differential validity fea

stublish validity in 
numbers of blacks arc 
s i. b 1 e, E d i s o n ' s unlawful



practices of racial exclusion arc the? cause of this absence of 
sufficient number of black employe < . This lack of difforeutial
validation is an additional reason why the continued use of these 
test batteries as selection devices is unlawful. Guidelines 29 
C.F.R. 16 0 7.5(b) (5); Uni tod States v. Jacksonville Terminal Co., 
supra . D.Necessary and Aprrop.riate Rollef.

21. Where an employer and labor organizations have to have 
engaged in unlawful employment practices under Title VII, the courts 
have the authority and duty to enter a decree which not only^ pre­
vents future discrimination, but which also corrects insofar as 
feasible the effects of past discrimination. Local 53, Asbestos 
Workers v. Vogle: , supra ; United States v. Carpenters Local 16 9,
427 F. 2d 210 (7th C.ir., 1972), cert. denied, 41 U.S.L.W. 3184 
(197°); United States v. Ironworkers Local 86, 315 F. Supp. 1202 
(W.D. Wash. 1970). See also, Louisiana v. United States, 380 
U.S. 145, 154.

22. Where an unlawful system of promotion and transfer 
based on occupation;1 group and bargaining unit job posting and 
seniority exists, members of th affected class of blacks who were 
assigned to low priority jobs because of their race should be pro­
vided an opportunity to bid on the high•opportunity jobs from 
which they have been excluded, on the basis of total length of 
service wit the Company and without loss of pay where they are 
succt isful. Local. .189 v. United Stater., supra. , Long v. Georgia 
Krnft , A 50 F. 2d 5 57, (5th Cir. 1971).



iiscrj ruinaloryJJiiv i <j found u pa l: I crn o f elusion in

ing such affirmative action, including the accelerated hiring and 
assignment of blacks in an effort to meet goals established for 
the purpose of overcoming the past patterns of racial exclusion. 
United States v. Local 2.12 International Brotherhood o'f Electri •!

Association v. Ogilvie, 471 F. 2d 680 (7th Cir. 1972).
24. Where tests have been found to have a discriminatory im-

level of their cut-off scores or standards, their continued use 
mu"t be prohibited. Moody v. Albemarle Paper Co„, supra. Such a 
prohibition may allow resumption of testing as a selection device 
whcv- he following conditions are met. The tests mud be properly 
demonstr ed to be valid predictors of job performance. Differ- 
cnti.J validity must also be accompli bed where this is feasible, 
as .1 L is he: in the case of the mechanical and clerical placement
batteries and th assistant power plant operators' battc y because 
su. ticient numbers of blacks are found in tlr.se occupations. Where 
differential validity is not technically feasible, but the lack .of 
sufficient numbers of black employees f<* this purpose is due to the 
Company's unlawful practices, reasonable steps, including the lower­
ing of cut-oi! scores, must be taken to permit sufficient numbers 
of blades to gain across to the occupation group so that differential 
valid i ty may L < >. .'blished. This requirement applies .as well to
such cates as ■ I a of the customer servicemen'a battery where

Workers, 473 F. 2d 634 (6th Cir. 1973); Southern Illinois 1 .. 11dc

pact nd to be without proper validation and justification for the

6 0



validity for a general population group has been established.
Whore cut-off scores are unreasonably high they should bo adjusted 
so that they screen out only those who may reasonably be expected 
to bo unsatisfact- ry employees in relation to the proficiency 
required to perform the job and not measured merely in comparison 
to other employees. Gri qgs v. Duke Power Co., Supra; United States 
v. Jacksonville Terminal Co., supra; Uni ted Str ies v. Georgia Power 
Co., supra; Moody v. Albemarle Paper Co., supra.

25. Where, because of discrimination, black employees and 
rejected applicants have lost employment opportunities which would 
have allowed them to earn more than êy have earned, it is appro­
priate to award them amounts of back pay sufficient to restore them 
to the economic position in which they would have been but for this 
discrimination. Robin n  v. LoriHard, supra. It is also appro­
priate for such an award to be made in pattern and practice suits 
brought by the Attorney General and involving classes of victims 
of discrimination, United States v. Georgia nowor Co., supra, and 
for the actual amounts to be awarded to individual recipients to 
be determined by an ancillary proceeding. Bowe v. Colgate-Palmolive, 
supra.

26 The Court may allow private plaintiffs1 reasonable
attorneys' fees as part of costs. 42 U.S.C. 2000e-5(k).

27. The Court may assess punitive damages. Cf. 42 U.S.C.
♦

1963; Lee v. Southern Home Sites Corp., 429 F. 2u 290 (C.A. 5, 1970); 
C ubbs v. City o r Mow York, 324 F. Suj p. 1193 (J.C.S.D. N.Y., 1971).

6  I



Private plain iifs are author 'zed under the Cxvi.l Mights Act. of 1964 

to bring an action on behalf of themselves and all other persons similarly situated 

pursuant, to Rules 2" (a) and 21(b)(2) of the Federal Rules of Civil Procedure. The 

United Stales is also a proper party plaintiff. The members of the class represented 

by the plaintiff• arc all black citizens whom defend at Detroit Edison Company has 

refused to hire and has discharged from employment, discriminated against with rcspcc 

to compensation, terms conditions and/or terms of employment; and/or otherwise 

segregated, classified, or otherwise deprived them of employment opportunities 

because of their race or color.

o_; i< r_ R

Defendants Deti it Edison Compa. , Local 223, Utility Workers Union of 

America and Local 17, Internal' onal Brotherhood of Electrical Workers of America, 

have, prior and subsequent to July 2, 1965, dis■. 'iminated against blacks, including 

plaintiffs and member of their class with respect to employment, compensation, terms 

and co-.d it ions of employment due to race, and/or color through the util:' nation of 

hiring practices, tests, standards ; • 1 procedures which deny plaintiffs their 

statutory rights under all statute: noted above. As a result of the afor mentioned 

discriminatory practices, defendant Detroit Edison Company is under an affirmative 

obli. :ion to employ and promote substantial numbers of black workers. Defendants 

Local 223 and Local 17 are under an obligation to represent their black members, 

black applicants and black employees in and outride their bargaining units fairly. •*

THEREFORE, IT IS HEY ELY ORDERED, ADJUDGED AND DECREED, as follows:

1. The defendants and their officers, agents, employees, successors, 

and interests, and all persons in active concert \/ith participation with them are 

permanently enjoined from engaging in any act or practice which has the purpose 

or iat lest oJ discriminating against any individual because of his race or color, 

and sped H e a d y  from (a) refusing to hire or 1 ailing to hire, />. >inc>t:e, upgrade, 

tr.iin o’- assign any individual discJiarging ann individual, otherwise di.scrim.inaling 

ayain.si. any i n.d i vide. I a:: an employee o r  a]‘pi ie.,nt lor onployt : :  nt. with t\:sj ool;  to i.

i. 1



hir, cainjf 'nr-tf inn, t< rms, eoml it inn" < i privi. It of enipj oymenl hot anise of sir h

iiui.i v i tiu-i 1's i are or cohu; (),) 1. itn.i tiny, ::e>jr,'yat:.i ny or chiss.i the employe:;

of the Company in any way which would deprive or to •/ to deprive any .individual of 

employment opportunities or otherwise adversely affect, his status as an employee 

because of such individual's race or color and (c) dineriminati.ig or rctaliat'ng in 

any manner against any emi ■ye.- or applicant: who has furnished information or parti­

cipate in any respect in the investigation of the Company's employment practices in 

connccti.cn with these actions.

2. The affected class for the purposes of the hiring and transfer provisions 

of this decree shall be deemed to consist of all black individuals who applied for 

employ:: at with defendant Detroit Edison Company subsequent to July 2, 1965, and 

were rejected and black employees who would have applied but for defendant's dis­

criminatory hi ing policy and/or black employees who were hired prior to the date 

of the decree and who were actively employed at any time after July 2, 1965, and 

who were at any time regular employees in the job classifications referred to above 

as low opportunity jobs.

3. All members of the affected class who were refused hire or who would 

have been refused hire at Detroit Edison Company between July 2, 1965, and the date 

of the decree shall be put on notice through newspaper and radio advorti- omenta in 

the black media (which shall include but nc be limited to the Michigan Chronicle and 

1 black radio station and 1 black television station), the Detroit News and/or the 

Detroit Free Press rewarding the content of this decree. Such notices shall run

1 d,ays. Within 60 days

■ (1) l.ave been rejectee

<ol in the Dctvoit area

1 a.nd i-:ho would havC CiT\

sh:ill sign a r<. ter <

and cook courses m  mathematics, science or 

plied to pa.Ison but for defendant's discr.imir

a n o t h e r  a p p r o :  . a t : o  3 -  e a t - i t S u c h  i n d i v i i . ' U ;-1

f . i  f : t  o p  p e r  i s : ,  j j  t  y t o  a p p l y f  o r v a c e s c i e . i n  h i - - j

d e c r e e  f o r  t h e  C i n ­ - . i t . i o n  o f t h i : - d e c r e e . App.l >c

c h  r o u e  ■ 'ey b  e  l  r , ; , ■ r  i n  i. h i t ■ h  1 1 > ■ '  - U d  l i n ! ,  h a s

s i .  n i l .  e . I . - . e  ) ■ . -  p e l <■ / t ! r  • ,i f  l e i i  ,  I  e l  r  .

■ ( .

:  l e i  1 1

: <. -cm vc-

n/ i >rr « \ i



:;rt. lerlh tc.ii-w as wn.ll «j ]<ruv i :: 1 < ns l e l a t . i n g  t o  not i t i c a i  ’ <n of vacant ■ i\

bitldiny oral sent or 1 t y  c r edi t : ' - .  Such .individuals' seniority wlii eh is to he utilised 

for the purpono of t.,.c t ran.:: la >r provision:: of this decree shall Ire computed .from tire 

date id at t h e  appl icant war, rejected because of race or the date that such individual 

identified above in category 2 would have applied for but defendant's discriminatory 

hiring policy.

4. All wernbern of the affected class shall have an opportunity to trans-
»

fer to jobs in departments other than those to which they are presently assigned by 

bidding on such jobs when vacancies occur and arc posted for bid.

At each location and in each department where a member of the affected 

class is employed, the Company shall post vacancies for all jobs in all departments 

at least 20 days before such vacancies are to be filled. The Company shall also 

establish a procedure by which it shall receive bids for posted jobs in writing. No 

affected class member shall be required to hold a labor or helper job which does not 

provide ti lining for craft jobs in a line of progression as a condition of progress 

into such a line of progression.

A membe of the affected class may effectuate a single transfer with carry­

over seniority rights and earnings retention to a new dej_ irtmcnt within five years 

after the effective date of this decree unless' the period is extended by the court.

In the event that an affected class member who transfers chooses to return to his 

former department, or fails to perform the duties of his new department, within 90 

days after his transfer, he may return to his former departmena without loss of
f

senior:vy or benefits. Such an affected class member who returns to his former 

depart::..... as a result of disqualification may effectuate two additional transfers 

to new depart,:.cuts without loss of carryover seniority and rata retention as if it

wo: i■ his fir::-t trails;for undcr the term■S of tllix dccree. In the event theL an appli-

Ca fails t:< r -, roi-m his dull ns, such1 ay:pi U '■unt shall be given the oi; 'rfan.ity to
tin1''infer to ,■mother job wJth the same future fcr,ansfor iights pinividcd employees in

thiaj i}i (\r< ■! ' * In sin•' an i 'ViV,' , Lb • Colup-iny :;ht1.1 file with the Court a report wi thi.

l.‘\ . • c>:. <i 1 t < ■,r t /;. • . rr ' 1 i • >. <1 i. /i / /.i C.\ :1 in.* / Sl ■/ t. i ll' l torih tls.■ trail.iin<; oppo: tunit
at n >n!' uJ / /, .•/. .-lo'-r , ; f . / i h~ ‘ i x \ >r !>:; lur hi. >■■■•111., l.i inail "Luu ,in. : p. ■. ■• i t 1 e i ...•I lia l t

i



AI L l Ir>! I I. in ■ i/i i 'il i I i -J i-.'i l h I hi i i

('> >!.Up.lllll •h'ltit'i i ty e.s Jf il \:,l\' I 1'■ 1 deji.ua':ih 'III or unit seniority jn the' d. ■} at ! •

or tin! t. 1:o which they Iran:: 1 c pill !slant to this decree or in departments: or uni ti

to wh i cb they previous] y trams' crr('d.

G. /it no time shall a member of the affected class who is transferred unde 

this decree be paid a lower rate than the rate for the job for which he transferred.

7. Defendants shall paij each of the members of the affected class an amour, 

equal to the average earnings of slcilled trades high opportunity jobs referred io 

above since July 2, 1965, less the amount each member of the affected class actually 

earned during that period up to the date of this decree. From the date of this d-.cre 

defendants shall pay each member of the affected class an amount equal to the average 

present earnings of said high opportunity skilled trades jobs until the time at which 

the employee effectuates a transfer to a high opportunity job consistent with the 

provisions noted above. The amount of pay provided: subsequent to the decree shall 

not be lower than the affected class member's ea lings and the amount that he should 

make in the future according to his pay progression that he is under at the time of 

the decree. Such amount cf pay at the skilled trades pay rate shall be computed for 

pay grade progression purposes according to the number of years that a member of the

affected class has bee: employed in a low opportunity job or in the case of the

rej• rted applicant excluded from employment altogether, from that date of his rejec­

tion provided, however, that in the case of the rejected applicant his time shall be. 

computed subsequent to July 2, 1965.

8. Subsequent to the time of the transfer to a high opportunity job, said

mem,Lei of the: aff :tod class shall :ive a rate of pay for

success fully bid or the rate of pay Pl\ aiously received i « eh id:

shall rcccivt: future increases in said classi f.ica Lion as it 1

i Oil .son tIs dat.c <:>f th,: decree. If s!' h a Wei■her of the aifee ted cl ass refuse

nr. for op].'Ortvnit.ie.V to 1•Jgh opportune.1-U job'.*? ( is unable to perforin hie out '

jo!':; iat tor 2 Irens fees, he drill n 1: to his for r rat.e of i.ay, i.o., th('

' t (hJJ.'C;■ s, i.on rate th. he w..s on .aid i;; Id lie• on in ithe aha 1 m  e of t.hi.S i: tee.

Fid j. el l,i the . i\ .i i 1. i■ ’ i i I i/ » * / «/ U. i1 i iied ,■11 law I'd, 1 he I' . / am 1 shad



Comps:y cj;i «j/j accoloivdt ad basis with tha goal of having a mn.iber of black a
3

by tha Company at 30Z of its total v:o.rk force.

j eei nit <md < 71./ a\’er  to  h im  /»,’ »«•/ . j'jil i <•■•1 1 ’..; I nr . i l l  ]m:;i Lions wi thin t:h>'

employad

10. In order to insure that the Comp: ny’s policy of non-di.scr.iinina.tory 

hiring is communicated to minority groups, the Company shall establish contacts with 

high schools, technical and vocational schools and organisations which specialise 

in minority employment in the Detroit area and.inform them of the employment opportuni 

tics available at Detroit Pdison and of the Company's non-discriminatory hiring policy 

In addition, whenever the number of black applicants among all applicants being con­

sidered for employment is less than 50%, the Company shall advertise opportunities in 

mass mod' ■ which are directed prim rily to the black community.

11. Subject to the availability of applicants, the Company shall be recruit­

ing and hiring black, applicants or by the promoting and transferring of black employee 

fill all future vacancies which are filled from outside tha Company or in le the 

Company in t h • jobs listed below on the basis of three blacks for every two whites 

until 25% of the employees in each of these jobs and lines of progression arc black:

Production Department

power plant operator 

fireman

equipment operator

Construction Dr partner '•
brickmason

shoe trn.e ta 1 worker

shop electrician
»

shop machinist

mechanic fitter ~

electrician

general mechanic 

industrial operator

instrument man

bridgeman

pa into:

welder 

r.i gyer

car pep. i or

pi pecovcrcr

y. Ta.■.iug Lnl.i> uun: *.ild'.ttion t if }■<'!'C'. ntage oi } darks in thi' City ol Deter
(■: I> ‘ 1 •e<d.) an.] >he pen­ lit. •;;<' (. i>J iiuJ::: u\\i LI :hJe in i)e Idl'd lorco ol th ■ C ids; 0 :
J)( 1 u , is :’il ) an ' th'* l.tnl !\ :lrnj ii1 an P.. • ■ini ira l Ar'i (IV j .cent.) a:
i !, J '• 1 i< >,1 1 j trie h.u /n i t );i' : :l. i J h 1 r:,<- plug..! .n id a t 1 el !'■ 1 r (< • t (■'V
J
. 1 <

> ji
/i • . /

) an.-! 1 if 
c i in p c

nor. Jitr 
. -Id Id.: '

1 '•'ii 
t I I;

t !\,i.
■ <i. ( .ii

l.Y >; I..:.:, ■ 
is re

n
.ui

l is • ('ili 
tide.

, e.l Detent C"i ;,



Jim:.'.! ui
V i .' mi re i n n  a n d  H i:,!  r ih'.lt in;n

cable: splicer

Af.'i rk e i i r .g  Deng r t  went

appliance repairman customer serviceman

meter testcr

Peter Papa? truer, t

operator

El cctri ca 1 Sys tems-Subs tat.i on

journeyman electrical 
ma 'ntcnance

auto mechanic

Transportation Departruer,t

meter reader

tu tor Reading

12. The Company shall promote from amongst it. senior hi: ck employees one 

black employee as foreman or super.isor fir every one white employee who is promoted 

to supervisor.

13. The Company shall not administer for the purposes of hiring and promo­

tion or transfer any general intelligence or aptitude test for black employees or 

applicants that is not validated in accordance with the EEOCs Guidelines on Employee 

Selection Procedures 29 C.R.R. SS 1067.1 to 1607.14.

14. Defendants shall provide immediate promotion to a job which lias a pay

rate equivalent and responsibi.1 os equivalent to a supervisory position to Nr.

16. Defend:, nt Local 223 U tilit:y 17orkern of America she 1i refrain from

U.i tii i against pieinti if w.iHi e Stamps Lor his <efforts to cbt.:ij u equal rights

black i..a kens and aPP Hearts. and ■ 3: ] ? retrain f• <>m ’ !:orl • ■; in*,1 ill air \-..,y with

till 1 , jog.., ut of his rigid s as l■heir: ir. ca l he i''m ]>' : l and R i‘ghi of I-.'ay Pivisi
• >. ■! 2 t: ui j 1111, i.v.. i :: Unic vi i d 1 ,(. D e i  e : ulailt I.o,.. ! 22 : r-h ■ I 1 al ! Inn r / V



I

l . : h c  r . l t j ' r  i t ,  «i.-:.- ij -t • i h . i i  •>. vt 7ii:; / u f J f crwi a:; CJi.ii.rm.in n r  he was n l ,  et

<7c> / ii D e cem b er 1 9 ’/2.

10. A committee will he established which will rep..-at' to the Court on a 

Jji-i onthly basis for the duration of this decree whieh shall be six. years. The 

committee shall be composed of representatives of defendants, the Association for 

the betterment of black Edison Employees and the Justice Department and a chairmen to 

he appointed by the court. The chairman shall"be the Director of the Detroit office 

of Equa’ Employment Opportunity Commission. If the Director of the Detroit office of 

the Equal Employment Opportunity Commission is unwilling or unable to serve, the Court 

shall appoint another chairman. The purpose of said committee will be to resolve 

differences and disputes that may arise under this decree. Whenever any issue arises 

that cannot be resolved by this committee, any party shall have the right immediately 

to refer said issue to the Court or the Court's designate for disposition.

17. Within thirty days after April 1 and October 1 of each year for the 

six years folic ing the entry of this decree, the Company shall report to the Court 

and plaintiffs the following information:

A. A printout showing all employees grouped by department and

by jo code within each department 'ndicated for each employee; 

name, race, department, job pay rate and hire date and a summary 

showing the total number of employees by race in each department 

and in each job classification within each department. The Company

shall retain all job posting notices and bidding records for a period

of at least two years and shall provide a record of all posting, on

which members of the affected class have bid including the date of the
*

posting, the job posted, the employees who bid, the successful bidder

and  ih i e  d a t e  t.Jio j o b  i.Viis a w a r d e d .

A l i e jt. o r  <\ i.i s c h o o l s  amd e r g .  n i ::,i t ion:.r c o n t a c t e d  by m€hn 'Comi ■any

i l l  j . < v.J .!. m i  J i.i; ;)j>j >J..i c a n t s , t b  > n a t u r e '  o f  t h .■ coni :  m e  1: and i b

eh. r  (>! tijiji.l i'• .m l  :: ,r. i i • / i .! 1a; i ■..e h .

A 1 ■! .
.

1 1 ■ ( i ■a,’/' ■ 1 1 i H/ 1 l , ■ w h i r l ,  n... ' lea. 1 ,■ ;

I I .  I . U . . I ! i I



» V

i ;  . f -/i 11 I  . i n d l c . l l > -  I  b  •

iiii ; , ihi-r i i i  i :i •. ■s i t u  ,i, <><! m m / 1. ’ i«> .j j t • 1>> 1\ • cr u:a i d e n  •(! I • w  <\u:h  

jo./; ■. ■ s. i I ./. <; t 1. >;j.

• /! bn.. kdown of a.l J new hi van .indic.iL.inj name, race end job cl.e.si-

flent ion.

E. The number of employees by race currently employed in the craft jobs

described al. >ve, indicating the number employed as apprentices or . 

helpers and as journeymen.

F. The defendants shall make all records and documents relevant to the

provisions of this decree available to private plaintiffs, the 

Department of J .ice, and the Association for the Betterment of Black 

Edison Employees, for copying at defendant1s offices in Detroit, Michi­

gan.

18. Defendant shall pay to private plaintiffs x asonable attorneys’ fees.

19. Defendants Detroit Edison Company and Local 223 shall pay plaintiffs 

punitive damage a Since those defendants have been extremely obdur :e and intransi­

gent in their d termination to implement and perpetuate racial discrimination in 

employment at Detroit, Edison, the awarding of punitive damages is appropriate and 

necessary. The trial record indicates that these two defendants repeatedly and 

callously• disregarded or rcjecte the numerous appeals of blacks who asked that.

Edison’s hiring and promotion practices be reformed and that blacks be. afforded fair* 

representation by the unions. It is both commendable and rem rkable that black, 

workers at Detroit Edison so long persisted in socking justice by means of persua- 

- - in the face of the defendants’ unwi'iingness to respond to reasonable expressions 

of cc 'em b y  black workers, - - before resorting to this law suit. When a defendant1 s

bek vi:.  'r  is so extremely unreason.)iibl. ■ and v . i dative of the law c l  O has bet:n the bebav

ot~ two o f : the dcfcndor.tr. in this C 3  C e, one c•an only .infor that the:• d o f e i : < lents have

a c t e d  \ ■ :  t /, ■■ l i c e .  T k  - v c : f o r e ,  i d 1 1 & C o u r t he i d l y  o n 7( , :  d e t a i l a l ) ' C D e i . rci i Ed isos.

Con:i .is to fot t's.wi t  h p e n  p l a i n t i i fs, incl u 1 1  V . >.ivy ixrth Lho n e  i n d i v i d u h i l l U  l h •d

o s  p l . n i n t i f i r  a n d  l h o s e  c o m p r . i s i i s ;  t . /.-* e l  a '  .  y  e  , v;i i r l  b y  l h ( '  i l l l i h  i ) M f einid If::

] ' U t ■ 1 1 '/■ ?■ i e y  t  ! . • ( I n  U  < d  d  e l  - 1 \  ) U ■■ r  i . :  i i 1 ' l l  D e l l . . ( C ' d f O n t ) , o . o n . oo) . •I ' h  i : :  P i  a i i  t



\

* '* r u

I: - f  .•(!•/ • J • / < . . !. '.’ I I t : I II f t  ! ;\:’ i I II /■■!</ ]>J.t i n i  i l I S, i lH'hld. !: .  I }•>.<! }l

lho:\- in-1 iv.ia 'n.: J 1 i; n;n::c l pi w i nti I is .ind l hor.t' comprising t h>- cl. ss represent i.d

by the p.an- -<1 plaint ills hut excluding the United Stati-s, Two Handled Fifty Thousand 

Volley:; ($250,000.00). The Coart: fin In that although Local 17 lias engaged in rac.ia. 

discriinination against blacks at Dctioit Edison in its collecti o bargaining agree­

ment, it has not acted u.ith the requisite malice of the Company or Local 223; this 

Court will therefore not award punitive damages against Local 17. The punitive

dama-:es awarded in this case- . hall bo paid to the Clcrl of the U. 5. District Court
*

and this Court shall issue a subsequent Order providing for the manner in which the 

money is to be disbursed to plaintiffs.

This Court will maintain jurisdiction for the purpose of ora ring such 

addition'-1 relief as seems appropriate and necessary.

IT IS SO ORDERED.

D7i. ED: October 2, 1973.