Terrell Jr. v. International Association of Machinists and Aerospace Workers

    No. 80-.

I n the

(tart of tfyr luitrtt Btuim
-vS.

October T erm , 1981

Joseph Terrell, Jr., et al.,

v.
Petitioners,

I nternational A ssociation oe Machinists 
and A erospace W orkers, et al.

PETITION FOR A W RIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

Joseph P. Hudson 
1909 30th Avenue 
Gulfport, Mississippi 39501

Daniel B. Edelman 
Tablonski, Both &

Edelman 
Suite 800
1140 Connecticut Ave., N.W. 
Washington, D.C. 20036

Demetrius C. Newton
2121 8th Avenue North 
Birmingham, Alabama 35203

Barry L. Goldstein*
Suite 940
806 15th Street, N.W. 
Washington, D.C. 20005 
(202) 638-3278

Jack Greenberg 
James M. Nabrit, III 
O. Peter Sherwood 
Eric Schnapper 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Petitioners
* Counsel of Record



QUESTIONS PRESENTED

1. Which of the 9 conflicting and over­
lapping standards announced by 7 

different circuits should be applied 
to determine how and when a defendant 
must be "named" in a charge filed with 
the EEOC in order to be subject to 
suit under Title VII of the 1964 
Civil Rights Act?

2. Did the court of appeals err in 
holding that petitioners failed 
adequately to name any international 
unions in their pro se charges filed 
with the EEOC where the charges in 
fact named the alleged union discrimi­
nators as follows:
a. "International Molders & Allied 

Workers, Local 342";

l



b. "International Association of Ma­
chinists & Aerospace Workers, 
Lodge 3 59";

c. "Brotherhood of Boilermakers, 
Blacksmiths, Forgers, Helpers, 
Local 583"; and

d. "Patternmakers Association of 
Birmingham, affiliated with the 
Patternmakers League of North 
America A.F.L."

- 1 1  -



Parties Below

The following includes all of the
parties to the proceeding below:

1. International Association of 
Machinists and Aerospace Workers 
and its Lodge 359.

2. Brotherhood of Boilermakers, 
Blacksmiths, Forgers and Helpers 
and its Local 583.

3. International Molders and Allied 
Workers Union and its Local 
342.

4. Patternmakers League of North 
America and the Patternmakers 
Association of Birmingham.

5. United Steelworkers of America 
Local 2140.

- iii -

and its



7. United States Pipe and Foundry 
Company, a subsidiary of Jim 
Walter Resources, Inc.

8. Local 136, International Brother­
hood of Electrical Workers.

9. Joseph Terrell, Walter Dudley, 
Thomas Green, Johnny Long, 
Albert Mason, Marcus Oakes, Sam 
Walker, and the class of black 
workers at U.S. Pipe plant whom 
they represent.

10. Equal Employment Opportunity Com­
mission, Amicus Curiae.

IV



TABLE OF CONTENTS

Page

Questions Presented ................ i
Parties Below ...................... iii
Table of Authorities ............... vi
Opinions Below ..................... 1

Jurisdiction ..................   2
Statutory Provisions Involved ...... 2
Statement of the Case .............. 3

Reasons for Granting the Writ ....... 17
Conclusion ......................... 47

Attachment A, EEOC Charges Filed 
in 1969 ..................

APPENDIX
Order of Court of Appeals 
Denying Rehearing, August 
7, 1981 ....................... 1a
Opinion of Court of Appeals,
May 14, 1981 .................. 3a
Judgment of District Court,
January 1 4 , 1 980 .............. 54a

v



Page

Rule 54(b) Certification of 
District Court, January 14,
1980 ........................  56a
Opinion of District Court,
October 1 6 , 1 979 .............. 58a

vi



TABLE OF AUTHORITIES
Cases:

Page
Batis v. Great American Federal 

Savings & Loan Ass'n,
452 F. Supp. 588 (W.D. Pa.
1 978) ......................... 32

Bernstein v. National Liberty In­
ternational Corp., 407 F. Supp.
709 (E.D. Pa. 1 976) .......... 1 8,33

Braxton v. Virginia Folding Box
Co., 72 F.R.D. 124 (E.D. Va.
1976)   40

Butler v. Local No. 4, Laborers 
International Union, 308 
F. Supp. 528 (N.D. 111.
1 969 ) ......................... 19,37

Byron v. University of Florida, 403 
F. Supp. 49 (N.D. Fla.
1 975) .................. . 1 9,36

Canavan v. Beneficial Finance 
Corp., 553 F.2d 860 (3d 
Cir. 1977)   18,25,36

Chastang v. Flynn & Emrich Co. ,
365 F. Supp. 957 (Md. 1973) ..19,33-34

Coley v. M & M Mars, Inc., 461
F. Supp. 1073 (M.D. Ga. 1978) .. 34

- vii -



Page

Conley v. Gibson, 355 U.S. 41
(1957) ........................ 43

Curran v. Portland Superintending
School Committee, 435 F. Supp.
1 063 (Me. 1 977) ........  18,31,33,37

Davis v. Weidner, 596 F.2d 726 (7th
Cir. 1 979) ....................  1 8,26

Delaware State College v. Ricks,
449 U.S. 250 ( 1 980) ........... 22

EEOC v. Brotherhood of Painters,
384 F. Supp. 1264 (S.D.
1 974 ) ........................  41

EEOC v. International Brotherhood of 
Electrical Workers, 476 F. Supp.
341 (Mass. 1 979) .............. 34,40

EEOC v. McLean Trucking Co., 525
F.2d 1007 (6th Cir. 1975) ..... 30

Eggleston v. Plumbers' Local 130,
26 FEP Cases 1192 (7th Cir.
1 981) ..................  9,26,28,30

Eldredge v. Carpenters Joint
Apprenticeship Committee,
440 F. Supp. 506 (N.D. Cal.
1977 ) ........................ 1 9,34

Escamilla v. Mosher Steel Co.,
386 F. Supp. 101 (S.D.
Tex. 1 975) .................... 1 8

- viii -



Page

Evans v. Sheraton Park Hotels,
503 F.2d 177 (D.C. Cir.
1974) ......................... 29,30

Flesch v. Eastern Pennsylvania 
Psychiatric Institute, 434 
F. Supp. 963 (E.D. Pa.
1977) ......................... 19,36

Friedman v. Weiner, 515 F. Supp.
563 (Colo. 1981) ............   18

Gibson v. Local 40, Supercargoes, 
etc., Union, 543 F.2d 1259 
(9th Cir. 1 976)   27,61

Glus v. G.C. Murphy, 629 F.2d
248 (3d 1989), vac. and rem. 
on other grounds, 1 0 1
S.Ct. 201 3 (1 981) ....    28

Glus v. G.C. Murphy 562 F.2d 880
(3d Cir. 1 977) ............. 28-30,40

Goodman v. Bd. of Trustees of Com­
munity College, 498 F. Supp.
1 329 (N.D. 111. 1 980) ......... 1 8,33

Guerra v. Manchester Terminal Corp.,
498 F.2d 641 (5th Cir. 1974) ... 36

Hanshaw v. Delaware Technical and
Community College, 405 F. Supp.
292 (Del. 1 975) ............... 1 9,31

Haines v. Kerner, 404 U.S. 519
(1 972) ........................  44

IX



Page

Hardison v. TWA, 375 F. Supp, 877 
(W.D. Mo. 1974), rev'd on 
other grounds, 527 F.2d 22
(8th Cir. 1975), rev'd, 432 
U.S. 63 (1977) ............... 34,40

Henry v. Texas Tech. University,
466 F. Supp. 141 (W.D.
Tex. 1 979) .................. 18,37

Hochstadt v. Worchester Foundation,
425 F. Supp. 318 (Mas. 1976) ... 19,35

Hughes v. Rowe, 449 U.S. 5
(1980) ........................ 44

International Brotherhood of Team­
sters v. United States, 431 
U.S. 324 (1977) ............... 7

I.U.E. v. Robbins & Myers Co.,
429 U.S. 229 (1976) ........... 22

Jackson v. University of Pittsburgh, 
405 F. Supp. 607 (W.D. Pa.
1975 ) ......................... 19,35

Jacobs v. Board of Regents, 472 F.
Supp. 663 (S.D. Fla. 1979) .... 18,32

Jamison v. Olga Coal Co. , 335 
F. Supp. 454 (S.D.W. Va.
1971 ) ......................... 35,39

Kaplan v. International Alliance 
of Theatrical Workers,
525 F.2d 1354 (9th Cir.
1975) ......................... 24,40

x



Kelly v. Richland School Dist.

Page

No. 2, 463 F. Supp. 216 
(S.C. 1 978) ............... 18,31,33

LeBeau v. Libby-Owens-Ford Co.,
484 F.2d 798 (7th Cir.
1973) .......................

Lewis v. Southeastern Pennsylvania 
Transp. Authority, 440 F.
Supp. 887 (E.D. Pa. 1977) ___ . . 18,31

Love v. Pullman Co., 404 U.S.
522 (1972) ..................

McDonald v. America Federation of 
Musicians, 308 F. Supp. 664
(N.D. 111. 1 970 ) ........... 1 9,33,37

Macklin v. Spector Freight Systems,
Inc., 478 F.2d 979 (D.C.
Cir. 1 973) ..................

Martin v. Easton Publishing Co.,
478 F. Supp. 796 (E.D. Pa. 
1979) ....................... 19

Mohasco Corp. v. Silver, 447
U.S. 807 (1980) .............

Moody v. Albemarle Paper Co., 271 
F. Supp. 27 (E.D.N.C.
1967) .......................

Oscar Mayer & Co. v. Evans, 441
U.S. 750 (1979) .............

xi



Page

Plummer v. Chicago Journeyman
Plumbers, 452 F. Supp. 1127 
(N.D. 111. 1978), rev'd on 
other grounds sub. nom.,
Eggleston v. Plumbers' Local
No. 130, 26 FEP Cases 1192
(7th Cir. 1981) ...............  32

Puntolillo v. New Hampshire Racing
Commission, 390 F. Supp. 231 
(N.H. 1 975) ..................,. 34,36

Ricks v. Delaware State College,
605 F.2d 710 (3rd Cir. 1979), 
rev'd on other grounds,
449 U. S . 250 ( 1 980) .......... . 27

Roberts v. Western Airlines, 424 
F. Supp. 416 (N.D. Cal.
1976) ........................ . 40

Romero v. Union Pacific R.R., 615
F.2d 1303 (10th Cir. 1980) ____. 28-29

Scott v. Univ. of Delaware, 385
F. Supp. 937 (Del. 1 974 ) ....... 19,33

Shehadeh v. Chesapeake & Potomac 
Telephone Co., 595 F.2d 
711 (D.C. Cir. 1 978) .......... 25

Schick v. Bronstein, 447 F. Supp.
333 (S.D.N.Y. 1 978) ............. 18,33

Skyers v. Port Authority of New 
York and New Jersey, 431 
F. Supp. 79 (S.D.N.Y. 1976) ..... 19,31

- xii -



Page

Stevenson v. International Paper Co.,432 F. Supp. 390 (W.D. La.
1 977) ..................... 32,37,41

Stith v. Manor Baking Co., 418 
F. Supp. 150 (W.D. Mo.
1 976) ................... 1 8,31 ,33,37

Stringer v. Commonwealth of Penn- 
slyvania Department of Com­
munity Affairs, 446 F. Supp.
704 (M.D. Pa. 1 978) .......... 32

Taylor v. Armco Steel Corp., 373
F. Supp. 885 (S.D. Tex. 1973) .. 39

Thornton v. East Texas Motor
Freight, Inc., 497 F.2d 416
(6th Cir. 1 974) ............... 46

Torockio v. Chamberlin Mfg. Co.,
51 F.R.D. 517 (W.D. Pa. 1070) .. 40

United Air Lines v. Evans, 431
U.S. 553 ( 1 977) ............... 22

Vanguard Justice Society, Inc.
v. Hughes, 471 F. Supp. 670 
(Md . 1 9 7 9) ...................  1 8,31

Van Hoomissen v. Xerox Corp., 368
F. Supp. 829 (N.D. Cal. 1973) .. 19

Vogel v. Torrence Bd. of Educ.,
447 F. Supp. 258 (C.D.
Cal. 1978)

- xiii -

18,35



Page

Wallace v. International Paper Co.,
426 F. Supp. 352 (W.D. La.
1 977 ) ........... .............. 35

Watson v. Gulf & Western Industries,
650 F.2d 990 (9th Cir. 1981) ... 19,24

Wells v. Hutchinson, 499 F. Supp.
174 (E.D. Tex. 1 980) .......... 1 8,33

Williams v. General Foods Corp.,
492 F.2d 399 (7th Cir. 1974) ... 26

Williams v. Massachusetts General 
Hospital, 449 F. Supp. 55 
(Mass. 1978) ..................  32

Women in City Government United 
v. City of New York, 515 
F. Supp. 295 (S.D.N.Y. 1981) ... 18

Statutes and Other Authorities
Title VII of the Civil Rights Act 

of 1964 (as amended 1972),
42 U.S.C. §§ 2000e et seq. .... passim

28 U.S.C. § 1 254(1 ) ................ 2

xiv



Page

Annual Report of the Director of 
Administrative Office of the 
United States Courts
(Wash. 1981)   23

Equal Employment Opportunity Com- 
mission, 12th and 13th Annual 
Reports (1981)   45

EEOC Compliance Manual, § 2.........  45

Statistical Abstract of the United
states, 1 980 777777777777777... 38

XV



No. 81-
IN THE

SUPREME COURT OF THE UNITED STATES 
October Term, 1981

JOSEPH TERRELL, JR., et al.,
Petitioners,

v.
INTERNATIONAL ASSOCIATION OF MACHINISTS 
AND AEROSPACE WORKERS, et al.

Petition For A Writ of Certiorari To The 
United States Court of Appeals 

For the Fifth Circuit

The petitioners, Joseph Terrell, Jr., 
et al. , respect fully pray that a Writ of 
Certiorari issue to review the judgment and 
opinion of the United States Court of 
Appeals for the Fifth Circuit entered in 
this proceeding on May 14, 1981.



2

OPINIONS BELOW
The May 14, 1981 opinion of the court 

of appeals is reported at 644 F.2d 1112, 
and is set out in the Appendix hereto, pp. 
3a-53a. The decision of the district court 
of October 16, 1979, which is not official­
ly reported, is reprinted in 22 FEP Cases 
1695, and is set out in the Appendix 
hereto, pp. 58a-110a.

JURISDICTION
The judgment of the court of appeals 

was entered on May 14, 1981. A timely
petition for rehearing was denied on 
August 7, 1981. On October 19, 1981, Mr.
Justice Powell granted an order extending 
the time in which to file a petition for 
writ of certiorari until December 7, 1981.
Jurisdiction of this Court is invoked under 
28 U.S.C., § 1254(1) .



3

STATUTORY PROVISIONS INVOLVED 
Section 706(b) of the 1964 Civil 

Rights Act, 42 U.S.C. § 2000e-5(b), pro­
vides in pertinent part:

Whenever a charge is filed by or 
on behalf of a person claiming to be 
aggrieved, or by a member of the 
Commission, alleging that an employer, 
employment agency, labor organization, 
or joint labor management committee 
controlling apprenticeship or other 
training or retraining, including 
on-the-job training programs, has 
engaged in an unlawful employment 
practice, the Commission shall serve a 
notice of the charge (including the 
date, place and circumstances of the 
alleged unlawful employment practice) 
on such employer, employment agency, 
labor organization, or joint labor- 
management committee (hereinafter 
referred to as the "respondent") 
within ten days and shall make an 
investigation thereof. Charges shall 
be in writing under oath or affirma­
tion and shall contain such informa­
tion and be in such form as the 
Commission requires.

Section 706(f)(1) of that Act, 42 U.S.C. 
2 0 0 0e-5(f ) (1 ) , provides in pertinent
part:



4

If a charge filed with the 
Commission pursuant to subsection 
(b) is dismissed by the Commission, 
or if within one hundred and eighty 
days from the filing of such charge or 
the expiration of any period of ref­
erence under subsection (c) or (d), 
whichever is later, the Commission has 
not filed a civil action under this 
section or the Attorney General has 
not filed a civil action in a case 
involving a government, governmental 
agency, or political subdivision, or 
the Commission has not entered into a 
conciliation agreement to which the 
person aggrieved is a party, the 
Commission, or the Attorney in a case 
involving a government, governmental 
agency, or political subdivision, 
shall so notify the person aggrieved, 
and within ninety days after the 
giving of such notice a civil action 
may be brought against the respondent 
named in the charge (A) by the person 
claiming to be aggrieved or (B) if 
such charge was filed by a member of 
the Commission, by any person whom the 
charge alleges was aggrieved by the 
alleged unlawful employment practice.

STATEMENT OF THE CASE 
This action was commenced on October 

4, 1972, against the United States Pipe and 
Foundry Company and several local and



5

international unions. The complaint al­
leged systematic discrimination in job as­
signment, training and promotion of black 
employees.

Following extensive discovery, all 
parties to the litigation agreed upon 
injunctive relief, including modification 
of the seniority system at the plant. The 
company agreed to pay $510,000 in back pay 
in settlement of any monetary claims 
against it by the class members. Plain­
tiffs agreed not to seek back pay against

1/ Twelve unions were named as defen­
dants. Brotherhood of Boilermakers, 
Blacksmiths, Forgers, and Helpers and its 
Local 583; International Association of 
Machinists and Aerospace Workers and its 
Lodge 359; International Molders and 
Allied Workers Union and its Local 342; 
Patternmakers League of North America and 
its affiliate, Patternmakers Association 
of Birmingham; United Steelworkers of 
America and its Local 2140; and Interna­
tional Brotherhood of Electrical Workers 
and its Local 136. Prior to trial Summary 
Judgment was granted in favor of the IBEW. 
No appeal was taken from this Judgment.



6

Local 136, IBEW. The issue reserved 
for trial was the monetary liability of the 
remaining union locals and internationals.

Black employees had for decades been 
assigned on the basis of race to poorly 
paid "dead end" jobs. Under the seniority 
system in operation at the plant prior to 
the pretrial settlement, an employee's 
seniority was based on his length of 
service in a particular department or 
seniority unit, rather than service at the 
plant. A black worker with decades of 
service in one of the poorly paid predomi­
nantly black positions necessarily for­
feited his seniority upon transferring to 
a traditionally white job. The seniority 
system effectively locked blacks into 
positions to which they had been assigned 
on the basis of race.



7

The critical issue regarding union 
liability was whether the seniority system 
to which they were parties was created 
or maintained with the intention to dis­
criminate. International Brotherhood of
Teamsters v. United States, 431 U.S. 324 
(1977). The separate seniority units 
into which employees were segregated 
largely coincided with the six distinct 
bargaining units represented by the six 
unions at the plant. Five of these unions 
were virtually all-white; on the other 
hand the Steelworkers, which represented 
the poorly paid black workers, was predom­
inantly black. Plaintiffs advanced 
three basic claims regarding the intention 
behind the establishment and maintenance of 
the seniority system.

Plaintiffs urged, first, that a 
realignment of the seniority system which 
had occurred in 1950 was racially moti­



8

vated. In that year 1 0 positions repre­
sented by the Steelworkers, but staffed by 
whites, were transferred to the bargaining 
units represented by the Boilermakers and 
Machinists. At the same time all the black 
workers represented by the Boilermakers 
and Machinists were transferred to the 
bargaining unit represented by the predomi­
nantly black Steelworkers. As a result of 
this realignment the Boilermakers and 
Machinists joined the Patternmakers and 
Electrical Workers in having all white 
memberships. The blacks formerly repre­
sented by the Boilermakers and Machinists 
were precluded from promotion into the 
positions represented by these unions, 
while whites in the positions switched to 
those unions were afforded an opportunity 
to promote into jobs from which the 
blacks who remained in the Steelworkers



9

were effectively excluded. The district 
court held that the 1 9 50 realignment 
was racially motivated, and that this 
aspect of the seniority system was illegal. 
This finding was upheld on appeal.

Plaintiffs also attacked those aspects 
of the seniority system created prior to 
1950. The record showed that, when 
the plant was first organized in 1939, four 
of the unions, whose bargaining units were 
to define the seniority units, sought only 
to represent all or overwhelmingly white 
positions; none of them attempted to rep­
resent the predominantly black positions. 
In 1949 the Molders union successfully 
sought NLRB approval to represent the 
molders and the apprentices, all of whom 
were white, but did not seek to represent 
the molder helpers, who were black. 
During the period when the seniority system



was created the Boilermakers, Machinists, 
Molders, and Patternmakers each maintained 
"overtly discriminatory policies .... [t]he 
Machinists barred blacks from union member­
ship, the Boilermakers relegated blacks to 
inferior 'auxiliary' locals, the Molders 
segregated the few blacks in their Alabama 
locals, and the Patternmakers claimed that 
there were no 'qualified niggers' in that 
state." App. 28a-29a. Nonetheless, the 
district court held that the decisions of 
these unions to seek to represent only 
white workers —  decisions which led to the 
creation of the correspondingly all-white 
bargaining and seniority units —  were not 
racially motivated. The court of appeals 
reversed, holding that this aspect of 
the seniority system, like the 1950 re- 
alighment, was the result of intentional 
discrimination. App. 29a-31a,

- 10 -



Finally, the plaintiffs argued that 
the seniority system was maintained with 
an intent to discriminate. The record 
shows that the all-white unions, Boiler­
makers, Machinists, Molders and Pattern­
makers opposed the efforts by the company 
and the Steelworkers to modify the senior 
ity system so as to permit blacks to 
transfer to traditionally white jobs. While 
acknowledging that "[rjacial considerations 
were involved in the 1968, 1971, 1975, and 
1977 negotiations concerning the modifica­
tion of seniority," the district court 
held that the unions had not intentionally 
discriminated in refusing to modify the 
system. App. 102a-04a. The Fifth Circuit 
reversed and found that "the collective 
bargaining process tracked and reinforced 
the purposefully segregated job classifies-' 
tion scheme ... and the conclusion is

- 1 1 -



12

inescapable that the seniority system 
itself shared in that same unlawful pur­
pose. " App. 26a.

The aspect of the ligitation below
with which this petition is concerned is
the extent to which the international
unions are liable for back pay awards for

2/this proven illegality. The initial 1969 
EEOC charges, prepared by plaintiffs without 
the assistance of counsel, referred in only 
general terms to the union responsibility 
for the discriminatory seniority system. 
In 1973, with the assistance of counsel, 
plaintiffs amended their EEOC charges to

2/ The international unions affected by 
this question are the Boilermakers, Machin­
ists, Molders, and Patternmakers. The Fifth 
Circuit ruled that these internationals 
were liable for the discriminatori1y 
unlawful seniority system. The Fifth 
Circuit found that the Steelworkers were 
not liable and the plaintiffs do not seek 
review of this determination.



name expressly both the intentionals /s
I

well as their local affiliates. The 
district court held that the 1969 charges 
did not adequately name the internationals, 
and that the internationals' Title VII 
liability therefore only commenced 180 days 
before the 1973 amendment to the charge, 
while the locals were held liable for 
damages beginning 180 days before the 
original 1969 charges. App. 68a-69a. The 
district court also held that the interna­
tional unions were subject to suit under 
42 U.S.C. § 1981, and concluded that the
§ 1981 liability of the internationals
commenced in 1971, one year prior to the 
filing of this action. App. 67a. The 
court of appeals affirmed the district 
court's decision that the 1969 EEOC charges 
had not adequately named the interna­
tional unions. App. 51a. Thus, whether



the 1969 charges were in fact sufficient to 
provide a basis for a Title VII action 
against the internationals controls whether 
those internationals can be held liable for 
back pay claims for the period from Jan­
uary, 1969 through October, 1971.

The charges in a variety of ways 
implicated the international unions. There 
is some minor variations in the charges 
filed against each of the four interna­
tionals and in the relationships between 
each international and its local. However, 
the record indicates that the charges 
reasonably read refer to the internationals 
and that the internationals were closely 
involved in the affairs of their locals and 
the establishment and maintenance of the 
unlawful seniority system. First, the 
charges all but expressly name the inter­



nationals and expressly state that
"unions," not just a local, were involved

1/in the discrimination. Second, the
charges referred to the role of "unions" in 
the discriminatory division of the plant 
into bargaining units. This reference 
necessarily implicates the internationals 
because the division of the plant into 
bargaining units resulted from actions 
taken by the internationals since locals 
did not exist at the plant prior to the

1/

3/ For example, in one charge the
alleged discriminator is listed as "Inter­
national Association of Machinists & 
Aerospace Workers, Lodge 359." The peti­
tioners have attached to this petition a 
chart which sets forth the name of the 
alleged discriminator and the substance of 
the charge exactly as it appears on the 
1969 charges. Attachment A.
4/ For example, one charge states that 
T [t]he Patternmakers Union, along with 
other Unions, and the Company, have the 
departments divided up so Negroes would 
lose their seniority if they bid on some 
better jobs." Attachment A.



certifications of the bargaining units by 
the National Labor Relations Board.

Third, the bargaining units and the 
seniority system which were alleged to be 
discriminatory in the 1969 charges were 
maintained in collective bargaining agree­
ments to which the internationals were 

1 /parties. Finally, the international
representatives took major roles in the 
collective bargaining negotiations and the 
constitution for each international 
establishes close supervision and control 
of the locals by the internationals.

5/ For example, the 1971 Machinists 
Agreement provides that "[t]his Agreement 
... is made ... between [the Company] and 
the International Association of Machinists 
and Aerospace Workers on behalf of itself 
and Lodge 359 (hereinafter called the 
Union) ...." Plaintiffs' Exhibit 6 , p. 3; 
see Plaintiffs' Exhibits 5-8 (Machinists); 
Plaintiffs' Exhibits 9-12 (Boilermakers); 
Plaintiffs' Exhibits 19-20 (Patternmakers).



REASONS FOR GRANTING THE WRIT

This case is among the latest in over
70 reported decisions on a problem of
substantial and growing importance to the
enforcement of Title VII of the 1964 Civil
Rights Act. Title VII authorizes aggrieved
persons to file suit against "the respon­

se/
dent named in" an administrative charge 
of employment discrimination filed earlier 
with the EEOC. Among the 40,000 charges 
filed with the EEOC each year, the vast 
majority are prepared by workers who 
have limited education and who lack legal 
counsel. Unschooled in the intricacies of 
the law, these charging parties frequently 
do not distinguish among closely associated 
entities -- between corporations and

6/ Section 706(f)(1); 42 U.S.C. § 2000e-5-
( f ) ( 1 ) .



18

7/ 8/
their parent or sister companies, be -
tween inter-related agencies of the same

1 / 1 0 /city or state , between public or pr i-

]_/ Stith v. Manor Baking Co. ,418 F. 
Supp, 150 (W.D. Mo. 1976); Bernstein v . 
National Liberty International Corp., 407 
F. Supp. 709 (E.D. Pa. 1976); see also 
Escamilla v. Mosher Steel Co., 386 F. Supp. 
101 (S.D. Tex. 1975).

8/ Canavan v. Beneficial Finance Corp., 
55 3 F.2d 860 (3d Cir. 19 77 ) .

9/ Davis v. Weidner, 596 F.2d 726 (7th 
Cir. 1979); Wells v. Hutchinson, 499 F. 
Supp. 174 (E.D. Tex. 1980); Henry v. Texas 
Tech. University, 466 F, Supp. 141 (N.D. 
Tex. 1 9 7 9); Schick v. Brons t e _i ri , 447 
F. Supp. 333 (S.D.N.Y. 1978); Curran v . 
Portland Superintending School Committee, 
435 F. Supp. 1063 (Me. 1977).
10/ Friedman v, Weiner, 515 F. Supp. 563 
(Colo. 1981); Women in City Government 
United v. City of New York, 515 F. Supp. 
295 (S.D.N.Y. 1981); Goodman v. Bd . of 
Trustees of Community College, 498 F. Supp. 
1329 (N.D. 111. 1980); Jacobs v. Board of 
Regents, 473 F. Supp. 663 (S.D. Fla. 1979); 
Vanguard Justice Society, Inc, v. Hughes, 
471 F. Supp. 670 (Md. 1979); . 
Richland School Dist. No. 2, 463 F. Supp. 
216 (S.C. 1978); Vogel v. Torrence Bd. of 
Educ.,447 F. Supp. 258 (C.D. Cal. 1978); 
Lewis v. Southeastern Pennsylvania Transp.



19

vate entities and their chief executives
or officials, between local unions and

12/
councils or committees of locals, and es-

11/

1 0/ continued
Authority, 440 F. Supp. 887 (E.D. Pa.
1977); Skyers v. Port Authority of New York 
and New Jersey, 431 F. Supp. 79 (S.D.N.Y.
19 7 6 ) ; Jackson v. University of Pittsburgh, 
405 F. Supp. 607 (W.D. Pa. 1975); Hanshaw
v. Delaware Technical and Community Col­
lege , 405 F. Supp. 292 (Del. 1975); Byron
v. University of Florida, 403 F. Supp. 49 
(N.D. Fla. 1975); Scott v. University of 
Delaware, 385 F. Supp. 937 (Del. 1974).
11/ Watson v. Gulf S Western Industries, 
650 F.2d 990 (9th Cir. 1981); Martin v .

Publishing Co. , 478 F. Supp.
796 (E.D. Pa. 1979); Flesch v. Eastern
Pennsylvania Psychiatric Institute, 434 F. 
Supp. 963 (E.D. Pa. 1977); Hochstadt v .
Worchester Foundation, 425 F. Supp. 318
(Mass. 1 9 7 6 ); _Xerox
Corp. , 368 F. Supp. 829 (N.D. Cal. 1973); 
Chastang v, Flynn & Enrich Co. , 3 6 5 F.
Supp. 957 (Md. 1973); M_c D o n a 1 d __ v .
American Federation of Musicians, 3 0 8 F.
Supp. 664 (N.D. 111. 1970).
12/ Eggleston v. Plumbers' Local 130, 26
FEP Cases 1192 (7th Cir. 1981); Eldredge 
v. Carpenters Joint Apprenticeship Commit­
tee , 440 F. Supp. 506 (N.D.Cal. 1977); But­
ler v. Local No., 4, Laborers International 
Union, 308 F. Supp. 528 (N.D. 111. 1969).



20

pecially between local unions and the in­
ternational unions with which they are 

13/
connected.

In the ensuing Title VII litigation 
defense counsel understandably insist that 
each legal entity must have been listed 
separately in the EEOC charge with the same 
precision one might expect of a skilled 
attorney drafting a civil complaint. The 
instant case is just one of the rapidly 
increasing number of decisions concerning 
when and how such related entities and 
individuals must be named in the charge.

The law in the lower courts on this 
important issue is not merely in a state of 
conflict; it borders on chaos. There are 
no fewer than nine different court of 
appeals' standards for deciding this

13/ See nn. 58-71, infra.



21

question. Three Circuits have established 
conflicting standards for determining 
whether a charge adequately "names" a 
particular respondent. Another three 
appellate rules have established varying 
standards for subjecting an unnamed party 
to suit because of events occurring 
in the EEOC investigation and conciliation 
process. A final three appellate rules 
provide that under certain conditions a 
defendant neither named in an EEOC charge 
nor involved in the administrative charge 
may nonetheless be sued in a Title VII 
action. The district courts, under­
standably confused by this diversity of 
appellate opinion, have formulated at least 
18 other standards of their own. Each year 
witnesses the creation of still different, 
overlapping and conflicting standards. 
Certiorari should be granted to bring to an 
end this outpouring of legal creativity.



22

This Court has repeatedly recognized 
the importance of eliminating confusion 
arising from conflicting judicial inter­
pretation of administrative filing require­
ments under Title VII. Love v. Pullman 
Co. , 404 U.S. 522 (1972 ) (requirement of
filing with a state agency); I . U .E. v . 
Robbins & Myers Co., 429 U.S. 229 (1976)
(tolling of time period); United Air Lines 
v. Evans, 431 U.S. 553 (1977) (timeliness
of charge); Mohasco Corp. v. Silver, 447 
U.S. 807 (1980) (interpretation of when a
charge is "filed"); Delaware State College 
v. Ricks, 449 U.S 250 (1980) (commencement
of the time period). Having resolved 
conflicting interpretations of the provi­
sions requiring a timely filing and a 
proper deferral to state agencies, the 
Court should resolve the conflicts regard­
ing when an employer or union is properly 
"named in" an administrative charge.



23

Moreover, the large and increasing number 
of fair employment cases ensures that the 
confusion arising from varying judicial 
approaches to the interpretation of the 
requirement that a defendant be named in an 
administrative charge will increase unless 
this Court establishes the proper standard. 
In the twelve month period which ended June 
30, 1981, 6,245 Title VII cases were filed. 
Annual Report of the Director of Adminis­
trative Office of the United States Courts 
(Wash. 1981), p. 75. These filings reflect 
a 350% increase over filings in 1973 and a 
more than 2 0 % increase over filings in 
1980. Id.

The courts of appeals have announced 
three different standards for deciding 
whether a charge adequately "names" a 
particular respondent. The Ninth Circuit 
will "read sympathetically" the language of



the charge; thus a complaint was held
to name an international union where it
identified the party alleged to have
discriminated as:

I.A.T.S.E. Local 659 —  Interna­
tional Photographers of the 
Motion Picture Industries 15/

In the instant case the Fifth Circuit ruled
that charge must "allege specific conduct
which clearly implicate[s]" the disouted 

16/party. Thus the Fifth Circuit concluded 
that the charges had not named the interna­
tional unions although they were actually 
listed in language hardly distinguishable 
from that approved in the Ninth Circuit:

- 24 -

11/

14/ Watson v. Gulf & Western Industries, 
¥50 F. 2d at 9"93Z
15/ Kaplan v. International Alliance of
Theatrical Workers, 525 F.2d 1354, 1359
(9th Cir. 1975).
16/ App. 51a.



25

Brotherhood of Boilermakers, 
Blacksmiths, Forgers, Helpers, 
Local 583
International Association of 
Machinists and Aerospace Workers, 
Lodge 359
International Holders & Allied 
Workers, Local 342, 17/

11/ 11/The District of Columbia and Third
Circuits apply yet a third rule requiring
that the language of a charge, including
the specific allegations of discrimination,
be sufficient to provide the EEOC with a
"reasonable" opportunity to investigate the
conduct of the putative defendant and at-

20/
tempt conciliation. Thus in the Third

17/ Plaintiffs' Exhibit 6 6; see Attachment 
A to this Petition,
18/ Shehadeh v. Chesapeake & Potomac Tele­
phone Co., 595 F. 2d 711 , 728 (D.C. Cir.
1978 ) .
19/ Canavan v. Beneficial Finance Corp., 
supra.
20/ Id. 863-64.



26

Circuit expressly listing a defendant in 
the portion of the EEOC charge form for 
"Others Who Discriminated Against You" is 
not by itself necessarily sufficient.

Furthermore, there are three different
appellate rules regarding whether, even
where a defendant is not named in the EEOC
charge, events occurring in the EEOC
investigation and conciliation process
which follows the filing of the charge may
render it subject to suit. In the Seventh 

21/
Circuit it is sufficient that such a 
defendant have received both notice 
of the pending charge of discrimination and 
been given an opportunity to participate in 
the conciliation process, regardless of

21/ Eggleston v. Plumbers' Local 130, 26
FEP Cases at 1203; Davis v. Weidner, supra; 
see also Williams v. General Foods Corp., 
492 F . 2 d 399, 404-05 (7th Cir. 197 4).



27

itself would have provided such a notice.
In the Ninth Circuit an unnamed defendant
may later be sued if it was actually served
with the charge and treated as a party

22/
to the EEOC proceeding In the Third
Circuit an unnamed defendant is subject to
suit if its interests were adequately
represented during the EEOC proceeding by a

23_
party that was named.

Finally, there are three different 
rules regarding whether a defendant 
neither named in an EEOC charge nor 
involved d_e facto in the EEOC proceeding 
may nonetheless be sued in a subsequent

whether a literal reading of the charge

22/ Gibson v. Local 40, Supercargoes, 
etc., Union, 543 F.2d 1259, 1263, n. 1 (9th 
Cir. 1976).
23/ Ricks v. Delaware State College, 605 
F.2d 710 (3rd Cir. 1979), rev1 d on other 
grounds, 449 U.S. 250 (1980).



28

24/ _25/
Title VII action. The Third, Seventh 

2_6/
and Tenth Circuits allow such suits if 
the four-part test announced in Glus v. G. 
C. Murphy, 562 F.2d 880, 888 (3rd Cir.
1977), is met. Under Glus a court con­
siders each of the following factors, 
no one of which appears to be either 
necessary or sufficient:

(1 ) whether the role of the unnamed party could through the reason­
able effort by the complainant be 
ascertained at the time of the 
filing of the EEOC complaint;

(2 ) whether, under the circumstances, 
the interests of a named party 
are so similar as those of the 
unnamed party's that for the

24/ Glus v. G. C. Murphy, 562 F.2d 880 (3d 
Cir. 1977); see Glus v. G. C. Murphy 629 
F.2d 248 (3d 1980), vac. and rem. on other
grounds, 101 S. Ct. 2013 (1981).
25/ Eggleston v. Plumbers' Local 130, 26
FEP Cases at 1205.
26/ Romero v. Union Pacific R.R., 615 F.2d 
1303, 1312 (10th Cir. 1980).



29

purpose of obtaining conciliation 
and compliance it would be 
unnecessary to include the 
unnamed party in the EEOC pro­
ceedings ;

(3) whether its absence from the EEOC 
proceedings resulted in actual 
prejudice to the interests of the 
unnamed party;

(4) whether the unnamed party has in 
some way represented to the 
complainant that its relationship 
with the complainant is to be 
through the named party.

In the Tenth Circuit, in addition to these
criterion, "additional factors may be 

27/ 28/
relevant." The Sixth and Seven-

29/
th Circuits follow a decision in the
District of Columbia Circuit in Evans v. 
Sheraton Park Hotel, 503 F.2d 177, 180-83

27_/ Id.
28/ EEOC v. McLean Trucking Co., 525 F.2d 
TTT07 {6th Cir. 1975)/
29/ Eggleston v. Plumbers' Local 130, 26
FEP Cases at 12715 n7 TIZ



30

3 0 /
(D.C. Cir. 1974) , which permits joinder
of a party unnamed in the EEOC charge if
its presence in the Title VII lawsuit is
necessary to provide complete relief. In
the instant case petitioner repeatedly

11/urged the Fifth Circuit to follow Glus, 
but it declined to do so.

Faced with these conflicting and 
overlapping appellate standards, the 
district courts, rather than attempting to 
follow one line of decisions or another, 
have fashioned new criteria of their own, 
sometimes drawing on the reasoning of 
the appellate decisions, often breaking new

30/ See also Macklin v. Spector Freight 
Systems, Inc., 478 F.2d 979 (D.C. Cir. 
1973 ) .
31/ Brief for Appellants, pp. 82, 84; 
Appellants' Petition for Rehearing, pp. 14, 
16; Appellants' Suggestion for En Banc 
Consideration, pp. 13, 15.



31

ground. The circumstances under which the
district courts will permit a defendant not
literally named in the EEOC charge to be
sued under Title VII include: (1) the
unnamed defendant had actual notice of the 

32/
EEOC charge, (2) the unnamed defen­
dant had notice and the named defendant was 

3 3/
its agent (3) the unnamed defendant
had notice and was an agent of the named

34/defendant (4) the unnamed defendant
had notice and had a legal relationship

32/ Vanguard Justice Society, Inc, v . 
Hughes, 471 F. Supp. at 688-89; Willi jams
v. Massachusetts General Hospital, 449 F. 
Supp. 55 (Mass. 197’8) ; Hanshaw v. Delaware 
Technical and Community College, 405 F. 
Supp. at 2 96 ; Skyers v~. Port Authority of 
New York and New Jersey, 431 F. Supp. at 
81 ; Lewis v. Southeastern Pennsylvania 
Transportation Authority, supra.
33/ Kelly v. Richland School District No. 
2, 463 F/ Supp. at 219; Stith v. Manor
Bakina Co., supra.
34/ Curran v. Portland Superintending 
School Committee, 435 F. Supp, at 1074.



32

unnamed defendant had notice and its
interests were adequately represented by

36/
the named defendant, (6) the unnamed
defendant had notice, the named defendant
was its agent, and the unnamed defendant
had an opportunity to participate in 

3/7/
conciliation, (7) the unnamed defen­
dant had notice and an opportunity to com-

38/
ply voluntarily with the law, (8 ) the

35/
with the named defendant, (5) the

35/ Stevenson v. International Paper Co., 
432 F. Supp. 390 , 398 (W.D. La. 197 7 ).
36/ Jacobs v. Board of Regents, supra; 
Stringer v. Commonwealth of Pennsylvania 
Department of Community Affairs, 446 F. 
Supp. 704, 706 (M.D. Pa. 1978).
37/ Plummer v. Chicago Journeyman Plumb­
ers , 452 F. Supp. 1127, 1134 (N.D. 111. 
1978), rev'd on other grounds sub nom., 
Eggleston v. Plumbers' Local No. 130, 26 
FEP Cases 1192 (7th Cir. 1981).
38/ Batis v. Great American Federal Sav­
ings & Loan Ass 'n, 452 F. Supp. 588 , 590 
(W.D. Pa. 1978).



33

was a substantial identity between it and
39/

the named defendant, (9) the unnamed
defendant had notice and actually partici-

40/
pated in conciliation, (1 0 ) the unnamed
defendant had notice and its joinder is

41/
necessary for complete relief, (1 1 )
there is a substantial identity between the

4 2/
named and unnamed defendants, (1 2 )

unnamed defendant had notice and there

39/ Kelly v. Richard School District No.
2, 463 F. Supp. at 219.
40/
336;

Schick v. Bronstein, 
Bernstein v. National

447 F. 
Liberty

Supp. at 
Interna-

tional Corp., 407 F. Supp. at 715.
41/ Kelly v. Richland School District No.
2, 463 F. Supp. at 219.
42/ Stith v. Manor Baking Co . , 41 8 F .
Supp . at 156-57; Wells v. Hutchinson, 499
F. Supp. at 190; Goodman v. Board of Trus-
tees of Community College, 498 F. Supp. at
1333 ; Curran v. Portland Superintending
School Committee, 435 F. Supp. at 1074 ; 
Scott v. University of Delaware, 3 8 5 F. 
Supp. at 941; Chastang v. Flynn & Emrich 
Co., 365 F. Supp. at 964 ; McDonald v. Am­
erican Federation of Musicians, 308 F. 
Supp. at 669.



34

the named and unnamed defendants are not
11/

"autonomous," (13) the unnamed defen­
dant was a necessary party for concilia- 

44/
tion, (14) the unnamed defendant was a

45/necessary party for voluntary compliance,
(15) the charge was sufficient to notify
EEOC of the involvement of the unnamed 

46/
party, (16) the named defendant was act­
ing as an agent of the unnamed defendant
, . . 47/when it engaged in the discrimination,

43/ Hardison v TWA, 375 F. Supp. 877, 880 
(W.D. MoT 1974) , rev'd on other grounds, 
527 F .2d 33 (8th Cir. 1975), rev'd, 432 
U.S. 63 (1977); Moody v. Albemarle Paper
Co•/ 271 F. Supp. 27 (E.D.N.C. 1967).
44/ Coley v. M & M Mars, Inc., 461 F. 
Supp. 1073, 1075 (M.D. Ga. 1978).

I V  Chastang v, Flynn & Emrich Co., 365 F. Supp. at 963.

46/ Eldredge v. Carpenters Joint ApDren- 
ticeship Committee/ 41T0 FT Supp. at " 525.
11/ EEOC v. International Brotherhood of 
!A.ectr leal Workers/ 471 FI Supp. 3 41, 
346-47 (Mass. 1979); Puntolillo v. New 
Hampshire Racing Commission, 390 FT Supp. 
231, 236, n. 4 (N.H. 1975).



35

the discriminatory scheme and was repre­
ss!/

sented at conciliation. Some courts
require that the respondents be precisely
named and reject the inclusion of unnamed
parties under any of these seventeen

49/
circumstances. Which standard a par­
ticular district court will choose to 
apply in a given case simply cannot be 
predicted.

The conflict which has spawned this 
diversity of standards among the federal 
courts is widely recognized. The Third

and (17) the unnamed defendant was part of

48/ Hochstadt v. Worchester Foundation,
425 F. Supp. at 323.
49/ Vogel v. Torrence Board of Education, 
Tf7 F̂  Supp. at 266 ; Wallace v. Interna­
tional Paper Co., 426 F. Supp. 352, 357
(W.D. La. 1977); Jackson v. University of 
Pittsburgh, 405 F. Supp. at 617; Jamison
v. Olga Coal Co., 335 F. Supp. 454 (S.D.
W.Va. 1971).



36

Circuit observed that while the Sixth
Circuit has followed the District of
Columbia Circuit's joinder practice, other
courts "have held to the contrary under

5 0 /
similar circumstances." The Fifth Cir­
cuit noted this same conflict in reserving
judgment on this issue several years 

5 1 /
ago. The district courts have taken
notice of the "divergence of authority" as
to whether a Title VII defendant must have

5 2 /
been literally named in the EEOC charge 
and regarding whether any naming require-

50/ Canavan v. Beneficial Finance Corp., 553 F. 2 <3 at 865. ’

51/ Guerra v. Manchester Terminal Corp.
T9 8 F . 2 d~6TI7 "647 n. 6 ( 5TF—CY'rl 1974); see 
also Flesch v. Eastern Pennsylvania Psy­
chiatric Institute, 434 F. Supp. at 971; 
Puntolillo v. New Hampshire Racing Commis­
sion , 390 F. Supp. at 235-36.
52/ Byron v. University of Florida, 403 F. 
Supp. at 53.



37

ment is jurisdictional in nature. 
District court opinions expressly disap­
proving contrary appellate or district
court decisions announcing differing

54/
rules are common.

The largest and most important cate­
gory of cases in which this issue arises 
concerns whether, and if so how, an 
aggrieved employee must separately name the 
international union as well as the union 
local in order to be able to sue the
international in a Title VII action; "[t]he

11/cases are divided" over the issue. This

1 1 /

53/ Henry v. Texas Tech University, 4 6 6 F. 
Supp. at 150.
54/ Curran v. Portland Superintending 
Fchool Committee, 4 3 5 FT Supp. ah 10 7 4 ; 
Stith v. Manor Baking Co., 418 F. Supp. at 
155-57; see also, Butler v. Local No. 4, 
Laborers International Union, 308 F. Supp. 
at 531; McDonald v. American Federation of 
Musicians, 308 F. Supp. at 669.
55/ Stevenson v. International Paper Co., 
432 F. Supp. at 396.



38

is a frequently recurring problem for two
reasons. First, in most class action
litigation union locals are effectively
judgment proof; the average local treasury
has less than $50,000 and over 8,000 locals
of the approximately 46,000 locals which
file reports with the Department of Labor

56/
have no assets at all. The typical
international, by comparison, has almost
$ 1 0 million in assets, and over 1 1  million

_57/
in annual income.

Second, while the availability of the 
international as a defendant is often of 
vital legal importance, this is not 
a distinction that would necessarily be 
made by the ordinary charging party. In 
court union attorneys may understandably

56/ Statistical Abstract of the United 
States, 1980, p. 430 Table 717.
57/ Id.



39

seek to minimize the relationship between 
an international and its locals; but on the 
shop floor, and in representation elec­
tions, both union members and union offi­
cials take a very different approach. 
Among the international unions which have 
sought to thus disassociate themselves from 
their locals, and have urged that they must 
be listed separately in a pro se Title VII
charge, are the International Brotherhood 

58/
of Teamsters, the United Steelworkers

59/ 60/
of America, the United Mine Workers,
the International Longshoremen ' s and Ware-

61/
housemen's Union, the International As-

58/ Macklin v. Spector Freight Systems,
Inc., 478 F.2d at 993, n. 25.
59/ Taylor v. Armco Steel Corp., 373
F. Supp. 885 (S.D. Tex. 1973).
60/ Jamison v. Olga Coal Co., 335 F. Supp. 
at 460.
61/ Gibson v. Local 40, Supercargoes, 

Union, 543 F.2d at 1 2 63, n. 1.



40

sociation of Machinists, the Interna-
63tional Brotherhood of Electrical Workers,

the United Electrical, Radio and Machine 
64/

Workers, the Brotherhood of Railway and
65/

Airline Clerks, the International Print-
66/ing and Graphic Communications Union,

the International Wholesale and Department 
67/

Store Union, the International Alliance

62

62/ Hardison v. TWA, supra.
63/ EEOC v. International Brotherhood of ETectrical Workers, supra/ "
64/ Torockio v . Chamberlin Mfg. Co. 51 
F.R.D. 517 (W.D. Pa. 1970).
65/ Roberts v. Western Airlines, 425 F. 
Supp. 416'(N.D. Cal. 1976).
66/ Braxton v. Virginia Folding Box Co., 
72 F.R.D. 124 (E.D. Va. 1976). ‘ ‘
67/ Glus v. G. C. Murphy Co., 
(3rd Cir. 1977). 562 F.2d 880



41

6 8/
of Theatrical Workers, the United

6 9 /
Glass and Ceramic Workers, the Inter-

7 0 /
national Brotherhood of Painters, and
the International Brotherhood of Pulp,

21/Sulphite and Paper Mill Workers.
The standard established by the Fifth 

Circuit in this case conflicts, not only 
with the plethora of lower court decisions 
on the same subject, but with the general 
principles established by this Court for 
construction of Title VII. The Fifth 
Circuit standard is unique in its harsh-

6 8/ Kaplan v. International Alliance of
TKeatrical Workers, supra/
69/ LeBeau v. Libby-Owens-Ford Co., 484 
F.2d 798 (7th Cir. 1973) .
70/ EEOC v. Brotherhood of Painters, 384 
F. Supp. 1264 (S.D. 1974).
71/ Stevenson v. International Paper Co., 
supra.



42

ness. The 1969 charges which the court of 
appeals held failed to adequately name any 
international union in fact listed among 
the parties which had engaged in discrimi­
nation :

International Association of 
Machinists & Aerospace Workers, 
Lodge 359

International Holder & Allied Workers, Local 342
Brotherhood of Boilermakers, 
Blacksmiths, Forgers, Helpers, 
Local 583 72/

The purported deficiency of these charges 
apparently must consist in the use of a 
comma, rather than a semicolon, after the 
word "workers." "Such technicalities are 
particularly inappropriate in a statutory 
scheme in which laymen, unassisted by 
trained lawyers, initiate the process." 
Love v. Pullman Co., 404 U.S. at 527; see

72/ Plaintiffs' Exhibit 6 6; Attachment A.



43

750, 761 (1979); Mohasco Corp. v. Silver,
447 U.S. at 816 n. 19. Four of the charges 
alleged broadly that the discrimination had 
been by the "union," not limiting the ac­
cusation to the locals, and one charge ex-

73/
pressly complained of a union contract
which had in fact been negotiated and

74/
signed by an international. In holding
that these charges "failed to allege
specific conduct which clearly implicated

1 1 /the Internationals" the Fifth Cir
cuit set a standard far more stringent 
than any court would apply under the Fed­
eral Rules of Civil Procedure to a civil 
complaint , Conley v ._Gj.bson , 35 5 U.S.

also Oscar Mayer & Co v . Evans, 441 U.S.

73/ Id.
74/ See nn.3-5, supra, and accompanying 
text.
75/ Appendix App. 51a.



- 44

41 , 45-46 (1957 ), and far beyond what can
reasonably be asked of such pro se allega
tions. Haines v. Kerner, 404 U.S. 519
520 (1972); Hughes v. Rowe, 449 U.S. 5,
(1980).

Regardless of what standard this Court 
believes should apply to these cases, 
certiorari should be granted to end 
the extraordinarily complex and widespread 
differences which exist among the lower 
courts. The present confusion in the 
law invites defendants to challenge, and 
prompts plaintiffs to support the adequacy 
of the allegations in virtually any charge. 
This necessarily prolongs and complicates 
the judicial resolution of any case, and 
reduces the likelihood that these cases can 
be settled short of trial.

The EEOC, which receives more than 
40,000 charges a year, several thousand of



45

them regarding discrimination by unions, 
is in need of guidance as to the parties it 
can or should investigate in the face of a 
typically broadly written charge. EEOC 
employees in offices throughout the coun­
try who are directed by the Commission
to assist complainants in drafting their 

77/
charges must have a clear standard in
order to assure that they do not mislead
complainants, as apparently occurred in

28this case. Further decisions by the lower

76/

7 6/ Equal Employment Opportunity Commis­
sion, 12th and 13th Annual Reports, pp. 48, 
59 (1981).
77/ EEOC Compliance Manual, § 2.
78/ The same ambiguities are apparent in 
all the 1969 charges, each of which was 
sworn to and drafted in the hand of a 
single EEOC Field Representative, Jerry 
Swift. Plaintiffs Exhibit 6 6. It was the 
EEOC Field Representative who failed 
precisely to distinguish between the 
respective locals and internationals and 
unambiguously to name both as discriminat­
ing respondents. As clear as it is that



46

courts will only deepen and exacerbate the 
many-sided conflict which already exists 
among the more than 70 reported decisions. 
Only action by this Court can establish a 
clear and uniformly applied standard.

78/ continued
plaintiffs should not be penalized for 
layman's lack of verbal precision, it 
is equally unfair to penalize them "for 
administrative laxity or ineptness on the 
part of the EEOC." Thornton v. East Texas 
Motor Freight, Inc., 497 F.2d 416, 424 (6th 
Cir. 1974).



47

CONCLUSION
For the 

Certiorari 
judgment and

foregoing reasons, a Writ of 
should issue to review the 
opinion of the Fifth Circuit.

Respectfully submitted

JOSEPH P. HUDSON
1909 30th Avenue 
Gulfport, Mississippi 

39501
DANIEL B. EDELMAN 

Yablonski, Both &
Edelman 

Suite 800 
1140 Connecticut 
Avenue, N.W.

Washington, D.C. 20036
DEMETRIUS C. NEWTON

2121 8th Avenue North 
Birmingham, Alabama 35203

BARRY L. GOLDSTEIN-/
Suite 940
806 15th Street, N.W. 
Washington, D.C. 20005 
202-638-3278

JACK GREENBERG 
JAMES M. NABRIT, III 
0. PETER SHERWOOD 
ERIC SCHNAPPER 

Suite 2030 
10 Columbus Circle 
New York, New7 York 

10019

Attorneys for Petitioners
*/ Counsel of Recor





ATTACHMENT A

Complainant

Jackson

Dudley

Mason

Long

EEOC CHARGES FILE D  IN 1969

Alleged Union Discriminators Allegations

“ Brotherhood of Boilermakers, 
Blacksmiths, Forgers, Helpers, 
Local 583”

“ The Boilermakers Union does not admit Ne­
groes and is party to a contract and a dis­
tribution of bargaining units that perpe­
trates segregated departments and dead end 
jobs for Negroes.”

“ International Association o f “ The Union fails to admit Negroes and is
Machinists & Aerospace Workers, party to a discriminatory division o f jobs.”  
Lodge 359”

“ International Molders & Allied “ The Local does not press grievances for Ne-
W orkers, Local 342”  groes and treats Negroes discriminatorily

in other ways.”

“United Steelworkers of America, “ The Company and the Union along with 
AFL-CIO ” other Unions are party to a discriminatory

division of the Plant and its departments 
into different bargaining units.”

SO U R C E : Plaintiffs’ Exhibit 66.



Complainant

Walker

Adams

Alleged Union Discriminators

“ Patternmakers Association of 
Birmingham, affiliated with the 
Patternmakers League of North 
America, A FL-C IO ”

“ International Brotherhood of 
Electrical Workers, Local No.
136”

ATTACHMENT A, Page 2

Allegations

“ There are no Negro members of Pattern­
makers Union at U.S. Pipe, Bessemer Pipe 
Plant.”

“ The Patternmakers Union, along with other 
Unions, and the Company, have the depart­
ments divided up so Negroes would lose 
their seniority if  they bid on some better 
jobs.”

“ The Electrician’s Union, along with several 
other Unions and the Company, have the 
Pipe Plant divided up into different bargain­
ing units so that Negroes lose their seniority 
if they bid on some jobs even in their own 
department.”



APPENDIX



ORDER OF COURT OF APPEALS DENYING REHEARING

August 7, 1981

No. 80-7107, 80-7256

JOSEPH TERRELL, Walter Dudley,
Thomas Green, Johnny Long, Albert 
Mason, Marcus Oakes, Sam Walker, 
on behalf of themselves and the 
class they represent,

Plaint iffs-Apellants,
v .

UNITED STATES PIPE & FOUNDRY CO., 
et al., Defendants,

LOCAL 2140, UNITED STEELWORKERS UNION 
LOCAL 342, INTERNATIONAL MOLDERS, 
APPLIED WORKERS UNION, et al. ,

Defendants-Appellees.
JOSEPH TERRELL, JR., et al. ,

Plaint iffs-Appellants ,
v.

UNITED STATES PIPE & FOUNDRY CO. 
et al. ,

Defendants,
T

LOCAL 2140, UNITED STEELWORKERS UNION,
Defendant-Appellees.



2a

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

ON PETITION FOR REHEARING AND PETITION FOR 
REHEARING EN BANC (Opinion May 14, 1081,

5 Cir., 1 98_, __  F. 2d ___).
(August 7, 1981)

PER CURIAM:
( ) The Petition for Rehearing is
DENIED and no member of this panel nor 
Judge of this Administrative Unit in 
regular active service having requested 
that the Court be polled on rehearing en 
banc (Rule 35, Federal Rules of Appellate 
Procedure; Local Fifth Circuit Rule 16; 
Fifth Circuit Judicial Council Resolution 
of January 14, 1981), the suggestion for
Rehearing En Banc is DENIED.
ENTERED FOR THE COURT:

/s/ Joseph W. Hatchett_____
United States Circuit Judge *
*District Judge of the Norther District of Alabama, sitting by designation.

UNITED STATES CIRCUIT JUDGE



3a

DECISION OF COURT OF APPEALS, 
May 14, 1981

JOSEPH TERRELL, Walter Dudley,
Thomas Green, Johnny Long, Albert 
Mason, Marcus Oakes, Sam Walker, 
on behalf of themselves and the 
class they represent, Plaintiffs, 
Apellants,

v.
UNITED STATES PIPE & FOUNDRY CO., 

et al., Defendants,
LOCAL 2140, UNITED STEELWORKERS UNION 
LOCAL 342, INTERNATIONAL MOLDERS, 
APPLIED WORKERS UNION, et al.,
Defendants-Appellees.

JOSEPH TERRELL, JR., et al. ,Plaintiffs-Appellants,
v.

LOCAL 2140, UNITED STEELWORKERS UNION, Defendant-Appellee.
Nos.7107, 80-7256

UNITED STATES COURT OF APEALS 
Fifth Circuit 
Unit B

May 14, 1981.

Rehearing and Rehearing En Banc 
Denied Aug. 7, 1981.



4a

Before FAY and HATCHETT, Circuit 
Judges, and Grooms*, District Judge.

HATCHETT, Circuit Judge:
This appeal stems from a class action

employment discrimination suit brought
in 1 972 under Title VII of the 1 964 Civil
Rights Act, 42 U.S.C. § 2000e-2(c),
and section 1981 of the 1 866 Civil Rights
Act, 42 U.S.C. § 1981, by black employees
at the Bessemer, Alabama plant of U.S. Pipe
and Foundry Company against their employer

1/and their union representatives. Due to 
pretrial settlements by the Company and the 
electrical workers union, along with the 
agreement of all parties to a form of in-

* District Judge of the Northern District 
of Alabama, sitting by designation.
_]_/ This is a consolidated interlocutory 
appeal under 28 U.S.C. § 1292(b) and
Federal Rule of Civil Procedure 54(b).



5a

junctive relief and the postponement of 
trial on the allocation of any back pay 
liability, this litigation now focuses upon 
the alleged illegality of the Bessemer 
seniority system and any resulting liabil­
ity on the part of five unions. These 
unions include one industrial union, the 
United Steelworkers of America (Steel­
workers), Local 2140, and four craft 
unions: the Brotherhood of Boilermakers,
Blacksmiths, Forgers, and Helpers (Boiler­
makers), Local 583; the International 
Association of Machinists & Aerospace 
Workers (Machinists), Lodge 359; the 
International Holders & Allied Workers 
Union (Molders), Local 342 ; and the 
Pattern Makers League of North America 
(Patternmakers), Birmingham Association.

Appellants, the class of black employ­
ees, challenge the decision of the trial



6a

court that all but one aspect of the Besse­
mer seniority system was bona fide within 
the meaning of § 703 (h) of Title VII and
thus immunized from attack as a seniority 
system whose discriminatory effects were 
unintended. See 42 U.S.C. § 2000e-2(h).
In addition, appellants challenge the 
court's procedural ruling that their 
charges filed with the EEOC in 1 969 failed 
to name as respondents the international 
unions at the plant so as to permit any 
Title VII liability on their part to 
commence 180 days prior to the filing of 
these charges. See 42 U.S.C. § 2000e-5(f) 
(1). One of the appellees, the Steel­
workers, cross-appeals the refusal of the 
district court to excuse them from legal 
responsibility for the seniority system on 
the separate ground that this predominantly 
black industrial union actively opposed the



7a

largely white, craft unions in the estab­
lishment of a seniority system which worked 
to the disproportionate disadvantage of 
the Steelworkers. See 42 U.S.C. § 2000e-2 
(c)(3).

We agree with two of these three 
challenges. We hold that the seniority 
system at Bessemer was not bona fide under 
§703 (h), that the Steelworkers bear no 
legal responsibility for this discrimina­
tory seniority system, but that the Inter­
nationals were insufficiently identified by 
the 1 969 EEOC charges to trigger their 
Title VII liability at that time.

FACTUAL BACKGROUND
U.S. Pipe Co. has a plant in Bessemer, 

Alabama which manufactures pipe for water 
and sewage projects. Production and main­
tenance workers at the plant have elected 
as their bargaining representatives various



8a

craft unions associated with the American 
Federation of Labor, as well as the 
non-craft steelworkers union affili­
ated with the Congress of Industrial 
Organizations. The district court found 
that the craft unions represent workers in 
the higher-skilled, better-paying jobs from 
which employees have the opportunity to 
move up in the company. The Steelworkers 
union represents workers in the least 
desirable, "dead-end" jobs. The craft 
unions are virtually all white. The 
Steelworkers union is predominately black.

The district court also found that the 
racial division between the unions stems 
partly from the company's historical 
practice of making job assignments on the 
basis of race. Discriminatory job assign­
ments reflected the general racism which 
permeated all aspects of plant operations 
prior to 1 965 , from the segregation of



9a

employee facilities to the prevention of 
equal employment opportunities.

After passage of the 1964 Civil Rights 
Act, a major cause of continuing inequality 
was the seniority system in effect at the 
Bessemer plant until 1975. The overall 
seniority system was a composite of sep­
arate bargaining agreements negotiated by 
the company with each union. These agree­
ments were similar, however, in providing 
that seniority would be measured on the 
basis of length of service in the applic­
able seniority unit, with seniority units 
generally defined by the bargaining units. 
With few exceptions, an employee who 
transferred to a new unit received no 
credit for service to the company in his 
prior unit. As recognized by the district 
court, this inhibition upon transfers 
disproportionately prejudiced those workers 
in the predominately black Steelworkers



union who had been assigned to the least 
desirable, "dead-end" jobs. The appellants 
describe the discouraging effect of this 
system upon black advancement at the plant 
by pointing to the fate of one black em­
ployee who did transfer into a craft unit, 
losing twenty-six years of plant seniority, 
only to then lose his job completely as 
part of a reduction in plant employees 
which left on the job two white workers 
with just a few years of seniority in the 
craft unit. See our recent decisions in 
U.S. v. Gerogia Power Co., 634 F.2d 929 
(5th Cir. 1981), and Swint v, Pullman-Stan­
dard , 624 F.2d 525 (5th Cir. 1980), for
descriptions of the discriminatory opera­
tion of seniority systems with "lock-in" 
provisions such as those at the Bessemer 
plant.

In the early years of plant opera­
tions, various craft unions attempted with



-  1 1 a -

little success to represent employees in 
negotiating a collective bargaining agree­
ment. In 1939, six international unions 
competed strenuously to represent some or 
all of the employees at the plant. The 
Steelworkers associated with the CIO, 
sought to represent all production and 
maintenance employees at the plant. Four 
unions affiliated with the AFL sought to 
represent employees based primarily upon 
their craft: the Boilermakers, Machinists,
Patternmakers, and Electrical Workers. One 
other AFL union, the Molders, claimed not 
only those employees skilled in that craft, 
but all other production and maintenance 
employees except those claimed by the other 
AFL unions.

Elections supervised by the NLRB 
resolved this confrontation between the 

newly formed CIO, with its strategy of 

heterogeneous, plant-wide industrial or-



12a

ganization, and the older AFL, with its 
traditional approach of organizing sep­
arate, homogeneous craft unions. The 
Boilermakers, Machinists, Patternmakers and 
Electrical Workers prevailed over the 
Steelworkers among these largely white 
craft employees. The Steelworkers defeated 
the Molders among the remaining, predomin­
ately black group of employees. "That the 
elections had racial implications cannot be 
doubted," according to the district court.

Passage of the Taft-Hartley Act 
enabled the Molders to return to the 
Bessemer plant in 1949 to attempt "craft 
severance" from the industrial union 
represented by the Steelworkers. See 29 
U.S.C. § 159(b)-(2). Following an NLRB
election among the all white employees with 
molder skills, the Molders union was 
certified as a separate craft unit.

In 1950, the unions formalized exist­



13a

ing practices, without the sanction of the 
NLRB, by switching representation of thir­
teen positions from one unit to another. 
Ten jobs given to the Boilermakers and Ma­
chinists by the Steelworkers were staffed 
by white workers. Three positions given to 
the Steelworkers by the two craft unions 
were staffed by black workers. Though it 
continued to represent some white employ­
ees, the Steelworkers represented an even 
higher percentage of black workers as a re­
sult of this "swap." The Boilermakers and 
Machinists joined the Patternmakers and the 
Electrical Workers in having all white mem­
berships .

The bargaining units at Bessemer re­
tained this racially divided structure 
until the time appellants filed discrimina­
tion charges with the EEOC in 1969. In the 
period directly covered by this lawsuit, 
U.S. Pipe negotiated collective bargaining



14a

agreements with each of the unions in 1968, 
1971, and 1974. Prior to this time the 
Steelworkers had repeatedly advocated 
plant-wide seniority. Armed in 1968 with 
the recently enacted Civil Rights Act, the 
Steelworkers proposed plant-wide seniority 
on the first day of negotiations. The com­
pany expressed a willingness to make the 
requested changes, but noted the need for 
the approval of the other unions. The 
craft unions strongly disapproved of any 
change, and the "lock-in" provisions re­
mained intact.

In 1971, the company initiated the 
proposal of plant-wide seniority. The 
Steelworkers met privately with the other 
unions several times in an effort to gain 
their agreement to such a system. Again 
the craft unions prevented any change.

In 1974, the Steelworkers met with the 
craft unions in advance of their separate



15a

negotiations with the company in order to 
advocate plant-wide seniority. The craft 
unions were intransigent. The Steelworkers 
then agreed to a united union proposal to 
the company for plant-wide seniority 
qualified by a "unit preference" scheme 
which gave unit members priority considera­
tion for job vacancies. While the Steel­
workers and the company continued to 
express their preference for a complete 
plant-wide seniority system, both agreed to 
the compromise proposal.

THE DISTRICT COURT DECISION 
The district court upheld the validity 

of the seniority system except for the 1950 
"swap" of positions between the Steelwor­
kers and the Boilermakers and Machinists. 
The court correctly recognized that in 
order for a seniority system to be bona 
fide under § 703(h) of Title VII, it
must not have been created or maintained



-  1 6 a -

with the intention to discriminate. Inter- 
national Brotherhood of Teamsters v. United
States, 431 U.S. 324 , 97 S . Ct. 1843, 52
L.Ed.2d 396 (1977). The d i s t r i (:t court
properly looked to the four fact:or s ex -
tracted by us from the Supreme Court ' s
opinion in Teamsters and s>et forth in James
v. Stockham Valves & Fitti.ngs Co. , 559 F.2d
310 (5th Cir . 1977), cert. denied, 434 U.S.

O u> 00 S . Ct. 767, 54 L.Ed.2d 781 ( 1978 ) ,
to assist in determining whether a particu­
lar seniority system stems from nondiscrim- 
inatory motivations:

( 1 ) whether the seniority system op­
erates to discourage all employees equally 
from transferring between seniority units;

(2) whether the seniority units are 
in the same or separate bargaining units 
(if the latter, whether that structure is 
rational and in conformance with industry
practice);



(3) whether the seniority system had 
its genesis in racial discrimination; and

(4) whether the system was negotiated 
and has been maintained free from any ille­
gal purpose.
James, 559 F.2d at 352.

The district court found that one of 
the James factors weighed in favor of ap­
pellants: The seniority system had its
genesis in racial discrimination. Speci­
fically, the court found that racial con­
siderations played a major role in the 
election which produced the original 
bargaining and seniority units, and in the 
1950 "swap" of employee positions between 
several units.

The district court ruled, however, 
that none of the other three James factors 
suggested an intent to discriminate through 
the Bessemer seniority system. Regarding 
the equality with which the system operated

- 17a -



upon all employees, the court noted that 
the "lock-in" provisions were neutral on 
their face and as applied. The court 
acknowledged that "a much larger percentage 
of blacks than whites would have reason to 
desire transfer but for the loss of senior­
ity under the rules," and that "the senior­
ity system has been shown to have a dis­
criminatory impact upon black employees." 
The court believed these facts to be ir­
relevant to the determination of any ra­
cially discriminatory intent.

The court also found general rational­
ity in the Bessemer bargaining structure, 
and thus weighed this factor against a 
finding of discriminatory purpose. Though 
fraught with racial overtones, the original 
configuration of the units was deemed ra­
tional when viewed in light of the divi­
sions in the labor movement at the time

- 18a -

of the original elections. The court



19a

placed significance upon the fact that 
"notwithstanding discrimination against 
blacks within their own structures, the 
Boilermakers and Molders were neverthelsss 
seeking to represent black employees...." 
The court viewed the fact that the Molders 
later sought "craft severance" only among 
the all white employees in skilled posi­
tions, to the exclusion of their all black 
helpers, as fully justified by the NLRB 
practice of permitting such special elec­
tions only among skilled employees. The 
court recognized that the 1 950 "swap" of 
jobs between unions was neither rational 
nor in conformity with industry practice. 
Yet the court treated this final change in 
the Besseer bargaining structure as nothing 
more than an isoldated incident which in no 
way implicated the overall seniority
system.



20a

The district court ruled that the 
final James factor, whether the seniority 
system was negotiated and maintained free 
from illegal purpose, again weighed in 
favor of the unions, with the exception of 
the craft unions inolved in the 1590 
"swap." The court inferred that the "lock- 
in" seniority provisions negotiated by all 
the unions, including the largely black 
Steelworkers union, reflected non-racial 
considerations. Craft union maintenance of 
this system was deemed an effort to prevent 
competition from other white unions rather 
than an effort to block encroachment by 
black workers. The court concluded that 
racial considerations played a role only in 
the 1968, 1971, and 1974 negotiations, and
then only in the positive context of pro­
posals to remove discriminatory practices.

On balance, the court held that the 
racially discriminatory genesis of the



21a

system provided insufficient evidence of an 
intent to discriminate through the creation 
and maintenance of the seniority system. 
Finding the seniority system bona fide 
under section 703, the court released all 
unions from liability under Title VII, with 
the exception of the Boilermakers and 
Machinists, whose liabilty was limited to 
the 1950 "swap." The court released the 
Steelworkers from liability for their part 
in this exchange because it found that they 
acted not out of racial animus, but instead 
out of a desire to offer representation to 
black employees in the Boilermakers and 
Machinists unions who felt discriminated 
against by these unions.

While the district court thus released 
the Steelworkers from liability, it also 
ruled that if it had erred in holding the 
seniority system bona fide, then the Steel­
workers must share in union responsibility



22a

for that system. The court relied upon a 
belief that the company, rather than 
the Steelworkers, acted as the principal 
advocates of plant-wide seniority. It 
assumed that the Steelworkers fully sup­
ported the 1974 joint union proposal of a 
"unit preference" restriction upon a 
plant-wide seniority system.

Finally, the district court held that 
appellants' 1969 EEOC charges failed to 
name the International Unions as respon­
dents so as to trigger their liability at 
that time in the subsequent Title VII suit. 
The court based this conclusion upon the 
failure of these charges to explicitly name 
the Internationals.

We must determine whether the senior­
ity system was bona fide; whether the 
Steelworkers are liable for that system; 
and whether the 1 969 EEOC charges suffi­



23a

ciently identified the Internationals as 
respondents.

THE ILLGALITY OF THE SENIORITY SYSTEM
Section 703(h) of Title VII excepts

certain seniority systems from the reach of
the Civil Rights Act of 1964:

Notwithstanding any other provision of 
this Title, it shall not be an unlaw­
ful employment practice ... to apply 
different standards of compensation, 
or different terms, conditions, or 
privileges of employment pursuant to a 
bona fide seniority ... system ... 
provided that such differences are not 
the result of an intention to discrimi­
nate because of race ....

42 U.S.C. § 2000e-2(h). We have held that
the immunity created by section 703(h)
extends not only to Title VII actions, but
also bars section 1981 claims. Pettway v.
American Cast Iron Pipe Co., 576 F.2d 1157
(5th Cir. 1978), cert. denied, 439 U.S .
1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979).
Yet the immunity provided by section 703(h)
extends to seniority systems with a dispar­



24a

ate racial impact only when "differences in 
treatment [are] not the result of an inten­
tion to discriminate because of race." 
Teamsters, 431 U.S. at 353, 97 S.Ct. at 
1863; accord, Southbridge Plastics Division 
v. Local 759, 565 F.2d 913 (5th Cir. 1978).

To assess the purposes underlying 
the Bessemer seniority system, we turn 
to the four factors identified in James v. 
Stockham Valves . The district court 
correctly found that the Bessemer seniority 
system had its genesis in purposeful racial 
discrimination. The record amply supports 
this conclusion by showing that the system 
arose in an era of overt racial discrimina­
tion at U.S. Pipe, when blacks were assign­
ed to "dead-end" jobs, bargaining seniority 
units were defined by racial considera­
tions, and seniority provisions allowed 
transfer to better units only through 
commission of "seniority suicide." See our



25a

refusal to extend section 703(h) immunity 
to similar seniority systems in Swint v. 
Pullman-Standard , 624 F.2d 525 (5th Cir. 
1980), and United States v. Georgia Power 
Co., 634 F.2d 929 (5th Cir. 1981). We need 
not decide whether the court's specific 
finding of the racial genesis of the 
Bessemer system is tantamount to a finding 
of "purposeful discrimination in connection 
with the establishment ... of the system," 
James, 559 F.2d at 351, because here, as in 
Swint and Georgia Power, we find evidence 
of discriminatory intent under each of the 
James factors and the totality of all cir­
cumstances .

The district court clearly erred in 
concluding that the Bessemer seniority 
system was negotiated and maintained free 
of discriminatory purposes. The record 
before us amply shows that we again face 
a situation in which



26a

the seniority system negotiated 
through the collective bargaining pro­
cess tracked and reinforced the pur­
poseful segregated job classification 
scheme maintained by the company and 
the conclusion is inescapable that the 
seniority system itself shared in that 
same unlawful purpose. The seniority 
system under the collective bargaining 
agreement was but part and parcel of 
the total package of purposeful 
discrimination at [the company] .

Georgia Power, 634 F.2d at 936.
Even if the district court correctly 

held that the racial1y-charged union 
elections conformed to industry practice, 
the 1950 racial "swap" of positions, in 
defiance of all reason, reinforces the 
conclusion that the Bessemer seniority 
system was created and maintained unlaw­
fully. We reject the district court's 
attempt to isolate this aspect of the 
seniority system so as to restrict union 
liability to that incident. We instead
view this racial adjustment as an integral 
piece of evidence which manifested underly­
ing racial purposes. The significance of



27a

this final alteration of the bargaining 

structure cannot be underestimated since it 

removed almost all of the black workers 

assigned by the NLRB to craft unions.

The district court also erred in 

its considration of the James factor which 

focuses upon the equality with which 

a seniority system operates. The disparate 

impact of the Bessemer seniority system on 

black employees is obvious and well docu­

mented by the record. The district court 

recognized this disparate impact but 

concluded that it was irrelevant. We 
have since held that disparate impact 

constitutes not only relevant evidence of 

discriminatory purpose, Swint, but can 

conclusively resolve the "equality" factor 

in favor of those who have suffered such 
discrimination. See Georgia Power. As for 

the district court's reliance upon the 

facial equality with which the Bessemer



28a

seniority system operated, we merely note 
that here again "facial equality ... was 
but a mask for the gross inequality be­
neath." Gerogia Power, 634 F,2d at 935.

Other factors aside from those 
isolated by J ames may be considered in 
determining the purposes underlying a 
seniority system. See Pettway v. American 
Cast Iron Pipe Co., 576 F.2d at 1192. One 
such factor in this case, a factor appar­
ently ignored by the district court, is the 
overtly discriminatory policies of each of 
the craft unions at the time the seniority 
system was created and "corrected" to fol­
low racial lines. At that time, for in­
stance, the Machinists barred blacks from 
union membership, the Boilermakers rele­
gated blacks to inferior "auxiliary" 
locals, the Molders segregated the few 
blacks in their Alabama locals, and the
Patternmakers claimed that there were no



29a

"qualified niggers " in that state. The
Supreme Court h ad held that a court may
take judicial notice of the exclusion of
black workers from craft unions on racial
grounds, United Steelworkers of America v. 
Weber, 443 U.S. 193, n. 1 , 99 S.Ct. 2721,
n.1, 61 L.Ed.2d 480 (1979), but the record 
before us provides ample evidence of 
overtly disriminaoty policies of the craft 
unions involved in this case. Little pur­
pose would be served by detailing these 
discriminatory policies. Such policies, 
however, offer strong additional evidence 
of racial motivation underlying the senior­
ity system defended by the craft unions in 
the face of mounting opposition by the 
company and the Steelworkers.

In summary, the totality of circum­
stances surrounding the creation and 
maintenance of the seniority system at the 
Bessemer plant again "leaves us with the



30a

definite and firm conviction that a mistake 
has been made. There can be no doubt, 
based upon the record in this case, about 
the existence of a discriminatory purpose." 
Swint, 624 F.2d at 533 (citations omitted). 
Our recent decisions in Swint and Georgia 
Power, overruling conclusions of nondis- 
criminatory intent, virtually compel con­
demnation of the Bessemer system because 
of the striking similarity between the 
"lock-in" seniority provisions and the 
comparable clarity of other evidence of 
discriminatory purpose. As in those cases, 
we find error in the failure of the dis­
trict court (1) to consider the disparate 
impact of such systems, (2) to appreciate 
the integral importance of particular 
racial deviations from industry practice, 
(3) to focus upon additional factors, such 
as the avowedly racist policies of the 
craft unions, and (4) to recognize the



31a

cumulative effect of separate pieces of 
evidence of racial motives, evidence which 
here compelled the specific finding that 
the seniority system had its "genesis in 
racial discrimination." We therefore hold 
that the Bessemer system cannot qualify for 
the immunity extended by section 703(h) of 
Title VII only to those seniority systems 
created and maintained without intention 
to discriminate. 42 U.S.C § 2000e-2(h).

THE STEELWORKERS UNION 
The district court refused to excuse 

the Steelworkers from liability for any 
violation of Title VII by the Bessemer se­
niority system. The court viewed the Steel­
workers' efforts to institute plant-wide 
seniority as subsidiary to such efforts 
by the company. The court focused upon 
the Steelworkers' adoption of the 1974 
joint union proposal for "unit preference" 
as evidence of its failure to support a



32a

true plant-wide seniority system. The 
Steelworkers cross-appeal this decision 
on the ground that they took every rea­
sonable step to bring about plant-wide se­
niority. They argue that they settled upon 
the "unit preference" proposal only because 
it appeared to represent the best option 
available in light of craft union resis­
tance to complete plant-wide seniority. 
Appellants support the court's decision 
by arguing that while the Steelworkers 
were not "passive" in opposing the dis­
criminatory seniority system, their ef­
forts to abolish it were "ineffectual." 
Appellants would have us direct the dis­
trict court to take into consideration 
the Steelworkers' relatively commend­
able conduct when apportioning back pay 
liability among the unions. We refuse, 
however, to permit the Steelworkers union 
to suffer even the label of Title VII lia­



33a

bility because the record before us clear­
ly demonstrates that they met the legal 
requirement of taking every reasonable 
step to oppose a seniority system which 
operated primarily to discriminate against 
its own members.

We begin with established principles 
of law. Section 703(c)(3) of Title VII 
makes it unlawful for a union to "cause 
or attempt to cause an employer to dis­
criminate. ... " 42 U.S.C § 2000e-2(c)(3). 
We have recognized that under the Act 
"[l]abor organizations, as well as employ­
ers, have an affirmative duty to take cor­
rective steps to prevent the perpetuation 
of past discrimination." Myers v. Gilman 
Paper Co. , 544 F. 2d 837 , 850 (5th. Cir.), 
modified in other respects on rehearing, 
556 F.2d 758, cert, dismissed, 434 U.S.
80 1 , 98 S.Ct. 28 , 54 L.Ed.2d 59 (1 977 )
(citation omitted).



34a

The Supreme Court has cautioned 
against legally excusing a party involved 
in an employment practice which had been 
found to violate Title VII: "given a find­
ing of unlawful discrimination, backpay 
should be denied only for reasons which, if 
applied generally, would not frustrate the 
central statutory purpose of irradicating 
[sic] discrimination throughout the economy 
and making persons whole for injuries 
suffered through past discrimination." 
Albermarle Paper Co. v. Moody, 4 2 2 U. S.
405, 421, 95 S.Ct. 2362, 2373, 45 L.Ed.2d
280 (1975)(footnote omitted). One reason
for caution in excusing a party involved in 
an unlawful employment practice stems from 
the congressional purpose of stimulating 
se1f-corrective action by employers and 
unions.

It is the reasonably certain prospect
of a backpay award that "provide[s]



- 35a -

the spur or catalyst which causes employers and unions to self-examine 
and to self-evaluate their employment 
practices and to endeavor to elimin­
ate, so far as possible, the last 
vestiges of an unfortunate and igno­
minious page in this country's his­
tory . "

Albemarle, at 417-18, 95 S.Ct. at 2371-72
(quoting United States v. N.L. Industries, 
Inc. , 479 F. 2d 354 , 379 (8th Cir. 1 973)).

Whether a party involved in an 
established Title VII violation may be 
excused from liability therefore turns upon 
whether that party has proved to the full 
satisfaction of the courts that it has 
taken every reasonable step to bring 
employment practices into compliance with 
the law. In applying this test, we have 
recognized that even a union which signs a 
contract establishing an unlawful seniority 
system may suffer no liability if it 
actively opposed the adoption of this
system. See James v. Stockham Valves.



36a

This same test has caused us, in the 
face of different circumstances, to hold a 
union liable for a seniority system which 
resulted from agreements negotiated by 
another union. In Carey v. Greyhound Bus 
Co., Inc., 500 F. 2d 1 372 (5th Cir. 1974), 
for example, we held the conduct of a union 
to be violative of Title VII though "dis­
guised by a then veneer of racal neutral­
ity." This apparent neutrality stemmed 
from the fact that the union could not 
negotiate directly with the bus company 
about the seniority of its members who 
would transfer to another unit represented 
by a different union. We discerned that 
the union hd not even made a "concerned 
attempt" to rectify discriminatory prac­
tices since it had not "actively sought" 
plant seniority. We conclude that the "in­
effectual passivism" of the union facili­
tated the continuance of racial discrimina-



37a

tion. We therefore held that this union 
shared in overall responsibility for the 
illegal seniority system. In Myers v. Gil­
man Paper Co. , we likewise held a non-sig­
natory union liable for seniority provi­
sions in another union's bargaining agree­
ment on the ground that " [ i ] t is settled 
that Title VII required [the non-signatory 
union] at some point to take 'the affirma­
tive step to initiate negotiations in an 
effort to salvage for its own ex-members 
the seniority that they would inevitably 
and foreseeably lost [upon transfer].'" 544 
F.2d at 852 (quoting Carey, 500 F.2d at
1 379 ) .

After carefully examining the record, 
we conclude that the Steelworkers diligent­
ly sought to bring about a nondiscrimina- 
tory, plant-wide system at Bessemer. We 
reach this conclusion based on the total­
ity of circumstances in this case. In



38a

particular, we note the facts stated below.
Appellants do not allege any discrimi­

natory practices by the Steelworkers. The 
district court found that the evidence in 
this case supported the general observation 
that the Steelworkers constituted "one of 
the few institutions in the area which did 
not function in fact to foster and maintain 
segregation." The United Steelworkers of 
America has a well-known history of striv­
ing to achieve racial equality and integra­
tion in the labor movement.

The Steelworkers local at Bessemer was 
consistently represented by black officials 
who had every reason to oppose a seniority 
system which disproportionately prejudiced 
its predominately black membership. These 
officals appear to have taken every reason­
able step to bring about plant-wide senior­
ity, from initiation of this proposal on 
the first day of the 1968 negotiations with



39a

the company, to private lobbying efforts in 
1971 and 1974 with the craft unions. Their 
acceptance of the "union preference" system 
in 1974 clearly represented a reasonable 
decision to gain some improvement, rather 
than suffering complete defeat at the hands 
of the craft unions.

In view of these and other circumstanc­
es evidenced by the record, we absolve the 
Steelworkers from any responsibility under 
Title VII for the discriminatory seniority 
system at the Bessemer plant. In so hold­
ing, we advance the congressional purpose 
of stimulating self-corrective union action 
against illegal employment practices. The 
penalty of back pay liability for those 
unions which passively acquiesce in dis­
criminatory practices is matched with 
judicial recognition of those unions which 
have opposed such violations of the- law 
through every means in their power.



40a

THE LIABILITY OF THE INTERNATIONAL UNIONS
The precise procedural issue before us

is whether the original charges filed by
appellants with the EEOC identified the
Internationals as respondents within the
meaning of that portion of Title VII which
authorizes legal action against parties
"named" in the administrative charge. 42

—/ The InternationalsU.S.C. § 2000e5(f)( 1 ) .
successfully argued in the trial court that 
they had not been named. Appellants claim

2/ 29 C.F.R. 1; 1601.12(h) provides:
A charge may be amended to cure tech­
nical defects or omissions, including 
failure to verify the charge, or to 
clarify and amplify allegations there­
in. Such amendment ... will relate to 
the date the charge was first re­
ceived .

Originally adopted in 1965 and 
numbered § 1601.11(9), this regulation 
was amendd in 1979, without altering 
its substantive content to read as set 
forth above.



41a

on appeal that the Internationals were 
sufficiently identified in the charges to 
fulfill the purposes of the Act. We dis­
agree. The significance of this contro­
versy and our conclusion becomes clear, 
however, only in the context of the proce­
dural history of this case.

Appellants first filed charges with 
the Commission in 1969. The district court 
ruled that these charges fialed to identify 
the Internationals as respondents, though 
they indusputably named the Locals. In 
1971, appellants brought this legal action 
under both Title VII and section 1981, nam­
ing the Internationals along with the 
Locals as defendants. Appellants then 
amended their original EEOC charges in 1973 
to explicitly name the Internationals as 
respondents.

Commision regulations mandate that 
amended charges which merely clarify or am­



42

plify allegations in a prior charge shall
"relate back" to the effective date of the

3/
earlier charge. See Weeks v. Southern
Bell Telephone & Telegraph Co., 408 F.2d
228 (5th Cir. 1 969). The district Court
ruled, however, that it would.be "improper"
in this case to treat the amendments as
relating back to the date of the original
charges. The court viewed the amended
charges as an attempted "addition" of the
Internationals as respondents, rather than
as a mere clarification of previously

1/identified parties.

3/ 42 D.S.C. § 200Oe-5(f)(1) provides
that upon compliance with certain 
procedures fully met by appellants "a 
civil action may be brought against 
the respondent named in the charge" 
previously filed with the EEOC.

4/ The district court announced and ex­
plained its ruling as follows:

It is clear from the reading of the 
amended EEOC charges dated August 2,



43a

Only parties previously identified as 
respondents in charges filed with the EEOC 
are subject to subsequent liability under 
Title VII. 42 U.S.C. § 2000e-5(f)(1). All 
parties to this suit are in agreement that 
Title VII limits the liability of such 
respondents to matters occurring within 
180 days of the filing of administrative

4/ continued
1973, which were prepared with the 
assistance of counsel experienced 
in discrimination matters, that the 
international unions were being 
added as respondents. The EEOC's 
earlier finding and right-to-sue 
letters had, consistently with the 
wording of the original charges, 
treated only the local unions and 
company as respondents prior to that 
date. While the amended EEOC charges, 
even though filed ten months after the 
institution of the lawsuit, are cer­
tainly to be recognized as effective 
against the internationals when filed, 
it would be improper to treat them as 
"relating back" for limitations' pur­
poses to the earlier charges.

The district court therefore held that the 
potential liability of the Internationals 
commenced in 1971 under section 1981.



44a

charges. There is also no dispute that the 
limitations period in this case for liabil­
ity under section 1981 extends for one 
year, with the one year period measured 
from the commencement of judicial proceed­
ings .

The district court applied these 
limitations periods to the Internationals 
in a manner consistent with its conclusion 
that they were unnamed in the original EEOC 
charges. The court ruled that the period 
of potential liability of the Internaionals 
under Title VII began only in 1 973 , i. e. , 
180 days prior to their "addition" as 
respondents in the amended charges. The 
court extended their possible liability 
back to 1971 under section 1981, i.e., one 
year before the filing of the suit in 1972. 
The court refused to treat the Interna­
tionals in the same manner as the Locals 
when ruling that any Title VII liability on



45

the part of the Locals commenced 180 days 
prior to the original 1969 charges.

Appellants challenge this restriction 
upon the potential liability of the Inter­
nationals. They argue that the district 
court erred in holding that the 1969 EEOC 
charges failed to identify the Interna­
tionals as respondents. The insist that 
the 1973 amended charges merely rendered 
explicit the clear implication of the 
Internationals as respondents in the 
original charges. Appellants therefore 
contend that the district court committed 
reversible error in refusing to relate the 
explicit naming of the Internationals in 
the amended charges back to the date of the 
original charges.

We begin with certain well-established 
principles. The remedial purposes of Title 
VII, and the paucity of legal training 
among those whom it is designed to protect,



46

require that a court construe an EEOC 
charge with the utmost liberality. E.g, 
Tillman v. City of Boaz, 548 F.2d 592 (5th 
Cir. 197)(liberality required in interpret­
ing the parties named); Sanchez v. Standard 
Brands, Inc . , 431 F.2d 455 (5th Cir.
1970)(liberality required in interpreting 
the discrimination alleged). "For a 
lay-initiated proceeding it would be out of 
keeping with the Act to import common-law 
pleading necessities to this 'charge,' or 
in turn to hog-tie the subsequent lawsuit 
to any such concepts," Jenkins v. United 
Gas Corp. , 400 F.2d 28, 30 n.3 (5th Cir.
1968). A court called upon to interpret 
such a charge must bear in mind that a 
fundamental purpose of the charge is to 
trigger an investigation of the EEOC. "All 
that is required is that [a charge] give 
sufficient information to enable EEOC to
see what the grievance is about." Id. The



47

necessity for equally broad interpretation 
of such a charge at the administrative and 
judicial levels stems from the framework of 
Title VII and its goal of encouraging 
voluntary compliance through EEOC concilia­
tion .

The Commission, which must operate on 
the basis of the administrative 
charge, rarely drawn by an attorney, 
must therefore view the charge in 
its broadest reasonable sense in order 
to effectively attempt to eliminate, 
by the administrative process, the 
discriminatory practices and policies 
which it finds... Lacking enforcement 
powers, the Commission's disputes 
resolution machinery could not succeed 
if the federal courts were not in a 
position to review the complaint filed 
in a section 706 proceeding as broadly 
as the Commission views the charge.

Sanchez, 431 F.2d at 467 (quoting the ami­
cus brief of the EEOC); see Tillman v. City 
of Boaz, 548 F.2d 592 (5th Cir. 1977) (de­
ference should be given to EEOC interpreta­
tion of a charge). Such policy considera­
tions have caused this court to adopt a 
rule of reason which permits the scope of a



48a

Title VII suit to extend as far as, but no 
further than, the scope of the EEOC inves­
tigation which could reasonably grow out of 
the administrative charge.

The logic of this rule is inherent in 
the statutory scheme of Title VII. A 
charge of discrimination is not filed 
as a preliminary to a lawsuit. On the 
contrary, the purpose of a charge of 
discrimination is to trigger the inves­
tigatory and conciliatory procedures 
of the EEOC.... Only if the EEOC 
fails to achieve voluntary compliance 
will the matter ever become the sub­
ject of court action. This it is ob­
vious that the civil action is much 
more intimately related to the EEOC 
investigation than the words of the 
charge which originally triggered 
the investigation.

Sanchez, 431 F.2d at 466.
The reasonable limits of an investiga­

tion potentially triggered by an EEOC 
charge define not only the substantive 
limits of a subsequent Title VII action, 
but also the parties potentially liable in 
that action. See, e.g. , Tillman v. City of
Boax, 548 F.2d 592 (5th Cir. 1977); Kaplan



49a~

v. International Alliance of Theatrical and 
Stage Employees, 525 F.2d 1354 (9th Cir. 
1975). In Kaplan, the Ninth Circuit focus­
ed upon a factual statement in an EEOC 
charge which explicitly named only a local 
union, but which necessarily implicated 
an international union in the alleged 
discrimination. The court reasoned that 
the fact that a contract specifically com­
plained of had clearly been negotiated by 
the International sufficed to apprise the 
EEOC in "general terms" of the possible 
complicity of the International. The 
Kaplan court held thet such general notice 
to the EEOC was sufficient to permit the 
International to be named as defendant in a 
subsequent suit under Title VII. In so 
holding, the court relied primarily upon 
well-established rulings of this Court.

Our more recent decision in Tillman 
v. Boaz again looked to the factual alle-



50a

gations of an EEOC charge, and the scope 
of ensuing EEOC efforts, in liberally in­
terpreting the parties named in the charge. 
In Tillman, we held that the City of Boaz, 
Alabama, was liable under Title VII al­
though it was not specifically named as as 
respondent, because a letter to the EEOC, 
specifically incorporated by reference in 
the EEOC charges, stated that "I would 
like to file a claim against the City of 
Boaz and the charges themselves
listed the City of Boaz as the employer 
who discriminated against the plaintiff. 
Pursuant to that letter and the accom­
panying charges, the EEOC investigated 
the City as well as its mayor, the named 
respondent. In that situation, we had 
no difficulty concluding that both the 
EEOC and the City had sufficient notice 
that the City was charged to justify im­
posing liability on the City.



51a

Applying these precedents and princi­
ples favoring liberality to the facts now 
before us, we must nonetheless conclude 
that the Internationals were insufficiently 
implicated in the discrimination alleged in 
appellants' original charges to have rea­
sonably triggered EEOC investigation of the 
Internationals. These charges failed to 
allege specific conduct which clearly im­
plicated the Internationals. Quite reason­
ably, the EEOC then omitted the Interna­
tionals in its investigative and concil­
iatory efforts. The Internationals thus 
failed even to receive informal notice 
that they had been named through the Com­
mission's administrative processes. Ap­
parently recognizing that they had made 
a serious, substantive mistake -- not a 
mere technical error of pleading -- ap­
pellants amended their original EEOC 
charges to explicitly name the Interna­



52a

tionals. Without holding appellants to 
the same level of draftsmanship as trained 
attorneys, we are constrained by the facts 
in this case to uphold the decision of the 
district court that no liability of the 
Internationals under Title VII shall com­
mence until 180 days prior to these 1973 
amended charges.

CONCLUSION
Because the record clearly demon­

strates racially discriminatory purposes 
underlying the creation and maintenance of 
the Bessemer seniority system, we hold that 
it is non bona fide within the meaning of 
42 U.S.C. § 2000e-2(h). Since the Steel­
workers union took every reasonable step to 
eradicate this discriminatory system, we ex­
clude them from any liability for that sys­
tem under 42 U.S.C. § 2000e-2(c){3) . Fin­
ally, the fact that the allegations in ap­



53a

pellants' 1969 EEOC charges did not clearly 
implicate the International unions causes 
us to hold that these charges did not trig­
ger their liability at that time under 42 
U.S.C. § 2000e-5(f)(1).

AFFIRMED IN PART, REVERSED IN PART, 
AND REMANDED FOR FURTHER PROCEEDINGS.



54a

JUDGMENT OF DISTRICT COURT January 14, 1981

Filed Jan. 14, 1980

IN THE
UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ALABAMA 
SOUTHERN DIVISION

CIVIL ACTION
No. 72-887

JOSEPH TERRELL, JR., et al.,
Plaintiffs,

v s .

UNITED STATES PIPE AND FOUNDRY COMPANY, et al.,

Defendants.

JUDGMENT
A Memorandum Opinion having been 

entered on October 16, 1979, which denied
all the claims which the plaintiffs have 
asserted against Local 2140, United Steel­



55a

workers of America, Local 342, Interna­
tional Molders and Allied Workers Union, 
Patternmakers Association of Birmingham, 
United Steelworkers of America, Interna­
tional iMolders and Allied Workers Union, 
Patternmakers League of North America, 
International Association of Machinists 
and Aerospace Workers, and the Brotherhood 
of Boilermakers, Blacksmiths, Forgers and 
Helpers and the Court having entered a 
Certificate pursuant to Rule 54(b), Fed. R. 
Civ. P. that there was no just reason for 
delay and expressly directing the entry of 
final judgment, it is

ORDERED, ADJUDGED and DECREED that 
judgment be and it is hereby entered in 
favor of the above-listed defendants.

/s/ Sam C. Pointer, Jr._____
UNITED STATES DISTRICT JUDGE



56a

RULE 54(b) CERTIFICATION 
January 14, 1980

Filed Jan. 14, 1980

IN THE
UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ALABAMA 
SOUTHERN DIVISION

CIVIL ACTION
No. CA 72-P-0887-S

JOSEPH TERRELL, JR., et al.,
Plaintiffs,

vs.
UNITED STATES PIPE AND FOUNDRY 
COMPANY, et al.,

Defendants.

RULE 54(b) CERTIFICATION

With respect to the dismissal of the 
plaintiffs' claims pursuant to the Memoran­
dum of Opinion issued on October 16, 1979



57a

against Local 2140, United Steelworkers of 
America, Local 342, International Molders 
and Allied Workers Union, Patternmakers 
Association of Birmingham, United Steel­
workers of America, International Molders 
and Allied Workers Union Patternmakers 
League of North America, International 
Association of Machiniests and Aerospace 
Workers, and the Brotherhood of Boiler­
makers, Blacksmiths, Forgers and Helpers, 
it is CERTIFIED, in accordance with Rule
54(b), Fed. R. Civ. P.:

( 1 ) That the Court has directed the 
entry of final judgment in favor of each of 
the defendants listed above; and

(2) That the Court has determined 
there is no just reason for delay.

/s/ Sam C. Pointer, Jr. 
UNITED STATES DISTRICT JUDGE



OPINION OF THE DISTRICT COURT 
NORTHERN DISTRICT OF ALABAMA 

October 16, 1979

CIVIL ACTION 
No. CA 72-P-0887-S

- 58a -

JOSEPH TERRELL, JR., et al.,
Plaintiffs,

v s .

UNITED STATES 'PIPE AND FOUNDRY COMPANY, et al.,

Defendants.

Full Text of Opinion 

POINTER, District Judge: — For
decision by the court in this employment 
discrimination case is the issue whether 
certain union defendants are liable to



59

the plaintiffs and the plaintiff class for 
back pay, costs, and attorneys fees. 
Liability is premised upon these defen­
dants' roles in establishing and maintain­
ing seniority systems at U.S Pipe's plant 
in Bessemer, Alabama, which allgedly 
discriminated against black employees 
contrary to 42 U.S.C.A. §§ 1981 and 2000e- 
2(c). The claim is not that the seniority 
systems in question were applied in a 
discriminatory non-uniform manner. Rather, 
the claim is that the seniority systems, by 
according seniority privileges on the 
basis of seniority units, had a discrimina­
tory effect upon blacks by virtue of the 
company's having made racially discrimina­
tory assignments to the different seniority 
units. Of critical importance are the 
defendants' contentions that the seniority 
systems were bona fide, neither instituted



60

nor maintained because of any intent to
discriminate on the basis of race or color,
and that they are therefore immunized from

1/liability under 42 U.S.C.A. § 2000e-2(h).

I• History of the Litigation 
A synopsis of the history of the liti­

gation is helpful in understanding the con­
text in which the court is confronted with 
this seemingly narrow issue.

The complaint, filed as a class action 
on October 4, 1972, by seven black workers, 
alleged a broad pattern of racially dis­
criminatory practices at the Bessemer plant 
of United States Pipe and Foundry Company. 
Named as defendants were the company, six

1/ In Pettway v. American Cast Iron Pipe 
Co., 576 F.2d 1157, 17 FEP Cases 1712 (CA5 
1978), the court ruled that immunity under 
42 U.S.C.A. § 2000e-2(h) would bar not only 
Title VII claims, but also § 1981 claims. 
See footnote 37, 576 F.2d at 1191-92, 17 
FEP Cases at 1736.



61

local unions, and the six international 
labor organizations with which they were af­
filiated. Summary judgment was ultimately 
granted in favor of one international union 
(IBEW) but denied as to two others (Boiler­
makers and IAM); and after a severed trial 
under F.R.CP. 42(b), it was determined that 
the Boilermakers and IAM internationals had 
potential liability in the case. See 7 EPD 
9055, 6 FEP Cases 1 027 (N.D. Ala. 1 973).

The case against the remaining twelve 
defendants proceeded through normal, if 
prolonged, pretrail preparations. Three

2_/ Local 2140, United Steelworkers of 
America ("Steelworkers"); Local 342, Inter­
national Molders and Allied Workers Union 
("Molders " ) ; Patternmakers Association 
of Birmingham ("Patternmakers"); Lodge 359, 
International Association of Machinists 
and Aerospace Workers ("IAM"); Local 583, 
Brotherhood of Boilermakers, Blacksmiths, 
Forgers and Helpers ("Boilermakers"); and 
Local 136, International Brotherhood of 
Electrical Workers ("IBEW").



62a

pretrial conferences were held, resulting 
in refinement of the contested issues. The 
case was allowed to be maintained as a 
class action, with the class (as last 
defined) being "all black persons who have 
been at any time after March 24, 1 969 (or 
who may hereafter be) employed as produc­
tion and maintenance employees at the 
Bessemer, Alabama, plant of U.S. Pipe and 
Foundry Company." Extensive discovery was 
undertaken -- involving some 20 sets of 
requests for admissions, 25 sets of in­
terrogatories, 10 sets of requests for 
production of documents, and 15 depositions 
-- much of which being prompted by the 
intervening decision in International Bro­
therhood of Teamsters v. United States, 431 
U.S. 324, 14 FEP Cases 1514 (1977). Modifi­
cations to the seniority systems as a re­
sult of new collective bargaining agree­
ments in January 1975 and November 1977 had



63a

their own effect upon the litigation, as 
did the fact that the Molders and Pattern­
makers unions had ceased to represent 
workers at the plant.

Shortly before the scheduled trial on 
liability issues —  the amount of backpay, 
if any, was to be determined at a later 
trial as necessary —  the court was advised 
that agreements to settle had been reached 
which, if approved, would resolve most of 
the issues in the case. All parties to the 
litigation had agreed to modifications in 
the seniority system. The company had 
agreed to pay $5 1 0 , 000 in back pay for 
distribution to the plaintiff class and 
$10,000 towards litigation expenses of 
plaintiffs' counsel, acknowledging also an 
obligation to pay plaintiffs' attorneys 
fees in an amount which, if not resolved by 
agreement, would be determined by the 
court. The plaintiffs agreed that they



64a

would not seek a back pay award against the 
Steelworkers unions and would not be 
entitled to a back pay award against the 
IBEW.

In agreeing to the proposed settle­
ments as a compromise of the issues to be 
resolved thereby, the plaintiffs did not 
admit that such relief would be all to 
which they would be entitled in the event 
of a trial, nor did the defendants admit 
that they had violated the employment 
discriminations laws. Even if the settle­
ment were to be approved -- which would 
involve a hearing after notice to the class 
members -- there would remain certain 
unresolved issues for trial, principally 
the plaintiffs' claim that the Boiler­
makers, Patternmakers, Molders, and IAM 
unions were liable for back pay, costs, and 
attorneys fees. Moreover, the plaintiffs 
reserved the right to seek an award of



65a -

costs and attorneys fees against the 
Steelworkers and IBEW unions and, while 
admitting that their evidence would not 
support a back pay award against the 
Steelworkers unions, did not waive any 
entitlement to such an award if liability 
therefor were to be established by evidence 
presented at trial by the other unions.

Due to the readiness of the parties, 
the court determined to go forward with the 
trial of the liability issues that would 
remain were the settlements to be approved, 
with a hearing on the settlements to be 
scheduled at a later date. (It was, how­
ever, first determined by the court that 
the terms of the proposed settlements were 
within the range of reasonableness such 
that a hearing should be held to consider 
any objections to them.) It was recognized 
that, should the settlements ultimately be 
disapproved, the company would not be bound



66a

by the findings made by the court in con­
nection with the claims against the unions, 
but would be given later the opportunity to 
offer further evidence relevant to the 
claims made against it.

With the issues thus narrowed to the 
plaintiffs' claims of monetary liability 
on the part of the unions, trial was com­
pleted in three days -- a period which 
belies the quantity of evidence (frequently 
presented by summaries and data compila­
tions) covering some forty years of indus­
trial relations at U.S Pipe's Bessemer 
plant. After the trial it was decided that 
a hearing on the proposed settlemens should 
be deferred until entry of a ruling on the 
monetary claims against the unions, there­
by enabling the class members to be better 
informed as to the consequenes of the 
proposed settlements.



67a

As indicated, the evidence covers a 
span of several decades. This evidence has 
particular significance on the question of 
whether the company made racially discrimi­
natory assignments of employees to the dif­
ferent seniority units and on the question 
as to the intent of the unions in agreeing 
to (if not advocating) seniority systems, 
based on seniority units. It is, however, 
appropriate at the outset to note that the 
claims of discrimination on which liability 
of the unions in this action may be premised 
are far more limited in duration under 
applicable periods of limitation. Claims 
under Title VII may be based on employment 
practices which preceded the filing of an 
EEOC charge naming such party by 180 days 
(plus ending holidays); those under 42 
U.S.C. § 1981 may be based on practices
which preceded the filing of the lawsuit 
by one year. Upon a consideration of the



68a

filing of charges with the EEOC, which were 
introduced into evicence, and of the filing 
of the complaint in this case, of which the 
court takes judicial notice, it appears 
that the following are the earliest dates 
on which liability can be premised; Decem­
ber 23, 1968, as to Molders' Local 342,
January 1 3 , 1 969 , as to I AM Lodge 359 ;
January 26, 1969, as to Boilermakers Local
583 and as to the Patternmakers Association 
of Birmingham; and October 4, 1971, as to
the four international labor organizations. 
Without merit are the plaintiffs' attempts 
to establish longer periods of limitations
against the international unions on the

1/basis of amended Title VII charges or

3/ It is clear from the reading of the 
amended EEOC charges dated August 2, 1973, 
which were prepared with the assistance of 
counsel experienced in discrimination mat­
ters, that the international unions were 
be i ng added as respondents. The EEOC's



69

on the basis of pretrial waiver.
One final procedural matter should be 

covered in this discussion of the history

_4/

3/ continued
earlier finding and right-to-sue letters 
had, consistently with the wording of the 
original charges, treated only the local 
unions and company as respondents prior to 
that date. While the amended EEOC charges, 
even though filed ten months after the 
institution of the lawsuit, are certainly 
to be recognized as effective against the 
internationals when filed. It would be 
improper to treat them as "relating back" 
for limitations' purposes to the earlier 
charges.
4 / Leaving aside the legal dispute

of respondents in 
jurisdictional or 
of a waiver by the 
take account of the 
were filed (albeit

whether identification 
EEOC charges is truly 
not, plaintiffs' claim 
internationals fails to 
fact that EEOC charges 
not until August 1973) against the interna­
tionals. The potential problem arising 
from failure to name the internationals in 
the original charges was noted in open 
court back in October 1973 as one which 
would involve further study. See 7 EPD 1( 
9055, 6 FEP Cases 1027. The international
unions have not waived their rights to 
contest the periods covered by the EEOC 
charges.



70a

of the litigation. After the plaintiffs 
and the company had agreed to a settlement 
in mid-1979 —  almost seven years after the 
lawsuit had been instituted —  several of 
the union defendants filed a cross-claim 
(mislabelled a counterclaim) against the 
company, seeking contribution or indemnifi­
cation should the unions be held monetarily 
liable to the plaintiffs. This belated 
claim is due to be rejected. First, it is 
under the circumstances untimely and in the 
exercise of discretion should not at this 
late stage be permitted. Cf. Zenith Radio 
Corp. v. Hazeltine Research, Inc., 401 U.S. 
321 (1971). Second, if allowed, it would 
be without merit. Contribution among joint 
tortfeasors is not, at least in favor of 
one charged with an intentional tort, al­
lowed —  and in the context of this par­
ticular case involving potential immunity 
from liability by virtue of an allegedly



- -71a

bona fide seniority system the unions would 
not be held liable to the plaintiffs unless 
they were found to have acted with racially 
discriminatory intent in establishing or 
maintaining the seniority system. More­
over, as in factual matter based on the 
evidence in this case, it is clear that, to 
whatever extent the seniority systems nego­
tiated in the 1 968 , 1 971 , 1 975, and 1977 
periods may have perpetuated the effects of 
prior discrimination, the deficiencies 
would be primarily chargeable against the 
unions, not the company.

II. THE SENIORITY SYSTEM AND ITS 
EFFECT UPON BLACKS.

Analysis of the seniority system 
during the period under direct attack by 
the plaintiffs involves a study of twenty 
collective bargaining agreements entered by 
the company —  with six unions in October



72a

1 968 and in November 1971, and with four 
unions in January 1 975 and in November 
1 977.

The system in effect from November 1,
1968, through October 31, 1974, was essen-

5/tially one based on seniority units. 
The proximately 135 job titles as to which 
the Steelworkers had jurisdiction were 
divided among twenty-four such seniority 
units; e.g., Cement Lining, deLavaud Cores, 
Machine Shop, Melting, Shipping. The same 
23 job titles as to which the IAM had 
jurisdiction were divided among five such 
units; i.e., Blacksmith Shop, Machine Shop, 
deLavaud Pipe Cutters and Drillers, Mechan­
ical Maintenance-Welding, and Physical

5/ The decription in the contracts of the 
seniority units as "departments" is some­
what misleading, for it is clear that the 
units were more numerous than the operat­
ing departments of the company.



73a

Testing Laboratories. The four positions as
to which the Patternmakers had jurisdiction
were in a single seniority unit. The other
three unions, each of which represented but
a single craft position (journeyman and
apprentice), were apparently treated as

6/
separate seniority units.

Seniority for purposes of promotion, 
layoffs, and recalls was based, with few 
exceptions, upon continuous service within 
a particular, seniority unit. The Steel­
workers and IAM contracts did contain pro­
visions which permitted an employee accept­
ing transfer to another seniority unit on a 
reduction in force to retain seniority in

6/ While the Boilermaker and IBEW con­
tracts described seniority as being plant­
wide, the special language relating to 
seniority of apprentices indicates that 
seniority was being measured on the basis 
of service in positions represented by such
unions.



74a

the old unit (while beginning to build 
seniority in the new unit) until offered 
recall back to the old unit, at which time 
an election between the two would have to 
be made. The Steelworkers 1 968 and 1971 
contracts also provided for bidding on 
vacancies in other Steelworkers' seniority 
units, and their 1971 contract provided 
for plant-wide service to be used on 
reductions in force to roll junior employ­
ees on the some 35 lowest-paid Steelworker 
positions. None of the contracts provided 
for transfers between seniority units 
represented by different unions, and it is 
clear from the evidence that, when that 
did occur, the emplyee was treated in the 
new unit as a new employee for seniority
purposes.



75a

7/
The January 1975 agreements between

8/the company and the four remaining unions 
adopted a form of plant-wide seniority. In 
each contract seniority was to be measured 
by plant continuous service and vacancies 
were to be posted for bids on a plant-wide 
basis. Use of this seniority, however, on 
reduction in force was basically restricted 
to positions represented by the same 
union, with bumping across union lines 
allowed only at the lowest paid positions, 
and journeymen were protected against 
displacement by other than journeymen of

2/ A gap between collective bargaining agreements of almost three months was 
occasioned by a strike at the expiration of 
the 1971-74 contract.

8/ In the latter half of 1972 the General 
Foundry and the Pattern Shop were closed. 
Thereafter the Patternmakers and Molders 
unions ceased to represent any employees at 
the Bessemer plant.



76a

the came craft. Moreover, a union prefer­
ence rule was adopted for promotions, 
requiring that vacancies be "offered first" 
to members of the union having jurisdiction 
over the position. In the 1 977 contracts 
this promotional preference was reworded as 
"considered first", and restrictions on the 
frequency of transfers were imposed.

Seniority systems such as in effect at 
U.S Pipe's Bessemer plant since 1968 -- al­
lowing for only limited use of plant ser­
vice in the event of transfers between 
seniority units and containing no "rate 
retention" provisions -- have long been 
recognized in this and other circuits 
as having a discriminatory effect in 
industrial settings where blacks were 
discriminated against in initial job 
assignments. This principle has not been 
undermined by International Brotherhood of
Teamsters v. United States, 431 U.S. 324,



77a

14 FEP Cases 1514 (1977). In Teamsters,
the Supreme Court did not hold that 
there would be no discriminatory impact 
from such inhititious upon transfers, 
but rather held that, upon due showing of 
the bona fides and non-discriminatory 
purposes of such a seniority system, 
immunity from Title VII liability would be 
provided under 42 U.S.C.A. § 2000e-2(h).
So, in this case —  leaving aside for the 
moment whether the standards of § 2000e-2 
(h) have been satisfied -- it is clear 
that a prima facie showing of liability 
under Title VII has been made if there has 
been discrimination in initial job assign­
ments among the various seniority units.
See, e.g. , James v. Stockham Valves & Fit-
tings Co. , 559 F. 2d 310, 15 FEP Cass 827
(CA5 1 977 ) , cert, denied, 434 U.S. 1034 , 16
FEP Cases 501 (1 978) .



78a

The evidence presented at this trial 
establishes a history of racial discrimina­
tion by the company in making initial 
job assignments. Not only were there 
virtually no assignments of blacks to 
positions represented by the craft unions, 
but even in assignments to the various 
non-craft positions represented by the 
predominantly black Steelworkers a color­
conscious pattern is obvious. There were 
at this plant -- as has been found to be 
true in many other industrial plants in the 
area —  jobs and seniority units that were 
for practical purposes reserved either for 
whites or for blacks. As late as 1971,

1 /

9/ As earlier indicated, this and related findings are not binding upon the company, 
which -- if the proposed settlement be 
rejected —  would be given the opportunity 
to present other evidence for the court's 
consideration.



79a

some time after the company had made 
changes in its assignment policies, there 
remained nine one—race Steelworkers' se­
niority units with more than one employee.

It is unnecessary for purposes of this 
decision to determine when this discrimina­
tion by the company ceased. Nor it is 
necessary to determine whether this assign­
ment policy had adverse economic impact 
upon blacks, Swint v. Pullman Standard, 539 
F• 2d 77, 13 FEP Cases 604 (CA5 1 976), al­
though here it is clear that the earnings 
rates in white-only seniority units were 
higher than those in black—only seniority 
units. Nor is it necessary at this stage 
of the proceedings to determine how many, 
or which, black employees were injured 
during the period at issue in the litiga­
tion by the discrimination-perpetuating 
seniority system. It suffices to note that 
the seniority system has been shown to have



80a

a discriminatory, impact upon black em­
ployees .

This determination of prima facie 
liability does not, however, necessarily 
mean that the unions, local and interna­
tional, are to be held legally responsible 
under Title VII or § 1981 for the conse­
quences of the seniority system. See 
J ame s , supra, 559 F.2d at 353-54. The
concepts of culpability, or relative cul­
pability vis-a-vis that of the company, 
as noted in James, will be considered later 
in this opinion. At this point the court 
notes that the 1971 contract with the 
Molders was solely with the local union —  
the international was not a party to it, 
did not sign it, and so far as appears did 
not participate in its negotiation or 
implementation. Under Sinyard v. Foote & 
Davies, 577 F.2d 943, 17 FEP Cases 1344
(CA5 1978), the prima facie liability of



81a

the International Holders and Allied
Workers Union is limited to the period from
October 4, 1971, one year before filing
the lawsuit, to October 31, 1971, the
expiration date of the last contract in

W
which it had in any way participated.

III. THE BONA BIDES AND PURPOSES 
OF THE SENIORITY SYSTEM.

This court hs previously held that
the burden of persuas ion on a claim of
immunity under § 20 00e-2(h ) is upon the

10/ The period of prima facie liability 
for Molders' Local 342 is from December 23, 
1 968 , to July 1 972 ; for the Patternmakers 
League of North America from Octtober 4, 
1971, to November 1 972 ; and for the Pat­
ternmakers Association of Birmingham 
from January 26, 1969, to November 1972.
The periods of prima facie liability for 
the local and international Boilermakers 
and IAM are from the applicable limitations 
dates, earlier discussed, to the present 
time, although it is cle-ar that the adop­
tion of modified plant service in January 
1975 has had ameliorating effects for many 
black employees.



82a

defendants. Swint v. Pullman Standard, 17 
EPD 8604, 17 FEP Cases 730 (N.D. Ala. 1978). 
The court there also analyzed the standards 
by which such a defense is to be measured 
under the Teamsters and James decision —  
an analysis which need not here be repeated 
other than to emphasize that the factors 
outlined in James for special consideration 
are "ultimately but aids, or focal points, 
for deciding 'whether there has been pur­
poseful dsicrimination in connection with 
the establishment or continuation of a 
seniority system,' which is in turn 'inte­
gral to a determination that the system is 
or is not bona fide.'" 17 EPD at 7105, 17 
FEP Cases at 739.

A . Neutrality of the System.
The provisions in the seniority rules 

which precluded (and after 1975 limited) 
use of plant service upon transferring 
between jobs represented by different unions



83a

were facially neutral. That is, by their 
wording they applied equally to all whites 
as well as to all blacks. Likewise, the 
evidence establishes that in actual opera­
tion these provisions were applied in a 
uniform manner without regard to race or 
color of the employee.

The plaintiffs assert that these
inhibitions upon the transfer affected more
blacks than whites. To the extent this
argument is based upon the fact that there
were more black production and maintenance
employees than white it is clearly correct

11/but of little significance. Of great­
er merit is their position that, when the 
economic disparities of the different se­

ll/ It could hardly be argued that the greater the percentage of black workers, 
the more suspect the seniority system, 
and vice versa.



84a

niority units are considered, a much larger 
percentage of blacks than whites would have 
had reason to desire transfer but for loss 
of seniority under the rules. As noted 
in Swint, supra, this argument has some 
similarity to a proposition rejected by the 
Fifth Circuit in the earlier Swint deci­
sion, 539 F. 2d 77, 13 FEP Cases 604 (CA5
1976). The argument futher assumes that all 
employees would have the requisite abili­
ties and aptitudes (whatever those may be) 
for entry into craft positions whereas it 
may well be that the inhibitions to trans­
fer into a given craft union had more 
actual impact upon white craftsmen in other 
units than upon black production workers.

In any event, the plaintiffs' argument 
on this point is virtually foreclosed by 
Teamsters. In that case, as discussed in 
Swint, supra, 17 EPD at 7100, 17 FEP Cases
at 733-34, more whites than non-whites in



85a

absolute numbers, but a higher percentage 
of non-white than of white employees in 
relative terms, were inhibited by the 
seniority rules from transferring to the 
economically more desirable line-driver 
jobs. Yet, despite either disparity, the 
Court in Teamsters viewed the system as 
applying "equally to all races and ethnic 
groups." 431 U.S. at 355. By like token, 
the conclusion must be reached that the 
seniority system here under attack has been 
"neutral", applying equally to black and 
white.

B. Rationality of Seniority/ 
Bargaining Units._______

The separation of several functionally 
related jobs into different seniority units 
casts an obvious shadow upon the system 
here under challenge. The explanation 
offered by the defendants is that there 
have been six different unions representing



86a

production and maintenance employees, with
the employees in some departments divided
between two unions. These representational
issues, the defendants say, were resolved
in keeping with -- indeed, pursuant to
elections directed by —  NLRB decisions.
Implicit in the defendants' argument, and
not challenged by the plaintiffs, is that
structuring of seniority benefits to units
which follow union lines has been, at least
until recently, in accord with industry

11/practice.
The plaintiffs meet this argument 

frontally, analyzing the development of the 
representational units and finding the 
units themselves to be inconsistent with

1_2/ It should be noted that, until the 
last decade, this approach to seniority has 
also been followed by the predominantly 
black Steelworkers. In their post-trial 
brief plaintiffs acknowledge (p. 8) that 
the departmental systems of seniority are 
not in issue in this case.



87a

industry practice and, indeed, the product 
of racial animus over the years.

The basic components of the represen­
tational structure were defined as a 
result of elections directed by the NLRB in 
early 1940. See In the Matter of United 
States Pipe & Foundry Company and Steel 
Workers Organizing Committee, 19 NLRB No. 
102, 21 LRRM 671 (1940). In this inter­
union struggle for representation, five 
election units were designated in keeping 
with then prevailing NLRB policies, in each 
the industrial union (the predecessor of
the Steelworkers) being pitted against the

11/A.F. of L. Union.
That the elections had racial implica-

13/ It would be inaccurate to refer to the 
Molders as a craft union inasmuch as they 
were seeking to continue to reprsent all 
P&M workers not covered in the representa­
tional claims of the other A.F. of L. 
unions.



88a

tions cannot be doubted. The Patttern- 
makers and IBEW were selected as represen­
tatives by small, all-white, all-craft 
election units. The IAM, which barred 
blacks from union membership, and the 
Boilermakers, which relegated blacks to in­
ferior "auxiliary" lodges, were selected by 
units composed primarily of white crafts­
men. The bulk of the employees, predomin­
antly black, were in the fifth unit, and 
chose the Steelwokers over the Molders, the 
latter having apparently alienated many 
blacks by what were perceived to be dis­
criminatory practices. It may be noted 
that, had the Steelworkers won any of 
the other elections, such units would have 
been combined with the fifth unit as a 
single bargaining element. On the other 
hand, had all the elections been reversed, 
there would have resulted the same basic
separation between craft and noncraft units



89a

which is at the root of the plaintffs' 
present attack.

The configuration of these original 
election units was not, however, irrational 
when viewed in the perspective of the 
existing conflict within the labor movement 
concerning craft and industrial unions. 
Nor were the claims made by the various 
unions at this time inconsistent with their 
own representational goals -- it being 
significant on this point that, notwith­
standing discrimination against blacks 
within their own organizational structures, 
the IAM, the Boilermakers, and the Molders 
were nevertheless seeking to represent 
black employees at U.S. Pipe. While the 
outcome of the elections was no doubt 
affected by racial considerations —  by both 
blacks and whites —  it must be kept in mind 
that the national policy permitting self- 
determination by affected employees within



90a

units determined under NLRB proceedings 
requires, by its very nature, tolerance for 
individual choices which may be the product 
of prejudice or otherwise ignoble. This is 
not to say that racial overtones involved 
in the initial certifications are unimpor­
tant in considering the bona fides of later 
seniority systems under all factors listed 
in James; it is rather to say that, despite 
these overtones, the original structuring 
of represenationa 1 units was rational 
and in accord with general NLRB procedents 
and common industry and union practice.

In 1 949 the Molders were back before 
the NLRB, this time obtaining an order for 
a special representational election for a 
unit composed of molders, coremakers, and 
their apprentices. See In the Matter of 
United States Pipe and Foundray Company and 
International Molders and Foundry Workers 
Union, 84 NLRB No. 105, 24 LRRM 1331 (1949).



91a

For this small, all-white, craft unit, the 
Molders won. In attacking this restructur­
ing, the plaintiffs, in addition to empha­
sizing the racial composition of the new 
unit, argue that exclusion of the helpers 
(who were black) was inconsistent with the 
common organizational goals of the Molders. 
However, a reading of the NLRB opinion 
makes it apparent that the board's decision 
to permit the special election was based 
upon its policy to allow separate recogni­
tion of a group of skilled craftemen —  in 
essence, that the election would not have 
been allowed had helpers been included in 
the proposal. The court concludes that 
this restructiring, like the original 
certifications, is due to be treated as 
rational and consistent with NLRB prece­
dents and standard industry and union 
practice. It is of interest that the NLRB 
opinion recites that there has been no



92a

interchange between these positions and 
others in the same department during the 
nine-year period of representation by 
the Steelworkers. That is, the molders and 
coremakers had been treated as a separate 
seniority unit even when represented by the 
predominantly black Steelworkers.

In 1950 there were further changes in 
the union representation, this time inde­
pendently of NLRB proceedings. It appears 
from business records that during the 
1940's some shifts in union allegiance had 
taken place, with white employees in some 
Steelworker positions paying dues to the 
IAM or Boilermakers and with blacks in IAM 
and Boilermakers positions paying dues to 
the Steelworkers. The evidence, while 
scanty, indicates that this disaffection by 
these blacks resulted from their belief that 
they were being treated unfairly by their 
designated union representatives; the



93a

reason for this action by the whites would, 
under the evidence, be only speculation.

In any event, in October 1 950 agree­
ments were entered by the company, Steel­
workers, IAM, and Boilermakers, under which 
union jurisdiction over certain positions 
was altered. The Steelworkers gained 
jurisdiction over boilermaker helpres, over 
helpers from the blacksmith department, 
and over crane hokers —  all of whom were 
black. The Steelworkers ceded jurisdiction 
over flask patchers, over machine and crane 
operators, and over "Helpers (White) to be
promoted to iMillwright Trainee"-- all of
whom were white. The IAM and Boilermakers 
became, like the other craft unions, all- 
white —  a situation that did not change 
until the mid-1960’s.

These changes were certainly under­
standable -- solving an administrative 
problem for the company and satisfying the



94a

desires of the thirty-seven job incumbents. 
While understandable, the changes were not, 
however, rational. It will be noted that 
inconsistent approaches are taken with 
respect to helper positions —  separating 
some (those with black incumbents) from 
their related skilled positions, while 
joining others (those with white incum­
bents) to their related skilled positions. 
Nor has it been shown that modification of 
board-certified units was in accord with 
common practice in the industry.

The establishment in the mid-1960's of 
the Group II Molder position had some of 
the atrributes of a change in union repre­
sentation. This job, created when manufac­
turing changes were made by the company, 
was added to the unit represented by the 
Molders, and was filled by persons who had 
occupied Steelworker positions, including 
black Molder Helpers. This alignment was



95a

certainly rational and, indeed, but for 
closing of the department in 1972, might 
have provided a route by which blacks would 
have progressed into craft positions.

In summary, the court concludes that 
-- with the exception of the positions 
involved in the 1950 inter-union transfers 
-- the bargaining units and in turn the 
seniority units were rational and in accord, 
with NLRB precedents and common industry 
practice. The contrary conclusion is 
reached with respect to the jobs affected 
by the 1950 changes.

C. Genesis of Seniority System.
There can be no doubt that the senior­

ity system was instituted at a time of
widespread racial discrimination —  in the

11/plant, in the unions, and in the commu-

14/ The evidence in its cause does support 
the finding, as was also true in Swint, 
supra, 17 EPD 7103-04, 17 FEP Cases at 738,



96a

nity as a whole. There is no need even to
recite here the evidence presented in this
cause to show that discrimination, or to
consider the propriety of taking judicial

11/notice of such matters. Moreover, as
was discussed supra, racial condiderations 
were involved in the 1 940 elections which 
produced the bargaining units and in the 
1950 inter-union transfers of certain 
positions between bargaining units.

14/ continued
that the Steelworkers constituted "one of 
the few institutions in the area which did 
not function in fact to foster and maintain 
segregation." 17 EPD 7104, 17 FEP Cases at 
738 .
15/ By footnote in a recent decision, the 
Supreme Court has, without apparently 
considering the limitations of Rule 201 of 
the Federal Rules of Evidence, indicated 
that judicial notice could be taken of the 
exclusion of blacks from craft positions. 
See United Steelworkers v. Weber, 443 U.S 
1 93, 47 LE 4851 , 4852 n.1, 20 FEP Cases 1 
(June 27, 1979).



97a

The decision that this factor should
be resolved "in favor of" the plaintiffs'
position in this litigation does not mean
that the seniority system necessarily falls
outside the immunity of 42 U.S.C.A. § 2000e-

±6/2(h). This factor is but one of sev­
eral focal points for consideration and, as 
noted in Swint, supra, 17 EPD at 7103,
n.20, 7107, 17 FEP Cases at 737, is not
dependent upon a finding of causative 
relationship between racial discrimination 
and the seniority system itself.

0. Purposes of Seniority System. 
The fourth factor is "whether the sys-

± 6 /  To the extent, as argued by plain­tiffs, that Chrapliwy v. Uniroyal, Inc, 
15 EPD if 7933 , 1 5 FEP Cases 822 (N.D. Ind. 
1977), can be read as holding unavailable 
the § 2000e-2(h) immunity for all seniority 
systems which were adopted at a period of 
racial discrimination, this court disa­
grees, believing that construction to be 
inconsistent with Teamsters and James.



98a

tem was negotiated and has been main-
t a i ned free from any illegal purpose."
James, supra, 559 F. 2d at 352. Extensive
evidence has been presented to the court
concerning the postures and proposals of 
the parties during the ecollective bargain­
ing negotiations of 1968 and subsequent 
triennial sessions; the positions of the 
parties with respect to earlier agreements 
is left largely to inference.

It appears that the fundamental char­
acteristic of this seniority system re­
mained constant from formal unionization 
in 1940 to the early 1970's —  that is, 
allowing exercise of seniority for promo­
tions, layoffs, and recalls only as among 
employees of the same union working in the 
same department and measuring that senior­
ity by the length of employment in the 
particular seniority unit. This type of 
seniority, which has been commonplace un­



99a

til relatively recently, was the form 
adopted by the all-white unions (IBEW 
and Patternmakers), by the predominant.ly- 
white unions (IAM and Boilermakers), and by 
the predominantly-black union (Steelwor­
kers). It was the form adopted by the 
Molders when they gained recognition in 
1949. The court concludes that in each 
instance the system was adopted for other 
than racial reasons. More particularly, it 
is clear that the failure by the craft 
unions to adopt a system allowing employee 
transfer with carryover of seniority was 
not due to a fear of black encroachment -- 
it was rather to protect against competi­
tion from other white craftsmen.

The alterations to the seniority units 
which occurred in 1950 stand on a different 
footing. The court views these changes as 
racially motivated —  intended to, and 
effecting, increased seniority security



100a

for certain whites (by removing them from a 
Steelworkers' unit and by placing them in a 
craft union from which blacks were concur­
rently removed) as well as increasing 
promotional opportunities for some of them 
(placement as Millwright trainees).

A system of plant-wide seniority was, 
as previously indicated, instituted in the 
1975 contracts with the unions which then 
remained i.e., the Steelworkers, IAM, IBEW, 
and Boilermakers. As might be expected, 
agreement to such a fundamental change did 
not occur over night. Back in 1 968 nego­
tiations the company had indicated a 
willingness to consider transfers between 
bargaining units without forfeiture of 
seniority. While nothing came of this 
suggestion, the Steelworkers and IAM 
contracts did provide for retentions of se­
niority on intra-union transfers during a 
reduction in force, and the Steelworkers



101a

contract provided for bidding on vacancies 
in other Steelworkers' seniority units, 
though on the basis of departmental age. 
In the 1971 negotiations the company pro­
posed to the unions a form of plant-wide 
seniority for inter-unit transfers; and an 
"Inter-union Seniority Agreement" was ac­
tively discussed among the various unions. 
Accord, however, was not reached —  not 
only because as plaintiffs emphasize, of 
resistance by some of the craft unions, but 
also because of division within the 
Steelworkers union. It should be noted 
that the 1971 Steelworkers contract re­
tained the concept of departmental age for 
promotional purposes, and permitted sue of 
plant-age on layoffs only at the lowest- 
paid Steelworker positions. The limita­
tions placed under the 1975 and 1977 
agreements upon use of plant-wide seniority 

i.e., the union preference on promotions



102a

and provisions that journeymen would not be 

displaced on reductions by other than 

journeymen of the same craft —  constituted 

a joint union proposal, the Steelworkers 

not pressing for adoption of the broader- 

form company proposal in order to present 

a common union front.

Racial considerations were involved in 
the 1968, 1971, 1975, and 1977 negotiations 
concerning the modification of seniority, 
but in an unusual way. The clear message 
conveyed upon a reading of the negotiation 
minutes, and substantially confirmed by 
the testifying witnesses, is that racial 
considerations were involved, not in oppos- 
sing the changes in the seniority system, 
bur rather in proposing those changes. The 
push for change -- which was primarily by 
the company and to a lesser degree by the 
Steelworkers —  was largely motivated by a 
fear of the outcome of claims being pressed



1 03a

administratively and later in court 
under Title VII. The concern was that the 
seniority system —  without regard to its 
bona tides and purposes, for Teamsters had 
not yet been decided —  would create lia­
bility for prior discrimination and in 
any event result in court-ordered plant­
wide seniority. This is not to say, of 
course, that the Steelworkers' bargaining 
representatives were not also motivated by 
a growing awareness of increased promo­
tional opportunities afforded by a broader 
seniority system —  a fact, however, which 
had not prompted Steelworker negotiation 
proposals in the 1940-68 period. As 
broadened seniority came to be seen by 
Steelworkers as increasing their opportuni­
ties, it was also perceived by members of 
the craft unions as threatening their job 
security —  and it was this latter percep­
tion not the color of their potential com­



104a

petitors, which caused their resistance 
to the change in seniority. Their opposi­
tion ultimately yielded, but only when 
confronted by firmness in the company's 
position and by the then apparent certainty 
(pre-Teamsters) of judicial intervention —  
a point highlighted by their continued 
insistance on protection in the event of 
layoffs against their fellow white crafts­
men.

In summary, the court concludes that, 
with the exception of the changes in the 
system effected by the 1950 transfers, the 
seniority system here under challenge 
was negotiated, and has been maintained, 
free of any purpose of racial discrimina- 
t ion.

E . Totality.

The court is called upon under J ames
to use the four factors as aids for decid­



105a

ing "whether there ha been purposeful dis­
crimination in connection with the estab­
lishment or continuation of a seniority 
system", which is in turn "integral to a 
determinatin that the system is or is not 
bona fide." 559 F.2d at 351. The "gene­
sis" factor is decided favorably to the 
plaintiffs' position with respect to the 
entire seniority system, provided, that is, 
that the factor be evaluated without regard 
to any causative relationship between the 
existence of discriminatory practices and 
the seniority system itself. The "neutral­
ity", or equal application, factor is decid­
ed favorably to the defendants' position 
with respect to the entire seniority sys­
tem. The "rationality" and "purposes" 
factors are decided favorably to the 
plaintiffs with respect to certain changes 
in jobs effected in 1 950 , but in other 
respects favorably to the defendants.



106a

The four factors are not stones to be 
placed mechanistically on an imaginary 
scale. Looking however to these factors 
and, indeed, to the totality of the system, 
the court concludes, with one exception, 
that the sytem has been "bona fide"; that 
the differrences in terms, conditins or 
privileges of employment resulting there­
under have not been "the result of an in­
tention to discriminate" because of race 
or color; and that the defendants have met 
the burden of proving the applicability of 
42 U.S.C.A. § 2000e-2(h).

The one exception relates to the 
transfer of certain jobs in 1950 between 
seniority units. The differences in 
seniority units. The differences in terms, 
conditions and privileges of employment 
resulting from these transfers are the 
result of an intention to discriminate 
because of race and color and accordingly



107a

are not protected under § 2000e-2(h).

IV. Liability
It is appropriate to call for a second 

stage of trial, in which class members —  
now armed with a presumption of discrimina­
tion -- can present individual claims 
for damages. These claims will be quite 
limited; i.e., during the applicable period 
they were injured by virtue of jobs not 
having remained in the seniority units to 
which they were allocated prior to the 1950 
agreements.

Liability for such claims as may be 
established is due to be fixed upon Lodge

J_V The question may well be asked whe­ther some aspects of a seniority system 
can be immunized under § 2000e-2(h), while 
others not. While an affirmative response 
is given under the facts of this case, the 
court can envision circumstances in which 
the pernicious portion of a system would 
effectively poison the system as a whole. 
That is not the situation here.



1 08a

359 of the I AM respecting those positions 
switched beteen the Steelworkers and the 
I AM and upon Local 583 of the Boilermakers 
respecting those switched between the 
Steelworkers and the Boilermakers. The 
Internationals of the IAM and Boilermakers 
are not shown to have been sufficiently 
involved in these 1950 agreements to 
justify charging them with responsibility 
therefor. The Steelworkers, while a party 
to these agreements, do not apear to have 
acted from any racial animus -- having 
rather merely accepted additional blacks 
who felt discrimination in their certified 
union and having released whites who 
apparently preferred representation by an 
all-white union. The Patternmakers, 
Molders, and IBEW are likewise not charge­
able with responsibility in connection with 
these agreements, to which they were not 
even parties.



109a

The applicable period of damage claims 
will begin on January 13, 1969, with
respect to the potential liability of IAM 
Lodge 359 , and on January 26, 1 969 , with
respect to that of Boilermakers Local 583. 
The defendants have asserted that, with 
declining employment at the plant and with 
elimination of apprenticeship programs, 
there were very few vacancies after these 
dates. It may also be that class members 
who may make claims with respect to such 
vacancies may be shown not to have the 
necessary qualifications for such posi­
tions. These, however, are matters which 
are for consideration during a second stage 
of trial, and not at this point.

V. Conclusion
With respect to the aspect of the se­

niority system found to violate Title VII,



1 1 Oa

the court will order injunctive relief
US/

and will provide for a second trial to

determine the liabiliity of I AM Lodge 359
and Boilermakers Local 583 for back pay,

±9/
costs, and attorneys fees. All parties
are directed to proceed with preparations 
for sending of notice to class members con­
cerning the proposed settlements, which 
notices shall indicate the substance of 
this ruling.

/s/ Sam C. Pointer, Jr. 
UNITED STATES DISTRICT JUDGE

18/ The agreement proposed by the parties 
covering injunctive relief, if approved by 
the court, may resolve this issue.
19/ The award of attorneys fees against 
tTHe two unions will take into account 
the limited degree to which the plaintiffs 
have been "prevailing parties" in this 
litigation. The extent to which claims for 
back pay against these unions may be 
affected by distribution of settlement 
funds (if the settlement be approved) 
contributed by the company will for con­
sideration in subsequent proceedings.



V

MEIIEN PRESS iNC. —  N. Y. C. 219