Terrell Jr. v. International Association of Machinists and Aerospace Workers
Public Court Documents
October 5, 1981

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Brief Collection, LDF Court Filings. Terrell Jr. v. International Association of Machinists and Aerospace Workers, 1981. 6dc453e6-c59a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/b5958ae9-2224-4fdb-8437-bb06fd34c046/terrell-jr-v-international-association-of-machinists-and-aerospace-workers. Accessed April 22, 2025.
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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