Alexander and Dennis v. AVCO Corporation Brief for Appellees

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

Nos. 75-1776, 75-2097, 
75-2098, 75-2099

RAMSEY ALEXANDER and ROBERT F. NEUMAN,
Plaintiffs-Appellees,

and
RAYMOND L. DENNIS and WARNER McCREARY,

Intervenors-Appellees, 
vs.

AVCO CORPORATION - AEROSPACE STRUCTURES 
DIVISION, Nashville, Tennessee and AERO 
LODGE NO. 735, INTERNATIONAL ASSOCIATION 
OF MACHINISTS AND AEROSPACE WORKERS, 
AFL-CIO,

Defendants-Appe Hants.

On Appeal from the united States District Court 
for the Middle District of Tennessee

BRIEF FOR APPELLEES

JACK GREENBERG 
MORRIS J . BALLER 
10 Columbus Circle 
New York, New York 10019

AVON N. WILLIAMS, JR.
1414 Parkway Towers
404 James Robertson Parkw
Nashville, Tennessee 3721
RUSSELL C. B. ENNIX, JR. 
Morris Memorial Building 
330 Charlotte Avenue 
Nashville, Tennessee 37201

for AppelleesAttorneys

m 
£>



I N D E X

Page
TABLE OF AUTHORITIES ..................
STATEMENT OF QUESTIONS PRESENTED ......
STATEMENT OF THE C A S E .................  1
STATEMENT OF FACTS ....................  7
A. The Historical Framework of

Discrimination ................  7
B. Structure and Nature of Employment

Opportunities at Avco Since 1965 9
lv Avco's operations and jobs ... 9
2. The structure of job

opportunities ...........  11
C. Discrimination in Job Opportunities 13
D. The Globe-Wernicke Incident ......  19
E. The Individual claims of Alexander,

Newman and Dennis .............  22
ARGUMENT"

Introduction .........................  24
I. THE DISTRICT COURT DID NOT ERR IN 

ALLOWING THIS CASE TO PROCEED AS 
A CLASS ACTION FOR REDRESS OF CLASS- 
V7IDE DISCRIMINATION...............  2 5

A. This Case Is Maintainable As 
A Rule 23(b)(2) Class Action 
For The Relief Plaintiffs 
Seek ...... .................  25

B. The Timing of class Certifica­
tion and Notice in This Case 
Does Not Preclude Class Action 
Treatment ................... 28



I N D E X  [cont'd]
Page

II. THE DISTRICT COURT DID NOT
ABUSE ITS DISCRETION IN FRAMING 
AN APPROPRIATE INJUNCTIVE REMEDY 
FOR APPELLANTS' DISCRIMINATORY 
JOB OPPORTUNITY PRACTICES ..... 36
A. The District court's Remedia].

Approach Was Appropriate and
Necessary ..................  36

B. The Remedial Measures Granted
By the District Court are Ap­
propriate and Necessary ..... 40
1. Plant Seniority ......... 40
2. Partial elimination of

job equity.........  42
3. The bidding system. 45
4. Evaluation of qualifications 46
5. Special training rights for

black employees ...........  47
: 6. Special racial grievance

procedure..........  47
7. Summary.... ...............  49

III. THE DISTRICT COURT CORRECTLY HELD 
THAT APPELLANTS UNLAWFULLY DIS­
CRIMINATED AGAINST BLACK EMPLOYEES 
IN THE GLOBE-WERNICICE INCIDENT.....  50

IV. THE COURT BELOW CORRECTLY DETERMINED
THAT THE NAMED PLAINTIFFS WERE VICTIMS 
OF INDIVIDUAL DISCRIMINATION ........  55
A. The Ramsey Alexander Claim ..... 56
B. The Robert Newman Claim ....... 59
C. The R. L. Dennis Claim ......... 62

-ii-



I N D E X  [cont'd]
Page

D. The District Court Correctly 
* Decided The Individual Claims 64

V. THE AWARD OF ATTORNEYS' FEES TO
PLAINTIFFS WAS A REASONABLE EXERCISE
OF THE DISTRICT COURT'S DISCRETION 66
1. The time and labor required.....  68
2. The amount involved and the result

obtained ...........    68
3. The contingency of any recovery 69
4. Novelty and difficulty of issues 69
5. Experience, reputation and

ability of counsel ..............  70

CONCLUSION......     73
REPORT OF AVCO CORPORATION PURSUANT TO PARAGRAPH 

10 OF ORDER OF FEBRUARY 11, 1975 
CERTIFICATE OF SERVICE

-111-



TABLE OF AUTHORITIES

Cases Cited

Page
Albemarle Paper Co. v. Moody, 422 U.S. , 13, 25, 27,

45 L.Ed. 280 (1975) ............. ..... 39, 67
Alexander v. Avco Corp., M.D. Tenn. 2, 20, 29,

C.A. No. 4338 ...... ..................  70, 71
Alexander v. Gardner-Denver Co.,

415 U.S. 36 (1974) ................. 39, 48
Barnett v. W.T. Grant Co., 518 F.2d

543 (4th Cir. 1975) ................ . 55
Bijoel v. Benson, 513 F.2d 965

(7th Cir. 1975) .... ..................  33, 35
Blonder-Tongue Labs v. University Foundation,

402 U.S. 313 (1971) ..................  34
Blue Bell Boots, Inc. v. EEOC, 418 F.2d

355 (6th Cir. 1969) ...... ............ 65
Boles v. Union Camp Corp., ___ F.Supp. ___

(S.D. Ga., C.A. No. 2604, Sept. 17, 1975) 73
*

Bowe v. Colgate Palmolive Co., 416 F.2d
711 (7th Cir. 1969) ...................  26

Brotherhood of Railroad Signalmen v. Southern
Railway Co., 380 F.2d 59, (4th Cir. 1967) 72

Bryan v. Pittsburgh Plate Glass Co.,
59 F.R.D. 616 (W.D. Pa. 1973),
aff*d 494 F.2d 799 (3rd cir. 1974) .....  73

Burns v. Thiokol Chemical Corp., 483 F.2d
300 (5th Cir. 1973) ....................  66

Bush v. Lone Star Steel Corp., __, F. Supp.___
(E.D. Tex., C.A. No. 1420, August 6, 1975) 73

-iv-



Page
City of Detroit v. Grinnell Corp.,

495 F .2d 448 (2nd Cir. 1974) ..........  69, 70
Dewey v. Reynolds Metals Co., 429 F.2d

324 (6th Cir. 1970), aff'd by equally
divided Court 402 U.S. 689 (1971) ...... 70

EEOC v. Detroit Edison C.o., 515 F.2d 26, 29, 37,
301 (6th Cir. 1975) ...................  44, 49, 55

Eisen v. Carlisle & Jacquelin, 417 U.S. 30, 31,
156 (1974) ............................  32, 35

Eisen v. Carlisle & Jacquelin, 391 F.2d
555 (2nd Cir. 1968) ...................  31, 35

Electronics Capital Corp. v. Shepherd,
439 F.2d 692 (5th Cir. 1971) ..........  67

Elliot v. Weinberger, ___ F.2d ____,
44 U.S.L.W. 2175 (9th Cir. 1975) ......  33

Foster v. City of Detroit, 405 F.2d 138
(6th Cir. 1968) ........................... 34

■Franklin v. Troxel Mfg. Co., 501 F.2d
1013 (6th Cir. 1974) ...................... 65

Franks/v. Bowman Transportation Co.,
495 F.2d 398 (5th Cir. 1974), cert.denied 
419 U.S. 1050 (1974), cert, granted on
other issue 420 U.S. 989 (1975) ....... 26, 39, 47

Frost v. Weinberger, 515 F.2d 57
(2nd Cir. 1975) .......................  31, 32

Garrett v. City of Hamtramck, 503 F.2d
1236 (6th Cir. 1974) ..................  29

•'Glover v. St. Louis-San Francisco Rwy. Co.,
393 U.S. 324 (1969) ...................  48

Goss v. Bd. of Educ., 373 U.S. 683 (1963) 70

—v—



Page

Graniteville Co. (Sibley Div.) v. EEOC,
438 F.2d 32 (4th Cir. 1971) ........

Gregory v. Hershey, 311 F.Supp. 1
(E.D. Mich. 1969) ....... -..........

Gregory v. Tarr, 436 F.2d 513
(6th cir. 1971) ....................

Griggs v. Dube Power Co., 401 U.S.
424 (1971) ..........................

Hall v. Werthan Bag Co., 251 F.Supp. 184 
(M.D. Tenn. 1966) ............. .

Hansberry v. Lee, 311 U.S. 32 (1940) ....
Head v. Timken Roller Bearing Co.,

486 F.2d 870 (6th Cir. 1973) ........
Jenkins v. United Gas Corp., 400 F.2d

28 (5th Cir. 1968) ..................
Jersey Central. Pov;er & Light Co. v. Local

327, IBEW, 508 F.2d 687 (3rd Cir. 1975)
.Johnson v. Georgia Highway Express, Inc.

488 F.2d 714 (5th Cir. 1974) .........
Johnson v. Goodyear Tire & Rubber Co.,

F.2d 1364 (5th Cir. 1974) ............
Kelley v. Board of Education, 463 F.2d 

732 (1972), cert, denied 409 U.S.
1001 (1973) ..........................

Lea v. Cone Mills corp., 467 F.2d
277 (4th Cir. 1972) ..................

66

35

35
13, 43
52, 53,
27, 70,
71
31
26, 40,
46, 52,

27, 55

44, 54
67, 68
70, 71

26

44
53

69

71

67

-vi-



Page
Lindy Brothers Builders, Inc. v. American

Radiator & Standard Sanitary Corp.,
487 F.2d 161 (3rd Cir. 1972) ............ 67, 69

Local 189, United Papermakers & paperworkers 
v. United States, 416 F.2d 980 (5th Cir. 
1969), cert, denied 397 U.S. 919 (1970) .. 44, 45

Long v. Sapp, 502 F.2d 34 (5th Cir. 1974) .... 55
McDonnell-Douglas Corp. v. Green, 411 U.S. 792 

(1973) ................................... 65
McFerren v. Board of Educ., 455 F.2d 199 (6th 

Cir. 1972), cert, denied 407 U.S. 934 
(1972) ................................... 70

McSwain v. Anderson County Board of Educ.,
138 F. Supp. 570 (E.D. Term. 1956) ...... 70

Mapp v. Board of Education, 477 F.2d 851
(6th Cir. 1973), cert, denied 414 U.S. 1022 
(1974) ................................... 71

Meadows v. Ford Motor Co., 510 F.2d 939 (6th 
Cir. 1975) ...............................

26, 40, 
44, 54

Monroe v. Board of Educ., 391 U.S. 450 (1968). 70
Mullane v; Central Hanover Bank & Trust Co.,

339 U.S. 306 (1950) ..................... 31, 32
Newman v. Avco Corporation,(M.D. Tenn.) C.A. 

No. 5258 .................................
2, 29, 
70, 71

Newman v. Avco Corporation, 451 F.2d 743
(6th Cir. 1971).......................... 2, 3

Newman v. Piggie Park Enterprises, 390 U.S.
400 (1968) ............................... 67

Oatis v. Crown Zellerbach Corp., 398 F.2d 496 
(5th Cir. 1968) ......................... 27

Pasquier v. Tarr, 444 F.2d 116 (5th Cir.
1971) .................................... 35

-vii-



Page

Pettway v. American cast Iron Pipe Co.,
F. Supp. ___ (N.D. Ala., C.A. No.

66-315, June 12, 1975) ..................  73
Pettway v. American cast Iron Pipe Co., 26, 39,

494 F. 2d 211 (5th Cir. 1974).............  45, 49
Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 67, 68, 69

1188 (6th Cir. 1974).....................  70, 71
Reed v. Arlington Hotel, 476 F.2d 721 (8th 

Cir. 1973), cert, denied 414 U.S. 854 
(1974)............ .......................  55

Rice v. Gates Rubber Co., 521 F.2d 782 (6th
Cir. 1975)    71

Rich v. Martin-Marietta Corp., 522 F.2d 333
(10th Cir. 1975)   66

Robinson v. Lorillard Corp., 444 F.2d 791
(4th Cir. 1971), cert, dismissed 404 U.S.
1006 (1971)   26

Rock v. Norfolk & Western Rwy. Co., 473 F.2d 1344 (4th Cir. 1973), cert, denied 412 
U.S. 933 (1973)......................    39

Rodriguez v. East Texas Motor Freight, 505
F. 2d 40 (5th Cir. 1974)   29

Rolfe v. Board of Educ. of Lincoln County,
391 F. 2d 77 (6th Cir. 1968) .............  70

Schrader v. Selective Service System, 470
F. 2d 73 (7th Cir. 1972)   35

Smith v. Holiday Inns, 336 F.2d 630 (6th Cir.
1964)   70

Smith v. South Central Bell Telephone Co.,
518 F. 2d 68 (6th Cir. 1975) .............  71

Sosna v. Iowa, 419 U.S. 393 (1975) ..........  30, 32
Stamps v. Detroit Edison Co., 365 F. Supp. 87

(E.D. Mich. 1973) ....................  46

-viii-



Thornton v. East Texas Motor Freight, 
497 F.2d 416 (6th Cir. 1974) ....

Page

40

United States v. Georgia Power Co., _ 
7 EPD <j[ 9167 (N.D. Ga. 1974)

F.Supp.

entering decree on remand from 474 F.2d 
906 (5th Cir. 1973) ......... *........ 49

United States v. Hayes International corp., 
456 F.2d 112 (5th Cir. 1972) ..........

United States and v. united States Steel
Corp., 520 F.2d 1043 (5th Cir. 1975) ...

United States v. IBEW Local 38, 428 F.2d
144 (6th Cir. 1970) ...................

United States v. Ironworkers Local 86,
315 F.Supp. 1202 (W.D. Wash. 1970), 
aff'd 443 F- 2d 544 (9th Cir. 1971), 
cert, denied 404 U.S. 984 (1971) ••••*••

United States v. Local Union No. 212,
472 F.2d 634 (6th Cir. 1973) ...........

United States v. Masonry Contractors Assn, 
of Memphis, Inc., 497 F.2d 871 
(6th cir. 1974) .......................

United States v. United States Steel Corp.
6 EPD 51 8790 (N.D. Ala. 1973) .........

Waters v. Wisconsin Steel Works of Inter­
national Harvester Co., 502 F.2d 
1309 (7th Cir. 1974) ..................

Watkins v. united Steelworkers of America, 
Local No. 2369, 516 F.2d 41 
(5th Cir. 1975) .......................

Weeks v. Southern Bell Telephone & Telegraph 
CO., 467 F.2d 95 (5th Cir. 1972) ......

47

40

15, 40 

73

44, 53 
54, 55

44

67

Wetzel v. Liberty Mutual Insurance Co., _
508 F.2d 239 (3rd Cir. 1975), cert, denied
421 U.S. 1011 (1975) ........... ........

28, 30, 
32, 33

Zeilstra v. Tarr, 466 F.2d 111 (6th Cir. 1972) 35

-ix-



Statutes, Rules, and other Authorities
* Page

42 U.S.C. § 1981 ...........................  1, 55
42 U.S.C. §§ 2000e et seq. (Title VII,

Civil Rights Act of 1964) ..............  passim
42 U.S.C. § 2000e-2 (II) (Title VII,

§ 703 (h) ) ............................  44, 54, 55
42 U.S.C. § 2000e-5 (g) (Title VII,

§ 706(g) .............................. 38, 39
42 U.S.C. § 2000e-5(k) (Title VII,

§ 706 (k) .............................  66
Rule 23, Federal Rules of Civil Procedure —

Rule 23 (a) ............. ..................  55
Rule 23(b) (2) ..........................  2, 26, 27, 28,

30, 31, 32, 34, 
73

Rule 23(b) (3) ..........................  5, 27, 28, 30,
31

Rule 23 (c) (1) ..........................  28, 29
Rule' 23 (c) (2)    28, 30, 31
Rule. 23 (d) (2) ..........................  31

Rule 52(a), Federal Rules of Civil Procedure. 66

Advisory Committee Note to 1966 Amendment 26, 27,
of Rule 23, 39 F.R.D. 69, 102 (1966) ___  31, 32

American Bar Association Code of Professional 
Responsibility, Ethical Consideration 
2-18 (1961), enforced by Disciplinary 
Rule 2-106 .............................  68

3B J. Moore, Federal Practice 5[ 23.50
(ed. 19 ) ............ ................  29

118 Cong. Rec. 7168 (1972) .................  39

-x



Statement of Questions Presented

Where“the District Court correctly found, upon a massive 
evidentiary record, that the appellant Company and. Union had 
engaged in a continuing comprehensive scheme of discrimination 
against black employees:

1. Did the District Court err in certifying the case as
a class action upon the evidence presented at trial and in direct­
ing notice to class members at the stage of proceedings when their 
individual rights were to be determined?

2. Did the District Court abuse its broad remedial dis­
cretion in ordering temporary modification of those current 
employment practices which the court identified as responsible for 
exclusion of black workers from equal job opportunities?

3. Did the District Court err in concluding that appellants 
discriminated in the Globe-Wernicke situation by granting white 
employees extra-contractual rights resulting in displacement of
a group of black employees who were contractually entitled to 
retain their jobs?

4. Was the District Court clearly erroneous in its deter­
mination, based upon a detailed record and specific findings of 
fact, that the named plaintiffs-appellees were victims of indi­
vidual discrimination?

5. Did the District Court abuse its discretion in determin­
ing the amount of attorneys' fees for the prevailing plaintiffs?

-xx-



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

Nos. 75-1776, 75-2097, 
75-2098, 75-2099

RAMSEY ALEXANDER and ROBERT F. NEWMAN,
Plaintiffs-Appellees,

and
.- RAYMOND L. DENNIS and WARNER MCCREARY,

Intervenors-Appellees,

vs.
AVCO CORPORATION - AEROSPACE STRUCTURES 
DIVISION, Nashville, Tennessee and AERO 
LODGE NO. 735, INTERNATIONAL ASSOCIATION 
OF MACHINISTS AND AEROSPACE WORKERS,

• AFL-CIO,
Defendants-Appellants.

On Appeal from the United States District Court 
for the Middle District of Tennessee

BRIEF FOR APPELLEES

Statement of the Case

These appeals arise from two employment discrimination 
class actions under Title VII of the Civil Rights Act of 1964, 
42 U.S.C. §§ 2000e et seq. and 42 U.S.C. § 1981, consolidated, 
tried, and decided by the United States District Court for the



Middle District of Tennessee, Hon. L. Clure Morton, J. The 
1/appeals are taken from several Orders (A. ) granting

various measures of relief to the plaintiff black employees,
appellees here, pursuant to the Court's Memorandum Opinion
(A. ) finding that the defendant Company and Unions,
appellants here, had been long engaged in a comprehensive scheme
of racially discriminatory employment practices. The Newman

2/case has previously been the subject of a significant decision 
of this Court, 451 F.2d 743 (1971). Because the earlier-filed
Alexander case" involves the same subject matter as Newman, the 
District Court consolidated the two actions for all purposes 
after this Court's remand of Newman (A. ).

Both the Newman and Alexander complaints (A. /A. )
alleged that defendants were engaged in across-the-board
practices of discrimination in every aspect of employment at
Avco's Nashville plant. Both complaints properly pleaded that
class action proceedings and class-wide relief were appropriate
(A. , A. ). in denying an early motion to dismiss in
Alexander, the District Court held that "the action is a proper
class action" (A. ). Subsequently, this Court, in remanding
Newman for trial, noted:

As to these latter charges [of violations of 
Title VII by Avco], appellant [Newman] is an 
appropriate representative of the class

T T  Citations in this form are to pages of the single Appendix 
filed in these appeals. Citations to "Tr." are to the transcript 
of trial proceedings.
2/ Newman v. Avco Corporation, et al., C.A. No. 5258, filed 
December 20, 1968.
3/ Alexander v. Avco Corp., et al., C.A. No. 4338, filed January 
13,’1966.

- 2-

__________________  s :   s : i ____________________________________________________________________________________________ i  • • -   :__________________________________________«________________________



described in the complaint and the class action 
aspect of this suit must likewise be the subject 
of hearings, findings and conclusions. 451 F.2d 
at 749.

Plaintiffs filed a Rule 23 motion for class determination prior 
to the start of trial (A. ). Likewise, the pre-trial
orders entered before trial specify that plaintiffs seek full 
relief, including back pay, on behalf of their class (A. ,
A. ) .

After voluminous discovery and procedural litigation
1/(see A. ), the District Court conducted a trial of 11 days

in June and.July-August, 1972. After receiving extensive post­
trial briefs, the District Court entered a Memorandum comprising 
its decision on December 18, 1973 (A. ). The Court found
a pattern of racial discrimination in employment as pervasive, 
virulent, and tenacious as any this Court is ever likely to 
review. Specifically, Judge Morton held (A. ) :

The court concludes that subsequent to the 
effective date of Title VII of the Civil Rights 
Act of 1964, July 2, 1965, the defendant Avco 
racially discriminated, in violation of the Act, 
against the class of Avco employees represented 
by plaintiffs as follows:

(1) by preserving through the seniority 
and promotion systems past discrimination in 
the areas of classification as to the types of 
employment available to black employees, 
training, working conditions, promotions, 
transfers, compensation and terminations;

(2) by failing, through its supervisory 
personnel, to afford black employees the same 
training afforded to white employees, thereby

4/ Notably, intervening plaintiffs Dennis and McCreary were 
allowed to file complaints in intervention on July 29, 1971 
(A. ) .

-3-



effectively excluding black employees from 
opportunities for advancement to semi-skilled 
and skilled occupations;

(3) by considering subjective and 
racially discriminatory evaluations of its 
foremen and other supervisory personnel, in 
determining qualifications for advancement 
without ascertaining whether or not such eval­
uations were affected v/ith racial bias; and

(4) by discriminating against black 
assembler bench and jig employees in the Globe- 
Wernicke incident.
As to defendant Aero Lodge No. 735, the court con­

cludes that defendant union has acquiesced and par­
ticipated in these discriminatory practices of Avco, 
and has represented the interests of its black members 
unfairly, inadequately, arbitrarily, discriminatorily, 
and -in bad faith in violation of Title VII of the 
Civil Rights Act of 1964.

The Court also found that Avco, after the effective -date of Title
VII, racially discriminated against plaintiffs Alexander (by
denial of promotions, A. ), Newman (in job classification,
working conditions, refusal to transfer, and discharge, A. ),
and Dennis (by pretextual discharge, A. ). The Court
further found that Alexander and Newman had each been subjected
to racial discrimination by Aero Lodge 735 (by its provision of
unfair, inadequate, arbitrary, discriminatory, and bad faith

5/
representation of their interests, A. , ). The District
Court also concluded that plaintiffs could properly maintain the 
cause as a broad class action under Rule 23(b)(2), Fed.R.Civ.P.

w  The Court also found that Avco and Aero Lodge 735 had discrim­
inated against the other intervening plaintiff, McCreary, in at 
least 7 different ways while he worked at Avco, but denied his 
claim of unlawful discharge (A. ).

-4-



6/
(A> )# but did not order notice to class members.

Extensive proceedings to determine the remedy followed 
the Court's Memorandum decision. During these proceedings the 
Court, apparently because of concern about the failure to give 
earlier notice to class members, decided in an August 20, 1974 
Memorandum to terminate the class action (A. )• Thereafter,
on plaintiffs' motion for reconsideration of this ruling and 
their motion to give notice to class members (A. ), the
Court on February 11, 1975 reinstated the class action and 
ordered individual mailed notice to class members as well as

newspaper publication notice (A. , )•
In its August 20, 1974 Memorandum, the Court had outlined

its intentions with regard to injunctive relief for the class 
and the individual plaintiffs' remedy (A. ). On February
11, 1975, it entered an Order embodying and implementing (and 
somewhat modifying) the injunctive remedy previously outlined

). m  this Order the Court enjoined further discrimina­
tion by defendants and decreed fundamental changes in Avco's 
practices in order to eliminate the effects of defendants' 
discrimination. The Court ordered: (1) applications to be 
updated to reflect blacks' qualifications and exclude subjective 
supervisory opinions (A. ); (2) blacks to be given full

6/ The court defined the class to include "past, present, and 
prospective black employees of the defendant Avco Corporation 
and past, present and prospective members of Aero Lodge a l l ' d 
who allegedly have suffered or may suffer by reason of the all g 
discriminatory practices of the defendants" (A. ).
7/ The court nevertheless ruled that the approximately 52 black 
employees discriminated against in the " G lo b e -V Je r n ic k e  i n c i d e n t  
(see page 21, infra), would be invited to intervene much as m  a 
Rule 23(b)(3) class action (A. ) •

-5-



bidding opportunities (A. ); (3) plant wide seniority to
govern black-white job competition for promotion, transfer, and
layoff purposes (A. ); (4) special "job equity" preferences
held by white employees to be limited (A. )‘ (5) increased
qualifying periods and training to be made available to black
employees seeking betterment (A. ); (6) a special racial
grievance procedure to be established (A. ); (7) cutbacks
and layoffs to be governed by plant seniority for six months

). The same Order provided for individual relief to
the plaintiffs and set a hearing for determination of amounts due
them and of'attorneys' fees (A. ). Following a hearing
devoted to evidence on back pay due the individual plaintiffs
and attorneys' fees for their attorneys, the Court on June 3,
1975 entered an Order fixing the amounts due to the named plain-

8/
tiffs and their attorneys (A. ).

Both' Avco and the Union have appealed from all the findings
and orders entered against them (A. , , )• Defen­
dants' position before this Court is apparently that they never 
committed any actionable discrimination against any black 

employee.

w  The Court awarded Newman back pay in the amount of $7,822.52, 
Alexander $6,876.62, and Dennis $6,246.32. Of plaintiffs 
attorneys, Mr. Williams was awarded $81,000, Mr. Ennix $15,00 , 
and Mr. Bailer $1,000. By a supplemental Order filed June 20, 
1975, the Court also awarded $4,500 to Mr. Robinson and denied 
other requested attorneys' fees (A. ).

- 6 -



9/Statement of Facts

A . The Historical Framework of Discrimination
Before the effective date of Title VII, July 2, 1965,

both Avco and Aero Lodge No. 735 were dedicated to the ideal of
total segregation of employees. In an area with a 14.7% black

10/
workforce (A. ), Avco in 1961 had only 1.3% black employees

11/(A. ). By 1965 its workforce was still only 3.6% black (id_. ) .
Traditionally these few blacks were allowed to serve only as
janitors, porters, and charwomen (id.). Avco candidly recognized
in a 1961 "Self Analysis Form (Plans for Progress)" that it had
no black foremen, no black skilled or semi-skilled employees, and

11/no black administrative employees (A. ). The first
exception to this pattern of rigid exclusion came in 1962 after 
a group of black employees, including plaintiffs Alexander and 
Newman, filed a complaint of discrimination with the Committee on 
Equal Employment Opportunity of President John F. Kennedy (A. ).

1/ Appellees are constrained to set out a detailed Statement of 
Facts because, in their view, neither appellant has complied with 
the admonition of Rule 28 (a), f .R.A.P. , that it fully and fairly 
state the pertinent facts of record.
10/ The figures are based on U. S. Census Bureau 1970 data. The 
population of the Nashville labor area is approximately 17%-18% 
black (A . ) .
11/ Avco employed only two black "charwomen" before 1965; after 
their departure it employed no black women at all until 1967; as 
late as October 1968, its workforce was 0.04% black female (A. ).
12/ When asked to explain Avco's pre-1965 hiring practices, the 
official in charge of hiring during that period responded, "We 
just didn't [hire blacks]. There weren't many companies in town 
that did hire a great number of blacks during that period of time" 
(Tr. 887).

-7-



Avco thereafter promoted a token few blacks to the most dangerous
and nerve-wracking of its formerly white jobs (A. ). The
totality of Avco1s job segregation was complemented by the

13/
totality of its segregation of personal facilities.

Aero Lodge No. 735 demonstrated similar commitment to
apartheid. It rigorously excluded blacks from membership until 

14/
1957 (A. ). Thereafter it accepted a token few black members
(and their dues) but required them to sweep out the union hall,
discouraged their attendance at union meetings, and barred them
from participating in picket lines (id_. ) . The District Coxirt.
found that, "The union acquiesced in and encouraged segregation
... at Avco. Union leadership felt that it was proper and not
wrongful discrimination to hire blacks only as janitors and
laborers" (A. ), and that the union either refused to process
or arranged to lose grievances by black members complaining about

15/
racial exclusion by Avco (A. ).

H 7 ~  The District Court found (A. ):
Avco did not permit black employees to eat with 
the white employees. Also, Avco maintained 
segregated toilet facilities and segregated water 
fountains. As a matter of practice, blacks were 
required to step aside and yield to white employees 
when the employees were lined up for whatever 
reason, such as to punch the time clock.

14/ The single exception was deemed "a curiosity and a showpiece" 
(A. ) .
15/ Avco, for its part in this tidy arrangement (which this Court 
has characterized as an alleged "long-standing conspiracy," see 
451 F.2d at 747), discouraged blacks from seeking union membership 
and advised them that "it was to their interest not to so join"
(A. ) —  an injunction which, in the racial atmosphere of the
time, must have been full of foreboding.

- 8 -



*
With this bleak background in mind, we turn to a description 

of defendants 1 pertinent employment practices during the period 
most relevant to this action —  July 2, 1965 to the time of trial.

B. Structure and Nature of Employment Opportunities at Avco 
Since 1965

1. Avco1s operations and jobs
Defendant Avco's Nashville facility is primarily devoted

to aircraft parts manufacturing and assembly (Tr. 922-3). At
pertinent times in the recent past, Avco has also manufactured
appliances and furniture on contract for brand-name distributors
(Tr. 915-7). Most aircraft-related jobs require some degree of
skill and/or experience; applicance-related jobs are mostly
unskilled (Tr. 917-22, 927-8, 986-8). Total employment at Avco
has fluctuated widely, owing to the nature of government or
private sub-contract work on aircraft projects (A. );
total employment rose from 2335 iiJ*. 1966 to 3391 in 1970 (A. );

1§/
thereafter it declined markedly (Tr. 142).

Job classifications at Avco are grouped into departments 
and occupations. Departmental lines, which prior to 1968 had 
great significance for employee movement and job opportunities, 
are no longer of primary importance (see p. 12, infra). At trial, 
great attention was centered on the maintenance department, which 
is responsible for preventive and plant maintenance, repairs, and

n 7"  Post-decree reports by Avco show that this decline has 
continued. Only 1509 persons were employed as of November 15,
1975. Report of Avco Corporation filed November 19, 1975,
U. S. District Court, M.D. Tenn., Nos. 4338, 5258.

-9-



custodial services, and contains a large number of high-paying 
and coveted craft jobs (A. ). Occupations consist of
several related job classifications such as "A", "B", and "C"

17/categories in a particular craft or operator position, or 
journeyman and helper/trainee in such a position (A. ).
Many occupations are found in different departments or throughout 
the plant. The basic aircraft-manufacturing occupation, known 
as "assembler-bench and jig," has the largest number of employees 
in the plant (nearly half the total), appears throughout the 
aircraft side of the operation, and is subject to special seniority 
transfer, and layoff provisions (A. /A. , Tr. 901, 928,
954, 981-2). This occupation was a focus of trial testimony. In 
1971, defendants' collective bargaining agreement abolished the 
"B" and "C" classifications of all occupations and substituted a 
system of varying pay levels within each occupation, with auto­
matic progression through the pay levels over time (Tr. 1014-15,

w  . . .PX 5, p.85). Occupations and classifications carry pay rates 
keyed to an hourly wage rate system of labor grades from 11 (the 
lowest) to 1 (the highest) (A. , A. ). certain tradi­
tionally black positions such as janitor are not in the labor 
grade system and pay less than grade 11 rates (A. , , ).
Many jobs' pay rates vary according to individual or group 
production output under an "incentive" system; these jobs

Xz7~ These initials refer to skill and pay levels; progression 
is from "C" to "A".
18/ That contract also grouped occupations into related job 
families. This concept is not pertinent to the issues now on 
appeal. See PX 5, pp.87-97, Tr. 1016-18.

- 10 -



generally include many of the higher paying occupations and 
their rates vary according to a formula that assures extra pay 
above comparable non-incentive jobs for employees who perform 
at an average level (see A. , ).

2. The structure of job opportunities
The formal conditions and opportunities for employee 

movement between occupations and departments have changed twice 
in recent years. At all times, any job change— promotion, 
transfer, bump-back, or recall— is subject to determination of 
an employee's qualifications and ability to perform the job he 
seeks to obtain. Qualifications are initially determined by 
management, subject to challenge under the grievance procedure 
established by the collective bargaining agreements (Tr. 961, 
979-80). Prior to 1968, Avco entrusted its virtually all-white 
and frequently bigoted (see A. ) supervisory personnel with 
full authority to make these determinations (which higher 
management did not question or review) according to subjective 
standards and without guidelines (Tr. 961-2, 966-7, A. ).
Since 1968, the Avco personnel department has assumed responsi­
bility for determining qualifications, but supervisory personnel 
in other departments still play a considerable role in this 
process (Tr. 961, 967, A. , A. ).

Subject to the determination of qualifications, job 
opportunities at Avco depend on seniority rights defined in 
defendants' collective bargaining agreements. The District Court 
succinctly but accurately summarized the changes in seniority 
and related procedures since 1965 (A. ). Until 1968, Avco and

- 11-



Lodge 735 maintained a "strictly departmental" seniority system 
except for the assembler—bench and jig occupation, which in 
effect formed a separate department company-wide (A. , see A.

, Tr. 882-3, Tr. 906, Tr. 1253-56). Under this system, 
employees within a department had absolute priority for promotion 
to vacancies in the department ahead of all other employees 
(A. , A. , A. ). Recall of laid off employees also
followed departmental lines (A. ). In layoff situations
employees could bump back only within their department or to 
another department in which they had previously worked (A. ,
Tr. 1255-56). There was no system of posting or bidding on vacan­
cies; rather, departmental supervisors hand picked employees,

19/
supposedly in accordance with the seniority rules (A. ).

The 1968 collective bargaining agreement fundamentally 
altered these procedures. It established a bidding procedure for 
vacancies and required that the successful bidder be chosen on 
the basis of plant seniority (Tr. 959-962). An employee could 
submit up to three bids at a time, valid for one year, by filing 
a job request card for each bid (Tr. 959, A. , A. ) .
Avco would post jobs for plant-wide bidding only if no qualified 
bidder had a job request card on file (A. ). The successful
bidder was chosen according to plant seniority within his occupa­
tion and classification (A. ). Occupation seniority rather
than department seniority also governed retention of jobs during

w ~  An employee could request consideration for a job by filing 
an "AVO" (avoid verbal orders) preference card. Such request did 
not, however, entitle him to priority (Tr. 1254).

- 12 -



reduction in force, bumping, and recall (A. ). The pro­
cedure for determining qualifications under the bid system 
included extensive use of employment tests. Avco's top personnel 
officials agreed that blacks fared less well than whites on these 
tests and that the tests were non-job-related, were never vali­
dated, and were abandoned in about 1970 (Tr. 962-65, A. ,

19a/
, ). The 1971 collective bargaining agreement

modified the 1968 bid system by allowing submission of up to six 
bids and substituting other ill-defined "selection criteria" for 
testing requirements (A. ).

Under all the procedures in effect since 1965, defendants 
recognized the absolute priority of employees holding "job equity" 
rights to vacancies in those jobs (A. , , , Tr. 1124).
Job equity is simp]y prior service in a particular occupation 
and classification (Tr. 1124). Thus, in recall situations, an 
employee with job equity would always be recalled before a more 
senior employee who lacked such equity, and job equity gave its 
possessor substantial right to transfer or bump into another job 
if displaced from his own.

C. Discrimination In Job Opportunities
The procedures described above lend themselves to abuse 

along racial lines and were so abused by defendants.
Statistical summaries of black and white employment at 

Avco bear witness to the devastating effects of defendants' 
discrimination. On February 11, 1966, job segregation within 
the hourly-rated jobs was almost total —  with whites holding all
the better jobs. Not a single black employee held a position in
19a/ uSe of these tests was unlawful, see Griggs v. Duke Power Co 
401 U.S. 424 (1971), Albemarle Paper Co. v. Moody, 422 U.S. ,
45 L.Ed.2d 280 (1975).

-13-



any of the top four labor grades which were occupied by 397 
whites (A. )• Over a third of blacks (33.9%) held jobs at
grade 11 or lower; only 3.6% of whites were in those categories 

). Only 5.3% of black employees worked in grade 5 or

higher jobs, compared to 58.2% of whites (A. )• BY JulY 9'
1971, this disparity, while lessened, was still clearly evident.
Of workers in the top two labor grades, 258 were white and none 
were black; 702 whites and only 26 blacks worked in the top four 
grades; while the lowest three grades had as many blacks as 
whites (39 vs. 40) (A. ). Of white employees, 77.5% were in
grades 5 or higher, compared to only 49.7% of blacks; 25.2% of 
blacks fell into grades 7 or lower, compared to only 5.5% of 
whites (A. ). At the time of trial, June 26, 1972, the same
disparities were still clearly apparent (see A. - ). For
example, Avco still had never employed a single black mechanic

(A. ) .
Statistical evidence of the continuing exclusion of blacks 

from salaried jobs is equally clear. As late as July 9, 1971, 
blacks held only 9 of 734 salaried positions —  4 of 463 exempt 
jobs and 5 of 271 non-exempt positions (A. , A. ). This
pattern cannot be explained as a simple residue of past discrimi­
nation. The data indicates that after October 27, 1969 and 
before April 21, 1972, Avco added 268 new white salaried employees

but only 9 new blacks (A. ).
Disparities in average pay reflect thepattern of contin­

uing job segregation. For calendar year 1970, white employees

20/ The earnings data for this year were selected for study as a 
representative year of full employment.

-14-



consistently and dramatically out-earned their black contempo­
raries in seniority terms (see A. ). Of 16 seniority-year 
groups for which comparisons were possible, whites averaged higher 
earnings in 15 (A. ); in 13 of these 15 cases,.the disparity
was 10% or more of the average black income and in 6 cases 20% 
or more (hd.) . These figures translate to an earnings loss, for 
this year alone, of hundreds or even several thousand dollars for 
each black employee (id.). And even these figures do not account 
for economic loss suffered by reason of Avco's refusal to promote 
blacks to supervisory positions since only hourly-paid employees' 
incomes were compared.

None of these striking racial disparities can be explained 
by an objectively measurable difference in qualifications. A com­
parison of average educational attainments for white and black 
workers hired between 1952 and 1970 shows that blacks had, on 
the average., more years of school (A. ). Blacks averaged
11.42 years of school, compared to 10.67 years for whites (id.) .

The district judge correctly identified a variety of
discriminatory employment practices as the root cause of the

21/
racially-tainted picture painted by the statistics. His findings 
were compelled by a record showing numerous instances of dis­
crimination by and against particular individuals, making out a 
strong pattern of overall discrimination.

21/ The defendant union would have this Court disregard these 
statistical indicia of discrimination (U.Br. 39-41). The Court's 
practice, however, is to accord statistical proof considerable 
weight in employment discrimination cases. United States v. 
Masonry Contractors Assn, of Memphis, Inc., 497 F.2d 871, 875 
(6th Cir. 1974).

-15-



The District Court found (A. ):
From July 2, 1965 to 1968, black employees at 

Avco were subjected to discriminatory treatment by 
Avco. It was only through rumors and informal word 
of mouth that black employees could learn of job 
openings, while Avco supervision regularly’informed 
white employees of openings. As is obvious, black 
employees were competing with white employees for 
those jobs. It is pertinent that Avco foremen and 
supervisory personnel, almost all white, ascertained 
that white employees had qualifications which did not 
appear on company records. However, these same fore­
men and supervisory personnel considered black appli­
cants solely on what was listed on their applications. 
Some of these applications had been on file for many 
years.

Avco supervisory personnel stated that they could 
not give informal on-the-job training to non-qualified 
employees. However, Avco supervisory personnel did 
give this type of informal training to white employees. 
Whites with less seniority than blacks were promoted 
to maintenance jobs even though some of those promoted 
were no more qualified than the blacks ....

As a requirement of the collective bargaining 
contract effective August 12, 1968, an Avco official 
in the personnel Office, industrial Relations Depart­
ment, began to interview all applicants for promotion.
In some instances the applicants were given tests. 
However, in many instances, significant reliance was 
still placed on the evaluations of Avco foremen, 
assistant superintendents, and superintendents. These 
supervisory personnel insisted that there was no racial 
bias in their evaluations; however, the majority of 
these individuals thought the segregation practiced at 
Avco was not racial discrimination. Despite grievances 
and complaints alleging racial discrimination, both in 
on-the-job training and in promotions, Avco did not 
make an inquiry into whether or not the subjective 
evaluations of the black employees by the white Avco 
supervisory personnel were affected by racial bias.

Avco is bound by the knowledge and actions of its 
supervisory personnel. These Avco personnel both knew 
of and participated in practices, policies and condi­
tions of racial discrimination. Numerous oral and 
written complaints about the racial discrimination at 
the plant were made to Avco officials and supervisory 
personnel. However, the Avco officials and supervisory 
personnel generally took no effective affirmative 
action, either before or after the effective date of 
Title VII, to correct valid complaints of discriminatory 
treatment.

- 16-



The key to the discrimination that infected this system
was Avco's supervisory and managerial personnel. The first
black supervisor at. any level was not appointed until about 1965
(A. ; Tr. 56-7). The lower-level supervisors— foremen and
assistant foremen— remained nearly all white thereafter, and by
1972 none of the 12-14 superintendents had ever been a black

2 2/
(A. , ). Even while testifying at trial in 1972,
these white supervisors exhibited attitudes of surprising racial

23/
insensitivity (to say the least).

Avco's white supervisors made certain that black employees
could not be hired or transferred to better-paid and higher-
skilled jobs. The 1968 rejection of Glenn Beard, a highly quali-

24/
fied black electrician, is illustrative. The ordeal that Avco 
forced on Charles Haddox, a black industrial plumber who got a

22/ There was credible testimony that Avco reached its "high 
point" of perhaps six black foremen at a time (A. ) in prep­
aration for a contreict compliance inspection visit by civil right 
officials on the Lockheed project; thereafter, the black foremen 
were returned to hourly ranks (Tr. 745-748).
23/ For example: Avco's maintenance superintendent denied that 
pre-1965 practices were racially discriminatory; he felt them 
fair because they allegedly provided for "separate but equal" 
conditions (Tr. 1136-38). See also supervisors' testimony appear 
ing at Tr. 1377-8, Tr. 1438-39. The district judge made addi­
tional pertinent findings about overt supervisory prejudice 
toward blacks, see A.
24/ Mr. Beard, a high school graduate with three years' further 
training plus Navy experience in electronics and electricity (Tr. 
175-78, 180-82, 193-201), who had been hired as a laborer in 1954 
and in 1959 (Tr. 176-8), was refused a maintenance electrician 
job in 1968. After first trying unsuccessfully to screen him out 
by testing, Avco simply pronounced him unqualified (Tr. 180-186). 
Meanwhile, Avco continued to hire whites off the street (Tr. 186- 
187). (Mr. Beard subsequently demonstrated his qualifications 
by becoming an aircraft mechanic, Tr. 187-88.)

-17-



plumbing job in 1967 only after three years of trying and several
25/

grievances, provides another example. Leon McClain, a black
man with a strong mechanical background, was able to get a job
in 1966 only because of the intervention of a white woman whose

26/
black maid was McClain's mother-in-law. The record shows that
many whites of inferior qualifications were hired and where
necessary trained in maintenance and other desirable jobs, as

27/
the District Court found (Op. p.19). One non-black master 
craftsman candidly testified that, in his 20 years at Avco, 
management had continually told him that blacks did not have the 
ability to be craft workers and that there was "no way under the 
sun" for a black to get such a job (Tr. 298-99).

The evidence also showed a wide variety of discriminatory 
practices relcited to job assignments and working conditions.

26/ Mr. Haddox, despite extensive plumbing experience which he 
described in applying to Avco, was hired as a laborer in 1964 
(Tr. 205-07, 209-210). He then applied for promotion to plumber 
but was bypassed by two whites, one of whom had "kinfolks" at 
Avco (Tr. 212-216). Only after pursuing his grievances tenaciously 
did he convince Avco to find him "qualified" —  and even then was 
placed in an inferior "C" category created especially for his 
occupancy (Tr. 217-224). He too is now a satisfactory "A" plumber 
(Tr. 224).
26/ See Tr. 726-733. When Mr. McClain first applied to Avco in 
1953, he was told that only a "housekeeping" job was available 
(for blacks), and rejected it (Tr. 727-28). After he was finally 
hired as an assembler trainee, McClain proved more educated, more 
experienced, and faster to learn than most of the white employees 
(Tr. 733-35).
27/ The bulk of the testimony on this point concerned maintenance 
department craft jobs. There, the pattern was to pass over black 
incumbents working as janitors, laborers, or general helpers, many 
of whom had mechanical experience and sought promotion, to bring 
in whites from other departments or off the street, often as "C" 
or trainee mechanics. See Tr. 1171-1237, Tr. 300-306. Compare, 
e.g., the qualifications of successful white applicants and bidders 
with those of blacks as cited in nn. 24, 25, 26, supra.

- 18 -



This evidence supplements the strong evidence presented on the
28/

individual claims of Newman, Alexander, Dennis, and McCreary, 
which the District Court after elaborate trial on these issues 
believed and found as true (A. ), and the individual
histories of discrimination referred to elsewhere in this section. 
For example, one witness testified that the better jobs were 
posted so as to attract primarily white applicants (Tr. 751); 
that blacks continue to be promoted with difficulty and into less 
desirable positions (Tr. 748, 752); that blacks receive the most 
unpleasant positions where whites do not wish to work (Tr. 755); 
that supervisors continue to abuse blacks with racial epithets 
(Tr. 756). The record is replete with corroborating testimony 
as to such problems.

D . The Globe-Wernlcke Incident
Late in 1971, while Avco's aircraft workforce in the 

assembler-bench and jig classification was expanding, its opera­
tion of a furniture manufacturing line for the Globe-Wernicke

2 9/
Company was ended (Tr. 1027-28, 2072). Under the collective 
bargaining agreement's provisions (PX 5, p.53), the laid off 
Globe-Wernicke employees had no contractual right to recall in 
the assembler-bench and jig occupation. This was because recall 
rights could only be exercised in occupations for which the laid

28/ See pp. 56-64 , infra.
29/ It was not unusual for Avco to be laying off employees in 
some areas while hiring in others (Tr. 2078, 2025). Indeed, 
this was one reason for adoption of the general recall provisions 
of collective bargaining agreements between defendants (see A.

; A .  ) .

-19-



off employee was qualified (id_.) and, as every witness who
testified on this subject admitted, the Globe-Wernicke employees
were not qualified and had no prior experience in aircraft work
(Tr. 1028-29; Tr. 2027-28). The District Court so'found (A. ).
Nevertheless, the union pressured Avco to recall these employees
under the inapplicable general recall provisions of the union
contract (Tr. 1032, Tr. 2084). That provision could only become
operative after the laid off employees had become qualified
through training on the bench and jig job, and Avco was under no
contractual obligation to provide them with such training (Tr.

30/
1033, Tr. 2073). Nevertheless, defendants concluded an ad-hoc
deal after the layoff had occurred, by which laid off employees
would train without pay and then be recalled to the bench and jig
classification with their full seniority (Tr. 2066-67, 1029-30).
All 73 Globe-Wernicke employees thus "recalled" were white and
of long seniority (A. , Tr. 1776-77, Tr. 1026).

The assembler-bench and jig occupation was, by Avco's
standards, heavily black (177 of 898 employees), and most of the

31/
black employees in it had very little seniority (A. ). The
effect of placing long-term whites into the occupation under 
Avco's system of layoff by plant seniority within the occupation

-12/ Although both Avco and Aero Lodge No. 735 now make the 
imaginative argument that Avco was required by law to train and 
recall the Globe-Wernicke employees, the record is contrary. 
Avco's own Manager of Personnel and the IAM Business Representa­
tive for Lodge 735 both testified flatly that the laid off 
employees had no recall rights and Avco had no training responsi­
bility under the contract. See Tr. 1033, Tr. 2073.
31/ Most of Avco's hiring of blacks after 1965 was into this low 
level occupation. This "loading up" of blacks was clearly one 
result of the Alexander suit. See Tr. 981-82, 1031; A.

- 2 0 -



was to doom junior blacks to elimination when one of the
32/

predictable downturns in aircraft work occurred. Avco's 
Personnel Manager conceded that the foreseeable effect of the 
recall would be the elimination of many black employees "somewhere 
down the road" (Tr. 1033) and explained how, under the contract, 
the displacement of these blacks could be required once the 
Globe-Wernicke whites had entered the same occupation (Tr. 1030).

Ttfo to three months after the "recall," in early 1972 
(A. ), a cutback occurred in aircraft work and 124 employees—
52 of them blacks— lost their jobs (A. ). Avco concedes and
the court found that, but for the Globe-Wernicke whites' recall, 
these blacks would have retained their jobs (A. ). This
reduction in force eliminated 29% of the 177 black bench and jig 
employees, but only 10% of the 721 white employees; moreover, at 
that time nearly two-thirds of Avco's entire black workforce 
worked in that occupation and the layoff eliminated nearly one- 
fifth of that force (A. , A. ). The court below concluded
that;

The sum and substance of [defendants'] joint 
action was to state that white employees are 
entitled to preference over black employees 
in the areas of job classification, working 
conditions, transfers, compensation and 
termination (A. ) .

See A. ; and see p. 9, supra. There was sharply
disputed evidence as to whether defendants had, at the time of 
the Globe-Wernicke recall, specifically projected a layoff in 
the bench and jig occupation in the near future; the weight of 
evidence was that they had (PX 51, Tr. 2050), and the District 
Court so found (A. ) .

- 21 -



E. The Individual claims of Alexander, Newman and Dennis
The individual claims of plaintiffs Ramsey Alexander,

Robert Newman, and R. L. Dennis were exhaustively tried and
carefully decided below on a specific factual basis (see A.

33/
). The District Court entered detailed findings of specific 

facts in support of its conclusion that all three plaintiffs 
had been victims of many-faceted discrimination directed against 
them as individuals, as well as in their status as class members. 
While we defer discussion of the factual record supporting theIVcourt's determinations to the argument section of this brief, 
a few general observations are pertinent here.

Alexander, Newman, and Dennis were among the most active 
and aggressive of a small group of black employees who courage­
ously fought defendants' racism. Rather than standing quietly 
by to wait for times to change, they made the times change.
The class and indeed the defendants owe much to their determina­
tion to bring Avco's operations into some semblance of compliance 
with law. Alexander and Newman were among the five signers of 
the original complaint of discrimination to the President's 
Committee on Equal Employment Opportunity in 1962 (Tr. 26, 42,
Tr. 352-53, 383). Within 100 days after Title VII became effective, 
Alexander filed his EEOC charge initiating the process that has 
led here (Tr. 27-28, A. ). Newman filed his EEOC charge in

W ~  Also fully treated below, but not briefed here because not 
appealed, was the discriminatory discharge claim of plaintiff 
McCreary, see A.
34/ See pp. 55-66 , infra.

- 22 -



May, 1966, within days after denial of his discharge grievance 
by the arbitrator (A. , Tr. 383). Dennis, who was hired
after Newman's discharge (Tr. 459), became one of the first, 
black local union committeemen (Tr. 461), and made it his par-

concern to defend the rights of black union members (Tj. . 
478, A. ). Dennis was an organizer and principal staff member 
of a blade employees' self-help organization formed in 1970 and 
known as the "Cause-Find-Commission" (Tr. 480, A. , Tr. 233-36).

Virtually every halting step taken by defendants in the 
direction of racially fair employment practices can be traced to 
the complaints of black employees, led by Alexander, Newman, and 
Dennis (A. ). The 1962 charge resulted in the plant's desegre­
gation of physical facilities and a beginning of token desegrega­
tion of job opportunities (Tr. 42, 134, 352-53, A. ). The 
1965-1966 EEOC charges and filing of suit resulted in the first 
progress toward opening the door to black job opportunities more 
than a tiny crack (Tr. 27—8, 137) . While concedl.ng as little 
equality as they thought they could get away with, defendants 
also established a pattern of harassment and retaliation against 
those black leaders who forced their waiting game. The events 
giving rise to the three named plaintiffs' claims are the clearest 
possible evidence of this pattern. See pp. 56-64 , infra; see 
also Tr. 238, Tr. 230-31. Those claims must be evaluated in 
light of these general observations.

-23-



ARGUMENT

Introduction

The appeal of this employment discrimination case brings
this Court face to face with a shocking and comprehensive scheme
of racial oppression. The District Court recognized appellants’
practices for what they are and granted appellees their remedy.
Yet the Company's appeal brief repeatedly attacks the district
judge's integrity and judicial temperament, implying that he was
thoroughly befuddled and so blinded by his allegedly erroneous
view of the ■. Globe-Wernicke incident as to be incapable of impar-

35/
tially evaluating the evidence. Nothing could be farther from 
the truth, as Judge Morton's careful, detailed Memorandum opinion 
and subsequent orders prove. By representing the court's opinion 
as the product of injudicious reasoning provoked by a misreading 
of a single, small part of the record, Avco apparently hopes to

357“ Avco asserts that the Globe-Wern.icke incident became, "in 
the Court's mind, the dominant issue in the case to which all 
other issues were now subordinate" (Co. Br. 6); that the Court 
resolved "all factual issues in plaintiffs' favor ... because 
Avco's credibility had been destroyed by the Globe-WTernicke inci­
dent" (id. 7-3); that the district judge "had a closed mind" (id.
11); that the "central and determinative issue in this case is 
the correctness of the holding of the District Judge in connection 
with the so-called Globe-Wernicke incident which ... resulted in 
the decision of other disputed issues in favor of plaintiffs" (id. 
22); that "the Globe-Wernicke findings are the crucial premise for 
all of the adverse findings and conclusions from which Avco appeals" 
(id. 29); that the findings on the individual claims "were so 
clearly devoid of evidentiary basis as to compel the inference 
that the issues were prejudged by the District Judge" (icl. 45).

The simplest refutation of these charges is a reading of the 
district judge's opinion (A. - ). Its care, detail, and
bailance— and the relatively minor part devoted to the Globe- 
Wernicke incident— thoroughly belie Avco's allegations.

-24-



divert attention from the massive proof of systemic discrimination 
that permeates this record.

Appellants would have this Court "see no evil" in their 
racial policies and vacate every element of relief granted below7. 
An appellate position more stubbornly defiant of the strong 
national policy expressed by Congress's enactment of Title VII 
or more intractably hostile to the thrust of its interpretation 
by the federal courts is difficult to imagine. To adopt appel­
lants' position, the Court would have to blind itself to a history
of severe discrimination preceding, surrounding, and finally

36/
dwarfing the Globe-Wernicke episode, as massively documented in 
the record (see pp. 19-21 , supra) and carefully found by the 
District Court (see pp. 4, 21, supra). This Court must reject 
appellants 1 invitation to reverse, not only to do justice in this 
case, but also to remind such defendants as these that this nation 
turned an historic corner in 1964 and will never turn back.

I. THE DISTRICT COURT DID NOT ERR IN ALLOWING 
THIS CASE TO PROCEED AS A CLASS ACTION FOR 
REDRESS OF CLASS-WIDE DISCRIMINATION.

A . This Case Is Maintainable As A Rule 23(b)(2) Class Action 
For The Relief Plaintiffs Seek.

There can no longer be any question that the federal courts 
are authorized, and indeed encouraged, to permit class action 
treatment of Title VII employment discrimination claims, including 
claims for class-wide back pay. See Albemarle Paper Co. v. Moody,

H T  The Globe-Wernicke incident is properly viewed as only a par­
ticularly egregious example of appellants' racial policies in 
action —  but essentially of a piece with the larger record of 
discrimination. This was the lower court's perspective.

-25-



422 U.S. ___ , 45 L.Ed.2d 280, 294, n.8 (1975); Bowe v. Colgate-
Palmolive Co., 416 F.2d 711, 719-720 (7th Cir. 1969); Pettway v. 
American Cast Iron Pipe Co., 494 F.2d 211, 256-7 (5th Cir. 1974); 
Johnson v, Goodyear Tire & Rubber Co., 491 F.2d 1364, 1375 (5th 
Cir. 1974). This Circuit has repeatedly approved class back pay 
awards, Head v. Timken Roller Bearing Co., 486 F.2d 870, 876 (6th 
Cir. 1973); Meadows v. Ford Motor Co., 510 F.2d 939, 948 (6th Cir.
1974) ; EEOC v. Detroit Edison Co. , 515 F.2d 301, 314-5 (6th Cir.

37/
1975) . The fact that individual back pay is sought as one element
of the equitable remedy for class members does not preclude class

38/
action treatment under Rule 23(b)(2). Robinson v. LoriHard 
Corp., 444 F.2d 791, 801-2 (4th Cir. 1971), cert, dismissed 404 
U.S. 1006 (1971); Franks v. Bowman Transportation Co., 495 F.2d 
398, 422 (5th Cir. 1975), cert, denied 419 U.S. 1050 (1974), cert. 
granted on other issue 420 U.S. 989 (1974); United States and Ford 
v. United States Steel Corp., 520 F.2d 1043, 1057 (5th Cir. 1975).

nr In Detroit Edison, this Court stated:
We recognize that every Title VII action is in effect 
a class action and that a liberal construction should 
be given to the requirements of Rule 23(a)(2) and (3)
.... It is recognized that one purpose of Title VII 
is to root out an underlying policy of discrimination 
of an employer or a union regardless of how it is mani­
fested. 515 F.2d at 311.

38/ As the Advisory Committee Note to the 1966 amendment of Rule 
"23 (b) (2) states :

The subdivision does not extend to cases in which the 
appropriate final relief relates exclusively or pre­
dominately to money damages. 39 F.R.D. 69, 102 (1966) 
(emphasis supplied)

But the courts have uniformly held, as illustrated by the above- 
cited decisions, that back pay is incidental to other equitable 
relief, so that Title VII cases are not "exclusively or predomi­
nately" for "damages."

- 26 -



Appellants cannot and do not seriously dispute any of the
foregoing authorities. Rather, they seek to avoid the clear
meaning of Albemarle Paper Co. and the other cases cited by
opining that this very typical Title VII back pay case is proced-
urally different from all others because the class determination
and notice to class members was not ordered until the court below
decided the case on the merits. Because this argument must

39/
clearly fail under the law' governing 23(b)(2) actions, Avco 
proposes that all class actions for back pay must be deemed Rule 
23(b)(3) actions (Co. Br. 40-42). This contention ignores the 
text of the Rule, the Advisory Committee Note to the Rule and all 
pertinent authorities.

There is no support for the assertion that a back pay claim 
renders a case ipso facto a Rule 23(b)(3) class action. On the 
contrary, Rule 23(b)(2) and its Note specify that the dispositive 
factor is whether

the party opposing the relief has acted or refused to 
act on grounds generally applicable to the class, 
thereby making appropriate final injunctive relief or 
corresponding declaratory relief with respect to the 
class as a w’hole.

Race and color are, of course, such "grounds generally applicable 
40/

to the class." The court below specifically found that this case 
met the (b)(2) requirement (A. ), and appellants did not— and
could not— directly attack this finding. The instant case cannot

H 7 ~  See Part B, pp. 28-36, infra.
40/ Hall v. Werthan Bag Co., 251 F. Supp. 184, 186 (iVLD.Tenn. 1966); 
Jenkins v. United Gas Corp., 400 F.2d 28, 34 (5th Cir. 1968); Qatis
v. Crown Zellerbach Corp., 398 F.2d 496, 499 (5th Cir. 1968).

-27-



plausibly be likened to a class action of the type denominated 
"spurious" before the 1966 amendments to Rule 23; the class is 
not fundamentally heterogeneous and joinable solely for conven­
ience (cf. Co. Br. 41-43). This Court must reject the sweeping 

—  41/
principle suggested by Avco as without legal foundation and 
again squarely hold back pay available in an appropriate Rule 23 

(b)(2) case.

B. The Timing of Class Certification and Notice in This Case 
Does Not Preclude Class Action Treatment.

Appellants' main argument against the class action centers
on the timing of the District court's formal order of certifica-

42/
tion and its order providing for notice to class members. Appel­
lants urge that the class action must be dismissed because the 
court failed to comply with the admonition of Rule 23(c)(1) that 
class actions be determined "as soon as practicable" and with the

43/
notice requirement of Rule 23(c)(2) (Co. Br. 37-44, U.Br. 44-46).

HZ' The one appellate court which has specifically considered the 
same argument held that, where an action is maintainable under 
either (b)(2) or (b)(3), the (b)(2) vehicle should be chosen as 
superior. Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 
252-253 (3rd Cir. 1975), cert.~denied 421 U.S. 1011 (1975).

As to the argument that fairness requires (b)(3) type notice 
before adjudication of individual back pay claims, see p. 30, n.46, 
infra.
42/ Both the District Court and this Court plainly stated early in 
these proceedings that the case would be a class action, see p. 2, 
supra. A formal class action certification pursuant to plaintiffs' 
pre-trial motion (A. ), was not issued until the decision on the
merits, however (A. ). The court directed individual notice to
class members on plaintiffs' motion (A. ) in its February 11,
1975 order (A. ) .
43/ The District Court's August 20, 1974 decision to dismiss the 
class action (A. )— which it subsequently reconsidered and
reversed (A. )— was based entirely on its concern about lack of

- 28 -



The appellants' arguments are a melange of wishful thinking and 
erroneous legal principles.

The obligation imposed by Rule 23(c)(1) to determine
whether a class action may be maintained "as soon as practicable"
rests on the court. "The language of this provision is mandatory
and the court has a duty to certify whether requested to do so or
not. 3B J. Moore, Federal Practice, ^ 23.50 at 23-1001," Garrett
v. City of Hamtramck, 503 F.2d 1236, 1234 (6th Cir. 1974); EEOC
v. Detroit Edison Co., 515 F.2d 301, 310 (6th Cir. 1975). The
absence of an early certification is thus not ultimately attribut-

44/
able to any wrongdoing on the part of any party and does not 
give any basis for dismissing the class action, as the Fifth Cir­
cuit has held. Rodriguez v. East Texas Motor Freight, 505 F.2d

45/
40, 49-50 (5th Cir. 1974). Plaintiffs' failure to seek formal 
certification here until June, 1972 is particularly understandable: 
both the District Court in Alexander and this Court in Newman had 
clearly announced at an early stage that the class actions could 
go forward (see p. 2 , supra). In these circumstances, appellants 
could be neither surprised nor prejudiced by the lateness of the 
certification.
4 3/ (cont' d)
earlier notice to class members. The district judge made this 
absolutely clear in colloquy at the hearing held January 17, 1975 
on plaintiffs' motion to reinstate the class action (A. ).
44/ Indeed, the District Court shouldered the blame for the failure 
to provide early certification and notice, at the January 17, 1975 
hearing (see A. ).
45/ The Court of Appeals in Rodriquez held squarely:

A class action may not be dismissed because the class 
representatives fail to ask for a ruling on the pro­
priety of the class nature of the suit. That respon­
sibility falls to the court. "The court has an 
independent obligation to decide whether an action

- 29 -



Rule 23(c)(2) does not require any notice to class members
in a (b)(2) class action. The mandatory notice requirement of
subsection (c)(2) applies by its terms only to (b)(3) class
actions, as the Supreme Court has twice recognized. In Risen v.
Carlisle & Jacquelin, 417 U.S. 156, 177 n.14 (1974), which closely
scrutinized the class action notice issue, the Court noted,

We are concerned here only with the notice requirements 
of subdivision (c)(2), which are applicable to class 
actions maintained under subdivision (b)(3). By its 
terms subdivision (c)(2) is inapplicable to class 
actions for injunctive or declaratory relief maintained 
under subdivision (b)(2).

And in Sos na v. Iowa, 419 U.S. 393, 397 n.4 (1975), the Court,
after finding that a (b)(2) action was contemplated, stated,
"Therefore, the problems associated with a Rule 23(b)(3) class
action, which were considered by this Court last Term in Eisen v.
Carlisle & Jacquelin, 417 U.S. 156 (1974), are not present in this 

46/ 
case."

45/ (cont'd)
brought on a class basis is to be maintained even if 
neither of the parties moves for a ruling under sub­
section (c) (1)." Wright & Miller, Federal Practice 
and Procedure, Civil §1785 (1972).

505 F.2d at 50.
46/ The policy behind the different notice standards for (b) (2) 
and (b)(3) actions was articulated in Wetzel v. Liberty Mutual Ins. 
Co., supra, 508 F.2d at 249:

Binding all members of a (b)(3) class, however, was 
not thought by the Advisory Committee to be as fair 
as binding all members of a (b)(2) class. By the 
very nature of a heterogeneous (b)(3) class, there 
would be many instances where a particular individual 
would not want to be included as a member of the class.
'To respect these individual interests, Rule 23 (c) (2) 
was-written to afford an opportunity to every potential 
class member to opt out of the class. (emphasis supplied)

-30-



Notice in (b)(2) class actions like this one is given,
47/

if at all, pursuant to Rule 23(d) (2), which provides:
In the conduct of actions to which this rule 
applies, the court may make appropriate orders 
... requiring, for the protection of the 
members of the class or otherwise for the fair 
conduct of the action, that notice be given in 
such manner as the Court may direct to some or 
all of the members of any step of the action 
.... (emphasis supplied)

The terms of subdivision (d)(2) are broad and flexible by design 
of the rule's drafters. See Advisory Committee Note, 39 F.R.D.
69, 106 (1966). The notice given class members in this case must 
be evaluated in light of this rule and its principal concern—  
fairness to absent class members. ;

Appellants argue that due process requires the issuance of
notice to all class members in any Rule 23 class action. The
Supreme Court pointedly refused to adopt this sweeping principle

48/
in Eisen v. Carlisle & Jacquelin, supra. As Eisen recognized, 
the due process principles expressed in Mullane v. Central Hanover 
Bank & Trust Co., 339 U.S. 306 (1950), Ilansberry v. Lee, 311 U.S. 
32 (1940), and related cases are satisfied by the mandatory
notice requirement of subdivision (c)(2) for (b)(3) class actions 
plus the discretionary notice provision of subdivision (d)(2), 
see 417 U.S. at 173-4. The Advisory Committee Note demonstrates

H 7 ~  We do not suggest that some form of notice at some stage is 
necessarily inappropriate in (b)(2) actions. But we do maintain 
that the more inflexible (c)(2) standards are inapplicable.
48/ At an earlier stage of the same case, the Second Circuit had 
held that due process requires notice in all representative actions 
391 F.2d 555, 564 (2nd Cir. 1968). But see Frost v. Weinberger,
515 F.2d 57, 65 (2nd Cir. 1975), discussed at p. 32, infra.

-31-



that the drafters of the rule were sensitive to due process con­
siderations and believed the provisions of the rule consonant 
with these considerations, 39 F.R.D. 69, 106-07 (1966). The 
Advisory Committee noted that "In the degree there is cohesiveness 
or unity in the class and the representation is effective, the 
need for notice to the class will tend toward a minimum," 39 F.R.D. 
at 106. This focus on practical aspects of the notice question 
and the nature of the class involved assures fundamental fairness 
and is consistent with proper due process analysis.

The most careful application of these principles in the 
Title VII context is found in Wetzel v. Liberty Mutual Ins. Co.,
508 F.2d 239 (3rd Cir. 1974), cert, denied 421 U.S. 1011 (1975).
The Third Circuit reasoned that the motivating force behind
Mullane and like cases was the heterogeneity of the class, making 
it likely that some class members* interests would be prejudiced 
unless they, received notice and an opportunity to opt out or to 
appear individually, 508 F.2d at 255-7. But in a (b)(2) employ­
ment discrimination action, due to the homogeneity of the class—  
all of whom are victims of a common discrimination based on a 
class characteristic (sex or race)— such early notice would "add 
nothing, " _id. at 256-7. The court concluded that "notice to 
absent members of a (b)(2) class is not an absolute requisite of
due process," id_. at 257. Two other circuits have, following
the Supreme Court's Eisen and Sosna footnotes, held that due
process does not require notice in all (b)(2) class actions. See,

49/
e.g., Frost v. Weinberger, 515 F.2d 57, 65 (2nd Cir. 1975);

The Second Circuit's decision in Frost is particularly signif­
icant, since the court recognized therein that its earlier dicta 
in Eisen, 391 F.2d at 564-5, are now untenable in light of Sosna.

-32-



, 44 U.S.L.W. 2175 (9th Cir.Elliot v. Weinberger, ___ F.2d
1975); and cf. Bijoel v. Benson, 513 F.2d 965, 968 n.3 (7th Cir. 
1975).

In the instant case, as in Wetzel, the homogeneity of the
class— consisting of victims of appellants' racially dictated
policies— obviated the need for notice prior to determination of
merits of the class-wide claims. Class representation was
obviously highly effective, and no class members were prejudiced
by the absence of early notice. After adjudicating the broad
issues affecting the class as a whole but before entertaining any
claims for individual relief for class members, the District
Court ordered individual notice fully apprising class members of
their rights and responsibilities. This was the first stage at
which class members' personal choices would determine their right
to relief. It was, therefore, the most appropriate time for

50/
notice to class members. Far from compromising due process 
rights, the District Court effectively protected them.

Appellants attempt to derive from the axiom that due process 
requires protection of absent class members' rights^the corollary 
that appellants' due process rights were violated. Their argument

50/ We do not concede that the form of notice nor the act it 
purports to require of class members— filing of "proof of claim" 
forms— are necessarily proper. (Those questions are not now ripe 
for review.) We do urge, however, that the timing of notice was 
correct.
51/ The Union's due process argument appears to be based on the 
premise that "it is the constitutional right of everyone not to 
be deprived of his rights by judicial proceedings unless he has 
been subjected to the adjudicatory authority of the Court by 
proper process" (U.Br. 44). It is difficult to see where this 
premise leads in this case. The Union does not dispute that 
process was duly served upon it; and class member's rights have 
been enhanced, not destroyed.

-33-



is in effect based on the increasingly discredited "mutuality"
doctrine, see Blonder-Tongue Labs v. University Foundation, 402
U.S. 313, 320-328 (1971). Whatever vitality that doctrine may
still have, especially in class actions brought under the 1966

52/
amendments to Rule 23, it simply has no applicability here.
Members of the Alexander-Newman class could not, in reality,
await the outcome of this suit and then, if they were dissatisfied,

53/
protect their interests by excluding themselves from the class.
As a legal matter, they were bound to the class adjudication by 
the operation of Rule 23(b)(2). Individual class members could 
not have "opted out" of a determination that Avco had not dis­
criminated in a systemic manner against blacks as a class; nor 
'could individual class members demand to be covered by a different
remedial seniority system than that ordered into effect for the 

54/
class. Apart from these illustrations of why a homogeneous 
class must be bound to a single class—wide result, class members 
had also limited or lost their rights to proceed separately by 
operation of the statute of limitations. This makes controlling 
the analogy to Foster v. City of Detroit, 405 F.2d 138, 147 (6th 
Cir. 1968), wherein this Court upheld intervention after judgment 
for similar reasons.
52/ a primary purpose of the 1966 amendment was to eliminate the 
problems to which the "mutuality doctrine" was one response.
53/ Avco's complaint that "class members have been permitted to 
sit on the sidelines, awaiting the outcome, secure in the knowledge 
that they have nothing to lose and can intervene to claim redress 
if a ruling is made in their favor" (Co. Br. 42), grossly mis­
represents the reality of this case. See text following.
54/ Most certainly, if appellants had obtained a result more satis­
factory to Avco, the Company would now— with considerable merit—  
be arguing that class members are bound to the adjudication.

34-



The principal cases cited by Avco for its due process prop- 
55/

osition (Co. Br. at 43)— Zeilstra v. Tarr, 466 F.2d 111 (6th Cir.
1972); Schrader v. Selective Service System, 470 F.2d 73 (7th Cir. 

56/
1972); Pasquier v. Tarr, 444 F.2d 116 (5th Cir. 1971)— are selec­
tive service cases arising under unique circumstances which make 
them inapplicable to this Title VII case. In Gregory v. Hershey, 
311 F. Supp. 1 (E.D. Mich. 1969), a single district judge had 
held in a class action without any notice at any stage that all
men similarly situated to the class representative were entitled

57/
to re-classification from II-S to III-A draft status. Individuals 
throughout the country sought to take advantage of that ruling by 
asserting that they were class members and the selective service 
system was barred under the doctrine of res judicata from opposing 
their re-classification. In Zeilstra, Schrader, and Pasquier, 
the circuit Courts of Appeals rejected those arguments. Whatever 
the validity of the discussion of notice in those decisions, the 
vastly different situation in the instant case requires a different 
result.

In this case, all parties have always proceeded on the 
assumption that the action was being maintained on a class-wide

22/ other than the Second Circuit's Eisen opinion, which has been 
superceded by the Supreme Court decision in that case, see p. 30, 
supra.
56/ The Seventh Circuit has recently expressed doubt that Schrader 
remains good law, see Bijoel v. Benson, 513 F.2d 965, 968 n.3 (7th 
Cir. 1975).
57/ This Court later reversed that decision as plainly wrong on 
the merits, Gregory v. Tarr, 436 F.2d 513 (1971).

- 35-



basis. The District Court tried the case on that basis and 
found on the full record that the class action was proper. He

■ iff

issued notice prior to the stage where any individual choices or 
differences among members of the class— which as to the issues 
litigated and decided at the first trial is homogeneous— could 
have any effect on the proceedings. To require earlier or more 
formal class action orders in such a case would exalt form over 
substance, contrary to the spirit of the 1966 amendments to Rule 
23. To dismiss the class action as appellants urge and thereby 
deny all relief to hundreds of victims of discrimination who 
relied on the class representatives to vindicate their rights, 
would cruelly subvert the role Congress gave to the federal 
judiciary when it enacted Title VII (see pp. 39-40, infra).

II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION 
IN FRAMING AN APPROPRIATE INJUNCTIVE REMEDY FOR 
APPELLANTS' DISCRIMINATORY JOB OPPORTUNITY 
PRACTICES .

A . The District Court's Remedial Approach Was Appropriate 
and Necessary.

The District Court found that appellants had, from the 
effective date of Title VII through the time of trial (summer 1972) 
engaged in a comprehensive pattern of discriminatory promotion, 
transfer, layoff, recall, seniority, and qualification practices 
(Op. pp. 18-20, 43). The court properly analyzed these various 
practices not in isolation but as interrelated manifestations of a 
single- racist program. The devastating effects of each such mani­
festation could only be understood, as the court did understand 
them, in combination with all the other discriminatory

-36-



As the District Court well understood, such a compre-
58/

practices.
hensive plan of discrimination calls for a comprehensive plan of 
injunctive relief which will effectively deliver job opportunities 
to the victims of past discrimination.

The District Court carefully developed that type of remedial 
plan. After full consideration of detailed proposals submitted by 
the parties and an extensive hearing on the proposals held July 
19, 1974 (see A. ), the court formulated measures of "relief
... to remedy past discriminatory practices of the defendants" on 
August 20, 1974 (id.). Before putting these measures into effect, 
the court then fully considered the parties' objections to its 
proposals, held another extensive hearing January 17, 1975, and 
modified its earlier plan before issuing it as a mandatory order on 
February 11, 1975 (A. ). The decree appealed from, therefore,
represents the product of prolonged and careful deliberation by 
a district judge who was obviously extremely concerned with and 
knowledgeable about the facts of the case and the parties' posi­
tions.

Each measure of injunctive relief designed to open job 
opportunities for black workers is carefully tailored to respond 
to needs imposed by the specific nature of appellants' past dis­
crimination as found by the court (see pp.40-49, infra). The

W  Cf. EEOC v. Detroit Edison Co., supra, 515 F.2d at 313:
The seniority system, and many of the hiring 
practices of Edison, appear fair and objective 
when considered by themselves. However, a court 
must view all the practices challenged in a 
Title VII case in light of their effect in 
operation, not in the abstract.

-37-



revised job opportunity system ordered by the District Court 
basically follows the pattern of existing practices, but alters 
them as necessary to remove the blemish of continuing discrimina­
tion. The court ordered this plan to remain in effect for one 
year and provided for intermittent reports and ultimate judicial 
review to determine whether the decree is succeeding. The modera­
tion and carefulness of the remedy is jipparent from its modest

59/
results as well as from its form. The decree is thus a product 
of responsible and cautious deliberations by a federal judge 
cognizant of the remedial obligations— and limits— of Title VII.

The District Court had both the power and the duty to formu­
late a comprehensive, effective injunctive remedy pursuant to Title 
VII's remedial section 706(g), 42 U.S.C. § 2000e-5(g). In re­
enacting this section in 1972, Congress expressed its understanding

— ' Appellants’ condemnation of the decree as a "radical plan of 
injunctive relief" (Co. Br. 26), "destruction of the seniority 
system" (U.Br. 43), and "reverse discrimination" are exaggerated 
on their face and are totally unfounded on the record. Avco's 
latest report on employment, see p. 9 n.16, supra— a copy of which 
is appended to this brief— shows the same familiar patterns of 
segregation and racial stratification. Of 146 job categories, 104 
(71%) are held only by whites; only 39 (27%) are integrated. The 
total hourly workforce is only 7.6% black —  less than half the 
percentage of five years ago! And, somev/hat disturbingly, Avco 
once again has only two black female employees (cf. 81 white females).

Indeed, one might even question the sufficiency of a decree 
whose keystone is plant seniority in a plant where blacks were 
almost totally excluded before 1965 (see p. 7 , supra). In this 
case, there is no large class of long-tenured black employees v/ho 
will gain great advantage from the grant of plant seniority and 
who will thereby greatly affect whites' expectations. The figures 
recited in the preceding paragraph add to these doubts. One doubt 
which cannot be entertained on these facts is that the decree has 
been too generous to blacks.



that:
The provisions of this subsection are intended to 
give the courts wide discretion exercising their 
equitable powers to fashion the most complete relief 
possible. In dealing with the present section 706 
(g) the courts have stressed that the scope of 
relief under that section of the Act is intended to 
make the victims of unlawful discrimination whole, 
and that the attainment of this objective rests not 
only upon the elimination of the particular unlawful 
employment practice complained of, but also requires 
that persons aggrieved by the consequences and 
effects of the unlawful employment practice be, so 
far as possible, restored to a_ position where they 
would have been were it not for the unlawful discrimi- 
nation.

Section-by-Section Analysis prepared by Senate-House conference
Committee, 118 Cong. Rec. 7168 (1972) (emphasis supplied). The
Supreme Court has noted and endorsed this statement of broadly
remedial purpose, Alexander v. Gardner-Denver Co., 415 U.S. 36,
44-5 (1974); Albemarle Paper Co. v. Moody, 422 U.S. __ , 45 L.Ed.2d
280, 298 (1975). Albemarle further makes clear the need for an
effective affirmative remedy:

Congress took care to arm the courts with full equit­
able powers. For it is the historic purpose of equity 
"to secur[e] complete justice" .... The terms "com­
plete justice" and "necessary relief" have acquired a 
clear meaning .... Where racial discrimination is 
concerned, "the [district] court has not merely the 
power but the duty to render a decree which will so far 
as possible eliminate the discriminatory effects of 
the past as well as bar like discrimination in the 
future." Louisiana v. United States, 380 U.S. 145, 154.

60/
422 U.S. at ___ , 45 L.Ed.2d at 297.

See also Pettway y. American Cast Iron Pipe Co., supra, 494 
F.2d at 243 ("plenary equitable power"); Franks v. Bowman Trans­
portation Co., supra, 495 F.2d at 414; Rock v. Norfolk & Western 
Rwy. Co., 473 F.2d 1344, 1348 (4th Cir. 1973), cert, denied 412 
U.S. 933 (1973).

-39-



This Court too has recognized that, "In light of the
Congressional intent courts should extend 'a wide scope to the
act in order to remedy, as much as possible, the plight of persons
who have suffered from discrimination in employment opportunities',^
Head v. Timken Roller Bearing Co. , 486 F.2d 870, 876 (6th Cir. 1973)
(citation omitted). See also, Meadows v. Ford Motor Co., 510 F.2d
939, 942-3 (6th Cir. 1975). In implementing this principle, this
Court has approved precisely the kind of remedial approach adopted
by the court below. "The legislative history of Title VII ...
shows a clear Congressional intent to lodge wide discretionary
powers in District Judges in fashioning remedies," Thornton v. East
Texas Motor Freight, 497 F.2d 416, 421 (6th Cir. 1974); therefore,

When a court has determined that a violation of Title 
VII has occurred, it is vested with broad remedial 
power to remove the vestiges of past discrimination 
and to eliminate and prevent both present and future 
barriers "to the full enjoyment of equal job oppor­
tunities by qualified black workers.

United States v. Local Union No. 212, 472 F.2d 634, 636 (6th Cir.
1973). See also United States v. IBEW Local 38, 428 F.2d 144, 149
(6th Cir. 1970); United States v. Masonry Contractors' Assn, of
Memphis, Inc., 497 F.2d 871, 877 (6th Cir. 1974). The District
Court's injunctive remedy as a whole grants no more than these
principles require. We turn now to consideration of the specific
remedial measures challenged by appellants.

B. The Remedial Measures Granted By the District Court 
are Appropriate and Necessary.

1. Plant seniority
The District Court ordered defendants to adhere to a system 

of plant seniority for purposes of bidding and promotion
-40-



(A. ). Appellants' strenuous objections to this aspect of
the District Court's order (Co. Br. 61-63, U.Br. 36-39) are diffi­
cult to understand, since appellants have in theory been following

61/
such a system since 1968. The explanation is, of course, that
despite their paper commitment to plant seniority appellants have
permitted Avco supervision to continue to utilize many of the same
subjective and limiting promotional procedures that have always

62/
plagued black employees (see pp. 16-18, supra). By incorporating 
plant seniority in its decree, the District Court has attempted to 
insure actual compliance with the neutral plant seniority system. 
Failing that, the plant seniority provision gives black employees 
seniority rights which are enforceable under the court-ordered 
neutral grievance procedure rather than appellants' racially 
biased contractual grievance procedure (see p. 47, infra), and 
subject to eventual court review.

61/- Appellants claim in their briefs to have been utilizing plant 
seniority before the 1968 collective bargaining agreement became 
effective (Co. Br. 54-55, U.Br. 36), but the record decisively 
proves otherwise. Officials of both appellants testified at trial 
that the seniority system was departmental in operation even though 
within departmental seniority units the measure of seniority was 
last date of employment at the plant. See pp.11-12, supra. The 
District Court so found (A. ).

The confusion appellants attempt to sow arises because of the 
procedure under which plant seniority could be utilized before 
1968. All vacancies were filled by promotions or transfers from 
within the department; only if no department employees wanted or 
were qualified for a job were other persons considered (A. ) .
Similarly, job opportunities for bumping and recall went first to 
employees already or formerly in the department and only thereafter 
to others. Therefore, in this case, even when seniority was 
measured by plant service, seniority competition was intra-depart- 
mental in fact.
62/ See, e.g., the 1970 incident that provoked the first Dennis- 
Honeycutt confrontation, described at p. 62, infra; and the inci­
dents involving witnesses Haddox and Beard, described at pp.17-18, 
infra.

-41-



2. Partial elimination of job equity
The only substantial change ordered by the court below in 

the seniority practices that appellants claim to be following is 
the partial elimination of job equity (a . ).
Analysis of how job equity discriminated against black workers and 
how limited a change the District Court's order makes in the job 
opportunity system demonstrates that the remedy is both necessary 
and appropriate.

Job equity is simply a form of absolute preference for job 
opportunities based on prior service in the job. It operates to 
limit competition for job opportunities, in the first instance, 
to those persons who have previously enjoyed those opportunities. 
Only if no employee exercises his "prior right" preference does the 
vacancy become subject to competition among other employees under 
any competitive measure. Most jobs and occupations at Avco1s 
plant have been historically closed to blacks strictly as a matter 
of race. Many jobs and occupations are still all-white (see p. 38, 
n.59, infra). Black employees who have been foreclosed from holding 
jobs and occupations have also been precluded from obtaining job 
equity rights to those positions. Since that foreclosure was 
based on race, that preclusion is also racially tainted. Abolition 
of job equity as a factor in filling vacancies for which qualified 
blacks are eligible simply eliminates the continuing racial factor 
remaining from appellants' past practices.

The District Court's elimination of special preferential job 
rights is a carefully circumscribed and moderate remedy. All it 
requires is that white employees formerly holding special pref-

-42-



erences roust now compete on a fair basis with black employees.
The court's order does not curtail usage of job equity except in
those instances where black employees have bid for a job under the
court-established special bidding procedure. The remedy does not
deprive white employees of any competitive rights —  the use of
plant seniority, bidding rights, general recall rights, and the
qualifications benefits attendant on experience and prior training
in particular positions. It simply requires them to compete with
black employees who may now utilize their rights in open competi— 

63/tion. White employees will still retain substantial advantages
over most blacks. Because as a result of Avco's past refusal to
hire blacks few blacks have had a chance to acquire high seniority
standing, senior white employees will continue to win most bidding
competition on this factor alone. perhaps more important, all
competitions are still subject to an overriding qualifications 

64/
standard. . An electrician vacancy can be filled only by a quali­
fied electrician. If a black bidder does not possess truly 
necessary qualifications— as opposed to arbitrary and racially 
tainted "rights" based on prior discrimination— then he cannot 
prevail in competition with a qualified white regardless of 
seniority. This limitation will as a practical matter lessen the

6 3 / Nothing in the District Court's decree would give black 
employees any preferences in the ensuing competition. No quotas, 
goals, or timetables are included.
64/ The District Court's order refers continually to the need to 
determine "educational background and previous work experience," 
"fitness," "who would best satisfy the job opening," and satis­
faction of the "job requirements" (A. ). In any event, the
overriding qualifications requirement is applicable as a matter 
of law. Griggs v. Duke Power Co., 401 U.S. 424, 430-1, 436 (1971)

-43-



impact of elimination of job equity and focus that impact where it 
should be— on those jobs which do not as a matter of safety and 
efficiency demand the special skills of individuals with long 
previous experience in the job, cf. Head v. Timken Roller Bearing 
Co., supra, 486 F.2d at 877-79.

The effect of the District Court's remedy is to allow black 
employees the opportunity to utilize their full earned seniority 
in seeking access to jobs for which they are qualified. This is 
precisely the result required under the "rightful place" theory 
to which this Court is committed, EEOC v. Detroit Edison Co., supra, 
515 F.2d at.316; see Local 189, United Papermakers & Paperworkers 
v. United States, 416 F.2d 980, 988 (5th cir. 1969), cert, denied 
397 U.S. 919 (1970). The elimination of special recall and dis­
placement priorities based on discriminatory prior rights was 
forcefully rejected in United States v. Hayes International Corp., 
456 F.2d 11.2, 118 (5th Cir. 1972). The same result is necessary 
here if, in a time of reduced overall employment, the remedy is to 
have any effect on the legacy of appellants' past discrimination.

Both appellants incorrectly argue that this case raises 
the "fictional seniority" and related issues discussed in appellate
decisions that uphold "bona fide seniority systems" under 42 U.S.C.

65/
§ 2000e-2(h) (Co. Br. 60-65, U.Br. 36-39). Cf_. Meadows v. Ford 
Motor Co., supra, 510 F.2d at.949. Those cases are inapposite

/ E.g., Watkins v. United Steelworkers of America, Local No.
2369, 516 F.2d 41 (5th Cir. 1975); Jersey Central Power & Light 
Co. v. Local 327, IBEW, 508 F.2d 687 (3rd Cir. 1975); Waters v. 
Wisconsin Steel T.vorks of International Harvester Co. , 502 F.2d 
1309 (7th Cir. 1974).

-44



here. All of them involved the extension of seniority rights to 
formerly rejected job applicants —  not, as here, incumbent 
employees. The issue which has divided the courts in those cases 
is whether seniority credit can be granted for time not actually 
worked. Here, in contrast, class members seek only to exercise 
their plant seniority accrued during periods of actual employment, 
without artificial barriers imposed by job equity rights. This 
case involves no novel remedies; it falls in the direct line of 
Local 189, supra, and like authorities.

3. The bidding system
The District Court's modifications of appellants' bidding

system effectively assures qualified black workers full access to
job competition. By establishing a special two-day bid period for
blacks with plant-wide posting of vacancies (A. ), the court
assured an end to Avco's past practice of filling vacancies before
qualified black employees ever heard about them (see A. ). The
removal of the six—bid limit for blacks (A. ) likewise assures
them full opportunity to compete —  without compromising the ability

66/
of white workers also to compete. Open bidding compromises no 
legitimate interest of white employees or of appellants. It simply 
removes any advantages reserved to whites under appellants' 
traditional closed-doors practice of filling job vacancies. It is 
a standard remedy. See Pettway v. American Cast Iron Pipe Co.,

66/ mhp cour-t's concern with assuring that black employees be 
enabled effectively to utilize the bid procedure is underscored by 
its order that current procedures be circulated to them in writing 
(A. ) . Previously, Avco had never specifically advised its
employees as to how the bid system operates, but relied on its 
white supervisory staff to assure dissemination of this information 
(Tr. 968-9).

-45-



494 F.2d 211, 248 (5th Cir. 1974); Head v. Timken Roller Bearing
Co., supra, 486 F.2d at 878-9; Stamps v. Detroit Edison Co.. 365
F. Supp. 87, 116-7, 121 (E.D. Mich. 1973), aff*d sub nom EEOC v . 
Detroit Edison Co., supra.

4. Evaluation of qualifications
One of the most egregious types of post-1968 discrimination 

found by the court below was the much abused process of evaluation 
of employees' job qualifications by Avco supervision and manage­
ment. (See p. 16, supra, A. ). The relief provided for
this discrimination is central to the whole remedial scheme. With­
out such remedial measures, other job-access relief would be 
meaningless.

To remedy Avco's supervisors' tendency to overlook the 
present qualifications of its black employees when those qualifi­
cations would permit them to compete effectively for white jobs, 
the court required assembly of a "transfer" file containing an 
objective, up-to-date, written job skill inventory for black 
employees (A. ). To remedy Avco's supervisors' tendency to per­
ceive high qualifications among its white employees even in the 
absence of objective indicia of such qualifications, the court 
limited consideration of whites' qualifications to objective 
information similar to that contained in the blacks' "transfer" 
files (A. ). Finally, to assure fair implementation of these
objective qualification procedures, the court subjected decisions 
to disqualify black employees to a special grievance procedure not 
subject to control and abuse by defendants (A. , see subpart
6, infra). These measures are a reasonable judicial response to

-46-



a very serious problem of employment discrimination.

5. Special training rights for black employees
The District Court found that blacks' problems at Avco did 

not end when they gained access to predominately white jobs.
Once in those jobs, blacks had great difficulty in obtaining 
informal on-the-job training from supervisory personnel; white 
employees, in contrast, received extensive assistance learning 
their jobs (A. ). To cure this disparity, the District Court
ordered two measures of relief: the defendants are ordered to make 
proper and equal training fully available to blacks, and blacks
are given twice the normal probationary period in which to qualify

67/ . .(A. ). Compensatory training and qualifying opportunities
are clearly an appropriate remedy in such a case. See Franks v. 
Bowman Transportation Co., supra, 495 F.2d at 420-1; United States 
v. Ironworkers Local 86, 315 F. Supp. 1202, 1447—9 (W.D. Wash. 1970), 
aff'd 443 F.2d 544 (9th Cir. 1971), cert, denied 404 U.S. 984 (1971).

6. Special racial grievance procedure
The inadequacy of the appellants' contractual grievance 

procedure to dispose fairly of discrimination claims is manifest.
Both parties to the contract were before 1965 implacably hostile 
to the notion of racial equality (see pp. 7-8, supra). Thereafter 
Avco continued its policy of discrimination while after 1970 Aero 
Lodge No. 735 adopted, at best, a policy of studied indifference

HZ' Doubling of the normal probationary period also works to Avco's 
advantage because it increases the time during which the Company 
may decide to return a truly unqualifiable employee to his former 
position.

-47-



to discrimination claims (while continuing to insist on discrimi
nation when necessary to protect white members1 interests as in the
Globe-Wernicke incident, see pp.19-21, supra). The District Court
found that "Until the 1971 collective bargaining contract, ...
the union did not seriously negotiate with Avco for a non-discrimi-

68/
nstion clause" (A. )• The District Court concluded that the
union "has represented the interests of its black members unfairly,
inadequately, arbitrarily, discriminatorily, and in bad faith"
(Py. ) . The court also found that the union and grievance/arbi—
tration procedure had deliberately failed two of the three named 

69/
plaintiffs. To entrust implementation of the decree to the dis­
criminating parties, in light of this history, would clearly be 
inappropriate. See, e.g. , Alexander v. Gardner—Denver Co., 41_> U.S. 
36, 56-57 (1974); Glover v. St. Louis-San Francisco R. Co., 393 U.S. 
324, 330-1 (1969). For these reasons, the District Court devised 
an alternative grievance procedure for use by black employees 
claiming abuse of the decree or other discrimination (A. ).
This order establishes a requirement of written procedures, assures 
that a truly neutral arbitrator will be available, and that the 
arbitrator will be made aware of the background of appellants 

history of discrimination.
Appellant union launches a conclusory attack on this aspect 

of the relief as "obviously invalid" (U.Br. 43-4). The union over­
looks the clear, factual and legal basis for the remedy, which 

68/ These negotiations occurred with trial of this case impending.
69/ As to Alexander, see A. . As to Newman, see A. , and
p. 61, infra. As to Dennis, see A.

-48-



replaces it as the ultimate guarantor of black employees' con-
70/

tractual right to be free of discrimination. Establishment of
alternative racial grievance procedures is a common Title VII 

71/remedy. It is wholly appropriate here.

7. Summary
The net content of appellants' positions with respect to 

injunctive relief is that nothing should change at all. This 
position must bo rejected as totally unresponsive to Title VII s 
mandate. The relief plan formulated by the District Court, which 
has both intimate knowledge of the case and the ultimate discre­
tionary remedial authority to assure a just result, attempts 
realistically to apply the promise of the civil rights acts to 
Avco's job opportunity systems. This Court should approve the 
District Court's undertaking.

2£i/ In EEOC v. Detroit Edison Co., supra, 515 F.2d at 314, this 
Court wrote:

It has long been settled that a union must attempt 
to protect its members from discriminatory acts of 
an employer .... This obligation requires a union 
to assert the rights of its minority members in 
collective bargaining sessions, and not passively 
accept practices which discriminate against them.
(citations omitted)

71/ see Pettway v. American Cast Iron Pipe Co., supra, 494 F.2d 
at 266-7; United States v. Georgia Power Co., 7 EPD ^ 9167 (N.D. 
Ga. 1974) at p. 6889, entering decree on remand from 474 F.2d 906 
(5th Cir. 1973).

-49-



I I I .  THE DISTRICT COURT CORRECTLY HELD THAT APPELLANTS 
UNLAWFULLY DISCRIMINATED AGAINST BLACK EMPLOYEES 
I N  THE GLOBE-WERNICKE INCIDENT.

The District Court determined that "recall" with full 
seniority of the former Globe-Wernicke employees and subsequent 
layoff of 52 black employees from the assembler-bench and jig 
occupation was a discriminatory employment practice (A. ).
This conclusion is based on a cardinal fact specifically found by 
the court below which appellants' briefs assume to be non-existent 
but nowhere specifically challenge. The fact is that "recall" of 
the 73 Globe-Wernicke whites was not an application of ordinary 
contractual seniority, but rather a special bargain between appel­
lants for the white employees1 advantage and to the blacks1 detri­
ment.

When appellants worked out the Globe-Wernicke deal, the
white employees had already been laid off pursuant to the union
contract (Tr. 1025, 1066-67) and were ineligible for recall to the
assembler-bench and jig occupation by virtue of their complete lack

72/
of qualification for that job. The union contract did not even 
give the laid off employees any right to training in the bench and 
jig occupation (Tr. 2073). The union's business agent testified 
that the union did not even attempt to resort to the grievance pro­
cedure (which is viable only for violations of contractual rights);

12/ See pp. 19 - 20 , supra. Avco argues weakly that these whites 
were "more qualified for training as aircraft assemblers than 
untried recruits" (Co. Br. p. 30) (emphasis supplied). But the 
general recall provision then in effect only provides for recall 
by seniority "when an opening exists in another department or occu­
pation provided the employee has the necessary qualifications and 
ability to perform the work required" (PX 5, p.53) (emphasis 
supplied). See also PX 5, p. 111.

-50-



rather, the union exercised bargaining leverage in light of impend­
ing contract negotiations with Avco —  pure and simple economic 
pressure (Tr. 2084).

Ordinarily, when an Avco operation was phased out, employees
unqualified for any other job were eliminated (Tr. 1028-29).
Except in the Globe-Wernicke incident, appellants had negotiated
no other special retention bargains since Title VII's effective
date in 1965 (Tr. 1029). The only previous retention deal had been
executed in about 1964, when employees from a phased-out Philco
production line were permitted to train for aircraft assembly work

7 3/
(Tr. 2025-27, 2077, 2082-84). In these circumstances, the Dis­
trict Court properly dismissed appellants' contention that extra- 
contractual recall practices which violated contract rights of 
other union members were appellants' normal "practice and custom. 

(Tr. 2084, A. ).
Avco misleads the court when it presumes the Globe-Wernicke 

"recall" contractually and legally required (Co. Br. 28-32) in the 
face of the uncontradicted evidence to the contrary. Avco also 
seriously misstates the facts when it asserts that it faced a 
choice of only two alternatives: training and recall of the Globe- 
Wernicke group with full seniority, or recruitment of new employees 
from "off the street" (Co. Br. 28). A third possibility, not 
mentioned by Avco, would have been in accord with the contract,
Avco's legitimate needs, and the seniority rights of all employees

n r  Due to the date of this incident and the fact that few or no 
blacks were affected, no question of discrimination was presented. 
In any event, the philco recall was not settled collectively bar­
gained precedent, but an ad hoc exception to appellants' general 
rule.

-51-



blacks as well as whites. That alternative was to train the
laid off employees in aircraft assembly and hire them into the
assembler-bench and jig job with priority ahead of new recruits
but without carry-over seniority. This procedure would have given
the Globe-Wernicke whites more than their contractual due without
prejudicing the seniority rights of the heavily-black assembler
group. It is the extra-contractual award of seniority to the
favored whites to the detriment of incumbent black employees— not
the compassionate preference for loyal long-term employees over

74/
new recruits— that discriminates here. To select this third alter­
native would also have recognized the job equity rights (purportedly 
sacrosanct to appellants) of black employees in the aircraft assem­
bler occupation. To subordinate those rights as appellants con­
spired to do subverted even those few contractual rights which 
blacks had been able to obtain at Avco.

The racial impact of the Globe-Wernicke recall (see p. 21,
2Vsupra) makes it plainly illegal. Whatever its motivation, the 

consequence of the union-management bargain was adverse to black 
employees. Since Title VII courts are concerned with consequences 
rather than motivations, Griggs v. Duke Power Co., 401 U.S. 424,
432 (1971); Head v. Timken Roller Bearing Co., 486 F.2d 870, 877
(6th Cir. 1973), the Globe-Wernicke incident could only be justified

n r  Blacks had insufficient seniority to compete with Globe-Wernicke 
whites because they could not be hired in the 1950s due to discrim­
ination. The Globe-Wernicke recall perpetuated the effects of that 
discrimination— but not pursuant to an established seniority system.
75/ The District Court found in effect that appellants' motivation 
was racial, A. ; and the record strongly supports that inference. 
However, characterization of appellants' intent is unnecessary to 
this legal argument.

-52-



as a matter of "business necessity, " id_. Nothing in the record
would even begin to support any such finding. On the contrary, the
record makes clear that Avco was perfectly able and content to
staff its aircraft assembly jobs by training new recruits (Tr. 981-
2, 1063-4, 2083). Even assuming that newly trained Globe-Wernicke
employees would make better assemblers than newly trained recruits
— and there is no such evidence in the record— common sense implies
that experienced assemblers like those subsequently laid off would
make better assemblers than the newly trained Globe-Wernicke group.

76/
No business necessity defense is tenable here. On this issue, the 
instant case resembles Waters v. Wisconsin Steel Works of Int'l 
Harvester Co., 502 F.2d 1309 (7th Cir. 1974). There, company and 
union defendants had entered into a similar ad hoc recall agreement 
as a result of which whites deprived a black employee of a job to 
which his seniority otherwise entitled him, 502 F.2d at 1313-14.
The Seventh Circuit held the agreement unlawful, 502 F.2d at 1320-

w  Avco's flippant explanation as to why business necessity 
evidence is absent from the record —  "the facts are too obvious 
to require proof" (Co. Br. 31) —  deserves three rejoinders.
First, the facts are obvious, and they destroy Avco1s hypotheses. 
See accompanying text. Second, the absence of proof cannot now 
be blamed on the issue having been "injected ... at so late a stage 
of the trial" (Co. Br. 30). In fact, the Globe-Wernicke incident 
was examined in detail at the trial session of July 31, 1972 
before plaintiffs closed their case. Although defendants closed 
six days later on August 5, 1972, and although defendants put on 
several witnesses to testify about Globe-Wernicke, not a word was 
spoken about safety, efficiency, or other factors relevant to 
business necessity until Avco's lawyers comprehended its predica­
ment on appeal. Third, the law simply does not countenance 
assumptions about business necessity. It must be affirmatively 
proved by defendants, Griggs v, Duke power Co., supra, 401 U.S. 
at 432; Head v. Timken Roller Bearing Co., supra, 486 F.2d at 879.

-53-



Appellants' argument that the Globe-Wernicke "recall" is
merely one manifestation of a "bona fide seniority system," 42
U.S.C. § 2000e-2(h), founders on the facts. Since the Globe-Wernicke
employees had no seniority rights to recall as assemblers, the
recall agreement does not implement any seniority system, bona fide
or otherwise; indeed it breached appellants' seniority system as
the court below found (A. ). Therefore, this Court need not
and cannot consider here the difficult issues related to layoffs

78/
under purportedly bona fide seniority systems.

T U The Waters court held,
We do not doubt that a policy favoring recall of a 
former employee with experience even though white 
before considering a new black applicant without 
experience comports with the requirements of Title 
VII and section 1981 ....

However, it went on to state:
Even assuming that the priority of the white brick­
layers accepting severance pay emanated from a long­
standing company policy and not an ad hoc determina­
tion, we are inclined to find that aspect of the 
company policy to be violative of Title VII and 
section 1981 ....
... The practice of restoring contractual seniority 
to white bricklayers who elected to receive sever­
ance pay must be justified, if at all, by a showing 
of "business necessity." ... Defendants' claim of 
employee-employer goodwill and alleged concern for 
fear of potential labor strife does not rise to the 
level of urgency required for a demonstration of 
business necessity.

502 F.2d at 1320-21. Of course, the instant case is even stronger 
than Waters, since the white Globe-Wernicke employees were not 
experienced in aircraft work.
78/ Compare, e.q., Waters v. Wisconsin Steel Works of Int'l Harves­
ter Co., supra; and Jersey Central Power & Light Co. v. Local 327, 
IBEW, 508 F.2d 687 (3rd Cir. 1975), with Meadows v. Ford Motor Co., 
510 F.2d 939, 949 (6th Cir. 1975).

(cont'd)
-54-



While the Globe-Wernicke incident was neither the only-
example of outrageous discrimination in Avco's history nor the
only proof of class discrimination in the district judge's mind
(see pp. 24-25 , supra), it provides a clear example of appellants'--
racism in action. And it did impact on a significant group of

79/ 80/
black employees. Those class members are entitled to relief.

IV. THE COURT BELOW CORRECTLY DETERMINED THAT THE 
NAMED PLAINTIFFS WERE VICTIMS OF INDIVIDUAL 
DISCRIMINATION.

The district judge made careful, detailed findings as to the 
facts most crucial to the individual claims of plaintiffs Alexander, 
78/ (cont'd)

The absence of any true bona fide seniority system issue here 
is graphically illustrated by the Waiters opinion. The Seventh Cir­
cuit adopted a rigid position finding that last-hired, first-fired 
layoffs were legal under 42 U.S.C. § 2000e-2(h) and 42 U.S.C. §
1981; nevertheless it held extra-contractual ad hoc recall prefer­
ences for whites unlawful.
79/ See p. 21, supra. Avco indicates, without record evidence, that 
the 52 affected black employees would in any event have been laid 
off a few weeks later (Co. Br. 37, n.12). Of course, the 52 still 
have a back pay claim for those weeks of discriminatory layoff.
80/ Aero Lodge No. 735 (but not Avco) argues that no remedy is 
available to the Globe-Wernicke incident subclass because no 
named plaintiff could represent its claims (U.Br. 43). This 
argument ignores the well-established principle that the class 
representative's claims need not be identical with those of class 
members, provided that the Rule 23(a)(2), (3), and (4) requirements
are met. And in Title VII cases in particular, the Rule should 
be liberally applied to effectuate the Congressional policy that 
private attorneys general assist in completely eradicating all 
employment discrimination. EEOC v. Detroit Edison Co., supra,
515 F.2d at 311; see also Long v. Sapp, 502 F.2d 34, 42-43 (5th 
Cir. 1974); Jenkins v. United Gas Corp., 400 F.2d 28, 32-33 (5th 
Cir. 1968); Barnett v. W. T. Grant Co., 518 F.2d 543, 547-48 
(4th Cir. 1975); Reed v. Arlington Hotel, 476 F.2d 721, 723 (8th 
Cir. 1973), cert, denied 414 U.S. 854 (1974).

-55-



Newman, and Dennis (A. ). These findings were based on an
exhaustive record going specifically to the individual claims, 
notable for the importance of live witness testimony to resolution 
of the controverted factual issues. Upon his evaluation of this 
testimony and the witnesses' credibility, the court below concluded 
that the plaintiffs, Alexander, Newman, and Dennis, had suffered 
egregious discrimination. Appellants attack those conclusions 
on the ground that they are "clearly erroneous" and without any 
basis in the record (Co. Br. 44, U.Br. 21-31).

The record provides extensive and compelling support for 
each of the District Court's findings of fact. Indeed if the court 
below had reached a conclusion of no discrimination, it would have 
been reversible as clearly erroneous. Because the court's opinion 
on each claim presents a detailed narrative of factual findings, 
and because plaintiffs believe this Court cannot and should not 
become lost., in the intricacies of this detailed record on the 
individual claims, appellees will not attempt to retell the entire 
story of the discrimination each of them suffered. Rather, we 
note only a few of the most pertinent facts in each instance: 
those which are undisputed, and the record support for those crucial 
facts found by the court but denied by appellants.

A . The Ramsey Alexander Claim
The District Court found, and the appellants do not seriously 

dispute, the following facts:
(1) Alexander had brickmason experience before 

applying at Avco but was hired as a laborer (A. ;
see Tr. 2-9, 64; U.Br. 13).

-56



(2) While classified as a laborer at Avco, Alexander
often worked as a brickroason helper and substantially 
performed brickmason's work (A. ; see Tr. 19-20, 24,
72-73, 108-112; A. ).

(3) Alexander was entitled to be classified as a
brickmason by operation of a "two-week" contract clause, 
but Avco denied him this reclassification and subse­
quently took steps to assure that no other laborers 
could claim reclassification in this manner (A. ; see
A. ; and see Tr. 22-24, U.Br. 13).

(4) Alexander received promotion to general helper
only after he filed his 1962 charge of discrimination 
(A. ; see Tr. 25-26), and was further promoted to
maintenance oiler only after filing his 1965 EEOC charge 
(A. ; see Tr. 27-28).

(5) Before allowing Alexander to take the oiler job,
Avco tried in every way to discourage him from accepting 
it, such as by attempting to conceal the vacancy from 
him.and putting him through a hot steam "test" (A. ;
see Tr. 44-49). Alexander became an oiler in about 
March 1966. 81/

(6) Alexander's EEOC charge alleged discriminatory 
refusal to give him a brickmason job and other mainte­
nance jobs. In 1965, Stevenson, the white brickmason 
whose helper Alexander had long been, was quite ill and 
frequently missed work; Avco always hired a white brick­
mason from the street to fill the position (see Tr. 33- 
35). The next permanent brickmason vacancy arose in 
July .1966 when Stevenson died (Tr. 1078) .
The contested facts regarding Alexander's claim involve this va­

cancy. Avco initially filled the brickmason vacancy by passing over
Alexander and hirinq from off the street a white brickmason who

82/
lasted only four weeks in the job (A. ; Tr. 1087). Although
Avco put on conclusory testimony about this brickmason's high 
qualifications, the district judge found that Avco had not proved

«i/ Alexander took the oiler job as an improvement but continued 
to have an expressed preference for the higher-skilled and higher- 
paid brickmason job (Tr. 55-56).
82/ This resort to outside hiring violated Avco's purported policy 
of promoting from within wherever possible (Tr. 977).

-57-



them superior to Alexander's qualifications (A. ). Avco claimed
that Alexander was not highly qualified because he lacked knowledge 
of trigonometry and other mathematical fields; however, the evi­
dence showed that the brickmason job did not require those skills 
and no other brickmasons had them (A. ; see Tr. 53-54, 124).
Moreover, Avco administered a qualifying test to Alexander which 
was never given to any other job aspirant; Avco later conceded that 
giving him this test was a "mistake" (A. ; Tr. 49, 1139-40).
After the white brickmason's early departure, Avco again bypassed 
Alexander. This time it promoted a black employee to Brickmason 
"B"; all the evidence shows that this employee had little or no 
brickmason experience and was less well qualified than Alexander 
(see Tr. 35, 36-37, 83, 1088-89).

Appellants' main argument is that Alexander had not properly
applied for the brickmason job (Co. Br. 45, U.Br. 29-30). Avco
asserts that under the "AVO" bid system then in effect (see p. 12,
n. 19, supra), Alexander's prior application for the brickmason
position was automatically cancelled when he received the oiler
position, and he failed to renew the AVO (Co. Br. 45). Therefore,
Avco urges it had no way to know of Alexander's continuing interest

83/
in the brickmason position. Avco's position is incredible in light 
of Alexander's long history of attempts to gain brickmason classi­
fication stretching from his initial job interview through a 
grievance proceeding to an EEOC charge and culminating in this

3?./ See T r . 1 0 8 2 . This position is inconsistent with evidence 
adduced by Avco that Alexander was considered and rejected as not 
qualified, see Tr. 1239-41.

-58-



84/
lawsuit. Alexander explained that he hsid seen no need to file
yet another AVO for the job "when it was under court suit" and
because he had sought the brickmason job "all the way through"

85/
(Tr. 81-82). To term the District Court's finding for Alexander 
"not clearly erroneous," while legally sufficient for affirmance, 
is to understate the strength of these facts. The finding of 
discrimination is clearly correct.

B. The Robert Newman Claim
The District Court found and appellants do not seriously

dispute the following facts:
'(1) From 1951 to 1964 Newman was a generally satis­

factory employee on his several laborer—type jobs with 
Avco, although he was sometimes slow to learn new tasks 
(A. ; see Tr. 378-80, A. ).

(2) Newman first worked on the stove line in a crating
. job where he became a satisfactory employee (A. ; Tr.
604, 626-29, 356-57). There he encountered harassment 
and overt racial hostility but eventually became an ade­
quate job performer (A. ; see Tr. 359-60).

(3) Newman returned to the stove line when its work
picked up again in October, 1965. Newman wanted to 
exercise his job equity to reclaim the crating job but 
was not allowed to do so; instead the job was given to 
a white union steward and Newman was relegated to day 
work or clean-up detail (A. ; see Tr. 361, 398-401).
When it became necessary again to reduce the workforce 
on the line, Avco supervision tried to pressure Newman _ 
into voluntarily returning to a laborer job, despite his 
long seniority (A. ; see Tr. 402-404). 86/ When it

84/ jn rninpl a int filed only a few months before Stevenson died,
Alexander set out in detail his goal of becoming a brickmason and 
appellants' frustration of that goal (A. ).
85/ As Judge Morton aptly commented to Avco's counsel, "He thought 
he got across to you when he sued you about it. That is what he 
is saying" (Tr. 83).
86/ The record is unclear as to whether Newman accepted or rejected 
this proposal. Compare, e.g., Tr. 403-04 with Tr. 1282, 1345-6.
In any event, Newman stayed on the stove line but moved to the 
heavy lifting job.

-59-



was decided that Newman should remain on the stove 
line, he was placed on the number one stover lifter 
position, replacing a junior white employee, one 
Givens, who was bumped out of the job (A. ; see
Tr. 407-08, 362, 1282-83).

(4) The number one stove lifter job. was a physically
strenuous job involving repeated heavy lifting; the 
District Court found it "the most physically demanding 
job on the line" (A. ; Tr. 361-3, 600-01, 633, 1482-4).

(5) Before Givens held the stove lifter job, another 
white, one Stover, had worked it for several days (A. ;
see Tr. 1365, 1629-30). There was conflicting testimony 
as to whether Stover had performed the job adequately; 87/ 
the District Court foiind he had not (A. ). In any
event, he was soon transferred to the enamel department 
where he had previously worked and where the work was much 
lighter (A. ; see Tr. 1664-66 [testimony by Stover],
633, 600). 88/

(6) Just before Christmas 1965, on his second day as
a stove lifter, Newman began to experience medical or 
physical difficulty in his heavy lifting job (A. ;
see Tr. 361-3). When he complained a few days later, he 
was suspended for allegedly poor job performance (A.
see Tr. 364-6). During his suspension, Newman had an 
automobile accident which resulted in his absence from 
the stove line for nearly one month (A. ; see Tr. 366-
9). When he returned and found the job still painful to 
his knee, he sought to be excused from the heavy lifting 
work; his request was supported by a doctor's letter 
(PX 11) stating that Newman was still partially disabled 
(A. ; see Tr. 367-8). 89/ Avco rejected this request
(id.). 90/

Sever a1 of plaintiffs' witnesses testified that Stover had been 
unable to do the job adequately. See Tr. 381, 630, 638. Several 
witnesses for Avco testified that his problems were due to a parts 
shortage rather than lack of ability. See Tr. 1367-8, 1396-9,
1432-3, 1630-1. Cross-examination of one such witness who was the 
stove line foreman showed that his trial testimony was flatly con­
tradictory to earlier deposition testimony wherein he had sworn 
that Stover had as much difficulty with the job as did Newman (Tr. 
1401-04).
88/ There was also uncontradicted testimony that at least three 
other whites who had been unable to do the heavy stove lifter jobs 
or other stove line work had also been transferred to more congenial 
positions (Tr. 601-05).
89/ This physician, Dr. Coopwood, testified at trial in support of 
his diagnosis of partial disability (Tr. 438-458).
90/ After sending Newman to a Company doctor who, having made Newman 
wait in a racially segregated waiting room and without bothering to 
examine Newman, stated, "you just want somebody to have sympathy for 
you" (Tr. 373-4).

-6 0



(7) When Newman returned to work, still in pain, and
insisted that he could not do the stove lifter job, he 
was summarily discharged (A. ; see Tr. 375-7).

(8) Aero Lodge No. 735 filed a grievance for Newman 
(PX 13) but refused to allege or argue that the discharge
was for race (Tr. 383-4). Newman had to retain present 
counsel who amended his grievance (PX 14) and proceeded 
to arbitration on a race discrimination theory which the 
union refused to acknowledge or support (Tr. 384-5).
Avco has steadfastly maintained that it was routine procedure

to discharge employees who could not perform their jobs (Tr. 1410-11),
and that there was no vacant job that Newman could handle (Tr. 1427-
8, 1478). The record makes a mockery of these contentions. No
white employee— indeed no other employee of either race— was ever
fired in circumstances similar to Newman's. While probationary or
short-term employees who proved unsatisfactory were often let go
(Tr. 3410, 1359), senior employees were never discharged for alleged

91/
failure on a single job. When a long-term employee could not per­
form on a position, Avco as a matter of policy accommodated to
his limitations by transferring him to a job he could handle (Tr.

91a/
1387-8, 1478). Newman testified that, as is obvious, he would have 
accepted such a transfer from the stove lifter job (A. ; Tr. 382);
Avco, however, made no serious effort to locate any suitable posi­
tion for him (Tr. 377, 382, 1364-5, 1387-8). Newman could have
performed numerous otlier jobs at the time (A. ; Tr. 386, 377,

92/
382, 1364). Instead, Avco summarily fired him (Tr. 376-7).

H 7 ~  The following Avco officials testified that they knew of no 
instance where an employee witli seniority equal to Newman's had been 
discharged for inadequate job performance: the Employment Supervisor 
(Tr. 1000), the L-1011 foreman and former stove line foreman (Tr. 
1359-60) , the second and third sliift Manager and former general 
superintendent (Tr. 1477), and the Manager of Labor Relations (A.
91a/ The contrast between Newman's firing and the measures Avco
took to find suitable jobs for the white Globe-Wernicke group 
is illustrative.
92/ At least one Avco witness testified that there were no vacancies 
anywhere in the plaint that Newman could handle (Tr. 1478) . However,

- 61 -



The District Court entered specific findings in Newman's 
favor on all.the factual issues set forth above (A. ). As
this narrative shows, these fact findings and the inferences 
Judge Morton drew from them are well founded in and compelled by 
the record.

C . The R. L. Dennis Claim
The District Court found and defendants do not seriously 

dispute the following facts:
(1) In the weeks before his discharge, Dennis had

three separate run-ins with Avco management (A. ).
Avco has not briefed the first two and appears not to 
contest the court's findings thereon.

(2) In the first incident, Dennis sought to repre­
sent the interests of three black employees who had 
been improperly transferred in violation of their 
seniority rights (A. ; see Tr. 471-73). Dennis'
suspicions were heightened when several white female 
employees took advantage of those transfers to improve 
their own positions (A. ; see Tr. 474-75).

(3) Shortly after this intervention, Dennis had a
verbal altercation with one Honeycutt, a white super­
intendent who had been reprimanding a black employee 
and who had a social or personal relationship with one 
of the white women, Betty Urtubees (A. ; see Tr.
466-70, 513-14, 517-18). Dennis filed a grievance
against Honeycutt, who was made to apologize orally 
and in writing for his intemperate behavior toward 
Dennis (A. ; see Tr. 483, 565-6). Thereafter,
Dennis was harassed (see Tr. 477-78).

(4) The dispute centers around the third incident 
which ended in Dennis's discharge. Avco admits that
its decision to terminate Dennis was based on the written 
accusations of three white employees in Dennis's depart­
ment that Dennis had urged employees to "slow down" (A.

; see Tr. 1496 ff, 1510-11, Co. Br. 47). When Avco's 
Manager of Industrial Relations confronted Dennis with 
these accusations, Dennis chose to remain silent on the

92/ (cont'd)
Newman's supervisor at the time of his discharge stated that he 
chose not to allow Newman to transfer or switch jobs, as punish­
ment for Newman's "not trying" (Tr. 1388-9) and because he had a 
"bad attitude" (Tr. 1380-1, 1384).

62



advice of his union president who was present (see 
Tr. 464-5, 578, 1500). At the arbitration of Dennis’s 
discharge, Dennis stated, also on the advice of his 
union representative, that if he made any "slow-down" 
remark it was jokingly (A. ; see Tr. 569).
Beyond these facts, the remainder of the Dennis claim is dis 

puted. At trial, Dennis denied ever having advocated a slow down 
as alleged by the three white employees, and Avco adduced no9 3 7
rebuttal evidence to this testimony (A. ; see Tr. 463). Five
employees (both whites and blacks) in Dennis's department testified 
that Dennis never told anyone to slow down (see Tr. 511-2, 523,
535, 545, 557). Both union and Company officers thereafter invest­
igated the allegations, but neither found any other employees who 
would confirm the three whites' charges (A. ; see Tr. 568-9,
Tr. 1541-2, 1571). Five employees (both whites and blacks) corrob­
orated Dennis's testimony that no slow down actually occurred 
(see Tr. 463, 512, 524, 536, 546, 559, 1790, 1796). The union 
president, who would certainly have heard about any actual slow
down from hvco, was never informed of one —  until trial (Tr. 1972- 

94/
3). Five employees in Dennis's department plus two union offi­
cials testified that loose comments like "slow down" were common 
"shop talk" and were never taken seriously by anyone (Tr. 511, 523,
536, 546, 557, 564-5, 1972). The court so found (A. ).

22/ Avco called none of the three accusers to testify at trial.
94/ One Avco foreman testified that there had in fact been a 
slow down (Tr. 1722-3). However, the Company quite curiously 
never mentioned this purported fact at any time during Dennis's 
grievance proceedings or arbitration, or indeed until late in the 
trial (Tr. 1737-38). The same foreman also testified that all 
the white and black employees who testified for Dennis were 
trouble makers (Tr. 1702-4).

-63-



A number of witnesses testified that Dennis's three accusers
95/

(especially Betty urtubees) were hostile to blacks generally and 
to Dennis in particular (Tr. 531-2, 555, 563, 585). The court
below credited this testimony (A. ). Th® testimony established
that the three whites had, the day before accusing Dennis, conferred 
with a supervisor and thereafter gone to a management office for 
a conference in circumstances strongly suggesting a "frame-up"
(Tr. 525-6, 560-1, 583-5). The court found that the official who 
fired Dennis made a grossly inadequate and racially insen-itive 
investigation of the accusations against Dennis suggesting more 
than simple oversight (A. ). It concluded that that official
was "at best an innocent conduit for the racial hostilities of an 
Avco superintendent [Honeycutt] and at least too Avco employees

[including Urtubees]" (A. ).
Dennis is the only Avco employee ever discharged for alleg­

edly saying "slow down" (Tr. 1393-4, 1570-1).
The District Court's ultimate finding (A. ) that

the charge of advocating a slow down was merely 
a pretextual basis for firing Dennis. The real 
reason for firing Dennis was Avco supervision s 
irritation and anger over Dennis' aggressive but 
proper representation of black employees. The 
court finds that Avco fired Dennis as an example 
to those other black employees who might be 
inclined to assert their rights ....

is unassailable on this record.

D. The District. Court Correctly Decided The individual 
Claims.

Even on their own narrow merits, each of the individual 
claims is based on a complete and compelling evidentiary record.

95/ Mr, Dennis had apparently offended Ms. Urtubees by asking her 
for a date (Tr. 532) .

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The District Court entered detailed and specific findings. The 
record shows, and the court found, that appellants purported 
jrcfisons for discharging Newman and Dennis and denying Alexander 
promotion were patently pretextual. But this record presents 
much more than specific facts sufficient to prove individual acts 
of discrimination. The individual claims stand against a stark 
background of comprehensive and overt discrimination, including a 
policy of retaliation and harassment against those black leaders 
who challenged the status quo (see pp. 22-23, supra).

The principle laid down by the Supreme Court in McDonnell-
96/

Douglas Corp. v. Green, 411 U.S. 792, 804 (1973) —  that indicia of 
class—wide discrimination are highly probative of related indi­
vidual claims —  reinforce, and indeed required, the District 
Court's resolution of the specific factual issues on the individual 
claims. This Court has embraced the McDonnell-Douglas principle, 
Franklin v. Troxel Mfg. Co., 501 F.2d 1013, 1015-6 (6th Cir. 1974). 
Indeed this Court correctly anticipated the development of that 
principle as early as 1969 in Blue Bell Boots, Inc, v. EEOC_, 418 
F.2d 355, 358 (6th Cir. 1969)7“ The other circuits are in full

96/ "Other evidence that may be relevant to any showing of pretext 
includes facts as to the petitioner's treatment of respondent 
during his prior term of employment; petitioner's reaction, if any, 
to respondent's legitimate civil rights activities; and petitioner s 
general policy with respect to minority employment. On the latter 
point, statistics as to petitioner's employment policy and practice 
may be helpful to a determination of whether petitioner's refusal to 
rehire respondent in this case conformed to a general pattern of 
discrimination against blacks." 411 U.S. at 804. [footnote omitted]
97/ "We consider an employer's 'pattern of action' relevant to the 
Commission's determination of whether there is reasonable cause to 
believe that the employer has practiced racial discrimination •• • • 
[T]he existence of patterns of racial discrimination in job classi­
fications or hiring situations other than those of the complainant 
may well justify an inference that the practices complained of here 
were motivated by racial factors." 418 F.2d at 358.

-65-



Burns v. Thiokol Chemi-accord with this commonsense proposition. 
cal Corp., 483 F.2d 300, 306 (5th Cir. 1973); Graniteville Co^ 
(Sibley Div.) v. EEOC, 438 F.2d 32, 42 (4th Cir. 1971); Rich v^ 
Martin-Marietta Corp., 522 F.2d 333, 347-9 (10th Cir. 1975).

A much less decisive showing of individual discrimination 
against a much less blatant background of class-wide discrimination 
would warrant affirmance under Rule 52(a), Fed.R.Civ.P. On this
record, the lower court's disposition of the appellees' individual 

claims was clearly correct,

V. THE AWARD OF ATTORNEYS' FEES TO PLAINTIFFS WAS A 
REASONABLE EXERCISE OF THE DISTRICT COURT'S 
..DISCRETION.

The District Court's orders of June 3 and June 20, 1975
granting and denying plaintiffs' various requests for attorneys' 
fees (A. — , A. ) were based on a full factual record and
extensive consideration of that record. The court received time 
affidavits from plaintiffs' attorneys (A. - )/ conducted a
full evidentiary hearing on March 7, 1975, and had extensive briefs
from the parties. Based on this record, it awarded a total of 
$101,500 as reasonable attorneys' fees, of which the largest part 
was an award of $81,000 to the lead attorney, Avon N. Williams, Jr.

Prevailing plaintiffs are entitled to an award of reasonable 
attorney's fees under Title VII, 42 U.S.C. § 2000e-5 (k) . Such fees 
must "ordinarily be awarded— i.e., in all but 'special circum­
stances'," as a means of "having injunctive actions brought under

98/ ««Findjngs of fact shall not be set aside unless clearly 
erroneous, and due regard shall be given to the opportunity of the 
trial court to judge the credibility of the witnesses."

- 66 -



Title VII, to eradicate discriminatory employment practices,"
Albemarle Paper Co. v. Moody, 422 U.S. ___, 28 L.Ed.2d 280, 295
(1975), adopting Newman v. Piggie park Enterprises, 390 U.S. 400
(1968). Appellants do not contest the propriety of a fee award.
Rather, they attack the reasonableness of the amounts awarded
("greatly excessive," Co. Br. 51; "obviously exhorbitant" [sic],
U.Br. 46), with emphasis on the award for Mr. Williams' services.

Appellate review of the amount of an attorney's fee award
is ordinarily limited to the "abuse of discretion standard of
review," Johnson v. Georgia Highway Express, l'nc., 488 F.2d 714,

99/
716 (5th Cir. 1974). This standard is particularly appropriate
because, as this Court has recognized,

The trial judge in determining the value of services 
by lawyers who have tried a case before him ordinarily 
has an infinitely better opportunity to evaluate those 
services than does an appellate court. Therefore, 
appellate courts hold that the trial judge's deter­
minations on legal fees should not be set aside unless 
there is a clear abuse of discretion.

Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 1188, 1196 (6th Cir.
1974).

The District Court based its fee award on the standards and 
factors set forth in the leading Title VII attorney's fee decision, 
Johnson v. Georgia Highway Express, Inc., supra, and the leading 
fees case in this Circuit, Ramey v. Cincinnati Enquirer, Inc., 
supra. The twelve factors recited in Johnson, 488 F.2d at 717-19,

99/ See also, Weeks v. Southern Bell Telephone & Telegraph Co., 467 
F.2d 95, 97 (5th Cir. 1972); Electronics Capital Corp. v. Shepherd, 
439 F.2d 692, 693 (5th Cir. 1971); Lea v. Cone Mills Corp., 467 
F.2d 277, 279 (4th Cir. 197 2); Lindy Brothers Builders, Inc, v. 
American Radiator & Standard Sanitary Corp., 487 F.2d 161, 166 (3rd 
Cir. 1972).

67-



are essentially those set out in the American Bar Association Code 
of Professional Responsibility, Ethical Consideration 2-18 (1961), 
enforced according to Disciplinary Rule 2—106. The six criteria 
of Ramey, 508 F.2d at 1196, while more general, are of a similar 
nature. The District Court carefully applied these correct stand­
ards to the record in determining a reasonable amount (see A. -

). A review of this record and the court's findings in light
of the principles governing fee awards demonstrates that the amount

100/
awarded was reasonable.

1. The time and labor required. Mr. Williams' affidavit
(as supplemented, see A. ), which has not been shown inaccurate,
lists 649 hours on the case (A. ). In addition, he devoted at10 1/
least 14 court days to this case as well as a large but unspeci-

102/
fied amount of additional time. Mr. Ennix spent over 1000 hours 
(A. ). By any measure, this case involved a great amount of time

and labor.
2. The amount involved and the result obtained. While the 

calculation of attorney's fees must be fairly and rationally related

1°°/ treat- hPinw only those considerations set out in Johnson, 
Ramey, and the ABA Disciplinary Rule which are particularly perti­
nent to this case.101/ Avco's quibble about the number of court days and the number 
of hours in each (see Co. Br. 19) cannot obscure the fact that, 
trial proceedings were had on 11 separate dates and that Mr. Williams 
also attended post-trial hearings on July 19, 1974, January 17, 1975,
and March 7, 1975.
102/ This includes an estimated 80 hours devoted to miscellaneous 
correspondence and telephone calls, extensive out—of—court trial 
preparation work during trial recesses, and other work done on 
pleadings and papers which could not be reconstructed (A. , A.

)•
- 68 -



to the -work involved, it must also reflect the relief obtained.
If the decision corrects across-the-board discrimination 
affecting a large class of an employer's employees, the 
attorney's fee award should reflect the relief granted.

Johnson v. Georgia Highway Express, Inc., supra, 488 F.2d at 719.
Avco concedes that, "we agree with plaintiffs that 'results' rather
than 'hours' is the most important criterion in fixing a fee, and
that, up to now, the 'results' have been phenomenal" (Co. Br. 50-
51). Appellees' attorneys have obtained comprehensive injunctive
relief and eligibility for back pay for a class of many hundred
black employees (see A. ). These results should be recognized
and rewarded (A. ).

3. The contingency of any recovery. Had plaintiffs not
prevailed in this litigation, there would have been no fee award
for the nearly 2,000 attorney hours expended in this case over a
nine year period. The District Court recognized and considered

103/
this important factor (A. ). This "risk of litigation"
factor greatly increases the reasonable rate for services rendered
—  particularly where, as here, the risk is extreme and the delay 

104/ 
long.

4. Novelty and difficulty of issues. This was ground­
breaking litigation. The court below correctly noted that, "these' 
two cases were two of the earliest cases which were filed to elimi-

103/ ftqthe District Court noted, "It is obvious that when these 
cases were filed shortly after the civil Rights Act of 1964 was^ 
passed, they were not considered the most desirable type of litiga­
tion and the chance of success was at best remote" (A. ). Plciin-
tiffs' expert witness, Attorney Louis Lucas, testified to the impor­
tance of this factor (A. ).
104/ City of Detroit v. Grinnell Corp., 495 F. 2d 448, 471 (2ndCir. 1974) 
Lindy Bros. Builders, Inc, v. American Radiator & Standard Sanitary 
Corp., supra, 487 F.2d at 168; Johnson v. Georgia Highway Express,
Inc., supra, 488 F.2d at 718; Ramey v. Cincinnati Enquirer, Inc., 
supra, 508 F.2d at 1196.

-69-



nate discrimination of employment. The questions were novel and 
involved an embarkation upon an uncharted sea" (A. ). The very
concept of a Title VII class action had never been judicially 
recognized when the Alexander suit was filed, see Hall v. Werthan 
Bag Corp., 251 F. Supp. 184 (M.D. Tenn. 1966). The Newman case
reached trial on the merits only as a result of this Court's land­
mark decision, 451 F.2d 743 (6th Cir. 1971), which plaintiffs 
obtained in the face of Dewey v. Reynolds Metals Co., 429 F.2d 324 
(6th Cir. 1970), aff1d by equally divided court 402 U.S. 689 (1971) . 
This is by far the largest and most complex Title VII class action
ever tried in the Middle District of Tennessee. These factors

105/
demand recognition in the form of a generous fee award.

5. Experj.ence, reputation and ability of counsel. Appel­
lees' lead attorney, Mr. Williams, is not just "a reputable attorney 
with expertise in the trial of lawsuits," as the court below noted.
As this Court is well aware, Mr. Williams has for a quarter century

106/
been in the forefront of civil rights litigation. He has been 
significantly involved in Title VII litigation since the early

/O// in Johnson v. Georgia Highway Express, Inc., supra, the court 
wrote,

Cases of first impression generally require more time 
and effort on the attorney's part .... [H]e should 
not be penalized for undertaking a case which may 
"make new law". Instead, he should be appropriately 
compensated for accepting the challenge.

488 F.2d at 718. Accord: Ramey v. Cincinnati Enquirer, Inc., supra, 
508 F.2d at 1196; City of Detroit v. GrinnellCorp., supra, 495 F.2d 
at 471. See the testimony of Mr. Lucas, A.
106/ See, e.q., McSwain v. Anderson County Bd. of Educ., 138 F.
Supp. 570 (E.D. Tenn. 1956); Goss v. Bd. of Educ., 373 U.S. 683 
(1963); Smith v. Holiday Inns, 336 F.2d 630 (6th Cir. 1964); Rolfe 
v. Bd. of Educ. of Lincoln County, 391 F.2d 77 (6th Cir. 1968); 
Monroe v. Bd. of Educ., 391 U.S. 450 (1968); McFerren v. Bd. of

-70-



107/
years of the Act's existence. It is doubtful whether appellees 
could have called upon an attorney of greater experience, reputa­
tion or ability in this field. Co-counsel, Mr. Ennix, was commended 
by the court below for "his handling of his portion of the litiga­
tion [which] was acceptable and reflected careful preparation11

108/ 109/
(A. ). These are not minimum-fee attorneys. The quality of
appellees' representation warrants recognition in computing a 

110/
reasonable fee.

Appellants' attorneys received a total of $89,210 for their 
represcntation which, despite the enormously greater resources of 
appellants, was unsuccessful on almost all issues litigated (A. ,

106/ (cont1d )
Educ., 455 F.2d 199 (6th Cir. 1972), cert, denied 407 U.S. 934 
(1972); Kelley v. Board of Education, 463 F.2d 732 (1972), cert.
denied 409 U.S. 1001 (1973); Mapp v. Board of Education, 477 F.2d 
851 (6th Cir. 1973), cert, denied 414 U.S. 1022 (1974).
107/ In addition to Alexander and Newman, Mr. Williams represented 
the plaintiffs in Hall/v. Wcrthan Bag Corp., supra; Smith v. South 
Central Bell Telephone Co., 518 F.2d 68 (6th Cir. 1975); Rice v . 
Gates Rubber Co., 521 F.2d 782 (6th Cir. 1975).
108/ "If a young attorney demonstrates the skill and ability, he 
should not be penalized for only recently being admitted to the 
bar," Johnson v. Georgia Highway Express, Inc., supra, 488 F.2d at 
719.
109/ Attorney William L. Robinson, who received $4,500 for his 
services and who argued the prior appeal to this Court, is now in 
the nationally crucial position of Associate General Counsel of 
the Equal Employment Opportunity Commission.
110/ See Johnson v. Georgia Highway Express, Inc., supra, 488 F. 2d 
at 719 ("An attorney specializing in civil rights cases may enjoy 
a higher rate for his expertise than others, providing his ability 
corresponds with his experience"); Ramey v. Cincinnati Enquirer, 
Inc., supra, 508 F.2d at 1197 ("the professional skill and standing 
of counsel involved on both sides").

- 71 -



A .
"111/
). Appellants' attorneys worked on a currently-billed, 

non-contingency basis (A. ). Their billings in this case were in
addition to regular monthly retainers from appellants, which in 
the case of appellant Avco's lead trial attorney, Mr. Banta, was 
"substantial" (A. , ). They enjoyed the advantages of assistance
in trial preparation from knowledgeable corporate and union offi­
cials. Nevertheless, their fees are only slightly less than those 
awarded to plaintiffs for contingency work done years prior to 
payment.

Appellants' main argument centers on the absence of certain
gross-income and fees-awarded information from the record (see Co.
Br. 18-19,'49-50). But this data is of questionable importance
and would, in any event, go only to one or two of the twelve factors

112/
that enter into attorney's fee determinations. Avco also complains
that lesser fees have been awarded in many other cases (Co. Br. 51 

113/
n.15). Avco's carefully edited selection omits any mention of 
recent Title VII decisions awarding much larger fees than in the

111/ In Brotherhood of Railroad Signalmen v. Southern Railway Co., 
380 F.2d 59, 69 (4th Cir. 1967), the Court wrote: "The standards 
employed in compensating attorneys for the opposing party in liti­
gating the selfsame issue give some indication of the importance 
of the case and are a relevant consideration in fixing the fees."
112/ These factors would be some evidence of the factors listed as 
numbers (4) and (5) by the District Court (A. ). They would
not be controlling, nor are the factors among the most significant.
113/ Analysis of these decisions, which is not possible given 
space limitations here, would show that most or all of these cases 
are in no way comparable to the instant case: many are simple indi­
vidual claims, some were partly or mostly unsuccessful, one was a 
defendant's fee award, several were vacated on appeal, several were 
claims piggy-backed on government-run litigation, none were liti­
gated over a nine year period.

-72-



114/
case at bar; such decisions are common. A picayune comparison
of fee awards in different Title VII cases is as sterile as broad
generalizations about the appropriate rate or amount for similar
cases are futile. The only pertinent inquiry is whether the amount
carefully calculated by the district judge was so unreasonable as
to constitute an abuse of discretion.

In this case, the court below made a reasonable award well
115/

within the limits of its discretion. It should be affirmed.

CONCLUSION
The orders of the District court constitute a responsible 

and modest beginning to the tasks of eliminating racial discrimina­
tion and its ongoing effects from appellants' employment practices, 
and of making the victims of discrimination whole from their losses. 
This Court should, therefore, affirm the judgment and orders below;

(1) allowing this case to proceed as a Rule 23(b)(2) class
action,

A M /  See, e.g., Pettway v. American Cast Iron Pipe Co., ___ F. Supp.
(N.D. Ala., C.A . No. 66-315, June 12, 1975), entering decree on 

remand from 494 F.2d 211 (5th Cir. 1974) ($220,000 fees and costs to
plaintiff class attorneys for trial, appeal, and remand); Bush v.
Lone Star Steel Corp.,   F. Supp.   (E.D. Tex. C.A. No. 1420,
August 6, 1975) (award of $192,117.59 fees and costs for trial pro­
ceedings, no appeal); Boles v. Union Camp Corp., __ F. Supp. ___
(S.D. Ga. C.A. No. 2604, Sept. 17, 1975) (award of $101,500 in
partial settlement for pre-trial proceedings only); Bryan v. Pitts­
burgh Plate Glass Co., 59 F.R.D. 616, 617 (W.D. Pa. 1973), aff1 d 
494 F.2d 799 (3rd Cir. 1974) (approving award of $201,250 fees for 
case tried only in part); United States v. United States Steel Corp., 
6 EPD 8790 (N.D. Ala. 1973) ($170,000 fee awarded to private
class attorneys in government-dominated case through trial stage 
only) ..
115/ If they also prevail here, appellees will, of course, seek 
additional fees at the appropriate time for services rendered in 
connection with this appeal.

-73-



(2) granting injunctive relief with respect to seniority, 
job equity, bidding, qualifications, training, and grievance 
procedures,

(3) providing for relief to persons displaced in the Globe- 
Wernicke incident,

(4) awarding relief to appellees Alexander, Newman and 
Dennis on their claims of individual discrimination,

(5) granting reasonable attorneys' fees to appellees.

Respectfully submitted,

AVON N. WILLIAMS, JR.
1414 parkway Towers
404 James Robertson Parkway
Nashville, Tennessee 37219
RUSSELL C. B. ENNIX, JR. 
Morris Memorial Building 
330 Charlotte Avenue 
Nashville, Tennessee 37201
JACK GREENBERG 
MORRIS J. BALLER 
10 Columbus Circle 
New York, New York 10019

Attorneys for Appellees

-74-



IN THE UNITED STATES DISTRICT COURT 
FOR TIIE MIDDLE DISTRICT OF TENNESSEE 

NASHVILLE DIVISION

RAMSEY ALEXANDER )
)
)

V. )
)
)

AVCO CORPORATION, ETC., ET AL.)
)
)

ROBERT F. NEWMAN )
)
)

v. )
)
)

AVCO CORPORATION, ETC., ET AL.)

Consolidated Civil Actions 
Nos. 4335 and 5258

REPORT OF AVCO CORPORATION PURSUANT TO 
PARAGRAPH 10 OF ORDER OF FEBRUARY 11, 1975

The order of February 11, 197 5, required Avco to 
file at three months intervals a report "reflecting the 
total number of nonsupervisory employees, their job classifi­
cations, their race and the number and percentage of blacks 
in each job classification." The annexed listing of five 
pages contains this information as of November 15, 1975.

Respectfully submitted,
NAPHIN, BANTA & COX 
105 W. Adams Street 
Chicago, Illinois 60503
WALLER LANSDEN DORTCH & DAVIS 
1200 American Trust Building 
Nashville, Tennessee 37201

Attorneys for Defendant,
• Avco Corporation



Certificate of Service

I certify that copies of the foregoing report were 

this day mailed to the following counsel of record:

Avon N. Williams, Jr., Esg. 
Russell Ennix, Esq.
1414 Parkway Towers 
Nashville, Tennessee 37219
Jack Greenberg, Esq.
10 Columbus Circle
New York, New York 10019
Carrol D. Kilgore, Esq.
216 Third Avenue North 
Nashville, Tennessee 37201
Lutz A. Prager, Esq.Equal Employment Opportunity Commission 
1800 G Street, N.W.
Washington, D. C. 20506

Dated: November [ \ i 1975.



Hn/oiz.«EP0RT_.fc01-W HOURLY EMPLOYMENT BY JOB _CLASS I F, I CAT ION _ .MZE_n/i 5/75 ... PAGE .
_ P AT E_
5.29 _S. 03.A.05 A. 54 _5.03 _5.295.29 _A ,E4 _A ,5A5.03 •_A,85_A.85 A .70 _ A.93._5.295.29 _ 5.5 8 _A . 5 A5.03 _5.58,_ ; A. 65j A .62 LA .7 0._ A .8 55.03 _5.53_ I A .65; a . 5 a L 5.0 3_5.03 A . AA.5.0 3_A . 6 25.295.58_A .85 A.93 ' 5.58_r a . 9 3j 5.95 16.31

C L A S S I F I C A T I O N
AIRCRAFT PLUMBER__AUTO-CLAVE 0 PLATEN PRESS OPERATORANODIZERASSEMBLER - APPLIANCE 0 CARPET CLEANER__ASScMCJLER - BENCH £ JIGAIRCRAFT MECHANIC - ELECTRICAL & RADIO AIRCRAFT MECHANIC - GENERAL_ASSEMBLER..- COMMERCIAL PRODUCTSASSEMBLER & WELDER COMMERCIAL PRODUCTS ASSEM3LER - MISSILE__ASSFMULER/INSTALLER MOTORCOACHASSEMBLER - ELECTRICAL & RADIO ASSEMBLER - PREWELD__AUTO SHEAR OPERATORBLUEPRINT-INSPECTION CRI 8 ATTENDANT BORING MACHINE OPERATOR - SEMI-AUTOMATIC__BORING .MILL OPERATORBRAKE OPERATOR - PRODUCTION BRAZIER - STAINLESS STEEL HONEYCOMB BRICK MASONBROACHING MACHINE OPERATOR BURR ER C FINISHER

-BURRER/FIN ISHER-SPAR CAPS/MILLED SKIN PANELSGURRER/FIN I3HER-SPAR CAPS/MILL SKIN PANELS-PREFIT CHEMICAL SIZING OPERATOR__CARP ENTER — MAINTENANCECLEANER & STOCK HANDLER - ELECTRONIC EQUIPMENT CLEANER - ELECTRONIC EQUIPMENT AREA_CHrM mill, opcratorCONTOUR SAW OPERATOR .....CONVEYOR LOADER & UNLOADER _CRATERCUSTODIAN .....  ... . .... "DEVELOPMENTAL MECHANIC __DIE FINISHERDRILL OPERATOR - FABRICATION .. 'DRILL PRESS OPERATOR .DROP HAMMER OPERATORDUPLICATOR PUNCH OPERATOR " — - ~ELECTRONIC R EP AIR MAN-MAI NT _ELECTRONIC SPECIALIST - MAINTENANCE

NEGRO WHITE. _male.. FEMALE. TOTAL
6 61 3 1 3

, __ ____.28______ ._ 359 .__39 4262 8 2 12i AO 2 432 7 9
3 1 A 1 136 1 72 1 3

2 21A 1_i.. ' • • 1 l

j 1
AIS __.1 „ .

AI
. 7 A1 5 l 1 7 3

619

21
AI
7 12 1 8

. .A.31 0 3
1A

o. c '
O. o

O. O 
O.- o_e> .O

/oo,s _
33.3

/o*>. o
o, o _
&.o
0 . 0
(’Ll
<r.c._C>,£>

<£ £.7
3 o.o
(3 o

/oo. O 
_ 0̂ 0

I I



_REP0R.T_601.-W________________ HOURLY_EMPLOYMENT...BY_JOB...CLASS.I.F I.CAT.ION______
NEGROrRATE ____ * - - — - — — — C L A S S I F I . C A. T. I O N -  _MALE....FEMALg„...

5.95 ELECTRICIAN-MAINTENANCE_5.03____ ELECTROPLATES _____________ _______5.10 ELECTROSTATIC OPERATOR.5.29 ENGINE LATHE OPERATOR_4,44____ FILER & DURRER ____________  _____A.70 FINISHER - COMMERCIAL5.10 FORMING ROLL OPERATOR_4 .93____ GRAINER COMMERCIAL______________________5.03 GARDNER5.53 GRINDER - TOGLING_5.29____ .GR INDFR. OPERATOR....... ........J_..._____5.29 GRINDER - TOOL C-CUTTER5.95 GRINDER - TOOL & CUTTER PRECISION_5.03____ HONEYCOMB SAW & PREPAR A T I ON . MAN ..... ...... .4.54 HOUSING MODULE ASSEMBLER5.03 HEAT TREATER - ALUMINUM_5.95____ HEAT TREATER - STEEL .... ............4.44 HELPER GENERAL - MAINTENANCE4.44 HELPER GENERAL_ 5 • 2 9____ HOT FORM MACHINE OPERATOR ______ _______A.54 HELPER GENERAL - MACHINE SHOP5.03 HYDRO PRESS OPERATOR_B .03_____INSPECTOR OFF ICE FURN I TURE..............5.SA INSPECTOR - INTEGRAL TANK & STRUCTURAL ASSEMBLYI 5.03 INSPECTOR - APPLIANCE ASSEMBLY & CARPET CLEANER_5.03____ I N.SPEC T OR - P ROCESSIN G __________________.4.93 INSPECTOR - COMMERCIAL SPOT WELD5.29 INSPECTOR - COMPOUND PEENEO STRUCTURES5.10 INSPECTOR - ASSEMBLY: 5.95 INSPECTOR - PRECISION GAUGES & INSTRUMENTS5.95 INSPECTOR - DUALITY ASSURANCE_5.10_____INSPECTOR -...ELEC TRI CAL A 3 SE MBLY_____________
f 5.58 INSPECTOR - EXPERIMENTAL5.10 INSPECTOR - FABRICATION5.53 INSPECTOR —MACH. PARTS. PRECISION___ _____ ____4.70 INSPECTOR - HARDNESS TESTING5.58 INSPECTOR - MACHINE PARTS_5.03____ INSPECTOR..-. MAGNETIC _________________
\ 5.95 INSPECTOR - MATERIAL REVIEW5.03 INSPECTOR - RECEIVINGL.5..58____ J N S.PECTOR_._— .RECEIVING .PHEC I.SI ON ' .    ____.
! i i

i

2I _ 5

m ni

2.1 /i 5 / 7 5_____page_

MALE . TOTAL
12  13  7 . 7.3________ ___ 3 ____ J__0.,0_.
1 1 0.0_ 6___ _ a_____ 14 . ____ o , o_.
5 5 0.0

1 1 0. 02 2 0.06 6 0.02 2 0.0

2 2 0. 01 1 0 .0  _ ... . . .... __
, 4 1 6 1

/2 , f

7 a /2.J" !7 12 7/. 74 4 0.0

8 8 0.0

1 1 o, o

2 2 0.0 -j11 3 34 0.01 1 o.o !1 1 o.o 1
l l 0.0

l 1 0.0

6 6 o.o

4 4 0.04 4 O.o4 4 o. o

4 4 o, o2 2 0.01 1 e> .o

4_ 4 O.o

l

i



■ RSPQfJ.t_6.0.1-.W_________ _______ HOURLY EMPLOYMENT. DY_UOB_CLASS.IE_ICA.TiON______M/E 11/15/75_____ PAGE..3____
)! ' NEGRO WHITE| RATE____ *- - -- -- - C L A S  S I F I C. AT I ON __MAL.E.„ FEMALE__ MALE FEMALE TOTAL___
J 5.10 INSPECTOR - TRANSIT SYSTEM i 3a . 93 INSPECTOR - PROTECTIVE COATING5 . ° 5 INSPECTOR - TOOLING 6
3 5.10 INSPECTOR - NETALBONO 65.29 INSPECTOR - WELDING5.95 JIG BUILDER 24
j 5.95 INSPECTOR-AIRCRAFT £ PROGRAMMED AUTOMATED WELDING I5.03 LAMINATOR - FIBERGLASS £ PLASTIC 13
5.29 LET TERMAN I

j 4.54 LOADER. UNLOAOER £ PICKLEH5.03 LOADER - AIRCRAFT MAJOR COMPONENTS 55.10 LOCOMOTIVE BRAKEMAN 15.10 LOCOMOTIVE OPERATOR 15.95 LOFTSMAN5.29 MACHINIST - BENCH i 135.95 MACHINIST prec 45 .95 metal PATTERN DEVELOPER 25.56 MECHANIC - AUTO 3
t S .R5 M EC HAN I C-MA I NTENANCE 225.03 METALDONDER i 215.03 METAL FAfiRICATOR 4 445.10 METAL REWORK MAN 65.29_ MILLING MACHINE OPERATOR ,, , n M ■__ i __ 305.29 METAL FITTER - ASSEMBLER 5

2

2

 ̂ 5.29 MOLDERA. 54_____OFFICE FURNITURE ASSEMOLEB._____r 4.54 OFFICE FURNITURE SPECIALTY ASSEMBLER ̂ 4.54 OFFICE FURNITURE PACKAGER; L.5..55____PAINTER - SPECIALTY4.65 OILER - MAINTENANCE, 5.29 PEENHR - COMPOUND STRUCTURES4.54____PARTS NUMDCRER1 5.10 PAINT MIXER - COMMERCIALJ 5.10 PAINT MIXER - AIRCRAFT[4,55____ PAINTER - COMMERCIAL _______5.10 PAINTER - MAINTENANCEj 5.03 PAINTER - PRODUCTION, 5.95___PATTERN MAKER - METAL £ WOODj 5.95 " PATTERN MAKER-PLS;! 5.58 PERISHABLE TOOL MAN! 5.95___plumbeIr-maintenance

3 2
2____________2 __ 5
2

2
2 22 ______3451 ____•_..9

4 o -
6 6 .06 £>,0

24 0 .0I O, O15 ______0, a
1 0.0
5 ....__ __o,o_1 O .OI 0.0
144 
2 3

222448
6315

7.1o.o
0.0
0.0

o. o
V.  

, o

5 tfO.O2 0.07 __ 0,0

2 0.0

2 0.0243 _____ 0,0...4 0.05 0,01 0 /o ,o



) REP0B1—60.1-W.
>;

HOURLY. EMPLOYMENT. BY. J 0.8._C.LAS S I F.I CAT ION. M/E 11/15/75... PAGE

>

>

'I

)\

J

L

RATE..
5.29 .5.03_5.105.03 _4.9 3_4.035.03A . 5 A_5.03 A .62.5.95..5.955.10 .4.93.A . 5 A5.10.5.565.03 A.93.4.9 3.5.035.10 .5.2 9_5.95 A .93_.5,5 0 .5.955.29 _5.9 5_5.555.10 _5.105.295.03 5.29_ A .93 A.70.4..9 3_ A .93 A .65 .5.0,3 .

--- - C L A S S I. F .1. C. A. T I C N.
PRODUCTION LAYOUT DEVELOPERPEEN ING MACHINE OPERATOR________________ ___POWER BRAKE OPERATORPRODUCTION CONTROL DISPATCHER - COMMERCIALPROCESS EQUIPMENT 6 DEIONIZ I.NG OPER ATOR..____POWER SHEAR OPERATORPRODUCTION CONTROL DISPATCHER - AIRCRAFT.PRESS. OPERATOR - PRODUCTION . ______________ _PUNCH PRESS OPERATOR ■ I'SPROCESS TANK LOADER S TENOER.PERISHABLE. TOOL 0 .DEVELOP..M.ECH_.__..___________QUALITY TEST MANRADIAL ARM ROUTER MILL OPERATOR _REPA IRMAN TOUCH UP - COMMERCIAL____ ______RESISTANCE welder - production 
riveting machine OPERATOR - AUTOMATIC _r IVET ING MACHINE OPERATOR-NUMERIC ALLY CONTROLLE.D. ROTARY SHAPER OPERATOR ROUTER OPERATOR - PINRAO IAL . ___  __ _______..__STRINGER VACUUM

NEGRO WHITEMALE FEMALE MALE FEMALE
4_ 2_ 7 7

__9 _ 
6 36

TOTAL

4
2

NUMERICAL CONTROL

.ROUTER..OPERATOR ROUTER OPERATOR ROUTER OPERATOR ..SEALANT MIXER.SKIN MILL OPERATOR SAW OPERATORSET-UP MAN - FABR ICAT ION MACHINES_SET-UP MAN - MACHINE TOOLS SHAPER OPERATOR_SHrET. METAL MECHANIC._£• LAYOUT MAN. MAINTENANCE SHEET METAL WORKER SHOP FOLLOW UP MAN - AIRCRAFT.SHOP. FOLLOW UP MAN - COMMERCIAL___________SIGN PAINTER SPUT WELDER_$PAR CAP. MACHINE OPER ATOR_____;_„__________SOLOERERSPRAYMAN - PRIMER_SPR A YMAN POL YURETHANE. PR.I MER.___________SPRAYMAN - TOUCH UP STATIONARY FIREMANSTOCK, CLERK .... ... ..... .. .......

3 
6_4..
11
229

_ 6_1
24 
6

267_ 6 3
1.19

4
30

3.3.
2

.0.0
0.00.0
0,0 

. 0.0 0.0

6
31

So, o 
_-?J2-



.REPORT 601—W______ ..._HOURLY. EMPLOYMENT BY JOB..CLASS I F I CAT. I ON.. _M/g,...l.l/l 5/75_____ PAGE

RATE - - C L A S S I . F I... C A T 10 N NEGROMALE FEMALE WHITE

5.03 _ 5 • 2 9_5.95"5.03 _5.955.035.10 
_ 5 . 1 0_5.0 35.10 .4• 95 _A .93 A.SA _5. 29_I 5.10 1 5.29 
L.5.0 3. , A .935.955.2 9_
r  a . 7 0' 5.59_5.59_5.295.95 _A.70_5.035.95 _ 5.2 9_5.955.29

2 . 0 0

STRETCH WRAP FORMING MACHINE OPERATORSTRUCTURAL ASSEMBLER & INTEGRAL TANK SEALER __________TEMPLATE MAKERTOOL CONTROL MAN - OFF SITE WAREHOUSETOOL & DIE MAKER ..... _.I..._.TOOL CRIB ATTENOANT TOOL CONTROL MANJTRUCK CRANE OPERATOR - MAINTENANCE & TOOLING _________TRUCK DRIVERTRUCK CRANE OPERATOR-MATERIAL HANDLING & SHIPPING_TRUCKER - POWER . .... ....... . .________^TUBE BENDER & FINISHERTUMBLE & VIBRATOR BURR MACHINE OPERATORTURRET LATHE OPERATOR _ _ ______________TUBE BENDER E. MOCK UP MAN ULTRA SONIC SET UP & OPERATORJJLTR A SONIC OPERATOR .....  ... O_••___WELDER MOTORCOACHPROGRAMMED AUTOMATED WELDER DEVELOPMENTAL MAN & OPERATOR.WELDER -.ALUMINUM __ . _. .... ... ________ ___WELDER - COMMERCIAL PRODUCTSWELDER - AIRCRAFT HELIUM ARC. MIG & TIG.PROGRAMMED AUTOMATED WELDER OPERATOR _ .......WELDER - AIRCRAFT HELIUM ARC WELDER - COMBINATION_W ELDER — HE L I UM ARC ___  __  . ... ........... ......WELDER - PLASMA ARC WELDER - .MAINTENANCE._W.EL.DER-.7 PRODUCT ION .....  ....... . .......... .WELDER - TOOLINGWHEEL & BALL FORMING MACHINE OPERATOR AIRCRAFT SCHOOL

MALE FEMALE TOTAL
Q 9 / / . /46 2 43 0.0

11 I 1 O, O
22 23 ........2 1 3 £>, <95 5 0,02 3 3?.-3l 1 0,01 1 0,01 4 •7^04 4 0,0

1 1 2 0.0
12 12 0.0

1 1 0. <o
. 2 2 0.0

1 1 0,0
1 1 0.0

13 14
24

131 6 
24

SI

0.0
0,0 _
O, O
o .<0
0.0

/ 2.  f
o. O
O. o
7.LTOTAL 1 12 2 1314 1509