Pullman Standard Incorporated v. Swint Respondent's Brief for Respondents

Public Court Documents
October 5, 1981

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    Nos. 80-1190 and 80-1193

In the

l$uprem£ (Emul nf tlj? lutteft States
October Teem, 1981

Pullman-Standard, a Division of Pullman, Incorporated,

v.
Petitioner,

Louis Swint and W illie Johnson, et al.

United Steelworkers of A merica, AFL-CIO and 
L ocal 1466, United Steelworkers of A merica, AFL-CIO,

Petitioners,
v.

L ouis Swint and W illie Johnson, et al.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

BRIEF FOR RESPONDENTS
■ ■ ...... — - ^

Jack Greenberg 
James M. Nabrit, III 
Patrick O. Patterson 
Judith Reed 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Elaine Jones*
B a r r y  L. G o l d st e in  
C. L ani  O u in ie r  

Suite 940
806 loth Street, N.W. 
Washington, D.C. 20005 
(202) 638-3278

Oscar W. A dams, III
2121 Eighth Avenue, North 
Birmingham, Alabama 35208

* Counsel of Record



TABLE OF CONTENTS

Table of Authorities ............... iv
STATEMENT OF CASE ..................  1

A. Proceedings ..............  1
B. Facts .................   11

1. Racial Policies of the Company and
Union, ................  12
a. Pullman-Standard .. 12
b. Steelworkers ...... 14
c. Machinists .......  20

2. Recognition of Unionsand Plant Division .... 24
a. Structure Prior to

Union Certifica­
tion .............  24

b. Certification of theBargaining Units .. 25
3. Development of the

Seniority System .....  34

Page

l



Page

a. Division of Bargain­
ing Units ........

b. Application of the Seniority System With­
in the Steelworkers'Bargaining Unit , . . 37

4. Operation of the Senior-
ity System After 1956 4~5

5. Racial Impact ... 49
SUMMARY OF ARGUMENT ......... . 57

64
THE FIFTH CIRCUIT CORRECTLY HELD THAT THE SENIORITY SYS­
TEM WAS INTENTIONALLY DIS­CRIMINATORY AND THEREFORE WAS 
NOT PROTECTED BY § 703(h) ..

A. Section 703(h) must be in­terpreted and applied in a 
manner which is consistent 
with the history and pur­
pose underlying Title VII ..

B. The seniority system was notbona fide, and differences in 
treatment thereunder were the 
result of intentional dis­
crimination ............ * •

11



Page

1 . Burden of Proof ...... 85
2. Racial Practices ofDefendants .............  87
3. Development and Main­tenance of the Senior­

ity System .............  91
4. Application of the Senior­

ity System and its
Effect ............    108

5. Rationality of the Seniority System NLRB ... 119
II. THE FIFTH CIRCUIT PROPERLY EX­ERCISED ITS APPELLATE FUNCTION 

TO CORRECT ERROR BY A DIS­
TRICT COURT ................  136

CONLCUSION ...........................  152
Appendix A, Tables -1-3
Appendix B

- iii



TABLE OF AUTHORITIES

Cases:
Page

Abbott Laboratories v. PortlandRetail Druggists Ass'n., 415
U.S. 1 ( 1 976) ..............  76

Aetna Iron and Steel Co., 35
NLRB 136 (1 941) ........ . 129

Albemarle Paper Co. v. Moody,422 U.S. 405 (1 975) ......... 79,85
Alexander v. Gardner-Denver 

Company, 415 U.S. 36 
(1 974 ) ................ . 125

Arlington Heights v. Metropoli­
tan Housing Development 
Corp., 429 U.S. 252(1977) .............  59,82,84,88,92,93,105,106,112

Barnes v. Jones County SchoolDistrict, 554 F.2d 804 (5th
Cir. 1 977 ) .................. 93

Baumgartner v. United States, 322U.S. 665 ( 1 944 ) ............. 137
Bigelow v. Virginia, 421 U.S.

Brashear Freight Lines, Inc.,13 NLRB 191 (1939) .......  151,127

IV



Cases:
Page

Brinkman v. Gilligan, 583 F.2d 243(6th Cir. 1 978) .......... 149
Brown v. Gaston County DyeingMachine Co., 457 F.2d 1377 

(4th Cir.), cert, denied,
409 U.S. 982 ( 1 972) ........ 84

California Brewers Association v.Bryant, 444 U.S. 598
( 1 980) ...................... 58,75

Carter Manufacturing Co., 59
NLRB 804 (1944) ............  131

Castaneda v. Partida, 430 U.S.482 (1977) ............  51,52,90,109,113
Christopher v. State of Iowa,

559 F.2d 1135 (8th Cir.1 977) ..................... 137, 141
City of Mishawaka, Ind, v. Am.Electric Power Co., 616 

F.2d 976 (7th Cir. 1980) --- 142
City of Mobile v. Bolden, 446U.S. 55 ( 1 980) ............. 93
Coleman Co., 101 NLRB 120(1 952) .....................  129
Columbus Board of Education v.Penick, 443 U.S. 449

(1979) .............. 88,93,105,113

v



Page
Corning Glass Works v. Brennan,417 U.S. 1 88 (1 974 ) ...... 86
County of Washington v. Gunther,49 USLW 4623 (1981) --- 60,74,77,86,87
Dayton Board of Education v.Brinkman, 443 U.S. 526( 1 979 ) ............. . 93 , 105, 1 13,1 50
Detroit Police Officers Ass'n v.Young, 608 F.2d 671 (6th Cir.

1979), cert, denied, 101 S. Ct.783 (1 981) ........... ...... 66,141
District of Columbia v. Pace,320 U.S. 698 ( 1 944 ) .........  140
Franks v. Bowman Transportation Co.,424 U.S. 747 (1976) .....  58,73,77,78
Galena Oak Corp. v. Scofield,218 F.2d 217 (5th Cir.

1 954 ) ....... ............... 137
Georgia Power, 32 NLRB 692(1941) .....................  130
Griggs v. Duke Power Co., 401U.S. 424 ( 1 971 ) ............. 81 , 85
Group Life and Health Insurance Co. v. Royal Drug Co.,440 U.S. 205, (1979) --- 76

vi



Page

Hazelwood School District v.United States, 433 U.S. 299 
( 1 977 ) .................. 50

Handy-Andy, Inc., 228 NLRB 447(1977) .....................
Hughes Tool Co., 147 NLRB 1573 (1 964) ................. .
International Brotherhood ofTeamsters v. United States,

321 U.S. 324 (1977) ........
James v. Stockham Valves and Fittings Co., 559 F.2d 

310 (5th Cir. 1977), cert, 
denied, 434 U.S. 1034
(1978) .....................

Jennings v. General Medical Corp., 604 F.2d 1300 (10th Cir.
1979) ......................

Karavos Compania, etc. v.Atlantic Export Corp.,
588 F.2d 1 (2d Cir. 1 978) . .

Kelley v. Southern Pacific Co.,419 U.S. 318 (1974) .....
Keyes v. School District No. 1,413 U.S. 189 (1973) .... 61,88
Kunda v. Muhlenberg College,621 F.2d 532 (3d Cir.

1980) ......................

,51,52,
109,113

130

130

passim

68

141

137,140

136,145

,93,113

142

Vll



Larus and Brother, Co,, 62 NLRB1075 (1945) ...............  127,129
Lee v. Washington County Boardof Education, 625 F.2d 1235

(5th Cir. 1 977) ............  93
Levin v. Mississippi River Fuel Co., 386 U.S. 162 

(1 967) .............. . 151
Manning v. Trustees of ufts 

College, 613 F.2d 1200 
(1st Cir. 1 980) ............  142

Matter of U.S. Bedding, Co., 52NLRB 382 ( 1 943 ) ............ 1 28, 1 29
Norfolk Southern Bus Corp. 76NLRB 488 (1 948 ) ............  129, 130
Orvis v. Higgins, 180 F.2d 537(2d Cir. 1950) ............. 141
Pacific Maritime Association,112 NLRB 1280 (1956) ........ 128
Piedmont & Northern R. Co. v.ICC, 286 U.S. 299 (1932) --- 76
Personnel Administrator ofMassachusetts v. Feeney,

422 U.S. 256 (1979) ...... 82,112,121
Peyton v. Rowe, 391 U.S. 54,( 1 968 ) .................  76

Page

viii -



Page

Poyner v. Lear Siegler, Inc. 549F.2d 955 (6th Cir. 1976) --- 141
Quarles v. Philip Morris, Inc.,279 F.Supp. 505 (E.D. Va.

1 968 ) ...................... 69
Resident Advisory Board v.

Rizzo, 564 F.2d 126 (3dCir. 1 977 ) ........... ..... 93, 1 05
Schultz v. Wheaton Glass Co.,

421 F.2d 267 (3d Cir.1 970 ) ...................... 137, 141
Sears v. Atchison, T. & S. F.Ry., 645 F.2d 1365 (10th

Cir. 1981) .................  67
Sears, Roebuck and Co. v. Johnson,

219 F.2d 590 (3d Cir.
1954) ...................... 141

Sidney Blumenthal & Co. v.Atlantic Coast Line R. Co.,139 F.2d 288 (2d Cir. 1943),
cert, denied, 321 U.S. 795
( 1 944 ) ........'............  136

Stewart v. General Motors Corp.,542 F.2d 445 (7th Cir.
1 976 ) ...........    141

Strauder v. West Virginia, 100U.S. 266 (1 880 ) ...........  93

IX



Page

Sweeney v. Board of Trustees of Keene State College, 604 
F.2d 106 (1st Cir. 1979), 
cert, denied, 444 U.S.
1045 (1980) ................

Taylor v. Armco Steel Corp., 429F.2d 498 (5th Cir. 1970) --- 125
Terrell v. U.S Pipe & Foundry Co.,

644 F.2d 112 (5th Cir.
1981 ) ....................... 69

Union Envelope Co., 10 NLRB1 147 (1 939) ................. 130
United States v. Bd. of School Commr's of Indianapolis,

573 F.2d 400 (7th Cir. )
dert. denied, 439 U.S. 824
(1 978) .....................  83,84

United States v. City of Chicago,549 F.2d 415 (7th Cir.),
cert, denied, 434 U.S. 875
( 1 977) .............. ....... 1 41

United States v. First CityNational Bank, 386 U.S. 361 
(1 967) .....................  86

United States v. General Motors 
Corp., 384 U.S. 127(1 977 ) .............. . 10,136,139,150

x



Page

United States v. Georgia Power Co. 
634 F.2d 929 (5th Cir.1981), cert. pending 
Electrical Workers Local No. 
84 v. United States, 50 USLW 3080 (Aug. 25, 1981) ...

United States v. Jacksonville 
Terminal Co., 451 F.2d 418 (5th Cir. 1971 ) , 
cert, denied, 406 U.S. 906 (1 972) ........ .............

United States v. Oregon StateMedical Society, 343 U.S 326
(1952) ..................

United States v. Parke, Davi: 362 U.S. 29 (1960) .........
United States v. Public Utilities 

Commission, 345 U.S. 295
(1953) .....................

United States v. Singer Manufac­
turing Co., 374 U.S. 174 
(1963) ...................

United States v. Texas Education 
Agency, 564 F.2d 162 (5th 
Cir. 1977), cert, denied,
443 U.S 115 (1979) .........

United States v. United States Gypsum Co., 333 U.S 364 
(1948) ............... ....

69

47

146
& Co., 63,136

77

138, 139

121

138,140

xi -



Page

United States v. Yellow Cab Co.,338 U.S. 338 ( 1 949) .........  146
United Steelworkers of America 

v. Weber, 443 U.S. 193(1979) ..................  21,65,71,77
Utah Copper Co., 35 NLRB1295 (1 941 ) ................. 129
Veneer Prods, Inc., 81 NLRB 492

(1949) ......*..............
Washington v Davis, 426 U.S 229(1 976) ............. 62,84, 1 1 2, 1 13
Watts v. Indiana, 338 U.S 49(1 949) ..................... 135

Statutes and Rules:
National Labor Relations Act, 29

U.S.C. §§ 151, et. seg......
42 U.S. C. § 1981 .........

Title VII of the Civil Rights Actof 1964, 42 U.S.C. §§ 2000e, et
seg. ...
§ 703(h)

3,4,74,76,80 
.... 64,80

Rule 52(a), Fed. R. Civ. 
P. .................. 135,137,138,142

xii -



Page

Legislative History:
110 Cong. Rec..................  72,73,82
Legislative History of Titles 

VII & XI of Civil Rights 
Act of 1 964 ...............  70

Hearings on Equal EmploymentOpportunity Before the Sub
c omm • on Employment and Man-
power of the Senate Comm.
on Labor and Public Welfare
88 Cong., 
(1963) ..

1st Sess. 70
Hearings on equal Employmentopportunity Before the General

Subcomm. on Labor of the 
House Comm, on Education &
Labor, 88 Cong., 1st Sess.
(1 963) ..................... 70

Hearings on Civil Rights Before Sub omm. No. 5 of the House 
Comm, on the Judiciary, 88th 
Cong., 1st Sess. (1963) .... 70

Annual Reports - Federal Agency;
7 NLRB ANN. REP. (1942 ) ... 127
8 NLRB ANN REP. (1943) ...... 127,132
9 NLRB ANN. REP. (1944) ...... 127

xiii -



Page

Other Authorities
Cooper and Sobol, Seniority andTesting Under Fair Employment 

Laws: A General Approach to Ob­
jective Criteria of Hiring 
and Promotion, 82 HARV. L. REV.
1598 ( 1 969)  ........................................  78

Cox, The Duty of Fair Representation,
2 v i l l .  L. Rev. 151 ( 1957)  . . .  130

Gould, Black Workers in White Unions 81977) .........
Harris, The Black Worker (Atheneum ed. 1974)  .............................................

Hill, Black Labor and the American Legal System: Race, Work and 
the Law ( 1977)  .................................

Karson and Radosh, The American Federation of Labor and the 
Negro Worker, 1894- 1949 in 
J.Jacobson, ed. The Negro 
and the American Labor 
Movement (1 968)  .................... ..

King and Risher, The Negro in the Petroleum Industry 
( 1969)  .................. ..................................

Marshall and Briggs, The Negroand Apprenticeship ( 1967)  . . .

15 , 65

65

65 , 68

21

68

65

- xiv -



Page

R. Marshall, The Negro and Organized 
Labor ( 1 965) .......... .......

Myrdal, An American Dilemma(Harper & Row ed.
1962 ) .......................

Northrup, Organized Labor and the 
Neqro (1944) ............ . 21 ,65

Northrup, The Neqro in the PaperIndustry (1969) .............. 68
H. Northrup, The Neqro in theRubber Industry (1969) ..... 68
H. Northrup. The Neqro in theTobacco Industry (1970) .... 68
Note, Discrimination in Union Membership, 12 Rutgers L. 130
Rubin, The Neqro in the Ship-building Industry at 115-16 

( 1 979 ) ...................... 68
Sovern, Legal Restraints on Racial Discrimination in Employment 

11 966) ..................... 70
Sovern, The National Labor Relations Act and Racial Discrimination,

62 Colum. L . Rev. 563
(1 962) ........................ 130

xv



Page

Spero and Harris, The Black 
Worker (Atheneum ed.
( 1 974 ) ................. . 67

Weaver, Negro Labor, A NationalProblem (1946) ..............  65

xvi



Nos. 80-1190 and 80-1193
IN THE

SUPREME COURT OF THE UNITED STATES 
October Term, 1981

PULLMAN-STANDARD, a Division of Pullman, Incorporated,
Petitioner, No. 80-1190,

UNITED STEELWORKERS OF AMERICA, AFL-CIO and LOCAL 1466, UNITED STEELWORKERS OF 
AMERICA, AFL-CIO,

Petitioners, No. 80-1193,
v.

LOUIS SWINT and WILLIE JOHNSON, et al.

On Writs of Certiorari to the United 
States Court of Appeals 
For The Fifth Circuit

BRIEF FOR RESPONDENTS

STATEMENT OF CASE 
A. Proceedings
This employment discrimination case



2

was filed as a class action against 
Pullman-Standard, the International Asso­
ciation of Machinists and its Local 372 and 
the United Steelworkers of America and its 
Local 1466. The Bessemer, Alabama plant of 
the Pullman-Standard Company, the plant
which is the focus of this lawsuit, has1/been closed permanently.

This case has been tried three 
times and has resulted in three district 
court and two appellate court decisions. 
Only the third trial concerned the issue, 
the bona fides of the seniority system, 
before this Court.

The original complaint was filed on 
October 19, 1971, pursuant to Title VII

_]_/ Accordingly, the issue of appropriate injunctive relief in this case is now moot, 
since no employee works at the plant. The 
case is not entirely moot since the class 
of black workers seeks monetary relief for 
earnings lost as a result of the discrimi­
natory seniority system.



3

of the Civil Rights Act of 1 964 , 4 2
U.S.C. §§2000e et seq. and the Civil Rights
Act of 1 8 66 , 4 2 U.S.C. §1981. App.

2/1-2. In the original complaint, the 
claims of discrimination were made against 
the Pullman-Standard Company and the United 
Steelworkers of America and its Local 1466, 
the bargaining representative of the 
majority of production and maintenance 
employees at the Bessemer plant. The 
complaint was amended in order to name the 
International Association of Machinists and 
its Local. JA 14-25.

At the pre-trial conference on June 4, 
1974, the district court granted leave to 
add the Machinists as a defendant -'inso­
far as the relief requested may involve or

2/ References are made to the opinions of the lower courts reproduced in the Appendix 
to the Petition for a Writ of Certiorari 
submitted by the Steelworkers.



4

infringe upon the provisions of such
Union's collective bargaining agreement, it
being noted, however, that no request for
monetary relief is being sought against

3/said Union." JA 29. The pre-trial 
Order further included as a trial issue the 
plaintiffs' claim that the seniority system 
unlawfully perpetuated discrimination 
because, inter a 1 i__a, the "rights of
transfer do not apply to jobs . . . repre-

1/ .sented by the IAM. " Id_. At the

3/ Also, the district court determined "that this action may hereafter be main­
tained on behalf of all black persons who 
are now or have (within one year prior to 
the filing of any charges under Title VII) 
been employed by defendant Company as 
production or maintenance employees rep­
resented by the United Steelworkers." JA 
28; see App. 124, n.20. The first EEOC
charge which alleged a discriminatory 
operation of the seniority system and 
discriminatory job assignments was filed on 
March 27, 1967. App. 50 n.5.
4/ The Company erroneously maintains 
that the district court limited the senior­



5

opening day of trial, the district court 
noted that Local 372 of the Machinists "is 
the certified labor union at Pullman-Stan­
dard" and granted leave to add Local 372 
as a defendant "for the limited purpose 
that a part of the relief sought by 
the plaintiffs may involve some modifica­
tion to the collective bargaining agreement 
between the Machinists and the defendant 
company." JA 31. The I AM and Local 372
were represented by counsel throughout the

5/district court litigation.

4/ Continued
ity issue to "the system ... in the Pull­
man USW contract." Brief 3. The Steel­
workers wrongly state that the issue 
before this Court is "that the system 
maintained by the Company and USW violated 
these [fair employment] laws." Brief 3.
5/ In the district court, Mr. Falken- 
berry, formerly a member of one of the firms representing the Steelworkers 
before this Court (JA 28, 41), represented 
the I AM and its Local 372 as well as the



6

The initial trial, covering 16 days in 
1974, proceeded "on the theory ... that a 
violation of Title VII could be shown by 
proof of a neutral seniority system which 
perpetuated the effects of pre-Act dis­
crimination. Trial was conducted on such a 
limitation of issues, w_i t h consequent 

t._ioji by_ plaintiffs to possible 
evidence showing the seniority system to 
have been instituted or maintained contrary 
to Section 703(h)," (emphasis added). App. 
46-47. In its September 1974 decision, 
the district court held that "[w]ith the 
limited exception of expanding somewhat 
eligibility to transfer rights ... the 
various claims and items of relief sought

5/ Continued
Steelworkers and its Local 1466. The IAM and its Local 372 were joined for injunc­
tive relief only? apparently because this 
issue is now moot, these defendants have neither filed a brief nor entered an 
appearance in this Court.



by plaintiffs are due to be denied." App. 
153-154.

In a unanimous opinion, the Fifth 
Circuit (Coleman, Clark, Gee, JJ.) held 
that the district court had misapplied the 
appropriate legal standards and had commit­
ted "patent inaccuracies" in its factual 
analysis. App. 89. The Court defined 
the nature of the "prima facie inquiry" on 
remand in order "to eliminate the likeli­
hood" that "[ejrrors apparent in prior 
proceedings" would "recur on the recon­
sideration we now mandate." App. 90.

In February 1977, the district court 
held a two-day remand proceeding devoted 
primarily to the introduction of additional 
evidence regarding the assignment of 
employees, promotion of supervisors and 
statistics. The district court delayed 
ruling "in anticipation" of the Teamsters

- 7 -



8

decision. App. 48. Before the parties 
had an opportunity to present evidence 
pursuant to the standard for defining a 
bona fide seniority system prescribed by 
Teamsters, the district court held that the 
seniority system was lawful pursuant to the 
Teamsters standard. App. 51-58. The 
district court also ruled that Pullman- 
Standard had not discriminated in its 
selection of supervisors and, reversing 
its own 1974 finding, that after December 
1966 the Company had not discriminated in 
making job assignments. App. 53-66.

Having had no opportunity to present 
evidence relevant to the standard estab­
lished by Teamsters, the plaintiffs

6/moved for a new trial. After grant-

6/ The plaintiffs also requested that the district court produce a "chart" which 
it had developed and upon which it relied. 
App. 53. The district court refused, 
App. 124, and the chart remains secret.



9

ing the motion, the court heard two wit-
nesses at a short hearing lasting less than

2/three hours. However, voluminous docu-

6/ Continued
While the district court stated that the chart need not be produced, inasmuch as it 
merely summarized evidence already in the 
record, App. 45, the court of appeals 
found that there were unexplained and 
unexplainable inconsistencies between the 
district court's factual statements based 
on the secret chart and the record exhibits 
upon which the chart was supposedly con­
structed. App. 7.
7/ Only the plaintiffs called witnesses. Mr. Samuel Thomas, a black employee 
at the company since 1946, testified as 
to segregation in seating at the union 
hiring hall and at union-sponsored social 
activities as well as the racial composi­
tion of union officers and negotiators. 
The other witness Mr. Willie James Johnson, also a long-time black employee, testified 
regarding the segregation at the Company 
and union hall, the racial identity 
of various International Representatives 
and the handling of grievances regarding 
racial discrimination. Neither witness was 
subjected to extensive cross-examination 
and neither petitioner attacks the credi­
bility of these witnesses. Transcript 
1-67 (1978 Trial).



1 0

mentary evidence” was introduced regard­
ing the development and maintenance of the 
seniority system from 1940 through the
1970s. After reviewing this "paper"

1/record the district court held that the 
seniority system "is ’bona fide' and 
that the difference in terms, conditions or 
privileges of employment resulting there­
under are 'not the result of an intention 
to discriminate' because of race or color," 
App. 44.

The Fifth Circuit (Wisdom, Roney, 
Hatchett, JJ.) once again unanimously 
reversed the district court. The appel­
late court ruled that the lower court had 
improperly applied legal standards, and

8/ The respondents introduced 112 ex­hibits and the Company and Unions intro­
duced 27 exhibits.
9/ See United States v. General MotorsCor£. , 3 8 4 U . S . TTT, TTT n 71 "6 (1 966).



that "[a]n analysis of the totality of the 
facts and circumstances surrounding the 
creation and continuance of the depart­
mental system at Pullman-Standard leaves us 
with the definite and firm conviction that 
a mistake has been made," (footnote omit­
ted). App. 15. The Fifth Circuit also 
reversed the lower court's rulings that the 
Company had neither discriminated in the 
selection of supervisors nor in post-1966 
job assignments, App. 7-8, 16-21. The 
Company's petition for a writ of certiorari 
was denied insofar as it sought review of 
the Fifth Circuit's ruling regarding the 
selection of supervisors and the assignment 
of employees.

B. Facts
Overview. The proper presentation of 

the legal issue in this case requires a 
description of the general racial policies



12

of the defendant Company and Unions, the 
accumulated racial impact of the decisions 
made by the defendants in developing the 
seniority system, and the specific racial 
impact of particular decisions made by the 
defendants. The evidence demonstrates that 
each of the defendants had blatantly racist 
policies, that the overall impact of the 
seniority system had substantially adverse 
consequences for black workers, and that 
specific decisions made by the Company and 
Unions tended to segregate further the 
plant and to limit the job opportunities of 
black workers.

1 . Racial Policies of the Company
and Unions
a. Pullman-Standard. The evi­

dence is undisputed that the Company 
considered the race of an employee in 
practically every decision which it made in 
its Bessemer plant:



13 -

Both in 1941 and in 1954, racial segregation was extensively practices 
at the Company's Bessemer plant 
.... Bathhouses, locker rooms, and 
toilet facilities were racially 
segregated. J_0/ Company records -- 
including employee ^rosters, 11/internal 
correspondence,12/ records of negotia­
tion sessions ,J_3/ list of persons 
picketing 14/ included racial designa­
tions. In 1941 some of the "mixed" 
jobs even had different wage scales 
for whites and blacks. 15/ All company 
officials, supervisors and foremen 
were white ... (Footnotes added). 
App. 39, 13.

10/ The facilities remained segregated 
until 1967. JA 97.
1 1 / Employee identification numbers 
between 100 and 199 and between 300 and 
1 999 were given to black employees and 
employee identification numbers between 200 
and 299 and 2000 and above, were given to white employees. JA 104? see Record, 
plaintiffs' exhibit 1 (1978 Trial).
12/ See e.g., JA 209-11, 220-11, 220-21,213-27.
U /  See e.g., JA 208, 212-13, 222, 254,256, 268, 270.
14/ See e.g., JA 219, 224-27, 255.
15/ JA 216-17, 220, 223, 252-53.



14

The jobs at the plant were segre- 
16/gated: "Most of the jobs at the plant

were by custom treated as 'white only' or
'colored.'" App. 39. At least until 1971
the Company maintained its discriminatory

I Vjob assignment policies. App. 162 63.
b. Steelworkers. As did the 

Company, the Steelworkers operated on

16/ "Pullman's old records, quite incom­
plete, do reflect a mixing of the races in 
some of these jobs in the 1920's and 30's. 
Nonetheless, it is clear that by the late 
40's many of the jobs had become racially 
segregated ...." App. 121 n .12 , 71.
17/ As a result of an arbitration decision 
in March 1965 the practice of job segrega­
tion was breached. App. 55. This decision 
applied to one job, rivet driver. While it 
provided a "ground breaker" for ending 
strict job segregation, JA 53, the dis­crimination in job assignments did not 
end, as the Steelworkers allege, with the 
March 1965 arbitration decision. Brief 6, nn.9, 15. Both the district court in its 
1974 decision and the Fifth Circuit in its 
most recent decision concluded that dis­
criminatory job assignments continued after 
the March 1965 decision. App. 54-55.



15

1 8/a segregated basis. "[R]acial segrega­
tion was extensively practiced ... in the 
local union hall . . . Union meetings were 
conducted with different sides of the hall

I Vfor white and black members, and social

18/ The Steelworkers stress that their 
"performance in general" was supportive of 
the economic rights of black workers. 
Brief 10 n.20. But see, W. Gould, Black 
Workers in White Unions at 397 (1977). It 
is not the general performance of the 
Steelworkers that is at issue in this case? 
rather, it is their practices at the 
Bessemer plant. As shown in the discussion 
in this section, the practices of Local 
1466, Steelworkers, divided and segregated 
the membership during the period of the 
development of the seniority system.
19/ The Union maintained segregated seating at meetings until the first trial 
in this case in 1974. JA 92-93. The Union 
president, Mr. Henn, "said [the black 
workers] there is a white side and a black 
side." JA 94. The Steelworkers' assertion that "the record is not clear" as to 
whether [the segregated seating was] by 
mandate or personal choice," is error. 
Brief 12, n. 21.



16 -

functions of the union were also segre­
gated." (Footnote added) App. 39. The 
Union maintained segregated restroom
facilities in the meeting hall until

20/1967, and only integrated its facili­
ties at the same time that the Company 
integrated its facilities. JA 96-97.

Since 1940 blacks have constituted 
a significant proportion of the membership 
of Local 1466 and blacks have served in 
certain officer positions. However, 
it is apparent that until 1970 black 
workers occupied only two elected posi­
tions, Vice-President and Financial Secre­
tary, while white workers occupied the 
other three positions, President, Trea-

20/ The Steelworkers concede that there were "separate washrooms at the local union 
hall into the 1960's." Brief 12.



surer, and Recording Secretary. More
importantly, during the the 1950s and early
1960s white union officials dictated that
racial grievances would not be prosecuted,
and black union officials would acquiesce
by agreeing that "it wasn't time for

12/
it."

- 17 -

21/

21 / Company Exhibit 309 shows this division of positions from 1965 through 
June, 1970. JA 69-80. Furthermore, 
uncontested testimony makes clear that 
the same racial allocation of positions 
existed in 1946, JA 51-52, that "in the 
fifties there were blacks who served as 
vice president and secretary", JA 94, and 
that the first black served as President in 
1970. JA 98.
22/ Willie Johnson, a black steward in the Paint Department from 1967 through 1973 
testified as follows:

"A. In '63. And we had questioned 
the president about segregated job assign­
ments at the plant. And he would always tell us, well, we have got white [32] jobs 
because you're going to stay on the black 
jobs, and the whites are going to maintain 
the white jobs. So about March of 1963,



1 8

The Steelworkers 
"the 1940's the Union

assert that during 
maintained the ob-

22/ Continued
thirteen black employees were dropped, laid off, I mean, and thirteen junior whites 
remained in the plant. So we thirteen 
black employees filed a thirteen grievance 
saying the company was discriminating. 
And when we came to the union meeting 
that Tuesday night, the president, when 
he called the meeting to order, he had 
the thirteen grievances. And he held 
them up in his hand, and he said, I have 
thirteen grievances here, racial grievances 
that have been filed by thirteen black 
employees out in the plant against the 
company. And he criticized those thirteen 
black employees for filing such grievance. 
And I want the rank and file to tell me 
whether or not to tear these grievances 
up or process them. Well, one white man 
got up and made a motion that he tear 
them up. But we had the majority that 
night of blacks, and we voted it down, 
and made a motion to process the griev­
ances. And we did win the vote. But the president did not process the grievances. 
And later we went to the National Labor 
Relations Board and filed discrimination 
charges there. At that same night the 
secretary was Gus Dickerson. [33],

Q. Was Gus Dickerson a black man?



ject of removing the inequity of black 
workers being paid less than whites for 
the same job." Brief 12, n. 21. This 
objective was advanced at one meeting, JA 
216-17; the Company's documents make clear 
however that it was the black workers in 
Steelworkers Local 1466 who were advancing 
this matter with little support from the

22/ Continued
A. Yes, he was a black man. But he 

got up and told us he was not going to 
process a racial grievance. It wasn't time 
for it, and he wasn't going to do it.

Q. In your occupation as a member of 
the union during the fifties and early 
sixties, Mr. Johnson, did the black union 
officials press racial grievances or 
complaints of racial grievances at this 
time?

A. No. They would always say there 
wasn't time for it." JA 97-98.

The evidence contradicts the Steel­workers' assertion that "on no occasion did the vote on contract proposals divide along 
racial lines." Brief 12, n. 21.



20

white union members. For example, a 1945
Company memorandum indicates that

there is now a very active movement 
on the part of the colored to push 
themselves to a point of doing the 
same job as the white man. This has 
been confirmed to me by the fact that 
representatives of the C.I.O. have 
stated to me [W. C. Sleeman, a company 
official] that they are having trouble 
all over the district with their 
colored membership to the extent that 
in some of the plants numbers of the 
colored have walked off the job.... We also know that in numerous meetings we 
have had recently the colored represen­
tation always inject negro differen­
tials and that they should be permit­
ted to have negro leaders over the negro 
man. JA 216-17. 23/

c. Machinists. During the period 
when the Machinists' bargaining unit was 
defined at the Bessemer plant, 1940 through

23/ Similarly, in a 1951 Company Memoran­dum, a manager observes that " [w]e are 
inclined to think that the committee as a 
whole, with the exception of the colored, 
are not so interested in the wage inequity 
program as much as they are in a good



21

1944, see section 2. b, infra, the Machin­
ists through their Ritual limited member­
ship to "qualified white candidates." JA 

24/348, 350. At the 1941 NLRB hearing
regarding union representation at the 
Bessemer plant, a representative of the

23/ Continued
substantial increase in money." JA 223. Also another Company Memorandum indicates 
that after a Company offer was made during negotiations for the 1 947 agreement "sev­
eral of the colored objected to it, stating 
that they wanted certain inequities correct­
ed." JA 220.
24/ The plaintiffs had requested the district court to take judicial notice of 
this adjudicative fact. JA 346-50. 
The district court declined the request. 
App. 24 n .1. In United Steelworkers 
of America v. Weber, 443 U.S. 1 93, 1 98 n.
2 (1979), the Court took judicial notice
of discrimination by craft unions. See M. 
Karson and R. Radosh, The American Federa­
tion of Labor and the Negro Worker, 1894— 
1949, in J. Jacobson, ed. The Negro and the 
American Labor Movement at 155-159; (1968);
H. Northrup, Organized Labor and the Negro 
at 2-3, 9-10, 254 (1944).



22

Steelworkers stated that "it is my informa­
tion that they [black workers] cannot

25/
belong [to the Machinists]." JA 145. 
Colon Clemons, a white employee who had 
progressed from a laborer to a machinist 
and then to a supervisor in the Tool and 
Die Department represented by the Machin­
ists, testified that he joined the Machin­
ists in 1941, that there were no black 
members of the Union at that time, and he 
could not recall ever seeing a black at a 
Machinists' meeting. JA 339-40. In 1941,

25/ The Trial Examiner halted "this line" 
of questioning regarding race. The repre­
sentative of the Machinists had asserted at 
the hearing that the Union "claim[ed]" 
"negro cranemen", JA 149, see Company 
Brief 5. In fact, the only crane operator 
position was located in the Steel Miscel­
laneous Department, which was staffed 
by a black employee, see plaintiffs' 
exhibit 109 (1978 Trial), JA 243-51;
see also plaintiffs' exhibit 1 (1978
Trial). The Machinists did not seek to 
have this crane operator position included 
in their bargaining unit.



23

the Machinists did not petition the NLRB to
represent any jobs that were staffed by
blacks, despite the functional relationship
of such jobs to other jobs included in
their petition. Then they entered into a
series of agreements that removed all jobs
staffed by blacks which had been included
in their bargaining unit by the NLRB. See
section 2. b, infra. After this job
switch, a black worker did not enter
the Machinists' bargaining unit until 

26/1970. App. 7.

26/ It appears that after 1943 four blacks 
were assigned to the welder helper job in 
the IAM unit. JA 255; Plaintiffs' Exhibits 
2, 62 (1978 Trial). This position was not 
staffed at the time of unionization, and no 
blacks were in the IAM unit. JA 247. 
However, in May 1 944 the job was ceded to 
the Steelworkers as part of the acquisition 
of three IAM departments by the Steel­
workers. See n. 41 infra.



24

2. Recognition of Unions and 
Plant Division
a . Structure Prior to Union

Certification. Pullman-Standard opened its
©

Bessemer plant in 1929. Until the plant 
closed in January 1981, the Company built 
railroad cars in Bessemer. Production of 
the cars was based upon the receipt of 
special orders, which could range from a 
few cars to several thousand. Depending 
upon the size of the orders, the number of 
workers at the plant varied from several 
hundred to several thousand. App. 118-19 
nn.3-4, 68 nn. 2-3.

In 1941 four unions sought to repre-
27/

sent employees at the Bessemer plant.

27/ The Steelworkers sought to represent 
all the production and maintenance employ­
ees, while the Machinists and the Interna­
tional Brotherhood of Electrical Workers 
(IBEW) sought to represent specified units.



2 5

At this time the Company had approximately
1300 employees divided into twenty depart- 

28/ments. Of these departments, five
contained employees of only one race. 
The Lumber Yard, Welding, Template and 
Plant Protection had only white workers, 
and the Truck Shop had only black workers. 
JA 103.

b. Certification of the Bargain­
ing Units. The major focus of the 1941 
NLRB hearing concerned the proposed 
unit which the Machinists sought to repre-

27/ Continued
The Federal Labor Union sought to represent those production and maintenance employees 
excluded by the Machinists and the IBEW. 
JA 155.
28/ The "voting list" which was submitted to the NLRB listed 21 departments. JA 103. 
However, one department, Sand Blast, had no 
employees and does not appear on subsequent 
seniority lists. The voting list racially 
identifies employees. JA 104, plaintiffs' 
exhibit 1 (1978 Trial).



26

sent. See JA 1 05-49. There are two
critical aspects to IAM's representational
claim: the Union sought to represent

30/production as well as craft workers 
and the Union selected jobs on the basis of 
the race of the job incumbents. For ex-

29/

29/ Although the district court stated that "the objective facts are not greatly 
in dispute," the court failed to describe 
these facts since it determined as a matter 
of law that the motivation of the IAM was 
irrelevant to the bona fides of the system. 
App. 42. The Fifth Circuit disagreed; 
"[T]he motives and intent of the IAM in 
1941 and 1942 are significant in considera­
tion of whether the seniority system had 
its genesis in racial discrimination. The 
IAM was one of the unions which unionized 
the company in 1941 and the evidence 
reflects that the IAM manifested an intent 
to selectively exclude blacks ...." Id. ,
14. See Argument, sections B. 2 and 
5. infra.
30/ The Company mistakenly claims that the IAM only sought a "craft" unit of skilled workers and apprentices and helpers ...." 
Brief 3. The Steelworkers implicitly 
concede that the 1941 bargaining unit 
of the IAM included production jobs. 
Brief 24-25 n. 39.



27

ample, the IAM petitioned for the inclu­
sion of cranemen in the Die and Tool and 
the Wheel and Axle departments, staffed 
only by whites, but not in the Steel 
Miscellaneous department, staffed with a

M /black, JA 149, 155, 170, 247, 249, 251,
and for the inclusion of handyman in the 
Die and Tool department, staffed only by 
whites, but not in the Maintenance depart­
ment, staffed with a black, JA 1 55 , 1 70 ,
249, 250. Also, the IAM requested that the 
following production jobs, as distinct from 
craft jobs, be included in its unit: 
"production ... welders" JA 155, 170,

31/ Plaintiffs' exhibit 109, (JA 243-51) 
lists the racial composition of each job at 
the time of the certification decision. 
This exhibit was prepared from plaintiffs' 
exhibit 1 (1978 Trial). (The cover page of 
Plaintiffs' exhibit 1, a summary of the 
exhibit, contains some numerical inaccu­
racies, and the specific department list­
ings should be examined.) The IAM did not claim all cranemen positions which were 
staffed by whites. JA 241, 246, 248.



28

117, production pipe fitters, JA 155, 170,
11/see 127-29, "wheel borer", JA 136-37,

1 55, 1 70 , "tool grinder," id., and "axle
11/finisher", id. All these positions

32/ The IAM sought to represent "employees 
in the air-brake department," JA 155 or, as 
later amended, "air brake production 
employees classified as pipe fitters, pipe 
fitter helpers, and air brake testers," JA 
170. The plant manager, Mr. Sleeman, testified that these air brake production 
employees are "just a part of [the] ... 
production line," that they are part of the 
Steel Erection department, and that 
"[the Company does] not classify them as 
maintenance pipe men." JA 127-29.
33/ Mr. Howard, the Machinists' represen­
tative, JA 106, stated that "we claim" the 
employees in the borer, grinder and axle 
finisher positions in the Wheel and Axle department. JA 134-37. These were 
production workers. When asked whether 
these employees "are machinists," the plant 
manager replied "[a]bsolutely not, because 
we have taken a man right from the farm, 
and he is the best production man we ever 
had there...." JA 137. In reply Mr. Howard admitted that the jobs being 
sought by the I AM were not highly skilled: 
"I also appreciate the fact that you can 
take a chimpanzee and show him the opera-



29

were staffed exclusively by white workers. 
JA 246-47. The IAM did not seek to include 
in its unit other machine operator posi­
tions, like those in the Punch and Shear 
Department, JA 245, which were staffed with 
black employees.

Despite the attempts of the IAM 
to exclude from their bargaining unit any 
jobs to which blacks were assigned, the 
NLRB certification decision included jobs 
staffed by black workers within the Machin­
ists' unit. Since the IAM had expressly
requested some production jobs and express-

34/ly excluded only one job in the Wheel

33/ Continued
tions in some of these departments and then put him on a chain where he cannot run 
away, and probably he can do that [the 
job]...." Id♦
34/ Mr. Howard, the IAM representative, stated "I don't claim the hookers any-



30

and Axle department, the NLRB included in
the I AM unit all jobs in that department
and in the Truck department, JA 165-66,
which were functionally related to the
Wheel and Axle department. JA 119,
130-31. As a result 24 blacks, 14 in the
Truck department and 10 holding four jobs
in the Wheel and Axle department, JA 247,

35/
were placed in the IAM unit.

Within a month of the NLRB November 
1941 certification, the Steelworkers and

34/ Continued
where." JA 149. The hooker assists 
cranemen, JA 125. The Machinists sought 
to represent several craneman positions, 
yet they rejected inclusion in the unit 
of the functionally related job of hooker. 
The job was generally staffed, as in the 
Wheel and Axle department, with black 
employees. JA 247.
35/ The Machinists made clear to the 
Company that "they do not want [these 
employees]" but if necessary "they will 
accept them." JA 207.



31

the IAM agreed to a swap of jobs which 
removed all jobs staffed by black employees 
from the I AM unit and transferred two jobs 
staffed by two whites from the Steel­
workers' to the Machinists' Unit. Compare36/
JA 170-71 with JA 165-66. 
pany endorsed the agreement, 
included in the April 1942 
bargaining agreements between 
and the IAM, JA 167-71, and 
Company and the Steelworkers,

The Com- 
and it was 
collective 
the Company 
between the 
plaintiffs'

36/ The agreement excluded crane hookers, 
wheel rollers and laborers and the Truck 
Shop from the IAM unit. All the 24 
black employees in the designated IAM unit 
were in wheel roller, wheel roller helper 
or laborer positions or in the Truck 
Shop. JA 247 . In return, the jobs of 
toolroom man and toolroom helper in the 
Steel Erection department, which were 
staffed by two white employees, JA 246, 
were transferred from the Steelworkers' 
to the Machinists' unit.



32

Exhibit 33 (1978 Trial).
As a result of the gerrymandering of 

the plant between the Machinists and 
the Steelworkers, the number of one-race 
departments increased from five to ten. 
Of the five all-white IAM departments, Tool 
and Die, Wheel and Axle, Air Brake, Mill­
wrights (Maintenance), and Welders, JA 167, 
all, except Welders, had included employees

37/

37/ The Steelworkers claim that this 
transfer "contract[ed] ... the IAM unit 
to craft and highly skilled jobs." Brief 
24-25, n. 39. In fact, (1) the jobs remaining in the IAM unit were not all 
"highly skilled" or "craft," see nn.32, 33, 
supra; (2) the jobs removed from the IAM 
unit were functionally related to those 
that remained and required equal skill (see 
JA 119; 130-31 describing the Truck shop
and Wheel and Axle department); and (3) the Steelworkers transferred two jobs in a 
production department, Steel Erection, to 
the IAM's unit, see n.36, supra. In 
keeping with their policy of limiting their 
membership to "white males," the Machinists 
simply "did not want" the black employees, 
see n.35, supra.



33

of both races prior to unionization.
In addition, to these four new one-race 
departments, an all-black Die and Tool 
department was created in the Steelworkers' 
unit. The district court stated with 
respect to the creation of two Die and Tool 
and two Maintenance departments that "[n]o 
similar situation exists at Pullman's 
Butler and Hammond plants, and indeed there 
was no such division at Bessemer prior to 
unionization and seniority." App. 35. The

38/

38/ Die and Tool: The jobs staffed by 
blacks, hooker, and laborer were excluded 
from the IAM unit. JA 166, -1 70, 249. 
Maintenance: All the jobs selected for 
inclusion in the IAM unit from the Mainte­
nance department were staffed by whites. 
JA 166, 170, 250. Air Brake: The jobs 
of pipefitter and pipefitter helper in the 
heavily black Steel Erection department and 
of air brake tester in the Shipping Track 
department, which were staffed by whites, 
were joined to form the Air Brake depart­
ment in the IAM unit. JA 166, 170, 245-46, 
see n.32, supra. Wheel and Axle: Jobs 
staffed by whites were included in the IAM 
unit; those staffed by blacks were exclu­
ded. JA 237, n.36, Appendix A, para. A.



34

same observation is equally true with 
respect to the creation of separate all- 
white Air Brake and Wheel and Axle depart­
ments.

3 . Development of the Seniority
System
a • Dî  v o n_o A aH £ aiHiH£_ 

units. Both the Steelworkers and the 
Machinists entered into initial collective 
bargaining agreements with Pullman-Standard 
on April 7, 1942. Plaintiffs' exhibits 17, 
33 (1978 Trial). The seniority agreements
applied only to departments or jobs 
within the bargaining unit for which those 
unions were "recognized as the exclusive 
collective bargaining agent." The agree­
ments did not provide any "seniority" 
rights for employees who transferred from 
one bargaining unit to another bargaining 
unit. An employee who transferred from 
the Steelworkers' to the Machinists' unit



35

would start 
worker who

as a "new man"? in effect, the
transferred bargaining units

39/
forfeited 
sion of 
seriously 
nities of 
a worker 
unless he

all job security. The divi-
the plant into bargaining units
affected the employment opportu-
workers. As a practical matter,
would spend his entire career,
progressed to management, in the

40/jobs of one bargaining unit.

39/ The 1956 agreement between the Steel­workers and Pullman-Standard made this 
forfeiture provision explicit and clearly 
applicable to all transfers, even those 
instituted by Management: "An employee 
hereafter transferred to a position outside 
of the bargaining unit . . . shall lose his 
seniority in the bargaining unit at the 
time of such transfer." JA 194. See also 
n. 45, infra.
40/ For example, white employee Colon 
Clemons testified that he entered the 
IAM's Die and Tool department as a laborer 
and progressed to craneman and machinist. JA 339. The seniority lists introduced 
into evidence show other similar job



36

Since the Machinists and the Steel­
workers continued to represent employees 
in separate bargaining units until the 
plant closed in January 1981, the effects 
of the 1941 racial gerrymandering of 
bargaining units continued for four dec­
ades. Although the IAM bargaining unit

11/was modified in 1944, the IAM con­
tinued to represent employees in two 
departments, Maintenance and Die and Tool, 
until the plant closed. These departments 
remained all-white until 1970. App. 7.

40/ Continued
progressions and the general restriction of employees to one bargaining unit. See 
plaintiffs' exhibits 2-8 (1974 Trial), 
plaintiffs' exhibits 2-12 (1978 Trial).
41/ The IAM agreed to the transfer of the jobs in three departments, Welding, Air 
Brake, and Wheel and Axle, to the bargain­
ing unit of the Steelworkers. JA 174-76.



37

A final change in the 1941 bargaining
unit division at the plant occurred in
1 946 when the jobs originally represented
by the IBEW, were transferred into the
baraaining unit represented by Local 1466

42/Steelworkers. App. 41, JA 298 304.
b . Application of the Sen­

iority System Within the Steelworkers' Bar­
gaining Unit. Initiated in the proceedings 
to unionize the plant in 1941, the senior­
ity system continued to develop until 1954 
when it reached the form it retained until 
the plant closed. "The division of the 
plant's work force into twenty-eight 
separate seniority units - 26 USW Units and

42/ The International Brotherhood of Electrical Workers had been certified as 
the representative of two small groups of employees, electricians and powerhouse 
operators. App. 36, JA 165.



38

2 IAM units - has remained essentially un-
43/

changed since 1954," (footnote omitted). 
App. 31. The importance of seniority with­
in the Steelworkers' unit increased sub­
stantially after 1954 because (1) the scope
of seniority was broadened from "occupa-

44/
tional" to "departmental;" (2) the dis­
cretion of the Company to transfer an em-

43/ Since blacks were excluded from the Machinists' bargaining unit, the exercise 
of seniority rights of employees within 
that bargaining unit are not directly 
relevant to the issue before the Court. 
However, obstacles to transfer into the 
bargaining unit are directly relevant. 
See section a, supra.
44/ The first collective bargaining 
agreement between Pullman-Standard and the 
Steelworkers, signed in April 1942, provid­
ed for "departmental" seniority: "No 
employee shall hold seniority in more than 
one department ...." JA 181. In 1947 the 
seniority criterion was changed to "occupa­
tional": "Occupational seniority within a 
department will prevail for all employees 
...." JA 189. In 1954 the parties reverted 
to the use of departmental seniority. JA 
1 94.



39

ployee of the Company to transfer an
employee without any loss of seniority to

45/the employee was restricted; and (3) the 
use of seniority was extended from the 
determination of layoff or recall during an 
"increase or decrease of forces," JA 180, 
182, 184, 188, to the determination of
promotions. JA 201-02.

The expansion of seniority rights was 
preceded in 1953 and 1954 by numerous 
departmental readjustments, which, like the

45/ in 1944, the collective bargaining 
agreement was modified to provide that if 
the Company transferred an employee because 
of "exceptional ability" he could continue 
to accumulate seniority in two departments. 
JA 185-86. The provision also applied 
during the period, 1947-1954, when occupa­
tional seniority was used. JA 189-90. In 
1954 the provision was severely limited by, 
inter alia, requiring Management to "re- 
turn" the transferred employee "within a 
period of one (1) year from date of trans­fer to his original department ...." JA 
194-95. See also n.39, supra.



40

departmental changes during unionization, 
increased the number of one-race depart­
ments. Since 1952 the negotiation posi­
tions of the parties had indicated that a 
return to departmental seniority was 
likely. In August 1952, the Steelworkers 
proposed that they negotiate a company­
wide, master contract with Pullman-Stan­
dard. JA 286. At that time the Company 
had four plants where employees were 
represented by the Steelworkers, two had 
departmental seniority, one had plant 
seniority, and one (Bessemer) had occupa­
tional seniority. App. 33; 189, 278-85.
The "company ha[d] established by ... 
contemporaneous studies made by it at the 
time of contract negotiations -—  [that] 
seniority by departmental age . .. was the 
modal form of agreements generally. ..." 
App. 33.



41

Several earlier departmental changes
had little effect upon the seniority
or employment opportunities of the workers
who were protected at the time by occupa-

46/
tional seniority only.

46/ The Electrical and Powerhouse departments were moved in 1946 from the 
defunct IBEW Unit to the Steelworkers. 
Three departments, Air Brake, Welding, 
and Wheel and Axle were transferred in 
1 944 from the Machinists to the Steel­
workers. By 1947, Air Brake, Electrical, 
Powerhouse, and Wheel and Axle depart­
ments were reabsorbed in the departments 
they had been in before unionization. 
Plaintiffs' exhibits 1 and 2. (1978
Trial). The Welding department remained 
separate. Id_. In the "late 1 940's" the 
Company created a separate Inspection 
department staffed by white workers only. 
App. 32.

The record contains the departmental 
seniority lists from 1947 through 1954, 
plaintiffs' exhibits 2 through 9 (1978
Trial). From these lists it is possible to 
ascertain the departments, the jobs in the 
departments and the race of the employees 
in those jobs and departments. The race 
can be determined because the employee's 
number indicated his race, see n.11, 
supra. It is not possible to ascertain



42

In 1 953 and 1 954 , just before the
switch from occupational to departmental
seniority, seven new one-race departments
were created within the Steelworkers'
bargaining unit: Air Brake Pipe shop,
Boilerhouse, Die and Tool, Janitors,
Plant Protection, Powerhouse, and Steel

47/Miscellaneous. Four of the depart-

46/ Continued
from the record whether from 1 944 through 1 946, the three former I AM departments or 
whether in 1 946 the two former IBEW 
departments remained separate departments 
within the Steelworkers' unit or were 
reabsorbed into other departments in the 
Steelworkers' unit. The district court's 
assertions as to the status of the depart­
ments at this time, see App. 41, 37 n. 19, 
do not have record support. The chart 
prepared by the company and introduced as 
exhibit 27, JA 336, which purports to show 
the departmental changes at the plant, is 
riddled with errors. See Appendix A to 
this brief.
47/ Six of these departments were created 
in June 1954 -- just two months prior 
to the return to departmental seniority. 
Compare plaintiffs' exhibits 8 and 9.



43

merits contained only white employees: Air
4_8/Brake Pipe shop, Boilerhouse, Power-

49/house, and Plant Protection. Three
of the departments contained only black em-

50/ _ 5J_/ployees, Die and Tool, Janitors, and

48/ Jobs in the Air Brake Pipe shop were 
functionally related to jobs in the inte­
grated Steel Erection department, see n. 32, 
supra. Nevertheless, several jobs, staffed 
by white employees only, were removed from 
this department in order to form the Air 
Brake Pipe shop. Compare plaintiffs' 
exhibits 8 and 9.
49/ The Boilerhouse and Powerhouse depart­
ments were removed from the Maintenance 
department. The Powerhouse jobs had 
been in the Maintenance department prior 
to unionization and during the period when 
occupational seniority prevailed in the 
Steelworkers' unit. The Boilerhouse had always been located in the Maintenance 
department. See n.46, supra; JA 243-51.
50/ The Die and Tool (CIO) department was 
staffed entirely by black employees after 
unionization, see p. 33, n.38. However, by 1947 the position of Welder, staffed by

[Continued]
[51/ on next page]



44
52/

Steel Miscellaneous. Therefore, 
dentally with the establishment of

coinci-
depart-

50/ continued
whites, had been added to this department. Plaintiffs’ exhibit 2. In 1953 there 
were two whites, Moreland #2448 and Thomp­
son #2447 , in the Welder job. In 1954 these positions had been moved to the 
Welding department and the Die and Tool 
(CIO) department was resegregated. Plain­
tiffs' exhibits 8 and 9.
51/ The court of appeals correctly summar­
ized the history of the Janitors depart­
ment: "between 1947 and 1952, the all-white 
watchman and all-black janitors were both 
in the Safety department. The 1953 senior­
ity list carries both jobs under a Plant 
Protection department. The 1954 seniority 
list shows the janitors in an all-black 
Janitors department and the watchmen 
in an all-white Plant Protection depart­
ment." App. 12; see plaintiffs' exhibits 
2-9.
52/ In 1953 the Steel Miscellaneous 
department was separated from the Steel 
Stores department. Plaintiffs' exhibits 7 and 8. See also Appendix A, paragraph G. 
The district court finding that the 
two units "had roughly comparable racial 
compositions" is misleading. App. 31-32. 
In 1953 the Steel Stores department 
contained 5 white and 26 black workers.



- 45

mental seniority and with the increase in
the importance of seniority and the depart-
mental structure, a substantial number of
one-race departments were created in the
Steelworkers' unit.

4. Operation of the Seniority
System After 1956. The departmental
and bargaining unit structure which had
evolved by 1954 remained "essentially11/unchanged." App. 31, 3. The depart-

52/ Continued
Plaintiffs' exhibit 8. However, all the 
production employees in the Steel Miscel­
laneous department were black. While the 
seniority list shows 2 whites out of the 54 
workers in the Steel Miscellaneous depart­
ment, it is critical to note that those two 
white workers were "leaders" or "foremen 
A." Plaintiffs' exhibits 8, 11. Inkeeping with the policy of placing only 
whites in supervisory positions, see section B. 1. a, supra, the two supervisors 
in the department were white.
53/ The Boilerhouse department in the Steelworkers' unit was closed in 1 964 .



46

ments and their racial composition in 1956 
and 1 964 are listed in Appendix B to this 
brief. Apart from a limited order entered 
by the district court in 1974, see n.62, 
infra, the application of seniority re­
mained essentially the same as established 
in the mid-1950s. In brief, there was no 
provision for transfer between bargaining 
units and an employee forfeited seniority 
if he transferred between bargaining 
units or between departments within the 
Steelworkers' unit. App. 119-20, 26,
see also section 3, supra. The district 
court correctly characterized the effect of 
the seniority forfeiture provision as a

53/ Continued
App. 31, n. 5. Also by 1964 the Shipping Track and Paint departments had been 
merged. See Tables 1 and 2, Appendix 
B.



"no-transfer rule." App. 30; see also 
App. 3.

In 1968 the Company entered into 
negotiations with the Office of Contract 
Compliance, Department of Labor. These 
negotiations led "to a conditional memoran­
dum of understanding designed to enhance 
opportunities for blacks," (footnote 
omitted). App. 122. The conditional 
memorandum included "transfer rights with 
seniority carryover for black employees" 
from certain "low-ceiling" departments 
to "formerly all-white departments." App.

- 47 -

54/

54/ While there was no express bar to 
interdepartmental transfer, because of the seniority forfeiture provision, 
the system in effect "locked" employees 
into the department or bargaining unit to 
which they had been assigned. "In any 
industry loss of seniority is a critical 
inhibition to transfer," United States v. 
Jacksonville Terminal Co., 451 F.2d 418,
453 (5th Cir. 1971), cert, denied, 406
U.S. 906 (1972).



48

122 n. 15. The memorandum was rejected by 
the unions and never went into effect. 
App. 122, 136 n. 32; JA 41-42. In 1972 the 
Company once again entered into negotia­
tions with the Office of Contract Compli­
ance. On this occasion Pullman-Standard 
signed an agreement which was "to serve as 
a corrective action program." App. 6. The
agreement provided limited transfer rights

55/
to certain black employees. Once again, 
the Steelworkers and Machinists failed to 
sign the agreement, App. 123 nn.17-18. 
Although the district court concluded that,

55/ "Black employees with employment dates 
prior to April 30, 1965, are given prefer­
ence for vacancies arising in the five 
traditionally all-white departments ... 
and those hired before April 30, 1965, who 
had been assigned to four 'low-ceiling' 
departments are given preference for 
vacancies arising in any of the depart­
ments." (Footnote omitted). App. 123.



49

despite their failure to sign, the Unions
"apparently" agreed to accept its terms,
id. , the court issued an order declaring
the agreement "binding upon the union

56/
defendants." App. 154.

5. Racial Impact. The district 
court concluded "that for each of the years
1967 through 1973 there were variations in 
the racial composition of the departments
beyond that expected from random, 'color-

blind' selection." App. 52. The court
attributes this disparity to actions taken

"prior to Title VII |[enacted in July 1 964,
57/

effective as of July 1965]." 21 •

56/ The district court vacated this 1974 
older when in 1977 it ruled that the 
seniority system was lawful and entered 
judgment for the defendants. App. 148.
57/ In order to support its conclusion, 
the district court stated that it had 
prepared a chart regarding post-1966



50

The district court never evaluated the 
severity of the "variations in the racial 
compositions of the departments." In fact, 
as of 1964 the overwhelming majority of 
employees at the Bessemer plant were 
located in racially identifiable depart­
ments: departments where there was a
"serious disproportionality" in the racial

5_8/ 59/
composition of employees. In 1964

57/ Continued
departmental assignments. The court did 
not reproduce the chart in its opinion, 
App. 53, and refused the plaintiffs' 
request, made in a motion to amend the 
judgment, to produce the chart. App. 45. 
The conclusion based upon this secret 
chart, that post-1966 departmental assign­
ments were not being made in a discrimina­
tory manner, was reversed on appeal, App. 
78,and this issue is not before this Court.
58/ The determination of "serious dispro- 
portionality" is based upon this Court's 
analysis in Hazelwood School District v. 
United States, 433 U.S. 299 , 3 1 1 n. 17

[59/ on next page]
[Continued]



51

there were 3875 employees in 28 departments 
in the Bessemer plant. Of these employees, 
3727 or 96% were located in racially 
identifiable departments; 1274 or 96% of

58/ Continued
(1977). A detailed description of the 
methodology is incuded in Appendix B.
59/ The source for the distribution of 
employees in 1964 is the seniority list for 
that year which was introduced in the 
1974 trial as plaintiffs' exhibit 2. The 
district court relied on this exhibit 
in constructing a chart for the year 1965. 
App. 1 2 7-2 8 n. 27. As the district 
court observed, there was no seniority list 
introduced for the year 1965, but the 
court determined that the "functional 
equivalent" of the 1965 list could be 
determined "by taking account of the 
additions and deletions" to the 1 964 list. 
App. 120 n. 10. In this brief, the respon­
dents used the same source as the district 
court, plaintiffs' exhibit 2 (1974 Trial), 
but we have indicated that the employment 
totals are for " 1 964 ," the year by which 
the seniority list is designated. Regard­
less of whether a designation of "1964" or 
" 1 965" would be more correct, the data 
reflects the employment composition at the 
plant on or near the effective date 
of Title VII.



52

the 1325 black employees and 2453 or 96% of
the 2550 white employees were in racially

60/
identifiable departments. Appendix
B, Table 1. The same analysis for 1 956, 
the date when the seniority system had 
fully evolved, shows that the racial impact 
of the system was firmly established at 
that time —  over 85% of the employees were 
in racially identifiable departments. 
Appendix B, Table 2.

Despite the substantial racial alloca­
tion of employees by department, the

60/ Nineteen of the twenty-eight ^depart­
ments in 1964 were racially identifiable, 
according to the statistical analysis in 
Castaneda and Hazelwood, since there was a 
"serious disproportionality" in the 
racial composition of these departments. 
See Appendix B. In addition to these 19 
departments, there were an additional 
three departments which had historically 
been staffed entirely by white employees, 
Boilerhouse, Powerhouse and Template. 
See n.87, infra.



53

Steelworkers and the Company repeatedly 
assert that the "vast majority" of employ­
ees were in "racially mixed" or "integrated" 
departments. Steelworkers 6-7, 14-15,
27-28, 8a-11a, 20a-22a; Company Brief 10,
14, 42. The petitioners’ use of the term
"integrated," regardless of the dispropor- 
tionality of the racial composition in a 
department, distorts the actual racial 
staffing of departments.

The racial staffing of departments and 
the "lock-in" effect of the seniority 
system had a serious adverse impact on the 
earnings of black employees. In 1964, 8 ofii/
the 28 departments had a median job class

61 / In the collective bargaining agree­
ments between the Steelworkers and Pullman- 
Standard, jobs are placed within "job 
classes." The job classes range from 2 
through 2 0, with 20 being the highest paid. 
The base hourly wage, incentive and non-



54

of 10 or above, thirteen departments had 
median job classes between 5 and 7, and 
seven departments had median job classes 
below 5. Appendix B, Table 3, Of the 2545 
white employees, 1959 or 76.9% were in the 
eight departments with a job class median 
of 10 or above, whereas only 230 or 17.3% 
of the black employees were in these 
departments. In the "low-ceiling" depart­
ments, those with a job class median below 
5, the racial proportion was reversed: 433
or 2 1.9% of black employees, whereas only 
177 or 5.7% of white employees were in 
these departments. Id.

61/ Continued
incentive, for a job is determined by its 
job class, see e.g., 1965 Collective
Bargaining Agreement, Company exhibit 263 
(1974 Trial). The "job class (JC) level 
... determines [a job's] relative ranking 
in base pay in comparison to other jobs," 
although piece-rate scales may play a role 
in the actual earnings potential of a 
particular job. App. 119 n. 8 .



55

The continuing economic effect of the 
seniority system is illustrated by the 
disparity in the job class levels of black 
and white employees who were employed in 
1973 in the Steelworkers' bargaining unit 
and who had more than 6 years of seniority: 
551 or 74% of all black employees as 
compared to 119 or 16% of all white 
employees earned less than $4.25 an hour, 
job class 8 or below. JA 65. Moreover, 
634 or 81% of all white employees as 
compared to 192 or 20% of all black 
employees earned more than $4.40 an hour, 
job class 10 or above. I_d. The average 
hourly base rate for black employees in the 
Steelworkers' unit was $4.14 as compared to 
$4.45 for white employees. Id.

The historical exclusion of blacks 
from the IAM bargaining unit had a substan­
tial adverse economic impact on blacks.



56

The two IAM departments, Maintenance
(IAM) and Die and Tool (I AM) provide some
of the greatest earnings opportunities
at Pullman-Standard. Appendix B, Table 3.
Of the 139 employees in the IAM unit as of
June 1 , 1 972, 1 1 were black. No black in
the unit had a seniority date earlier than
1971. The average hourly base rate of all

6_2 /
employees was $4.57 an hour. In the

62/ Plaintiffs' Exhibits (1974^Trial) 
includes a seniority list of the two 
IAM departments as of June 1 , 1 972, from
which can be computed the number of 
employees in each job. The above employee 
totals include only those employees who 
were in the IAM bargaining unit as of the 
date of the seniority list, June 1 , 1 972.

For each of the jobs in the IAM unit, 
the wage rates used were those in effect 
from October 1972 until October 1973. 
Those rates appear in the IAM 1971 collec­
tive bargaining agreement with Pullman- 
Standard. Plaintiffs' Exhibit 31 (1978
Trial). The 1 972 IAM wage rates are used 
since the last complete IAM seniority list 
is a 1972 list. Where the hourly rates



57

Die and Tool (IAM) department where there 
were 67 whites and 5 blacks, the average 
hourly base rate was $4.52; in the Mainte­
nance (IAM) department where there were 61 
whites and 6 blacks the average hourly base 
rate was $4.62. The average hourly base 
rate of employees in the IAM bargaining 
unit exceeded that of blacks in the USW

63/
unit by at least $.43 per hour.

SUMMARY OF ARGUMENT 
I.

A. "[I]n enacting Title VII of the 
Civil Rights Act of 1964, Congress intended

62/ Continued
indicate a pay range for a particular job, 
the median rate for that 50b was used which 
rate was then multiplied by the total 
number of employees in that job.
63/ This figure understates the dispar­
ity in wage rates between blacks in the USW 
unit and workers in the IAM unit because 
1 973 wage rates are used for the USW unit 
and 1972 rates for the IAM unit.



58

to prohibit all practices in whatever form 
which create inequality in employment 
opportunity due to discrimination on the 
basis of race, religion, sex, or national 
origin." Franks v. Bowman Transportation 
Co., 424 U.S. 747, 763 (1976). In Pullman- 
Standard's Bessemer plant, as in other 
plants, particularly in the South, prac­
tices of racial gerrymandering and manipu­
lation of seniority systems were common. 
The protection in Section 703(h) for "bona 
fide seniority systems" must not "be given 
a scope that risks swallowing up Title 
VII’s otherwise broad prohibition of 
'practices, procedures, or tests' that 
disproportionately affect members of those 
groups that the Act protects." California 
Brewers Association v. Bryant, 444 U.S 598,
608 (1980).



59

B. Section 703(h) "does not immunize 
all seniority systems. It refers only to 
'bona fide systems'...." Internat ional 
Brotherhood of Teamsters v. United States, 
431 U.S. 324 at 353 ( 1 977 ). A senior­
ity system is not bona fide and thus not 
lawful if its genesis, maintenance, or 
operation was affected by intentional 
discrimination. In " [d]etermining whether 
invidious discriminatory purpose was a 
motivating factor [it is necessary to make] 
a sensitive inquiry into such circumstan­
tial and direct evidence of intent as may 
be available." A r 1 _i n £ t o n _H e j,£ h t s_ v .
Metropolitan Housing Corp. , 429 U.S 252,
266 (1977).

Like other provisions of section 
703(h), the provision immunizing discrimi­
nation —  the provision immunizing "bona 
fide seniority systems" creates an affirma­



60

tive defense by which an employer or 
union may demonstrate that its system is 
bona fide and lawful even though the 
system has a discriminatory effect. 
Requiring the defendants to bear this 
burden of persuasion is consistent with the 
intent of Congress', which determined that 
"a 'broad approach' to the definition of 
equal employment opportunity is essential 
to overcoming and undoing the effect of 
discrimination." County of Washington v. 
Gunther, 49 (JSLW 4623 ( 1 981 ).

The overtly racist practices of the 
Company and Unions, their actions which, at 
critical times in the development of the 
seniority system, promoted segregation, the 
serious adverse consequences of the system 
upon the employment opportunities of 
blacks, and the general lack of justifica­
tion or rationality for their acts mani­



61

festly lead to the conclusion that the 
seniority system was not bona fide, and 
differences in treatment thereunder were 
the result of intentional discrimination.

The Company and Unions responsible for 
the seniority system each engaged in 
blatantly discriminatory practices during 
the period when the seniority system was 
developed. "[T]here is a high probability 
that where [an institution has] effectu­
ated an intentionally segregative policy in 
a meaningful portion of [its system], 
similar impermissible considerations 
have motivated their actions in other areas 
of the system." Keyes v. School District 
No 1 , 413 U.S. 1 89, 208 ( 1 973 ). Moreover,
during the period when the plant was 
unionized in 1941 and during the period 
when in the Steelworkers1 unit the impor­
tance of seniority and departmental struc­



62

ture greatly increased, the Unions and the 
Company took a series of actions which
increased the number of one-race depart-

ments in the plant. Where a sequence of

events leads inevit ably to in creased

segregation and where the actors involved

constantly refer to race in making deci­
sions, then the racial purpose of the 
actors is manifest. This conclusion is 
buttressed by the fact that the manner of 
the division of the plant into bargaining 
units in 1941 was irrational and contrary 
to NLRB principles.

In examining whether a specific act 
was undertaken with an invidious motive, 
it is essential to determine whether the 
act "bears more heavily on one race than 
another," Washington v. Davis, 426 U.S 229, 
242 (1976). A showing of substantial
racial "imbalance is often a telltale sign



63

of purposeful discrimination," Teamsters v. 
United States, 431 U.S at 339 n. 20. On 
the effective date of Title VII 96% of the 
employees in the Bessemer plant were 
located in racially identifiable depart­
ments —  black workers were concentrated 
in those departments and jobs with the 
lowest earnings while white workers were 
concentrated in those departments with the 
highest earnings.

II.
If a district court "premisefs] its 

... finding[s] ... on an erroneous inter­
pretation of the standard to be applied 
. . . ," the clearly erroneous rule does not 
apply and the findings may not stand. 
United States v. Parke, Davis_S_Co., 
362 U.S. 29, 44 (1960). The findings
of a trial court based on a "paper case" do 
not carry the same weight on appellate



64

review as those based on oral evidence. 
The Fifth Circuit properly exercised 
appellate review by reversing the legal 
error of the district court and by conclu­
ding that a review of the documentary and 
other evidence "leaves us witn the definite 
and firm conviction that a mistake nas been 

made."

A R G U M E N T

I. THE FIFTH CIRCUIT CORRECTLY HELD 
THAT THE SENIORITY SYSTEM WAS 
INTENTIONALLY DISCRIMINATORY AND 
THEREFORE NOT PROTECTED BY SECTION 
703(h) OF TITLE VII.

A. Section 703(h) Must Be Inter- 
£ reted and Applied in a Manner 
Consistent with the History and 
Purposes Underlying Title VII.

For more than a hundred years after 
the Emancipation Proclamation, the American 
workplace was marked by deliberate prac­
tices designed to restrict black workers to



65

specific inferior positions and to exclude
them altogether from desirable, skilled,

64./
high paying jobs. Judicial findings
of exclusion of blacks from the skilled 
crafts, for instance, "are so numerous as 
to make such exclusion a proper subject for 
judicial notice." United Steelworkers of 
America v. Weber, 443 U.S. 193, 198 n. 1
(1979), and cases cited therein. Similar-

64/ For a full discussion of the history 
of blacks in the American workplace, see S. 
Spero and A. Harris, The Black Worker 
(Atheneum ed. 1974). See also, G. Myrdal, 
An American Dilemma at 1079-1124 (Harper & 
Row ed. 1962). A thorough discussion of 
black workers during the period from World 
War I through World War II is found in R. 
Weaver, Negro Labor, A National Problem 
(1946), and of blacks in labor unions in R. 
Marshall, The Negro and Organized Labor 
( 1965 ); R. Marshall and V. Briggs, The 
Negro and Apprenticeship (1967); and H. 
Northrup, Organized Labor and the Negro 
(1944). For more recent discussions, see 
H. Hill, Black Labor and the American Legal 
System: Race, Work and the Law (1977), and 
W. Gould, Black Workers in White Unions 
(1977).



66

judicial findings of racial discrimination 
and exclusion have repeatedly been made 
with regard to some forms of public employ­
ment as well. See Detroit Police Officers 
Ass’n v. Young, 608 F.2d 671, 690 (6th Cir. 
1979), cert, denied, 101 S. Ct. 783 
(1981), and cases cited therein (law 
enforcement agencies).

Where black workers were not shut out 
altogether by employers or unions, they 
were set aside often in segregated locals 
and separate departments, with little or no 
opportunity for advancement. In many 
industries, particularly in the South, 
seniority systems were designed and manip­
ulated to protect the favored position of 
white employees and to keep blacks in 
dead-end jobs and segregated departments. 
For example, in the decades following the 
Civil War many companies, including some



67

which had previously owned slaves, hired 
blacks to work on the railroads at lower 
wages than those paid whites. The all-white 
unions, rather than admitting blacks to 
their membership and demanding equal wages 
for all employees in the same job cate­
gory, demanded instead that black railroad 
workers be prevented from using their 
accrued seniority rights to obtain better 
runs and to advance to higher job classifi­
cations. See S. Spero and A, Harris, The 
Black Worker -at 286-315 (Atheneum ed. 
1974); H. Hill, Black Labor and the Ameri­
can Legal System: Race, Work, and the Law 
at 334-72 (1977). Although the overt
racial bars have since been removed, the 
resulting seniority systems are still in 
effect today. See, e.g., Sears v. Atchi­
son, T. & S.F. Ry. , 645 F. 2d 1365, 1371-74
(10th Cir. 1981). Similar practices of



68

racial gerrymandering, manipulation of 
seniority lines, and perversion of senior­
ity systems for racial reasons were common

6 5/
in other southern industries as well.
See H. Northrup, The Negro in the Papei- 
Industrv at 74-79 (1969); H. Northrup, The
Negro in the Rubber Tire Industry at 32-33, 
49-50 (1969); H. Northrup, The Negro in the 
Tobacco Industry at 26-30, 33-39, 40-41, 87 
(1970); C. King and EL Risher, The Negro in 
the Petroleum Industry at 28-29, 36-38
(1969); L. Rubin, The Negro in the Ship­
building Industry at 115-16, 127 (1970).
Cf. James v. Stockham Valves and Fittings

65/ "As black workers in the steel 
Industry, in pulp and paper manufacturing, 
in oil and chemical refineries, in tobacco 
factories and in other industries have 
learned, what exclusion is to the craft 
unions, separate lines of promotion ana 
seniority are to the industrial unions." 
H . Hill, Black Labor and the American 
Legal System, supra at 25.



69

Co., 559 F.2d 310, 347-53 (5th Cir. 1977), 
cert. denied, 434 U.S. 1034 ( 1978 ) (manu­
facturing); United States v. Georgia Power 
Co., 634 F.2d 929, 934-37 (5th Cir. 1981), 
cert. pending, sub nom, Electrical Workers 
Local No. 84 v. United States, 50 USLW 
3080 (August 25, 1981) (production and 
transmission of electrical power); Terrell 
v. United States Pipe & Foundry Co. , 64 4 
F.2d 1112 (5th Cir. 1981) (manufacturing). 
Thus, as this Court recognized in Team­
sters , there are "seniority systems " [which 
are] themselves 'racially discriminatory1 

or had their 'genesis in racial discrimi­
nation' ...." 431 U.S. at 346 n. 28, 
quoting Quarles v. Philip Morris, Inc., 279 
F. Supp. 505, 517 (E.D. Va. 1968).

The Civil Rights Act of 1964 was the 
first comprehensive federal legislation 
ever to address the pervasive problem of



70

discrimination against blacks in modern 
American society. See M. Sovern, Legal 
Restraints on Racial Discrimination in 
Employment 8 (1966). Extensive hearings
had focused the attention of Congress 
on the adverse social and economic conse­
quences of discrimination against blacks in

6 6/
employment and other fields, and when 
the House Judiciary Committee issued its 
report on the bill which became the Civil 
Rights Act of 1964, it clearly stated 
that a primary objective of the Act was to

66/ See, e.g., Hearings on Equal Employ­
ment Opportunity Before__the General
SubcomrrT. on Labor of the House Comm, on 
Education and Labor, 8 8th Cong., 1st Sess. 
3, 12-15, 47-48, 53-55, 61-63 (1963);
Hearings on Civil Rights Before Subcomm. 
No. 5 of the House Comm, on the Judiciary, 
8 8 th Cong., 1st Sess. 2300-03 (1963);
Hearings on Equal Employment Opportunity 
Before the Subcomm. on Employment and 
Manpower of the Senate Comm, on Labor and 
Public Welfare, 8 8 th Cong., 1st Sess. 
116-17, 321-29, 426-30, 449-52, 492-94
(1963 ) .



eliminate the effects of discrimination 
against black citizens:

In various regions of the country 
there is discrimination against some 
minority groups. Most glaring, 
however, is the discrimination against 
Negroes which exists throughout our 
Nation. Today, more than 100 years 
after their formal emancipation, 
Negroes, who make up over 10 percent 
of our population, are by virtue of 
one or another type of discrimination 
not accorded the rights, privileges, 
and opportunities which are considered 
to be," and must be, the birthright of 
all citizens.

* * *

No bill can or should lay claim 
to eliminating all of the causes and 
consequences of racial and other types 
of discrimination against minorities..

It is, however, possible and 
necessary for the Congress to enact 
legislation which prohibits and pro­
vides the means of terminating the 
most serious types of discrimination..

H.R. Rep. No. 914, 8 8th Cong., 1st Sess.
(1963), reprinted in EEOC, Legislative
Historv of Titles VII and XI of Civil
Rights Act of 1964 at 2018.

In United Steelworkers of America v.



72

Weber, 443 O.S. 193 (1979), this Court
reviewed the legislative nistory and 
concluded that "Congress' primary concern 
in enacting the prohibition against racial 
discrimination in Title VII of the Civil 
Rights Act of 1964 was with 'the plight of 
the Negro in our economy.'" Id. at 202, 
quoting 110 Cong. Rec. 6548 (remarks 
of Sen. Humphrey). Congress recognized 
that blacks were largely relegated to 
unskilled and semi-skilled jobs, and that 
since the 1940s the relative position of 
the black worker had steadily worsened. 
Id. Congress further recognized that, 
unless this trend were reversed, the goal 
of the Civil Rights Act —  "the integra­
tion of blacks into the mainstream of 
American society" —  could not be achieved. 
Id. at 202-03. Therefore,

it was clear to Congress that "the 
crux of the problem [was] to open 
employment opportunities for Negroes



73

in occupations which have been tradi­
tionally closed to them," [110 Cong. 
R e c .] at 6548 (remarks of Sen. 
Humphrey), and it was to this problem 
that Title VII1s prohibition against 
racial discrimination in employment 
was primarily addressed.

* * *
[The enactment of Title VII was] 

triggered by a Nation's concern over 
centuries of racial injustice and 
[was] intended to improve the lot of 
those who had "been excluded from the 
American dream for so long," 110 
Cong. Rec., at 6552 (remarks of Sen. 
Humphrey) .. . .

Id. at 203-04.
Title VII v/as designed to provide 

powerful and effective remedies for these 
critical social problems. As this Court 
has consistently held, "in enacting Title 
VII of the Civil Rights Act of 1964, 
Congress intended to prohibit all practices 
in whatever form which create inequality in 
employment opportunity due to discrimina­
tion on the basis of race, religion, sex, 
or national origin." Franks v . Bowman



- 74

Tr ansoortation Co. , 424 U.S. 747, 753
(1976), and cases cited therein; County 
of Washington v. Gunther, 49 USLW 4623, 
4623 (1931), The sweeping terms, of
the statutory prohibition of discrimination 
reflect the congressional purpose: it is
unlawful "to fail ... to hire or to dis­
charge ... or otherwise to discriminate ... 
with respect to ... compensation, terms, 
conditions, or privileges of employment," 
or "to limit, segregate, or classify ... in 
a_ny__w_ay that would deprive or tend to 
deprive any individual of employment 
opportunities or otherwise adversely affect 
his status." 42 U.S.C. § 200Ge-2(a)
(emphasis added). "As Congress itself has 
indicated, a 'broad approach' to the 
definition of equal employment opportunity 
is essential to overcoming and undoing the 
effect of discrimination." County o f



—  r*
-  1 0  -

Washington v . Gunther? 49 USLW at 4 628 , 
quoting S . Rep, No. 867, 88th Cong,, 
2d Sess■ 12 (1964),

In § 703(h), Congress provided a
limited exemption from this broad prohibi­
tion of discriminatory practices. As the 
Court stated in Teamsters, this provision 
"does not immunize all seniority systems. 
It refers only to 'bona fide' systems, 
and a proviso requires that any differences 
in treatment not be 'the result of an 
intention to discriminate because of 
race....’" 431 IJ.S at 3 53. In California
Brewers Association v. Bryant, 444 U.S 598
(1980), the Court reiterated its view 
that § 703 (h) must not "be given a scope
that risks swallowing up Title VII's 
otherwise broad prohibition of practices, 
procedures, or tests' that dispropor­
tionately affect members of those groups



that the Act protects.” I d. at 608. The 
Court’s interpretation of § 703(h) thus
accords with the longstanding principle of 
statutory construction that a remedial 
statute should "be ghven a liberal inter 
pretation ... [and] exemptions from its 
sweep should be narrowed and limited to 
effect the remedy intended," Piedmont & 
Northern R . Co. v » ICC f 28o U .&. 299/
311-12 (1932), See also? Group Life and
Health Insurance Co. v. Roval Drug Co.f 440 
U.S. 205/ 231 (1979); Abbott Laboratories
v . P o r t_l.fi n d__R et_ _ai_ i_s_ t_s__Aŝ s_̂ _n ,
425 U.S. 1, 12 (1976); Peyton v. Rowe, 391
U.S. 54, 65 (1968), Like the general prohi­
bitions of discrimination contained in 
§§ 703(a) and (d), the exception provided
by § 703 (h) "must ... be read against the
background of the legislative history 
of Title VII and the historical context



77

from which the Act arose,” United Steel­
workers v. Weber, 443 U.S. at 201, and it 
must be interpreted in a manner which does 
not " 'bring about an end completely at 
variance with the purpose of the statute'” 
.... IcL at 202, quoting United States v. 
Public Utilities Commission, 345 U.S. 295,
315 (1953). In view of the broad approach
adopted by Congress, the Court "must ... 
avoid interpretations of Title VII that 
deprive victims of discrimination of a 
remedy, without clear congressional man­
date." County of Washington v. Gunther, 49 
USLW at 4628.

The importance of seniority rights in 
the modern workplace underscores the 
proper construction of § 703(h) as a narrow 
exception which does not defeat the 
fundamental purpose of Title VII. As the 
Court stated in Franks v. Bowman Trans-



78

portation Co,, supra:
Seniority systems and the enti­

tlements conferred by credits earned 
thereunder are of vast and increasing 
importance in the economic employment 
system of this Nation.... Seniority 
principles are increasingly used to 
allocate entitlements to scarce 
benefits among competing employees 
("competitive status" seniority) and 
to compute noncompetitive benefits 
earned under the contract of employ­
ment ("benefit" seniority).... We have 
already said about "competitive 
status" seniority that it "has become 
of overriding importance, and one of 
its major functions is to determine 
who gets or who keeps an available 
job. ... More than any other provi­
sion of the collective [-bargaining] 
agreement ... seniority affects the 
economic security of the individual 
employee covered by its terms....

424 U.S. at 766 (citations omitted). See
also, Cooper and Sobol, Seniority and
Testing Under Fair Employment Laws; A
General Approach To Objective Criteria of
Hiring and Promotion, 82 Harv. L. Rev.
1598, 1601-07 (1969).

This Court recognized in Franks that,
because seniority rights are so important,



79

the victims of illegal racial discrimina­
tion are presumptively entitled to awards 
of retroactive seniority which will, 
insofar as possible, restore them to 
the positions they would have held in the 
absence of discrimination. Seniority 
relief therefore may be denied "'only for 
reasons which, if applied generally, would 
not frustrate the central statutory pur­
poses of eradicating discrimination through­
out the economy and making persons whole 
for injuries suffered through past dis­
crimination.'" 424 U.S. at 771, quoting 
Albemarle Paper Co. v. Moody, 422 U.S. 405, 
421 (1975). For the same reasons, § 703(h) 
is properly interpreted in a manner which 
both recognizes the intent of Congress 
to protect seniority systems which meet 
the statutory criteria from alteration, 
and does not undermine the fundamental



8 0

purposes of Title VII. Section 703(h) 
was not intended to be an instrument for 
depriving black workers of the seniority 
rights which are essential if they are to 
achieve their rightful place in the 
mainstream of American society.

B. The Seniority System Was Not Bona 
Fide/ and Differences in Treat­
ment Thereunder Were the Result 
of Intentional Discrimination
In Teamsters, this Court

construed § 703(h) of Title VII, which
reads in pertinent part,

it shall not be an unlawful employment practice for an employer to apply 
different standards of compensation, 
or different terms, conditions, or 
privileges of employment pursuant to a 
bona fide seniority ... system, ... provided that such differences are not 
the result of an intention to dis­
criminate because of race ....

This section, it was held, meant that a
seniority system is not unlawful under
Title VII merely because it perpetuates



81

past discrimination, 431 U.S. at 353. The
Court noted that § 703(h) provides a
"measure of immunity" for such systems.
This Court cautioned, however, that:

To be sure § 703(h) does not immunize 
all seniority systems. It refers 
only to "bona fide" systems, and a 
proviso requires that any difference 
in treatment not be "the result of an 
intention to discriminate...."

Id. The system challenged by the Govern­
ment in Teamsters was found to be bona 
fide, in part, because the system applied 
equally to all employees, did not have its 
genesis in racial discrimination, had not 
been negotiated or maintained with a 
discriminatory purpose, and the structure 
of its bargaining units was rational. 431 
U.S. at 355-56. It is clear that, after

67/ Such systems, the court noted, " [wjere 
it not for §703 (h), ... would seem to fall 
under the Griggs rationale." Id. at 349.



82

the decision in Teamsters, a court must
examine the "totality" of the circumstances
surrounding the adoption or maintenance of
a seniority system, and determine whether
the system was designed with an intent to 

68/discriminate. The Fifth Circuit prop-

68/ There is no requirement that a plain­
tiff show that the challenged action 
"rested solely on racially discriminatory 
purposes." Arlington Heights v. Metropoli­
tan Hous ing C o r p 429 U.S. 252, 265
(1977). See also Personnel Administrator 
of Massachusetts v. Feeney, 442 U.S 256, 
276 (1979)("The dispositive question ... is 
... whether ... a ... discriminatory 
purpose has, at least in some measure, 
shaped [the challenged decision].") That 
such a show ing would not be required is 
even more true of a Title VII case than 
in a case premised upon a constitutional 
violation in view of the rejection of the 
McClellan Amendment which would have 
added the word "solely" to the language 
of the Act. See 110 Cong. Rec. 13837-38. 
Senator Case made the following observa­
tion during the debate on this amendment:

The difficulty with this amend­
ment is that it would render Title 
VII totally nugatory. If anyone ever 
had an action that was motivated 
by a single cause, he is a different 
kind of animal from any I know of.



83

properly applied the law, by looking to the 
totality of the circumstances and examining 
in particular the features of the system 
that this Court found significant in 
Teamsters. App. 9.

This Court has counseled that, since 
evidence of discriminatory intent is seldom 
apparent or direct, the "proof of discrimi­
natory intent must necessarily usually rely 
on objective factors...." Personnel Admin­
istrator of Mass, v._Feeney, 4 2 2 U . S
256, 279 n. 24 (1979). See, Washington

68/ Continued
But beyond that difficulty, this 
amendment would place upon persons 
attempting to prove a violation of 
this section, no matter how clear the 
violation was, an obstacle so great as 
to make the title completely worthless.

Id. at 13837. Cf. United States v. Bd. of 
Commr's of Indianapolis, 573 F.2d 400, 411
n. 27 (7th Cir.), cert, denied, 439 U.S. 
824 (1978), where the court noted, "an
illicit motive may be only subordinate and 
still affect the outcome of a decision."



84

v. Davis, 426 U.S. 229 , 242 (19 7 6) (". ..
an invidious discriminatory purpose may 
often be inferred from the totality of 
the relevant facts See Brown v.
Gaston County Dyeing Machine C o . , 457
F.2d 1377, 1382 (4th Cir. ), cert, denied,
409 U.S. 982 (1972); United States v. Bd. 
of School Commr's of Indianapolis, 573 F.2d 
400, 412 (7th Cir.), cert, denied, 439 U.S 
824 (1978). In Arlington Heights v. Metro­
politan Housing Development Corp., 429
U.S. 252, 266-67 (1977), the Court summar­
ized some evidentiary sources appropriately 
considered:

Determining whether invidious 
discriminatory purpose was a motivat­
ing factor demands a sensitive inquiry 
into such circumstantial and direct 
evidence of intent as may be avail­
able. The impact of the official 
action -- whether it "bears more 
heavily on one race than another," 
Washington v. Davis, [426 U.S, 229], 
242 [(1976)] —  may provide an impor­
tant starting point. Sometimes 
a clear pattern, unexplainable on



85

grounds other than race, emerges from 
the effect of the state action even 
when the governing legislation appears 
neutral on its face....

The historical background of the 
decision is nmaker's purposes.... 
Departures from the normal procedural 
sequence also might afford evidence 
that improper purposes are playing 
a role. Substantive departures too 
may be relevant, particularly if the 
factors usually considered important 
by the decisionmaker strongly favor 
a decision contrary to the one reached.

Id. at 266-67 (citations and footnotes
omitted).

1 . Burden of Proof. Like the 
other provisions of § 703(h), the provision 
immunizing "bona fide seniority systems" 
creates an affirmative defense by which an 
employer or union may demonstrate that its 
practices are lawful even though they have 
a discriminatory effect. Griggs v. Duke 
Power Co., 401 U.S. 424, 431-32 (1971);
Albemarle Paper Co. v. Moody, 422 U.S. 405,



86

425 (1975); County of Washington v .
Gunther, 49 USLW 4623, 4625-26 (1981). Cf. 
Corning Glass Works v. Brennan, 417 U.S. 
188, 196-97 (1974). Thus, where the plain­
tiffs establish that a seniority system has 
a discriminatory impact, the burden shifts 
to the employer or union to demonstrate 
that the system is bona fide and that
differences in treatment thereunder are not

69/the result of intentional discrimination.

69/ This placement of the burden of 
persuasion is entirely appropriate. The 
burden properly rests upon the party 
claiming "the benefits of an exception to 
the prohibition of a statute." United 
States v. First City National Bank, 
386 U.S. 361, 366 (1967). Moreover, having 
created, operated, and maintained the 
seniority system, the defendants have 
superior access to the relevant evidence, 
and they have a far better opportunity 
than the plaintiffs to develop the perti­
nent facts. Cf. Teamsters, 431 U.S. at 359 
n.45 "[p]resumptions shifting the burden of 
proof are often created to reflect judicial 
evaluations of probabilities and to conform 
with a party's superior access to the



87

The district court so held in the present
70/

case. App. 25.
2. Racial practices of the

Defendants. In assessing whether an
institution has acted with a discriminatory 
purpose the "historical background... is

69/ Continued
proof" (citations omitted). Finally, 
requiring the defendants to bear the burden 
of persuasion with respect to this affirma­
tive defense is fully consistent with 
Congress' "'broad approach' to the defini­
tion of equal employment opportunity ...." 
County of Washington v. Gunther, 49 USLW at 
4628 quoting S. Rep. No. 867, 88th Cong., 
2d Sess. 12 (1964). "The structure of 
Title VII litigation, including presump­
tions, burdens of proof, and defenses, has 
been designed to reflect this approach." 
Id.
70/ The Fifth Circuit did not address 
the question. Since the record contains 
ample proof that the seniority system was 
not bona fide and that its adverse effects 
on black employees were the result of 
intentional discrimination, the system in 
this case would be unlawful even if the 
burden of persuasion were on the plain­
tiffs.



88

one evidentiary source, particularly if it 
reveals a series of ... actions taken for 
invidious purposes." Arlington Heights, 
429 U.S. at 267. Here the Company and the 
Unions were engaged in overtly racist
behavior at the very time that the senior-

11/ity system was developed. ” [T ]here 
is high probability that where [an institu­
tion has] effectuated an intentionally 
segregative policy in a meaningful portion 
of [its system], similar impermissible 
considerations have motivated their actions 
in other areas of the system." Keyes 
v. School District No. 1, 413 U.S. 189, 208 
(1973); Columbus Board of Education v . 
Penick, 443 U.S. 449 , 458 n. 7 ( 1 979).

71 / Respondents use the term "racist" 
advisedly to describe practices based 
clearly and openly on race. See, e.g., pp. 
13-17, 21-23, supra.



89

Each of the three institutions, 
Pullman-Standard, Machinists and Steel­
workers, responsible for the develop­
ment of the seniority system engaged in 
blatantly racist practices. Virtually 
every conceivable employment decision made 
by Pullman-Standard was influenced by race. 
For example, the race of an employee 
dictated the job he was assigned, the 
facility he could use, the badge number he 
had, and the hourly wage he received. See 
Section C.1. a, supra. Also "racial 
segregation was extensively practiced . . . 
in the local union hall [of the Steel­
workers]" App. 39. Black members of the 
Steelworkers Local at the Bessemer plant 
had their "place." Until 1974 union 
members were segregated at meetings and the 
restrooms remained segregated until the 
integration of restrooms at the Company



- 90 -

in 1967. Until well after the passage of 
Title VII blacks always served in two 
specific positions out of the five elected 
officer positions in the Local, see p. 16, 
supra. Most importantly, in the 1950s and 
1960s, white union officials refused to

72/process racial grievances. While blacks 
had their "place” within the Steelworkers,

72/ The district court stated tht "[i]t is not without significance that blacks, 
constituting approximately half the work 
force, have played a major role in the 
formation and direction of the USW local, occupying positions as officers, committee­
man, and negotiators. While not foreclos­
ing the possibility of discriminatory 
conduct ... these facts are certainly 
relevant to the issues before the court." 
App. 34 n.14. However, black partici­
pation must be placed within the context of 
the segregation at the plant and the 
union hall, the refusal of white officials 
to press racial grievances, and the 
acquiescence by black officials because "it 
wasn't time for it," see n.22, supra. See 
also Castaneda v. Partida, 430 U.S. 482, 
499 (1977) ("... it would be unwise topresume as a matter of law that human



they had no place within the Machinists.
Until 1948 the Machinists limited their
membership to "qualified white candidates,"
see section C.1.c, supra.

3. Development and Maintenance of the 
Seniority System

If a seniority system's "genesis" was 
affected by a discriminatory purpose then 
the system would not receive the protection

- 91 -

72/ Continued
beings of one definable group will not 
discriminate against other members of 
their group.") See also opinion of Mars­
hall, J., concurring: "Social scientists
agree that members of minority groups 
frequently respond to discrimination 
and prejudice by attempting to disassociate 
themselves from the group, even to the 
point of adopting the majority's negative 
attitudes towards the minority. Such 
behavior occurs with particular frequency 
among members of minority groups who have 
achieved some measure of economic or 
political success and thereby have gained 
some acceptability among the dominant 
group," (footnotes omitted). I_d. at 
503.



92

of §703(h ) because the "differences" in 
conditions of employment would be "the 
result of an intention to discriminate 
because of race,..." As the Court stated 
in Teamsters, "a seniority system that 
perpetuates the effects of pre-Act dis­
crimination cannot be bona fide if an 
intent to discriminate entered into its 
very adoption." 431 U.S. at 346 n.28.

Where, as here, the seniority system 
developed in a historical context of 
"actions taken for invidious purposes," 
there is a strong inference that these 
practices affected the system. Arlington 
Heights Metropolitan Housing Corp., 429 
U.S. at 266? cf., Strauder v. West Vir­
ginia, 100 U.S. 203, 205 (1880).'

73/

73/ The Steelworkers suggest in their 
brief that evidence of historical discrimi-



93

This record demonstrates that "an 
intent to discriminate entered into

73/ Continued
nation prior to and during the creation of 
the seniority system is not relevant to the 
bona fides question. Brief 40-41 n. 
43. This position is contrary to the view 
this Court has taken in a number of cases 
stressing the relevance and importance of 
placing the questioned acts within their 
historical context. Arlington Heights, 
supra; Columbus Bd. of Educ. v. Penick, 443 
U.S. 449r 456 (1979); Dayton v. Bd. of Educ. 
v. Brinkman, 443 U.S. 526, 537 (1979);
City of Mobile v. Bolden, 446 U.S. 55,
59 (1980). Several courts of appeals have 
also viewed such evidence as relevant. 
See, e.g., Lee v. Washington County Bd. of 
Educ., 625 F .2d 1235, 1237, (5th Cir.
19 8 0 ) ; Barnes v. Jones County School 
District, 554 F.2d 804 (5th Cir. 1977);
Resident Advisory Bd v. Rizzo, 564 F. 2d 
126, 144 (3d Cir. 1977). The petitioners
simply seek to evade the fair inference to 
be drawn: in an era when racial considera­
tions permeated almost every employment 
decision, it requires only "common sense" 
to reject any notion that the seniority 
system escaped the taint of racial dis­
crimination. Keyes, 413 U.S. at 201.
There is a logical inference of discrimina­
tion, as the district court found, from the 
evidence that [b]oth in 1941 and in 1954, 
racial segregation was extensively prac­
ticed at the ... plant [and] in the 
local union hall. ..." App. 39.



94

[the seniority system's] very adoption." 
431 U.S. at 346 n. 28. The district court 
failed to consider adequately the "causa­
tive relationship" between the invidious 
discriminatory practices of the Company and 
the Unions and the development of the 
seniority system. Instead it improperly 
limited analysis of genesis "to the extent 
of racially discriminatory practices at 
the time the seniority system came into 
existence." App. 38. The court refused to 
consider the racial motivation of one of
the parties responsible for the adoption of21/the seniority system, the Machinists,

74/ The district court did not consider 
the motivation of the Machinists because of 
its view that neither the Steelworkers nor 
the Company can be "£ix[ed] with responsi­
bility... for whatever racial discrimina­
tion may have existed in the IAM...." App. 
42. This was error. First, the seniority 
system throughout the plant, including the 
division between bargaining units, was



95 -

and the nature of the division of the plant
21/into bargaining units. Furthermore,

the court's failure to apply the proper 
standard for determining and evaluating 
evidence relevant to genesis resulted in 
the court wrongly concluding that although

74/ Continued
before the Court. See pp. 4-5, supra. 
Second, whether a seniority system is 
lawful depends upon whether an invidious 
purpose affected its adoption; if one of 
the parties creating the system acted with 
deliberate discriminatory purpose then the 
system is unlawful. Third, the relative 
responsibility of the Machinists, Steel­
workers and Pullman-Standard is not rele­
vant to the stage 1 or liability phase 
which was tried below, but may be relevant 
to the stage 2 or remedy phase of this 
which remains to be tried. JA 30 (The 
issue of monetary relief was "severed for 
trial, if necessary, at a subsequent 
date"). Cf. Teamsters, 431 U.S at 360.
75/ The district court erroneously 
concluded that the NLRB certification of 
the bargaining units, in effect, insulated 
this division of the jobs from charges that 
the parties were racially motivated. 
See, section 5, infra.



96 -

"two times of 'origin' might be examined... 
1941-42, when union organizational efforts 
were finally successful... or 1954, when 
the seniority system under attack in this 
litigation became essentially fixed...[,] 
[s]election of the more appropriate date is 
not... critical under the circumstances of 
this case, for the evidence reflects 
similar practices at both periods.'8 
App. 38-39. In fact, the analysis of 
the genesis of the system must cover the 
entire period from 1941 through 1954 
because the events in 1941-42 and the early 
1950s should be clearly distinguished.

The seniority system had its origin in 
1941 when several unions sought to repre­
sent employees at the Bessemer plant. The 
major focus —  and for this case the rele­
vant issue —  in the 1941 NLRB hearing was 
the proposed bargaining units sought by the



97

Machinists and the Steelworkers r see 
section B. 2. b, supra. Consistent with 
its policy of excluding blacks from member­
ship, the Machinists sought an all-white 
bargaining unit. While the Machinists 
sought only those jobs staffed by white 
workers, in its November 1941 certification 
the NLRB designated jobs which were staffed 
by blacks and which were functionally 
related to those claimed by the Machinists. 
Id. The Machinists, with the agreement of 
the Company and Steelworkers, transferred 
to the Steelworkers’ unit the jobs con­
taining all 24 of the black employees who 
had been placed by the NLRB within the 
Machinists' unit. As a result of this

76/

76/ In 1941 the Steelworkers were known 
as the Steel Workers Organizing Committee 
or "SWOC". Subsequently, the name was 
changed to the United Steelworkers of 
America. App. 35, n. 15.



98

gerrymandering, the Machinists obtained an 
all-white unit, and created five one-race 
departments which had not existed prior to 
unionization. See section B.2.b, supra.

As the Fifth Circuit concluded, "the 
IAM manifested an intent to selectively 
exclude blacks from its bargaining unit, 
NLRB certification considerations notwith­
standing. That goal was ultimately 
reached when maneuvers by the IAM and USW 
resulted in an all-white IAM unit." App. 
14-16. The Machinists' unit remained 
all-white until 1970. App. 7. The 
division of the plant into bargaining units 
meant that the jobs in the IAM unit would 
remain all-white since, as a practical 
matter, a worker spent his entire career, 
unless he progressed to management, on the 
jobs in one bargaining unit, see section 
B^3.a, supra.



99

The racially motivated creation of the 
Machinists' bargaining unit, which resulted 
in the deliberate carving out of an all- 
white unit, creates a presumption that 
other parts of the seniority system which 
disadvantage blacks are not "adventitious." 
Keyes v. School District No. 1, 413 U.S. at 
208 ; Columbus Bd. of Education v Penick, 
443 U.S. at 458 n 7. Moreover, the accom­
modation by the Company and the Steel- 

77 /
workers to the racist plans of the 
Machinists is directly relevant to asses­
sing their intent during the development of

77/ We note that the Steelworkers had a 
legitimate interest in expanding their 
bargaining unit, whereas the Company had no 
legitimate interest in agreeing to the 
balkanization of its departments according 
to racial lines. Nevertheless, the Steel­
workers, who were aware of the Machinists' 
policy of excluding blacks, see pp. 21-22, 
supra, acquiesced in the IAM's policy by 
agreeing to the deliberately discriminatory 
transfer of jobs in December 1941.



100

the seniority system. See City of Memphis
v. Greene, 49 USLW 4389, 4393 nn. 24, 26

78/
(1981).

78/ Under some circumstances, the lower 
courts have found evidence of accommodation 
to the racist goals of others to be suffi­
cient proof in itself of invidious motiva­
tion. See, e.g., Arthur v. Nyquist, 573 
F .2d 134, 144 (2d Cir. 1978) (finding 
intentional discrimination because the 
school board was "strongly influenced by 
residents who opposed integrated school- 
ing"); Resident Advisory Board v. Rizzo, 
564 F.2d 126, 144 (3d Cir. 1977) ("shift in 
the City's position [following] protests by 
demonstrators manifesting racial bias" 
evidences a constitutional violation). 
Accord Davis v. Schnell, 81 F. Supp. 
872, 875, 880-82 (S.D. Ala.), aff'd, 336 
U.S. 933 (1949), cited with approval 
in Arlington Heights, 429 U.S at 267? 
United States v. Board of School Commis- 
sioners, 573 F.2d 400, 412 n. 31 (7th Cir. 
T978 )? " United States v. School District 
151, 301 F. Supp. 201 , 2130 (N.D. 111.
1969) , aff1d , 432 F .2d 1147 (7th Cir.
1970) ? Hoots v. Commonwealth of Pennsyl­
vania, 359 F. Supp. 807, 822-23 (W.D. Pa. 
1973), appeal dism'd, 495 F.2d 1095 (3d 
Cir.), cert. denied, 419 U.S. 884 (1974) 
("A school board may not, consistently 
with the Fourteenth Amendment . .. permit 
educational choices to be influenced by a 
policy of racial segregation in order to 
accommodate community sentiments").



101

After the unionization of the plant, 
another critical period in the development 
of the seniority system occurred in the 
mid-1 950s. At that time the importance 
of seniority increased substantially within 
the Steelworkers' unit for several reasons:
(1) the scope of the seniority was broad­
ened from "occupational" to "departmental,"
(2) the discretion of the Company to 
transfer employees without any loss of 
seniority to the employee was substantially 
reduced, and (3) the use of seniority was 
extended to the determination of promo­
tions, see p. 39, supra. Just before the 
important switch in 1954 to departmental 
seniority, the Steelworkers and the Company 
created seven new one-race departments 
within the Steelworkers' bargaining unit: 
Air Brake Pipe Shop, Boilerhouse, Die and 
Tool, Janitors, Plant Protection, Power-



102

house, and Steel Miscellaneous, see section 
79/B ,3 . b, supra. All of the departments

were carved out of departments which con—80/
tained both white and black employees. Ici.

79/ The history of the Air Brake Pipe Shop 
Ti illustrative of the manipulation of 
departments at the plant. Before unioniza­
tion the Air Brake Pipe Shop was included 
within the racially mixed Steel Erection 
department. The jobs in this department 
were functionally related, see n.32, supra. 
As a result of the certification of the 
I AM, the Air Brake Pipe Shop became an 
all-white department within the IAM unit, 
see p. 32, supra. In 1944 when the IAM ceded several departments to the Steel­
workers the Air Brake Pipe shop was re­
turned to the Steelworkers unit and in 
1947 with the application of "occupational" 
seniority the Air Brake Pipe Shop was 
reabsorbed in the Steel Erection depart­
ment, see n.46, supra. Then in 1954 just 
before the return to departmental senior­
ity, the Air Brake shop was once again 
split from the Steel Erection department 
in order to form an all-white department. 
See p. 42, supra.
80/ The district court's brief discussion 
of the possible "rationality” of the 
creation of some of these departments (App. 
32) ignores the inference raised by the 
circumstances surrounding the creation of 
the one-race departments with attendant 
segregative effect. See pp. 121-22, 
infra.



103

The seniority system which was "fixed" 
by the mid-1950s had essentially developed, 
as the district court indicated, during 
two periods, the unionization process in 
1941 and the major changes in the applica­
tion of seniority within the Steelworkers' 
unit in the 1950s. During both these 
periods the number of one-race departments 
was substantially increased. The conse­
quences of the creation of the all-white 
I AM bargaining unit in 1941 and the crea­
tion of one-race departments within the 
Steelworkers' unit were continued by the 
seniority forfeiture provisions governing 
transfer between departments or bargaining 
units. These forfeiture provisions amount­
ed to a no-transfer rule, see section 

81/B.4, supra.

81 / The "lock-in" consequences for white 
workers within the Steelworkers' unit were



104

In 1968 the Company negotiated with 
the Department of Labor a "conditional 
memorandum of understanding to enhance 
opportunities of blacks." The implementa­
tion of the memorandum was frustrated by 
the refusal of the Unions to agree to its 
terms. Similarly? in 1972 the Unions 
refused to sign another agreement which was 
"to serve as a corrective action program" 
and which had been negotiated between the 
Labor Department and Pullman-Standard. 
Id. * 6

81/ Continued
much less severe than those for black 
employees not only because they were 
located in the higher-paying departments? 
but also because the higher-paying jobs 
within racially mixed departments were 
often reserved for whites. For example, as 
of 1 964, the median job class for all 95 
employees within the Forge department was
6, while the median job class for the 53 
blacks in the department was 2. Appendix 
B, Table 3.



105

Where a "sequence of events" leads 
inevitably to increased segregation and 
where the actors involved constantly refer 
to race in making decisions, then the 
racial purpose of the actors is manifest. 
Dayton Bd. of Education v. Brinkman, 443 
D.S. at 538; Columbus Bd. of Education
v ._Pe n i ck, 443 U.S at 564, n. 13; see
Arlington Heights, 429 U.S. at 267. The 
institutions —  the IAM, the Steelworkers, 
and the Company —  grafted the seniority 
system onto a plant structure which con­
tained numerous racially identifiable 
departments and then took a series of 
actions in 1941 and from 1952 through 1954 
which resulted in additional segregation. 
Moreover, the gerrymandering of departments 
at these times was not fortuitous but 
rather corresponded to significant develop­
ments in the seniority system which sub-



106

stantially affected the seniority and job
rights of employees. This manipulation by
the Company and Onions at critical periods
in the development of the seniority system
reflects and emphasizes the invidious

82/
purpose which affected the system.

4. Application of the Seniority 
System and its Effect. In Teamsters, the 
Court found the seniority system bona fide 
because, in part, the seniority system 
" [t]o the extent that it 'locks' employees 
into non-line-driver jobs, it does so for 
all. The city drivers .. who are dis­
couraged from transferring . .. are not all 
Negroes ...? to the contrary, the over-

82/ In Arlington Heights, this Court 
noted that if a restrictive zoning action 
had been taken immediately after a board 
learned of impending construction of 
integrated housing, a "far different case" 
would have been presented. 429 U.S at 267. 
See also Resident Advisory Bd. of Rizzo, 
564 F.2d at 144.



107 -

whelming majority are white," 431 U.S at 
83/355-56. Because the Teamsters case

involved only two "departments" (city 
and line drivers), the "locking-in" effect 
of the seniority system's restriction on 
transfers between the two "departments" 
did not disproportionately affect black 
workers, who were a minority of employees 
in the less desirable "department." Here, 
in contrast, the seniority system "locked- 
in" in the overwhelming majority of black 
workers into all black, or predominantly 
black, lower paying departments. There 
are two separate questions regarding the 
application or "neutrality": was the system 
applied equally and what were the racial

83/ In fact, of the 1284 individuals who 
were "locked "into the city-driver posi­
tions, 1,117 or 87% were white. 431 
U.S. at 342, n. 23.



108

consequences, or degree of adverse impact, 
of the system.

There is no question that before 1965 
the system was applied in a racially 
unequal manner. Even within a department 
in the Steelworkers’ unit, there were 
jobs reserved for "whites" and "colored," 
see p. 14 supra; App. 39. Black workers 
could not use their seniority to promote to 
the higher-paying "white" jobs, and the 
officials of the Steelworkers refused to 
process grievances based upon racial 
discrimination, see n.22, supra. The 
operation of a "dual" seniority system 
illustrates the racial bias of the Company 
and unions during the development and 
maintenance of the system.

In evaluating whether the adoption or 
continuation of the seniority system 
was affected by a discriminatory purpose,



109

the district court refused to look at the
84/

adverse impact of the system. App .
28-29. Even though the court noted that

84/ The district court stated that it 
would be a "misreading" of Teamsters to 
examine the degree of adverse impact, 
at least where the "rule affects signifi­
cant numbers of both white and black 
employees." App. 29. The court indicated, 
though, that if "a seniority rule were 
shown to penalize all blacks and no whites, 
the inference that the rule was racially 
motivated would seem compelled," ici. , but
—  not finding the "inexorable zero," —
the court rejected the relevance of 
the statistical evidence. This limited 
view of statistical evidence in cases of 
racial discrimination should have been 
ended by this Court's decisions in Casta- 
neda v. Partida, 430 U.S. 482, 497, n. 17
(1977) and Hazelwood School District v. 
United States, 433 U.S. 299, 311, n. 17
(1977). Moreover, nothing in Teamsters 
prevents a district court from examining 
the racial impact of a seniority system. 
Rather the Teamsters analysis fully sup­
ports such an examination. In Teamsters 
the Court determined that the "overwhelming 
majority" of those disadvantaged were white
—  a circumstance very different from this 
case, see section B, 5, supra — • and the court also stressed the importance of 
statistics in determining discriminatory 
purpose. 431 U.S. at 356, 339-40.



110

the "effect of the no-transfer rule ... may
well be .. .somewhat greater ... [on]
blacks than whites ....," the district
court concluded that "a study of relative
economic desirability [of the departments]

85/would be inappropriate." App. 30. As

85/ In its first decision in this case, 
the Fifth Circuit reversed the district 
court's conclusion that a showing of 
classwide economic harm is necessary to 
establish a prima facie case of discrimina­
tory departmental assignments. App. 83-84. 
The district court's ruling that a practice 
which continued the effects of discrimina­
tory departmental assignment was not 
unlawful unless there was attendant 
economic harm was held by the Fifth Circuit 
to be "inconsonant with the Act and its 
interpretive cases." I_d. This Court 
agreed in Teamsters; "Title VII provides 
for equal opportunity to compete for any 
job, whether it is thought better or worse 
than another," 431 D.S at 338, n.18 (empha­
sis in original).

In its subsequent opinion on the bona 
fides of the seniority system, the district 
court incorrectly reasoned that if proof of 
economic impact is not a necessary element



the Fifth Circuit ruled, the district court 
erred in refusing to evaluate the adverse 
impact of the system. The substantial 
adverse impact of the seniority system and 
the fact that in general blacks "were 
relegated to the least remunerative 
departments" provide critical evidence 
of the invidious purpose of the Company 
and Unions. App. 10-12.

For the racial impact of an act is an 
"important starting point" in determining

85/ Continued
in a prima facie case, then evidence of 
economic impact is not probative on the 
questiona of the motives of those who 
established the seniority system. App.
29-30. The "holding that the appellants 
need not show that they were assinged 
discriminatorily to less desirable depart­
ments in order to prove a prima facie case 
of racial discrimination cannot reasonably 
be construed to preclude consideration of 
the fact that by locking blacks into the 
least remunerative departments a greater 
impact was felt by blacks than by whites." 
App. 10.



112

the existence of discriminatory purpose. 
Personnel Administrator of Massachusetts 
v. Feeney, 442 U.S. at 279 n. 25. In
determining whether a specific act was 
undertaken with an invidious motive, it 
is essential to determine whether the act 
"bears more heavily on one race than 
another," Washington v. Davis, 426 U.S 229, 
242 (1976), cited in Arlington Heights,
429 U.S. at 266. Again in Teamsters, the 
Court stated that " [s]tatistics showing 
racial or ethnic imbalance are ... often a 
telltale sign of purposeful discrimina­
tion," 431 U.S. at 340 n.20, and that in 
some cases the use of statistics alone has 
been sufficient "to establish a prima facie 
case of [purposeful] racial discrimina­
tion," 431 U.S. at 339. Furthermore, proof 
that "actions hav [e] foreseeable and 
anticipated disparate impact [is] relevant



1 13

evidence to prove the ultimate fact, 
forbidden purpose." Columbus Bd. of 
Education v . Penick, 443 U.S. at 464;
Dayton Bd. of Education v. Brinkman, 443 
U.S at 536, n. 9; Keyes v. School District
No. 1_, 413 U.S. at 198; Washington v .
Davis, 426 U.S at 253. (Stevens, J .,
concurring).

In fact, the overwhelming majority of
employees at the plant were located in
racially identifiable departments —  those
departments where there was a "serious
disproportionality" in the racial composi-

86/tion of employees. In 1964, just be-

86/ This Court has indicated that if there 
is a "serious disproportionality" in the 
racial composition of employees as deter­
mined by a proper statistical analysis, 
then there may be either an inference of or 
the establishment of a prima facie case of 
purposeful discrimination. Hazelwood 
School District v. United States, 433 U.S 
at 3 TV, n̂  TT; see Castaneda v. Partida, 
430 U.S. at 497, n. 17. The Hazelwood -



114

fore the effective date of Title VII, 96% 
or 3727 of the 3875 employees were working 
in racially identifiable departments. See 
nn.58-60, supra. The racial identity of the 
departments was firmly established by 1956 
when the seniority system had reached the 
form in which it operated until the plant 
closed, see section , B. 5, supra; in 
1956 1355 or 86% of the 1579 employees were 
employed in racially identifiable depart-

87/ments. Appendix B, Table 2.

86/ Continued
Castaneda analysis has been applied to 
determine whether there is a "serious 
disproportionality" in the racial composi­
tion of a department. See Appendix B for 
a detailed description of the methodology.
87/ There were 28 departments in 1964 and 
29 departments in 1956, Appendix B, Tables 
1 and 2. According to the Castaneda - 
Hazelwood analysis, 19 departments in 1964 
and 18 departments in 1956 were racially 
identifiable. Id. In addition to those 
departments, there were three departments 
in 1964 Boilerhouse, Powerhouse, and



115

The racial staffing of the departments 
combined with the "lock-in" effect of the 
seniority forfeiture or "no-transfer" rule, 
see section B. 4 , supra, had a severe 
adverse economic impact on blacks. For
example, in 1964 eight of the 28 depart-

88/
ments had a median job class of 10 or 
above; of the 2545 white employees, 1959 or 
76.9% were in these "high ceiling" depart­
ments as compared to only 230 or 17.3% of 
the 1325 black employees. See Appendix B,

87/ Continued
Template, and four departments in 1956 
(Boilerhouse, Die and Tool (CIO), Power­
house, and Template) which had historic­
ally included employees of only one race, 
but which could not be subjected to the 
statistical determination of "identifiabil- 
ity" because of their size. Nonetheless, 
their racial composition fits the overall 
pattern of racial stratification at the 
plant.
88/ The average hourly rate for a job is 
determined by the job class assigned to the 
job, see n.61, supra.



116 -

Table 3, section B.5, supra. On the other 
end of the scale, departments which had a 
median job class below 5, the racial 
composition was reversed -- 443 or 21.9% of 
all blacks were located in these "low-ceil­
ing" departments as compared to only 177 or

89/5.7% of white employees. Id.-— 7

Finally, the continuing economic 
burden imposed by the seniority system on

89/ Unlike the situation in Teamsters, in 
this case black workers were not only 
largely excluded from the better-paying 
departments they were also the "overwhelm­
ing majority" in the lower-paying depart­
ments. In Teamsters, whites constituted
87% of the employees in the lower-paying 
city driver position, whereas here whites 
constituted only 29% of the employees in 
the lower paying departments even though 
they constituted two-thirds of the work­
force. Moreover, unlike Teamsters where
blacks and whites performed the same job in 
the lower paying department, at the Bessemer 
plant white workers were employed in the 
higher paying jobs in racially mixed 
departments. Thus, the effect of being 
limited to the lower-paying departments 
was not as severe for whites as it was for 
blacks.



117 -

black workers is illustrated by the base 
average hourly wages which in 1973 were 
paid to workers in the Steelworkers1 unit 
with more than six years of seniority: 551 
of 74.1% of all black employees compared to 
119 or 15.8% of all white employees earned 
less than $4.25 an hour, job class 8 or 
below; 634 or 80.7% of all white employees 
as compared to 192 or 19.9% of all black 
employees earned more than $4.40 an hour, 
job class 10 or above. JA 65. The base 
average hourly wage for black workers in 
the Steelworkers' unit was $4.14 as com­
pared to $4.45 for white employees. Id.

Black employees of Pullman-Standard 
clearly suffered substantial economic 
losses because of their historical exclu­
sion from the IAM bargaining unit. The two 
XAM departments, Maintenance (IAM) and 
Die and tool (IAM) were two of the higher



118 r

paying departments at the company. Appen­
dix B, Table 3. On the June 1, 1972
seniority list, the 139 employees in those 
departments included 128 whites and 11 
blacks, with every black in the unit having 
a seniority date no earlier than 1971. 
Plaintiffs' exhibit 9 (1974 Trial). The
average hourly base rate of employees in 
the I AM unit was $4.57, whereas blacks in 
the Steelworkers' unit averaged $4.14. See 
nn.62-63, and accompanying text. Section 
3.b.5. Thus, there was at least a $.43 
average hourly wage disparity between
workers within the Machinists' unit and90/
blacks in the Steelworkers' unit.

90/ The Company attempts to explain the 
substantial differences between the wages 
of black workers and white workers by 
referring to a chart prepared by the 
district court for its 1974 decision and to 
an exhibit introduced by the Company which 
purported to compare gross earnings of



119

5. Rationality of the Seniority 
System. In Teamsters, the Court ruled that 
the system was bona fide because, in part, 
it was "rational, in accord with the 
industry practice, and consistent with 
National Labor Relations Board precedents,"

90/ Continued
black and white workers. Brief 10-11. The 
company's explanation fails for several 
reasons.

First, the Fifth Circuit in its 
initial decision in this case found that 
the chart was filled with "patent inaccura­
cies" and that " [i]t does not amount to a convincing showing by a statistically 
fair exhibit of earnings equality" (foot­
note omitted). App. 89. The reasons 
for the appellate court's rejection of the 
chart were carefully described, ij3., 80-83. 
It is important to note that the Steel­
workers seriously misstate the Fifth 
Circuit's ruling regarding the chart, Brief 
21a-22a. The Steelworkers indicate that 
the Fifth Circuit did not find "clearly 
erroneous" the district court's conclusion 
that the chart was a "rough index" of the 
earnings potential of the departments. In 
fact, the Fifth Circuit simply found that 
the district court was not wrong in des­
cribing what the "chart shows," emphasis in



120

footnote omitted. 431 U.S. at 356. The 
system presented in Teamsters, the division

90/ Continued
original. App. 82. However, this was not 
significant since the Fifth Circuit went on 
to find that the "chart contained patent 
inaccuracies" in representing the record 
evidence. App. 89.

Second, the Fifth Circuit in its 1976 
opinion properly rejected the gross 
earnings evidence presented by Pullman- 
Standard as "indicia of even rough wage 
parity in 1973" (emphasis added, footnote 
omitted) because the company did not 
consider "seniority, overtime and time 
worked." App. 99, see also App. 99 n. 
48.

Third, the Fifth Circuit remanded the case in 1 976 for the district court to 
consider specifically the relative economic 
effect of the system on blacks and whites. 
App. 97-100. In light of the "patent 
inaccuracies" of the district court's chart 
on earnings and its "inexplicab [ le] " 
discussion of earnings, App. 92-98, the 
Fifth Circuit carefully defined the nature 
of the "prima facie inquiry" in order "to 
eliminate the likelihood" that "[e]rrors 
apparent in prior proceedings" would "recur 
on the reconsideration we now mandate." 
App. 90. However, the district court 
failed to follow the mandate and the prior 
errors did recur. Specifically, the lower



121

of city drivers and line drivers into
separate units, was simple and universally
applied, id ♦ , 356 n. 42. Where, as at
Pullman-Standard, a plant contains hundreds
of jobs separated into more than twenty
departments and several bargaining units,9J_/the inferences concerning motivation 
are often more difficult to draw.

90/ Continued
court did not examine the relevant evidence 
of the economic harm of the seniority 
system. Such an examination "is especially 
pertinent here" where "in general blacks 
have more seniority than whites." App. 99.
91 / Unlike a finding that a system was 
specifically adopted or maintained with a discriminatory purpose, see section 3, 
supra, a determination of "irrationality" 
would not necessarily compel a conclusion 
that a system is non-bona fide but rather 
would lead to an inference that the system 
was designed with a discriminatory purpose. 
This follows from the fact that Title VII 
proscribes discrimination but does not 
mandate rationality. However, there is a logical inference that an irrational system 
which has a discriminatory effect was 
created with the intent to achieve that 
effect.



122

As a practical matter, in a plant as 
large as the Bessemer plant there are many 
alternatives which may be deemed an "appro­
priate" unit by the NLRB or may be con­
sistent with the practices in some other 
plant. In this context, an inference 
of discriminatory intent may be compelled 
not only in the case where an irrational 
practice is adopted but also in the case 
where an alternative which promotes segre­
gation is selected from among several 
"rational" alternatives. What the Company 
and Unions intend "may be plain from the 
results [their] actions achieve, or the 
results they avoid." Personnel Adminis­
trator of Mass, v. Feeney, 442 U.S. at 279, 
n. 24; see United States v. Texas Education
Agency, 564 F.2d 162, 166 (5th Cir. 1977),
cert, denied, 443 U.S. 115 (1979).



123

There are several critical facts 
relevant to an evaluation of the rational­
ity of the divsion of the Bessemer plant 
into separate bargaining units represented 
by the Steelworkers and the Machinists. 
First, the splitting of the pre-unioniza­
tion departments, Die and Tool and Mainte­
nance, into two parts with each subpart 
represented by a separate union created 
additional one-race departments. Second, 
the division of these departments was 
unique among the plants operated by Pull­
man-Standard. App. 35, 11. Third, the
Machinists sought to pick and choose 
among production jobs for inclusion in its 
unit, see section B. 2.b, supra. Fourth, 
the Machinists sought to include only those 
jobs staffed by whites and to exclude 
expressly those jobs staffed by blacks, see 
see pp. 26-31, supra. Fifth, just after



- 124

the NLRB in its 1941 certification included 
in the Machinists' unit several jobs 
staffed by blacks which were functionally 
related to jobs the Machinists had claimed, 
the Machinists entered into an agreement 
with the Company and the Steelworkers which 
transferred to the Steelworkers' unit all 
jobs staffed by blacks, see section B. 2.b, 
supra. Sixth, in keeping with its racially 
exclusionary membership policies, the 
Machinists achieved an all-white bargaining 
unit.

The district court refused to examine 
this evidence of the manipulation of jobs 
according to the race of the incumbents 
because the Company and the Steelworkers 
"are not chargeable with responsibility for 
those events" and because the division of 
the plant into bargaining units "was .. . 
required by a specific decision of the NLRB



125

and the outcome of elections." App. 36. 
As discussed earlier, the district court 
erred in refusing to consider the motives 
and actions of the Machinists in assessing 
whether the system was adopted or main­
tained with an intent to discriminate, see 
p. 94-95, supra. Furthermore, the district 
court erred in failing to analyze the 
certification process and to determine 
whether racial considerations infected the 
process. Teamsters imposes a duty to 
examine fully the genesis of the system, 
its rationality and the relevant historical 
background. The district court contravened 
that duty when it erected NLRB certifica­
tion as a bar to exmining the genesis and 
rationality of the seniority system. The 
determination that a system may be "appro­
priate" and lawful under the National Labor 
Relations Act, 29 U.S.C. §§ 151, e_t



126

seq. , does not preclude a finding that the 
system is unlawful under Title VII. 
Cf. Alexander v. Gardner-Denver Company, 
415 U.S. 36, 47 (1974) ("Legislative
enactments in this area have long evinced 
a general intent to accord parallel or 
overlapping remedies against discrimina­
tion," (footnote omitted); Taylor v. Armco 
Steel Corporation, 429 F.2d 498, 499 (5th
Cir. 1970). Moreover, if the precedents of 
the NLRB are properly understood, then it 
becomes clear that the Board did not 
sanction the racial consequences of the 
bargaining unit division and that a 
division along racial lines was contrary to 
general principles which the Board had 
established.

When the NLRB certifies an appropriate 
unit, the Board does not determine "the 
only appropriate unit, or the ultimate



127

unit, or the most appropriate unit; the Act 
requires only that the unit be 'appropri­
ate’." Morand Bros. Beverage Co., 91 NLRB 
409, 418, enforced, 190 F.2d 576, 581 (7th 
Cir. 1951). The units certified by the 
Board were not, as the district court 
stated, "required" by the Board. Rather, 
the units reflected the desires of the 
petitioning unions as well as general 
considerations used by the Board in deter­
mining an appropriate unit. Moreover, the 
Unions and the Company failed to abide by 
the original NLRB certification. The 
parties gerrymandered the certification
and established an all-white bargaining

92/
unit for the Machinists.

92/ This private agreement between the Machinists, Steelworkers and Pullman-Stan­
dard was submitted for the approval of the 
NLRB. JA 170-71, see section B. 2. b, 
supra. Where a supplemental agreement has 
the consent of all interested parties and



128

In 1941 it was not the practice of the
NLRB to refuse to certify a union which was
likely to represent its employees unfairly,
or which had discriminatory admission 

93/policies. The NLRB did have a policy

92/ Continued
goes unchallenged, the NLRB would have no 
occasion to investigate the agreement. 
Where the unions are in agreement as to the 
scope and composition of the unit, or where 
the employer enters no objection, the Board 
generally finds appropriate the agreed 
upon unit. See e.g., 7 NLRB ANN REP. 60
(1 942 ); 8 NLRB ANN. REP. 53 (1943); 
9 NLRB ANN. REP. 33 (1944).
93/ The racially discriminatory member­
ship policies of the Machinists were 
notorious, n. 24 and accompanying text, 
supra. See also, Brashear Freight Lines, 
Inc., 13 NLRB 1 9 1 ( 1 939 ). However,
the Board maintained that it had "no 
express authority to remedy undemocratic 
practices within the structure of union 
organizations," and lacked "authority to 
insist that labor organizations admit all 
the employees they purported to represent 
to membership, or to give them equal voting
rights ___" Larus and Brother Co., 62 NLRB
1075, 1082 (1945). Consequently, the Board 
considered evidence of a union's admission



129- -

against certifying avowedly discriminatory
94/

bargaining units. The policy, how­
ever, was not enforced unless the intention 
to exclude black workers from the bargain­
ing unit (not merely union membership) 
was explicit and overt.

For example, the Board certified 
unions notwithstanding allegations of past

93/ Continued
policies irrelevant to certification 
proceedings and routinely rejected offers 
of proof that the union's membership 
policies were racially discriminatory. 
Veneer Prods, Inc., 81 NLRB 492 (1949); 
Pacific Maritime Association, 112 NLRB 1280 
(1955).
94/ "The color or race of employees is an 
irrelevant and extraneous consideration in 
determining, in any case, the unit appro­
priate for the purposes of collective 
bargaining. We have consistently refused 
to delimit units on the basis of race .... 
[To allow race to be a factor] would be 
contrary to the spirit of the Executive 
Order [No. 9346] and the established 
principles of this Board," Matter of U.S. 
Bedding, 52 NLRB 382, 388 (1943) (emphasis 
added).



130

discriminatory representation, Coleman Co., 
101 NLRB 120 (1 952), and of discriminatory
denials of membership Norfolk Southern Bus 
Corp. , 76 NLRB 488 ( 1 948); Texas and Pac.
Motor Transportation C o ., 77 NLRB 87
(1948). But where the petition for repre­
sentation itself expressly proposed to 
exclude blacks from the bargaining unit on 
the basis of race, Larus and Brother Co., 
62 NLRB 1075 ( 1 945), Aetna Iron and Steel
Co., 35 NLRB 136 ( 1 941 ), or where evidence 
was introduced that the designation of 
units was based upon distinctions of race, 
Union Envelope Co., 10 NLRB 1147 (1939),
Utah Copper Company Co., 35 NLRB 1295 
(1941); Matter of U.S. Bedding Co, 52 NLRB 
382 (1943), then the Board withheld certi­
fication of the proffered units.

If a union camouflaged the racial 
basis for the selection of a unit, the NLRB



- 131

did not look behind simple denials of 
racial purpose and accepted representa­
tions by the union's officers that despite 
discriminatory membership policies the
union would represent all employees in the

95/bargaining unit. See e . g . , Georgia
Power, 32 NLRB 692 (1941); Carter Manufac­
turing Company, 59 NLRB 804 (1944); Norfolk 
Southern Bus, 76 NLRB 488 (1948). In the
representational hearing in this case, 
the Machinists "claim[ed]" "negro crane­
men," JA 149, but in fact the Machinists 
never claimed any position staffed by black

95/ The policy of the NLRB was criticized by commentators. Sovern, The National 
Labor Relations Act and Racial Discrimina- 
tion, 62 Colum. L. Rev. 563, 591-94,
600-04 (1962); Cox, The Duty of Fair
Representation, 2 Vill. L. Rev. 151, 
156-57, 173-75 (1957); Note, Discrimination 
in Union Membership 12 Rutgers L. Rev. 543, 
545-48 (1958). This policy was later
modified, Hughes Tool Co. , 147 NLRB 1573,
1577-78 (1964); but see Handy-Andy, Inc.,
228 NLRB 447 (1 977).



132

workers. Consistent with the practices of 
the Board, the NLRB's Trial Examiner 
stopped any questioning concerning the 
racial admission policies of the Machin­
ists, JA 145. By failing to admit openly 
any racial motivation and by its perfunc­
tory remark regarding "negro cranemen" in 
the representational hearing and then by 
entering into a private agreement with the 
Steelworkers and Pullman-Standard which 
"corrected" the units certified by the 
NLRB, the Machinists obtained an all-white 
bargaining unit.

Relying upon the representations of 
the Machinists and the supplemental agree­
ment of all the parties, the NLRB did 
not consider whether the bargaining 
unit proposal was affected by discriminatory 
motivation. Absent admission by the IAM of 
its discriminatory purpose, the NLRB's



133

policy against designating bargaining units
96/by race was successfully thwarted.

The Fifth Circuit correctly ruled that the 
motivation of the Machinists "to exclude 
black workers from its bargaining unit" and 
the manner in "which the two seniority 
units were set up" were "significant" in 
determining that the seniority sytem was 
unlawful. App. 15-16.

The district court briefly discussed 
the rationality of the departments within 
the Steelworkers' unit. The court noted

96/ While the Board aggressively stated 
its policy against racially exclusionary 
bargaining units, 8 NLRB ANN. REP. 57 
(1943), the policy was implemented only 
where the Board was confronted with overtly 
segregated bargaining units. The NLRB did 
not approach the certification process as a 
vehicle for challenging discriminatory 
union membership policies or for determin­
ing whether proposed bargaining units, 
purportedly neutral, were drawn with an 
intent to discriminate. See, n.93, supra.



134

that several of the departments "criticized
by the plaintiffs" were found at one of the
other plants operated by Pullman-Stan- 

97/dard, but that other departments were
97/unique to the Bessemer plant. The dis­

trict court further stated that " [indi­
vidual differences in the departmental 
structure at Pullman's Bessemer and Butler

97/ Those departments were the Inspector, 
Boilerhouse, Railroad and Janitors App. 37. 
In fact, the district court erred, for the 
lists of departments of the Hammond and 
Butler plants do not indicate that there 
was a Boilerhouse department in either 
plant. JA 206, 242.
98/ Those departments were the separate Die & Tool and Maintenance departments and 
Air Brake Pipe shop. App. 35 , 37 . In 
addition to these departments noted by 
the district court, there was no Boiler- 
house department at the other plants, 
nor was there a separation of the Steel 
Miscellaneous and Steel Stores departments 
in the other plants. JA 206, 242. The 
district court specifically declined to 
find that it was rational to have separated 
these departments. App. 31-32, see also 
section B. 3. b.



135

plants, such as they are, do not establish 
that either is irrational or inconsistent 
with industry practices"; rather, the court 
suggests that "the ultimate objective 
should be to comprehend the gestalt of the 
system." App. 37. In fact, the purpose of 
the Unions and Company may best be under­
stood in the context of the racial gerry­
mandering of departments during the 
periods of increasing importance in depart­
mental structure and seniority: the cert­
ification of the Unions in 1941 and the 
changes in the mid-1950s in the Steel­
workers' unit, see section 3, supra. As 
the Fifth Circuit stated, "the creation of 
the various all-white and all—black depart­
ments within the USW unit at the time of 
certification and in the years thereafter" 
was "significant". App. 16.



136

II.
THE FIFTH CIRCUIT PROPERLY 
EXERCISED ITS APPELLATE FUNCTION 
TO CORRECT ERROR BY A DISTRICT 
COURT.________
A. The determination of the 

proper standard of appellate review begins 
with Rule 52(a), Federal Rules of Civil 
Procedure, which provides, in pertinent 
part,

In all actions tried upon the facts without a jury ... [f]indings 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 of the credibility of 
the witnesses.

However, an " ' [i ]ssue of fact' is a coat of 
many colors”, Watts v. Indiana, 338 U.S. 
49, 51 (1949), and an appellate court must 
pay careful attention to the particular 
type of "fact" which is presented for 
review. If a district court "premise[s] 
its ... finding ... on an erroneous inter­
pretation of the standard to be applied



137 -

the clearly erroneous rule does not 
apply, and the findings may not stand. 
United States v. Parke, Davis & Co. , 362
U.S. 29, 44 (1960); United States v .
General Motors, 384 U.S. 127, 142 (1966);
Kelley v. Southern Pacific Co., 419 U.S.

99/318, 323 (1974). Similarly, a finding
of

so-called ultimate "facts" more 
clearly implies the application 
of standards of law . . . Though 
labelled "finding of fact," it 
may involve the very basis on which 
judgment of fallible evidence is to be 
made. Thus the conclusion that may 
appropriately be drawn from the whole 
mass of evidence is not always the

99/ Shortly after the promulgation of 
Rule 52(a), Judge Learned Hand in an 
opinion reversing a lower court finding, 
stated "as we view it [that the finding was 
governed by a legal principle] the cause 
comes before us as it did before the 
district judge; like him, we have only to 
decide what measure of care the situation 
imposed." Sidney Blumenthal & Co. v. 
Atlantic Coast Line R. Co., 139 F.2d 288,
290 (2nd Cir. 1943), cert. denied, 321 U.S. 
795 (1944).



138

ascertainment of the kind of "fact" 
that precludes consideration by this 
Court 100/ (footnote added). Baum- 
qartner v. United States, 322 U.S. 
665, 67 1 (1 944) (Frankfurter, J. ) .
The application of a legal standard by

a district court "is not a question
of fact within Rule 52(a)." K aravos
Compania, Etc, v. Atlantic Export Corp.,
588 F. 2d 1, 8 (2nd Cir. 1 978) (Friendly,
J.). The proper application of Rule 52(a)
depends not so much upon terminology --

100/ In Baumgartner the Court applied the 
rule that the "concurrent findings of two 
lower courts are persuasive proof in 
support of their judgments," id., 322 U.S at 670. The Court's determination that 
findings of ultimate facts may not be due 
on appeal the same deference as subsidiary 
facts has provided guidance for the 
application of Rule 52(a). See e .g ., 
Schultz v. Wheaton Glass Company, 421
F.2d 259, 267 (3rd Cir. 1970); Galena Oaks 
Corporation v. Scofield, 218 F.2d 217, 219 
(5th Cir. 1954); Christopher v. State of 
Iowa, 559 F. 2d 1 135, 1 138 n. 13 (8th Cir. 
1977).



139

"ultimate” or "subsidiary" fact or conclu­
sion of "law" or "fact" -- as upon an 
analysis of whether the ruling resulted 
from the application of a standard of law. 
"Insofar as the conclusion derived from the 
court's application of an improper standard 
to the facts, it may be corrected as a 
matter of law." United States v. Singer 
Manufacturing Co. , 374 U.S. 174, 194 n. 9
(1963).

If findings are covered by Rule 52(a), 
the appellate court has a duty to review 
these findings in order to determine 
whether "the reviewing court on the entire 
evidence is left with the definite and firm 
conviction that a mistake has been commit­
ted." United States v. United States 
Gypsum Co., 333 U.S. 364,395 (1948). While 
facts based upon different forms of evi­
dence, "live" witness testimony, deposition



140

or documentary, are covered by the clearly
erroneous rule, cf. United States v. Singer
Manufacturing Co., 374 U.S. at 194 n. 9, an
appellate court in assessing the validity
of the lower court's findings should
consider the type of evidence upon which
the lower court had relied. For example,

the trial court's customary opportun­
ity to evaluate the demeanor and thus 
the credibility of the witnesses, 
which is the rationale behind Rule 
52(a) ... plays only a restricted role 
...[in]-- a "paper case."

United States v. General Motors Corpora­
tion, 384 U.S. 127, 141 n. 16 (1966). Rule 
52(a) itself takes into account the rela­
tive advantages of trial and appellate 
courts in assessing different types of 
evidence by emphasizing that "... due 
regard shall be given to the opportunity of 
the trial court to judge of the credibility 
of the witnesses." The distinction 
between findings based upon "paper" and



141

those based upon "credibility of witnesses"
carried over from the practice in equity
where the findings of the trial court based
upon credibility of witnesses "had great
weight with the appellate court." United
States v. United States Gypsum Co., 384 U.S
at 395, see District of Columbia v. Pace,

101/
320 U.S. 698, 702 (1944).

101/ The issue is not, as posed by the Steelworkers, Brief 31 n. 41, whether 
Rule 52(a) applies to "reviewing district 
court findings respecting discriminatory 
purpose." The issues regarding the proper 
application of Rule 52(a) concern whether 
the district <pourt used an incorrect legal 
analysis in evaluating the evidence and 
whether the appellate court properly 
reviewed the findings of the district court 
given the nature of the evidence which was 
before the lower court.

Contrary to the assertion of the 
Steelworkers, the circuit courts agree upon 
the fundamental principles for the applica­
tion of Rule 52(a). As the Fifth Circuit 
stated in this case, "[wjhere findings ... 
are made under an erroneous view of con­
trolling legal principles, the clearly 
erroneous rule does not apply ...." App. 15 
n.6. See also Karavos Campania, etc, v.



142

B. The Fifth Circuit properly 
applied Rule 52(a) to this case; it

101/ Continued
Atlantic Export Corp., 588 F.2d 1, 8 (2ndC i r . 1 9 7 8 ); Sears, Roebuck and Co. v .
Johnson, 219 F„2d 590, 591 (3rd Cir. 1954); 
Schultz v. Wheaton Glass Company, 421
F.2d 259, 267 (3rd Cir. 1970) ("We are not, 
however, bound [to apply Rule 52(a)] by 
conclusions which are but legal inferences 
from facts'8); Poyner v. Lear Siegler, Inc., 
549 F. 2d 955, 959 (6th Cir. 1 976); Detroit 
Police Officers Ass'n v. Young, 608 F. 2d 
671, 686 (6th Cir. 1979), cert, denied, 101
S. Ct. 783 ( 1 98 1) ( " [W]hether prior
discrimination occurred is a conclusion of 
law based on subsidiary findings of fact"); 
Stewart v. General Motors Corp., 542 F.2d
445, 449 (7th Cir* 1 976); United States v. 
City of Chicago, 549 F.2d 415, 425 (7th
Cir. ) , cer t . d e n i_£<3, 434 U.S. 875
(1977); Christopher v. State of Iowa, 559 
F. 2d 1 136, 1 138 (8th Cir. 1977); Stevenot
v. Norbert, 210 F.2d 615, 619 (9th Cir.
1954).

Moreover, the circuit courts agree 
that where, as in this case, "the findings 
of a trial court are based on documentary, 
rather than oral evidence, they do not 
carry the same weight on appellate review," 
although Rule 52(a) applies. Jennings v. 
General Medical Corp., 604 F. 2d 1300, 1305 
(10th Cir. 1 979); see also Orvis v. Hig-



143 -

recognized that "[f]indings of fact by 
by the district court in Title VII cases

101/ Continued
gins, 180 F.2d 537, 539 (2nd Cir. 1 950 );
City of Mishawaka, Ind. v. Am. Electric 
Power Co., 616 F.2d 976 , 979 (7th Cir.
1980).

The three cases which the Steelworkers 
cite, Brief 31-32 n. 41, as being in 
conflict with this case, all concerned 
allegations of discrimination in the 
promotion of college teachers and all 
primarily involved the district court's 
determination of the credibility of wit­
nesses and not the misapplication of legal 
principles. Sweeney v. Bd. of Trustees of 
Keene State College, 604 F.2d 106 (1st Cir. 
1979), cert. denied, 444 U.S. 1045 (1980); 
Manning v. Trustees of Tufts College, 613 
F.2d 1200 (1st Cir. 1980); Kunda v. Muhlen- 
burq College, 621 F.2d 532 (3d Cir. 1980). 
In fact, in Sweeney, a decision cited in 
both Manning and Kunda, the court expressly 
stated that Rule 52(a) applies "except 
where there is some indication that the 
court misconceived the legal standards," 
(emphasis added) 604 F.2d at 109 n. 2. In 
Kunda the issue of whether Rule 52(a) 
applied was not even before the court since 
the appellant had conceded its application 
to the pertinent issue. 621 F .2d at 
544.



144

are not to be set aside unless they are 
clearly erroneous ... that is, unless the 
appellate court is ' left with the definite 
and firm conviction that a mistake has been 
committed.'" App. 15 n. 6. Applying this 
standard the Court of Appeals reversed the 
trial court's 1978 finding of no post-act 
assignment discrimination because it was 
"factually unsubstantiated" by the record. 
App. 8. The Court continued that "[w]here 
findings, however, are made under an 
erroneous view of controlling legal prin­
ciples, the clearly erroneous rule does not 
apply, and the findings may not stand." 
App. 15 n.6. The Fifth Circuit determined 
that the district court's conclusion that 
the seniority system was neither created 
nor maintained with a discriminatory 
purpose was based upon an erroneous appli-



145 -

cation of the law. If this Court agrees
that the district court misapplied the per­
tinent legal standard, then it is not 
necessary to reach the question of whether

102/

102/ The district court made three princi­
pal errors of law specified by the Court of 
Appeals. The district court failed to 
consider the motives of the Machinists 
App. 13-16, failed to consider the degree 
of segregation fostered by the seniority 
system or its economic harm upon blacks, 
App. 10, and to give "due consideration" to 
the development of separate seniority units 
and the IAM’s role in the development of 
those units. App. 16; 11. The Court of 
Appeals' discussion of these issues does 
not use the words "clearly erroneous" 
because the district court made no findings 
of fact on these issues, which it erro­
neously felt to be inapplicable, as a 
matter of law, to a determination of the 
legality of the seniority system.

The district court's erroneous appli­
cation of legal principles contributed to 
other erroneous conclusions. The district 
court failed to consider adequately the 
creation and maintenance of numerous 
one-race departments, to consider the 
racial consequences of changes in the 
seniority system after the November 1941 
NLRB certification, and to examine fully 
the racial motivations of the Unions and 
Company. See generally Argument I, supra.



146 -

the district court's findings were clearly 
erroneous, and this Court must affirm the 
Fifth Circuit unless it concludes that the 
panel applied an improper legal standard. 
Kelley v. Southern Pacific Co., 419 U.S. at 
323.

The Fifth Circuit further concluded
that

[a]n analysis of the totality of the facts and circumstances surrounding 
the creation and continuance of the 
departmental system at Pullman-Stan- 
dard leaves us with the definite and 
firm conviction that a mistake has 
been made (footnote omitted). App. 
15.

The Court of Appeals based its ruling 
not only upon the district court's faulty 
application of legal standards but also 
upon its review of the evidence presented 
on the bona fides of the seniority system. 
As in General Motors, the evidence was 
almost entirely documentary? the record 
presents a "paper case," not a contest



147

between the credibility of witnesses.
As a result of the nature of the issue, the

103/

103/ In presenting in its Petition for a 
Writ of Certiorari the issue as to whether 
Rule 52(a) was properly applied by the 
Fifth Circuit, the Steelworkers primarily 
relied upon two opinions, in which lower 
court findings of "intent" were reviewed. 
United States v. Yellow Cab Co., 338 U.S. 
33f (1949) and United States v. Oregon 
State Medical Society, 343 U.S. 326 (1952). 
Petitioner 22-23. In quoting passages from 
these cases the Steelworkers omitted 
critical portions which distinguish these 
cases from the case at bar; the omitted 
portions are underlined:

"This Court has already held that the 
clearly erroneous standard of Rule 52(a), 
applies generally in reviewing 1[f]indings 
as to the design, motive and intent with 
which men act [since they] depend peculi- 
arly upon the credit given to witnesses by 
those who see and hear them1, United States 
v. Yellow Cab C o "  338 U.S. at 341," 
Steelworkers' Petition 22.

" [T ]his Court [has admonished] that 
'no case' is more 'appropriate for adher­
ence to [Rule 52(a)]' than one_involving 'a 
vast record of cumulative evidence as to 
long-past transactions, motives, and pur­
poses, the effect of which depends largely 
on credibility of witnesses.' Oregon State 
Medical Society, 343 U.S. at 332 (1952)." 
Steelworkers' Petition 23.



148

motives of the Unions and the Company in 
the design and maintenance of a seniority 
system during the 1940s and 1950s, volumin­
ous documentary evidence was presented but 
not a single witness testified before the 
district court regarding the development of 
the seniority system, see pp . 9-10.

The district court's legal errors 
influenced its view of the ultimate ques­
tion, the legality of the seniority system,
in several different ways. The court104/
failed to examine pertinent evidence,

103/ Continued
The truncated quotation of these cases 

by the Steelworkers —  cited again in their 
Brief 34, 22 n. 42 --- illustrates the
fallacy in the arguments presented by the 
Steelworkers. These cases in fact support 
the standard of appellate review applied by 
the Fifth Circuit to this case, where the 
district court was presented largely with 
documentary evidence and where the district 
court improperly applied legal principles.
104/ For example, the court ruled that the 
motives of the Machinists, one of the very



149

refused to draw inferences from relevant 
105/evidence, and failed to attribute the

106/
proper legal significance to evidence
or to the historical context of the evi- 

1 07/dence, and misconstrued the proper
analysis for determining discriminatory
purpose from objective circumstantial evi- 

108/dence. See generally Argument I, supra.

104/ Continued
institutions which contributed to the 
development of the seniority system, were 
irrelevant.
105/ For example, the court ruled that the 
NLRB certification insulated the bargaining 
unit system from an examination of its
"rationality" or the effect of racial 
motivations on its development.
106/ For example, the court did not
consider the degree of segregation fostered 
by the seniority system.
107/ For example, the court did not
consider the historical context of the 
creation in 1941 and from 1952 through 1954 
of numerous one-race departments.
108/ For example, the court did not
consider whether there was a causal connec-



150

The Fifth Circuit here, as did the
Sixth Circuit in Brinkman v. Gilligan

109/
583 F. 2d 243, 248, 251-52 (1 978) prop­
erly reversed the district court's finding 
that there was no intentional discrimina­
tion and remanded the case for a determina­
tion of an appropriate remedy. This Court 
agreed that the district court had "ignored 
the legal significance” of relevant evi­
dence and affirmed the Sixth Circuit. 443 
U.S. at 535-37, sub nom, Dayton Board of

108/ Continued
tion between the general discriminatory 
practices and the "genesis" of the senior­
ity system; nor did the court consider all 
the practices of the Steelworkers in 
evaluating their objectives in the develop­
ment and maintenance of the system.
109/ The Sixth Circuit reversed the dis­trict court's determination that the school 
board had not intentionally discriminated 
throughout the system because, inter alia, 
the lower court had not given proper legal 
significance to the empirical, historical 
and circumstantial evidence.



151

Education v. Brinkman 
Similarly, the Fifth Circuit properly 
reviewed the decision of the lower court 
■l in this case and its remand of the
action for a determination of an appro-

111/priate remedy should be affirmed.

110/ The Fifth Circuit properly did not 
remand the action for a fourth trial on the 
issue of liability. The court reviewed the 
documentary evidence and concluded that as 
a matter of law, the seniority system was 
unlawful. In United States v. General 
Motors Corp., 384 U.S. at 142 n. 16,
the Court "resort [ed] to the record not to 
contradict the trial court's findings of 
facts, ... but to supplement the court's 
factual findings and to assist [it] in 
determining whether they support the 
court's ultimate legal conclusion that 
there was no conspiracy." After concluding 
that there was a conspiracy, the Court 
remanded in order that appropriate relief 
might be fashioned, _id., 148. Similarly,
in this case efficient judicial administra­
tion requires that after 10 years of 
litigation the issue of liability be 
finally decided. See Levin v. Mississippi 
River Fuel Co. , 386 U.S. 162, 170 (1967); 
Bigelow v. Virginia, 421 U.S. 809, 826-27 
(1972).



152 -

CONCLUSION

For the foregoing reasons, the deci­
sion of the Fifth Circuit should be af­
firmed.

Respectfully submitted,

JACK GREENBERG JAMES M. NABRIT, III 
PATRICK 0. PATTERSON 
JUDITH REED

Suite 2030
10 Columbus Circle
New York, New York 10019

ELAINE JONES--7 
BARRY L. GOLDSTEIN
C. LANI GUINIER 

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

OSCAR W. ADAMS, III2121 Eighth Avenue, North 
 ̂ Birmingham, Alabama 35208
Counsel of Record



APPENDIX A



To some extent the Company and, to a 
lesser degree, the Steelworkers relied 
on a chart at JA 336, which purports to 
relfect changes in departmental organiza­
tion at Pullman-Standard. Steelworkers' 
Brief 5 n. 7, Company Brief 10. While the 
chart represents an attempt to depict 
graphically alterations in departmental 
configurations from the time of unioniza­
tion in 1941 to the present, the attempt 
fails because of numerous inaccuracies in 
the chart.

Respondents have set forth elsewhere 
in this brief the changes in department 
structure which are central to the issue 
before this Court. See pp. 32-34, 41 n.46, 
42-45. However, some of the factual errors 
that appear in the chart are set forth in 
this Appendix in an effort to avoid the



2a

confusion and misrepresentation of the 
factual record which reliance on the 
chart will most certainly produce.

A. Two Wheel and Axle departments 
were created in 1941, both of which were 
created by the division of a department 
with the same name. After a swap of jobs 
between the Machinists and the Steelworkers 
subsequent to the NLRB certification, the 
newly created all-white Wheel and Axle 
department came under the jurisdiction of 
the I AM; whereas the all-black Wheel and 
Axle department became a separate depart­
ment under the jurisdiction of the Steel­
workers. The chart mistakenly reflects 
only one Wheel and Axle department in 1942, 
under the jurisdiction of the Machinists. 
See pp. 29-32, supra.



3a

B. The departments which were 
certified to the NLRB - those which existed 
when Pullman-Standard was unionized and 
when the first union contracts were signed 
in 1942 - are reflected in the voting list 
provided to the NLRB. Plaintiffs* Exhibit 
1, JA 243-251. There were also overtime 
work lists and other configurations 
of employees used for cost accounting 
purposes, as distinguished from seniority 
lists. These employee groupings did not 
make up seniority units. Company Exhibit 5
(1978 Trial); see_also, App. 3 4 n.12
("although Wheel and Axle and Truck were 
listed as a single department for cost 
accounting purposes, for purposes of 
seniority they are two departments"). The 
chart erroneously includes six such 
employee groupings in 1942, not certified



4a

to the NLRB, which were not departments for 
purposes of seniority: namely, Railroad,
Tool Room, Miscellaneous Stores, Truck/ 
Tractor, Steel Stores and Crane Service. 
Plaintiffs' Exhibit 1, JA 243-251.

C. The tool room jobs which did not 
constitute a separate department in 1942, 
or any other time subsequent thereto, 
were ceded to the Steelworkers' unit from 
the Machinists in 1944. The chart mis­
takenly shows these jobs as (1) a separate 
department in 1 942 and (2) being ceded to 
the Steelworkers from the Electrical 
Workers' unit in 1944. Id., JA 174-75.

D. The IBEW bargaining unit was 
decertified in 1946 and its jobs were 
merged into the USW unit. The chart errs 
in placing the IBEW decertification in 
1944, App. 36 n.16, p. 36, supra.



5a

E. The Air Brake Pipe department was 
created at unionization in 1941, was 
represented by the Machinists, and became 
a part of the Steelworkers' unit in 1944. 
There is no record support for chart 
delineation of the Air Brake Pipe shop as a 
separate departmental seniority unit in the 
years 1944 to 1946. See nn.32, 41, 46; JA 
174-75.

F. The Air Brake Pipe shop was 
reestablished as a separate department in 
1954. The chart indicates that the depart­
ment was created from jobs in one depart­
ment, Steel Erection. In fact, the 
department was created by joining jobs from 
two departments, Shipping Track and 
Steel Erection. Compare Plaintiffs' 
Exhibits 8 and 9; see p. 42, supra.



6a

G. The Steel Miscellaneous depart­
ment first appeared on a February 1953 
seniority list which supplemented the 1952 
seniority list. Plaintiffs’ Exhibit 7 
(1978 Trial.) The chart incorrectly shows 
that the Steel Miscellaneous department was 
created in June 1 952. The district court 
also made this error. App. 32.



APPENDIX B



TABLE 1. ALLOCATION OF EMPLOYEES BY DEPARTMENT IN 1964
AND ANALYSIS OF WHETHER A DEPARTMENT IS RACIALLY 
IDENTIFIABLE BECAUSE IT CONTAINS A "SERIOUS 
DISPROPORTIONALITY“ BETWEEN THE EXPECTED AND 

ACTUAL NUMBER OF BLACKS

No. No. No.
t
No. of

No. Std. 
Deviations 
Between Obs. 

No. of Chance
Racially
Identifiable
Castaneda

Department Workers Whites Blacks Blacks Blacks 0>-Ad Probability Analysis
Air & Brake 

Pipe Shop 35 35 0 12
no. ipoktks

6
4.265 10 in 10 *

Boiler House 1 1 0 0 [.407] .658
Die & Tool 

(CIO) 10 0 10 3 [2.164] .015 *
Die & Tool 

I AM 78 78 0 27 6.366
11

9.7 in 10 *
Forge 95 53 42 32 2.058 .020 4 *
Inspection 21 21 0 7 3.303 4.78 in 10 *
Janitors 12 0 12 4 [2.478] .006 *
Lumber Stores 29 24 5 10 1.925 .027
Maintenance

(CIO) 138 106 32 47 2.725
3

3.22 in 10 *
Maintenance

IAM 93 93 0 32 6.952
12

1.80 in 10 *
Misc. Stores 14 6 8 5 [1.810] .035
Mobile Crane 5 1 4 2 1.648 .050
Paint & Shipping 
Track 272 143 129 93 4.601

6
2.10 in 10 *

Plant
Protection 14 14 0 5 [2.768]

3
2.82 in 10 *

Power House 5 5 0 2 1.158 .123Press 73 17 56 25 7.658 9.44 in 10'^ *
Punch & Shear 176 32 144 60 13.319 8.97 in 1041 k

(Continued on next page)



TABLE 1 {Continued)

No. std. 
Deviations Racially

No. of
Between Obs. Identifiable

No. No. No. No. of Chance Castaneda
Department Workers Whites Blacks Blacks Blacks Probability Analysis

£ijf*c4uJ ho.tf UAtks
Railroad 19 10 9 6 1.211 .113

46
Steel Constr. 
Steel

207 39 168 71 14.245 2.41 in 10 *

Erection 304 63 241 104 16.571 5.65 in 1062 k

Steel Misc. 100 4 96 34 13.029 4.18 in 1039 *

Steel Stores 59 10 49 20 7.911 1.28 in 1015 k

Template 5 5 0 2 [1.1581 .123
Truck 24 0 24 8 • 6.796 5.38 in 1012 k

Welding 
Wheel &

1853 1655 198 634 21.333 1 in 1099 k

Axle 40 25 15 14 .441 .330
Wood 3

Erection 163 90 73 56 2.851 2.18 in 10
Wood Mill 30 20 10 10 .099 .460

TOTAL 3875 2550 1325

Conclusions: Of the 1325 black employees, 96% or 1,274 were in the 19 racially identifiable
departments. Of the 2550 white employees, 96% or 2453 were in the 19 racially 
identifiable departments.



TABLE 2. ALLOCATION OF EMPLOYEES BY DEPARTMENT IN 1956
AND ANALYSIS OF WHETHER A DEPARTMENT IS RACIALLY 
IDENTIFIABLE BECAUSE IT CONTAINS A “SERIOUS 
DISPROPORTIQNALITY" BETWEEN THE EXPECTED AND

ACTUAL NUMBER OF BLACKS____________

No„ No. No.
t'bp'towa No. of

No; Std. 
Deviations 
Between Obs. 
No. of Chance

Racially
Identifiable
Castaneda

Department Workers Whites Blacks Blacks Blacks a-.v£ Probability Analysis

Air Brake 
Pipe Shop 19 19 0 8

of Waits
3.779 7.87 in 10 = *

Boiler House 3 3 0 1 (1.502] 6.66 in 10
Die & Tool 

(CIO) 5 0 5 2 [1.549] 6.07 in 102
Die & Tool 

I AM 43 43 0 18 7.563 1.97 in 1044 *
Forge 56 26 30 24 1.612 5.35 in 102
Inspection 20 20 0 8 3.877 5.29 in 10 = *
Janitors 9 0 9 4 [2.4871 6.44 in 10 = ■k

Lumper Stores 24 17 7 10 1.360 8.69 in 102
Maintenance

(CIO) 63 48 15 27 3.063 1.10 in 103 *

Maintenance
IAM 32 32 0 14 4.904 4.7 in 107 *

Misc. Stores 9 4 5 4 (.439] .330
Mobile Crane 4 2 2 2 [.188] .547
Paint 110 74 36 47 [2.158] 1.55 in 102 *
Plant
Protection 10 10 0 4 2.82 2.04 in 103 *

Power House 4 4 0 2 [1.247] .106
Press 44 12 32 19 3.996 3.22 in 10 = *
Punch & Shear 81 65 16 35 4.211 1.22 in 10= *

(Continued on next page)



TABLE 2. (Continued)

Department
No.

Workers
No.

Whites
No.

Blacks

Railroad 11 4 7
Shipping
Track 15 7 8

Steel Constr. 91 18 73
Steel

Erection 216 42 174
Steel Misc. 71 2 69
Steel Stores 31 5 26
Template 4 4 0
Truck 26 0 26
Welding 402 325 77
Wheel S. 
Axle 18 11 7

Wood
Erection 132 88 44

Wood Hill 26 22 4

No. Std.
Deviations Racially

£4Ji>ec.W. Between Obs. Identifiable
No. of No. of Chance Castaneda
Blacks Blacks OuaA Probability Analysis

af fcWKs, 25 1.389 8.24 in 10

6 .815 .208
39 7.191 3.22 in 10iJ *

93 11.178 2.61 in 10291U20 *
30 9.239 1.24 in 106 *
13 4.608 2.03 in 10, *
2 11.8261 3.39 in 1°9
11 5.881 2.04 in 10* *
172 9.624 3.17 in 10 2 *

8 .345 .365

57 2.223 1.31 in 103 *
11 2.836 2.28 in 10J *

TOTAL 1579 907 672

Conclusions? Of the 672 black employees, 89%, or 601, were in the 18 racially identifiable 
departments• Of the 907 white employees,. 83% or 7b4 were in the 18 racially 
identifiable departments.



1

Methodology
The method of analysis used to deter­

mine "serious disproportionality" is the 
one suggested in Hazelwood School District 
v. United States/ 433 U.S. 299, 311 n. 17 
(1977), and Castaneda v. Partida, 430 U.S. 
482, 497 n. 17 (1977). This analysis which 
employs the statistical hypothesis of 
nondiscrimination (that "decisions were 
being made randomly with respect to race") 
was applied to the racial allocation of 
employees in each department. The statis­
tical hypothesis of nondiscrimination 
implies that, as regards the attribute of 
race, the employees of any particular 
department ought to be viewed as a random 
sample drawn from the total workforce. It 
further implies that black employees should 
be represented in each department in the 
same proportion as their representation in



2

the total workforce, but for chance f ac-
1/tors. If B is that proportion, and N 

is the number of employees in a particular 
department, the expected number of blacks, 
e, is B times N; this is then compared 
with the corresponding actual observed 
number of blacks, o. The standard devia- 
tion, S, needed for this comparison is 
the square root of N times B 
times W, with W being the proportion 
white employees in the total workforce. 
The quantity o minus e, divided by S, 
yields a ratio, z, which measures the 
discrepancy between observed and expected

1/ The use of the hypothesis is fully justified on this record where there is no 
finding that there was any skill difference 
which explains the disparity in depart­
mental assignments between black and white 
employees. App. 81. In fact on this 
record it is admitted that assignments were 
based on race and that the skills of black 
workers would simply not be considered when 
filling "white” jobs. App. 39.



3 -

numbers in terms of the number of standard 
deviations by which they are apart. This 
ratio can be referred to the normal 
probability distribution to ascertain the 
probability of such a discrepancy occurring 
by chance. A discrepancy of more than two 
or three standard deviations "undercut [s] 
the hypothesis that decisions were made 
randomly with respect to race." Castaneda, 
430 U.S. at 497, n. 17.

This analytical process will be 
illustrated using the Forge Department in 
1964. For that year, B f 1325 - 3875 or 
.3419. Since that department then had 95 
employees, e = .3419 times 95, or 
32.5, versus an observed number, 42, of 
blacks. The standard deviation is the 
square root of 95 times .3419 times .6581, 
or 4.6234. The ratio, z, has the value (42 
- 32.5) f 4.6234 = 2.0548; i.e., the



4

disparity is one of slightly more than two 
standard deviations. The probability is 
that such a disproportionate racial dis­
tribution would occur by chance in only 2 
out of 100 samples. See Shoben, Differen­
tial Pass-Fail Rates in Employment Testing: 
Statistical Proof Under Title VII, 91 Harv. 
L. Rev. 793, 800 (1978); Dawson, Are
Statisticians Being Fair to Employment 
Discrimination Plaintiffs? 21 Jurimetrics 
1, 7-8, 20 (1980).

Carrying out this process for each of 
the 29 departments in 1956, we find dis­
parities of more than two standard devia­
tions in 18 of them, which include 89% of 
the black employees. In 1964 there 
were 28 departments, 19 with disparities 
greater than two standard deviations. 
These 19 departments include 96% of the



5

black employees.
It should be noted that, in these 

analyses above, the normal distribution 
model is not applicable when the expected 
number is less than 5. See P. Hoel, 
Introduction to Mathematical Statistics 
82 (4th ed. 1971). When this is the case, 
the probability model that should be used 
is the hypergeometric, but when, as here, 
the sample sizes (total numbers of em-

2/

2/ In addition to the 19 departments in T964 and the 18 departments in 1 956 which 
were racially identifiable according to the 
Castaneda-Hazelwoood analysis, there were 
other departments which had historically 
included employees of one race. In 1964 
there were three such departments, Boiler- 
house, Powerhouse, and Template, and in 
1 956 there were four such departments, 
Boilerhouse, Die and Tool (CIO), Power­
house, and Template. Using this statis­
tical method the size of these departments 
does not permit a statistical conclusion of 
"identifiability".



6

ployees in the workforce, by race) are
large, the more convenient binomial model
may be used. Hoel, supra, at 67-68. The
binomial was used, as needed, for half a
dozen departments in each of the two years.
The probabilities thus obtained were
referred to the normal probability curve to
get an equivalent number of standard 

3/
deviations.

3/ The "number of standard deviations" on 
Tables 1 and 2 has been placed in brackets 
whenever the binomial model was used as 
described above. No department was deter­
mined to be racially identifiable unless 
the probability of the observed racial 
composition occurring by chance would be 
less than .05 (5 chances out of 100).



7

Source of Data

The number of employees in each 
department for the year 1956 was taken from 
plaintiffs' exhibit 11 (1978 Trial), and
for the year 1964 from plaintiffs' exhibit 
2 (1974 Trial). Both of these exhibits
are seniority lists which were maintained 
by the Company. The racial identification 
of the employees was determined from the 
employees' numbers which were assigned on 
the basis of race. See n .11, supra.



TABLE 3. RANKING OF EARNINGS OPPORTUNITIES IN DEPARTMENTS 
AS OF 1964 ON THE BASIS OF MEDIAN JOB CLASS, AND 
THE ACCUMULATED PERCENTAGE OF BLACKS AND WHITES 
IN A SPECIFIC DEPARTMENT AND ALL OTHER DEPARTMENTS 

WITH A HIGHER MEDIAN JOB CLASS__________

Median
Job

Median
Job of No. No. « % [Accumulated %]

Department Class Blacks Blacks Whites Black White Black White

Template 18 — 0 5 0 100 0.0 0.2
Power House 16 — 0 5 0 100 0,0 0.4
Die and Tool (IAM) 14 * -- 0 74 0 100 0.0 3.3
Maintenance (CIO) 13 4 32 106 23.2 76.8 2.4 7.5
Inspection 12 — 0 21 0 100 2.4 8.3
Welding 10 6 198 1655 10.7 89.3 17.3 73.3
Maintenance (IAM) 10 0 92 0 100 17.3 76.9
Boiler House IQ — 0 1 0 100 17.3 76.9
Paint and Shipping 
Track 7 6 129 143 47.4 52.6 27.0 82.5

Railroad 7 7 9 10 47.4 52.6 27.7 82.9
Steel Erection 6 6 241 63 79.3 20.7 45.9 85.4
Steel Construction 6 6 241 63 81.2 18.8 58.6 86.9
Forge 6 2 42 53 44.2 55.8 61.8 89.0
Wheel & Axle 6 6 15 25 37.5 62.5 62.9 90.0
Air Brake Pipe 

Shop . 6 ___ 0 35 0 100 62.9 91.4
Truck 6 6 24 0 100 0 64.7 91.4
Miscellaneous Stores 6 7 8 6 57.1 42.9 65.3 91.6
Plant Protection 6 — 0 14 0 100 65.3 92.2
Wodd Mill 5 2 10 20 33.3 66.7 66.1 93.3
Did & Tool (CIO) 5 5 ' 10 0 100 0 66.9 93.3
Mobile Crane 5 5 4 1 80.0 20.0 67.2 93.3
Punch & Shear 4 4 144 32 81.8 18.2 78.1 94.1
Wood Erection 4 2 73 90 44.8 55.2 83.6 97.8
Press 4 4 56 17 76.7 23.3 87.8 98.5
Lumber Stores 3 3 5 24 17.2 82.8 88.2 99.5
Steel Miscellaneous 2 2 96 4 96.0 4.0 95.4 99.7
Steel Stores 2 2 49 10 83.1 16.9 99.1 100.1
Janitors 1 1 12 0 100 0 100.1 100.1
Total 1325 2545



8

For Table 3 the worker population of 
the plant was defined as including all 
workers in non-IAM jobs whose job classes 
were specified in plaintiffs' exhibit 12 4/ 
(that is all workers except those on 
salary) and all workers in the Die and Tool 
(IAM) and Maintenance (IAM) Departments, 
excluding Foremen. Job class equivalents 
for IAM jobs were determined by assigning 
each IAM job to the job class whose hourly 
wage (as given in the agreement between the 
Company and the Steelworkers, November 1,

4/ The accumulated percentage figure for 
each department is determined by adding to 
the previous number in the column (or 
to zero, at the top of the chart) the 
percentage of the plant's workers of the 
given race who work in the given depart­
ment. Thus, the figure shows what percent­
age of the plant's workers of the given race 
work either in the given department or in 
those preceding it on the chart. This 
exhibit lists employees in the Steel­
workers' unit by job class.



9

1965, Company exhibit 263, p. 5, 1978
Trial) was closest to the hourly wage of 
the given I AM job (as set forth in the 
agreement between the Company and IAM, 
November 1, 1965) Plaintiffs' exhibit 29,
pp. 55-56, (1978 Trial). See 7 supra. In
cases where there was a range of wages for 
an IAM job, the median wage was used.

The median job class is that job 
class, below or above which exactly half of 
the positions held by the workers in 
the given group fall. Median job classes 
for each department as a whole, and for the 
black workers only in each department, 
have been determined and listed separately. 
The departments are listed in decreasing 
order of median job class. Multiple 
departments with the same median job class 
are listed in decreasing order of size.



10

Plaintiffs' Exhibit 12, a list of 
employees by job class in 1964 totals 74 
white employees in Die and Tool (IAM) and 
92 white employees in Maintenance (IAM). 
Plaintiffs' Exhibit 2, which serves as 
the basis for Table 1 the seniority list 
for 1964 includes 78 white employees in Die 
and Tool (IAM) and 93 white employees 
in Maintenance (IAM). In other respects the 
exhibits reflect the same number of em­
ployees in each department.



MEILEN PRESS INC. —  N. Y. C. 219

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