Pullman Standard Incorporated v. Swint Respondent's Brief for Respondents
Public Court Documents
October 5, 1981
Cite this item
-
Brief Collection, LDF Court Filings. Pullman Standard Incorporated v. Swint Respondent's Brief for Respondents, 1981. 6824a4ab-c19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/b9353368-8c71-4c3b-addb-be7b1f40dd06/pullman-standard-incorporated-v-swint-respondents-brief-for-respondents. Accessed July 09, 2025.
Copied!
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