Larkin v. Pullman Standard Brief for Plaintiffs-Appellants

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

No. 84-7319

WILLIAM B. LARKIN, etc., et al..
Plaintiffs-Appellants.

PULLMAN-STANDARD,
Defendant-Appellee.

No. 86-7886

LOUIS SWINT, etc., et al..
Plaintiffs-Appellants.

PULLMAN-STANDARD, and LOCAL 1466, UNITED STEELWORKERS 
OF AMERICA, AFL-CIO, etc., et al..

Defendants-Appellees.

On Appeal from the United States District Court 
for the Northern District of Alabama

BRIEF FOR PLAINTIFFS-APPELLANTS WILLIAM B. LARKIN,
LOUIS SWINT, et al.

v

v

JAMES U. BLACKSHER 
465 Dauphin Street 
Mobile, Alabama 36602 
(205) 433-2000

ELAINE R. JONES 
Suite 940
806 15th Street, N.W 
(202) 638-3278

OSCAR W. ADAMS, III 
Brown Marx Building 
Suite 729
2000 First Avenue North 
Birmingham, Alabama 
(205) 324-4445

JULIUS L. CHAMBERS 
PAMELA S. KARLAN
ERIC SCHNAPPER

99 Hudson Street 
16th Floor 
N.Y., N.Y. 10013 
(212) 219-1900

Counsel for Plaintiffs-Appellants



CERTIFICATE OF INTERESTED PERSONS

The undersigned, counsel of record for plaintiffs-appellants 
William B. Larkin, Louis Swint, et al., certifies that the 
following listed parties have an interest in the outcome of this 
case. These representations are made in order that Judges of 
this Court may evaluate possible disqualifications or recusal 
pursuant to Local Rule 13(a):

Judge: Hon. Sam C. Pointer, Jr., United States
District Judge for the Northern District 
of Alabama.
Hon. Foy Guin, United States District 
Judge for the Northern District of 
Alabama.

Plaintiffs: Louis Swint
Willie James Johnson 
William B. Larkin 
Spurgeon Seals 
Jesse B. Terry 
Edward Lofton
The class of all black persons employed 
at Bessemer plant of Pullman-Standard
between 1965 and 1974.



Defendants: Pullman-Standard, Inc.
The Pullman Company
United Steelworkers of America, AFL-CIO 
Local 1466, United Steelworkers of 
America, AFL-CIO
The International Association of 
Machinists
Local 372, International Association of 
Machinists

Counsel for Plain­
tiffs: Oscar W. Adams, III

James U. Blacksher
Julius LeVonne Chambers
Elaine R. Jones
Pamela S. Karlan
Eric Schnapper
The NAACP Legal Defense and
Educational Fund, Inc.
Blacksher, Menefee & Stein, PA.

Former Counsel for
Plaintiffs: Hon. U.W. demon

United States District Judge for the 
Northern District of Alabama

Counsel for
Defendants: C.V. Stelzenmuller

Burr & Forman

n



William J. Marshall, Jr. 
F.B. Snyder 
Jerome A. Cooper 
John Falkenberry

Elaine R. Jones
Counsel for Plaintiffs-Appellants

in



STATEMENT REGARDING PREFERENCE

This case is not entitled to preference under Eleventh 
Circuit Rule 11.

iv



STATEMENT REGARDING ORAL ARGUMENT

These Title VII cases present a large number of procedural 
and substantive issues. This court held oral argument regarding 
both of the previous appeals. Svint v. Pullman-Standard. 624 
F. 2d 525 (5th Cir. 1980); 539 F.2d 77 (5th Cir. 1976). The 
defendant-appellant has requested oral argument in the companion 
case No. 87-7057. We believe that oral argument would be 
appropriate in this appeal as well.

v



TABLE OF CONTENTS

Certificate of Interested Persons ................  i
Statement Regarding Preference ...................  iv
Statement Regarding Oral Argument ................  v
Table of Authorities .............................. viii
Statement of the Issues ........................... 1
Statement of the Case ............................. 1

(i) Course of the Proceedings ..............  1
(a) Swint .............................. 1
(b) Larkin ............................. 6

(ii) Statement of the Facts ..................  10
(iii) Standard of Review .....................  18

Summary of Argument ............................... 18
Statement of Jurisdiction ......................... 21
Argument ..........................................  22
I. The Court Below Erred in Refusing

to Provide a Remedy for Discrimina­
tion Occurring Prior to July 17, 1969 .......  22
(1) The Pre-1980 Decisions in Swint

Regarding the Relevant Limita­
tions Period ............................ 24

(2) The 1969 Limitation Date in Swint Is 
Inconsistent with the Decision in
Larkin .................................. 28

(3) The Title VII Cut-off Date in
Swint Is No Later Than September
28, 1966 ................................ 29
(a) The Limitations Period May 

Be Based on the March 27,
1967, Commissioner's Charge ........ 29

Page

vi



(b) The Limitations Period May Be 
Based on Title VII Charges 
Filed in 1966 and 1967 By Class 
Members Who Are Not Named
Plaintiffs ......................... 32

(c) The District Court Improperly 
Denied the Motion of Larkin,
et al. to Intervene in Svint ......  34

(d) The Defendants Have Waived Any 
Limitations Defense to Claims
Arising in or After 1966............  37

(4) The Section 1981 Cut-Off Date in
Swint is October 19, 1965 ...............  39

II. The District Court in Swint Erred in 
Holding that Assignment Discrimination
Ended in February, 1969 .....................  42

III. The Court Below Erred in Refusing 
to Provide a Remedy for Discrimina­
tion in the Assignment of ExistingEmployees .................................... 49

IV. The Pullman-Standard Seniority System
was Not Bona Fide ..............      55
(1) Discrimination in the Genesis of

the System .............................. 56
(a) The Motives of the IAM ............  56
(b) The Creation of Single-Race

Steelworker Departments ...........  63
(2) Discrimination in the Maintenance

of the System ........................... 65
(3) The Lock-In Effect of the System.......  72

Conclusion ........................................  74
Certificate of Service



TABLE OF AUTHORITIES

Bartholomew v. Fischl, 782 F.2d 1148
(3d Cir. 1986)   40

Boudreaux v. Baton Rouge Marine Contr. Co.,
437 F. 2d 1011 (5th Cir. 1971) ...............  41,42

Buckner v. Goodyear Tire and Rubber Co.,
330 F. Supp.. 1108 (N.D. Ala. 1972)   41

Buckner v. Goodyear Tire and Rubber Co.,
476 F. 2d 1287 (5th Cir. 1973) ...............  41

Chris-Craft Industries v. Piper Aircraft Corp.,
516 F. 2d 172 (2d Cir. 1975) .................  74

EEOC v. Shell Oil Co., 466 U.S. 54 (1984) ........  31
Gaines v. Dougherty County Bd. of Ed.,

775 F. 2d 1565 (11th Cir. 1985) ..............  42
Goodman v. Lukens Steel Co., 55 U.S.L.W. 4881

(1987)      19,39,40
Griggs v. Duke Power Co., 401 U.S. 424 (1970) ....  31
Inda v. United Airlines, 565 F.2d 554

(9th Cir. 1977) .............................. . 19,30
Ingram v. Steven Robert Corp., 547 F.2d 1260(5th Cir. 1977)   41
Johnson v. Goodyear Tire & Rubber Co.,

491 F. 2d 1364 (5th Cir. 1974) ...............  33
Johnson v. Railway Express Agency,

421 U.S. 454 (1975)   42
Jones v. Preuitt & Maudlin, 763 F.2d 1250

(5th Cir. 1985)   19,23,39,40
Jones v. Shankland, 800 F.2d 77

(6th Cir. 1986)   40
Joshi v. Florida Sate University Health Center

763 F. 2d 1227 (11th Cir. 1985) ..............  43

Cases: Page

viii



Marks v. Parra, 785 F.2d 1419 (9th Cir. 1986) ....  40
Mohasco Corp. v. Silver, 447 U.S. 807 (1980) .....  37
Payne v. Travenol Laboratories, 673 F.2d 798

(5th Cir. 1982)   32,33
Pettway v. American Cast Iron Pipe Co.,

494 F. 2d 211 (5th Cir. 1974) ................  33
Pullman-Standard v. Swint, 456 U.S. 273 (1982) ___ 5
Rivera v. Green, 775 F.2d 1381 (9th Cir. 1985) .... 40
Swint v. Pullman-Standard, 11 FEP Cas. 943

(N.D. Ala. 1974)  2,11,12,17,25,
43,46,54,59,65

Swint v. Pullman-Standard, 539 F.2d 77
(5th Cir. 1976)   3,18,25,42,43,

45,49,54,59,65,74
Swint v. Pullman-Standard, 15 FEP Cas. 144

(N.D. Ala. 1977)   3,12,26,29,43,
55,56,65

Swint v. Pullman-Standard, 15 FEP Cas. 1638
(N.D. Ala. 1977)   4,26,60

Swint v. Pullman-Standard, 17 FEP Cas. 730
(N.D. Ala. 1978)   4,64,73

Swint v. Pullman-Standard,624 F.2d 525
(5th Cir. 1980)  24,22,26,27,29,

43,56,57,61,64,65,73
Swint v. Pullman-Standard, 692 F.2d 1301

(11th Cir. 1983)   5
Teamsters v. United States, 431 U.S. 324

(1977)   4,60,63
United Airlines Inc. v. McDonald,

432 U.S. 389 (1977)   36
United States v. Georgia Power Co.,

474 F. 2d 925 (5th Cir. 1973) ................  33
Wilson v. Garcia, 85 L.Ed.2d 254 (1985)   39,40

Cases; Page

IX



Zipes v. Trans World Airlines, 455 U.S. 385
(1982)   37

Other Authorities;
28 u.s.c. § 1291 .................................. 22
42 U.S.C. § 1981 .................................. 1,19,23,

38,39-42
42 U.S.C. § 1983 .................................. 39
42 U.S.C. § 1988 .................................. 39

Title VII, Civil Rights Act of 1964 ..............  Passim
Section 706(e), Civil Rights Act of 1964 .........  30
Rule 8 (c), Federal Rules of Civil Procedure ......  37
Rule 23, Federal Rules of Civil Procedure ........  53
Rule 52, Federal Rules of Civil Procedure ........  5,55
Rule 54, Federal Rules of Civil Procedure ........  21
29 C.F.R. § 1601.28(a) ...........................  31
29 C.F.R. § 1601.28 (b) (3) (ii) ....................  31

EEOC, Legislative History of Titles VII and XI
of Civil Rights Act of 1964 .................  30,31

Alabama Code, Section 6-2-34(1)   39
Alabama Code, Section 6-2-39(a)(5)   40

Cases: Page

x



STATEMENT OF THE ISSUES
(1) Did the district court in Swint err in limiting the

class claims to claims arising after July 17, 1969?
(2) Did the district court in Swint err in holding that

assignment discrimination ended in February, 1969?
(3) Did the district court in Swint and Larkin err in

refusing to provide a remedy for discrimination in the assignment 
of existing employees?

(4) Is the seniority system at Pullman-Standard's Bessemer 
plant bona fide?

(5) Did the district court in Larkin err in denying the
plaintiffs' motion for relief from judgment in that case?

STATEMENT OF THE CASE
(i) Course of the Proceedings 

(a) Swint
This case was commenced on October 19, 1971, by a black 

employee and a black former employee at the Bessemer, Alabama, 
plant of the Pullman-Standard Company. The original complaint 
sought injunctive relief as well as back pay; because the plant 
has now closed, only monetary relief, including backpay 
adjustments in pension and benefit rights and counsel fees, is 
now at issue. The complaint alleged that the defendants had 
engaged in unlawful discrimination in violation of Title VII and 
42 U.S.C. § 1981.

The principal EEOC charges filed regarding the Bessemer 
plant were as follows:



EEOC Charges1
Date of Charge Charging Party
November 4, 1966 Spurgeon Seals
March 27, 1967 EEOC Commissioner 

Schulman
April 11, 1967 Spurgeon Seals, Jesse B 

Terry, Edward Lofton
October 13, 1967 William B. Larkin
October 15, 1969 Louis Swint

On June 4, 1974, the district court certified the case as a class 
action on behalf of all blacks who were employed at the plant 
during the period beginning one year before the filing of "any 
charge" with the EEOC. (R.E., p. 60).

a variety of claims. On September 13, 1974, Judge Pointer found 
that prior to 1965 it had been the practice of the defendants to 
segregate jobs on the basis of race and to assign new and 
existing employees based on whether a particular vacancy was for 
a "white" or "black" job. This assignment discrimination, the 
court concluded, lasted in some departments as late as 1971. 
Swint v. Pullman-Standard. 11 FEP Cas. 943, 953-54 (N.D. Ala. 
1974) . The district court concluded, however, that these facts 
did not constitute discrimination in departmental assignments, 
because, inter alia, blacks were assigned to "black" jobs in 
"mixed" departments. Id. at 949-52. The district court also 
rejected claims that the company engaged in racial discrimination

This case was first tried in July and August of 1974 on

1 624 F.2d at 528 n. 1; R.E., p. 109; PX 58, pp. 1, 4
2



in the selection of supervisors, and that the company had 
dismissed the named plaintiffs in retaliation for having filed 
EEOC charges. The district court ordered certain limited 
monetary and injunctive for class members injured by the 
identified post-Act assignment discrimination. Id. at 961.

Only the plaintiffs appealed from the 1974 district 
court decision. The district court's 1974 opinion had been based 
largely on a chart, constructed by Judge Pointer himself, which 
purported to demonstrate that blacks were actually in "desirable" 
departments; the Fifth Circuit dismissed that chart as tainted by 
"patent inaccuracies" and not "statistically fair." Swint v. 
Pullman-Standard. 539 F.2d 77, 92 (5th Cir. 1976). The court of 
appeals overturned the district court's findings regarding 
discrimination in assignments and discrimination in the selection 
of supervisors, and remanded those issues for further 
proceedings. The court of appeals upheld the district court's 
rejection of the retaliation claims. 539 F.2d at 105.

On remand the district court held that the limitations 
period commenced in December, 1966. Swint v. Pullman-Standard. 
15 FEP Cas. 144, 146-47 n.3 (N.D. Ala. 1977). The district court 
had found in its earlier opinion that assignment discrimination 
continued after 1966 in 5 departments, and the company had not 
appealed from the final judgment entered on that issue. In its 
1977 opinion, however, the district court held its prior decision 
was "incorrect," and that the assignment discrimination in those 
departments had actually ended in 1965. 15 FEP Cas. at 149. The

3



district court also held that the company had not engaged in 
discrimination in the selection of supervisors. Id. at 150-53. 
The 1977 opinion, like the 1974 opinion, was expressly based on a 
chart constructed by Judge Pointer himself, but in 1977 Judge 
Pointer chose not to disclose the contents of his new chart, id. 
at 148; when plaintiffs requested Judge Pointer to reveal the 
chart to counsel so it could be reviewed on appeal, Judge Pointer 
flatly refused. 15 FEP Cas. 1638, 1639. Later in 1977, in light 
of the Supreme Court's decision in Teamsters v. United States. 
431 U.S. 324 (1977), the district court ordered a retrial with 
regard to the bona fides of the seniority system at the plant. 
Swint v. Pullman-Standard. 15 FEP Cas. 1638 (N.D. Ala. 1977). On 
May 5, 1978, the district court concluded that the seniority 
system was bona fide. Swint v. Pullman-Standard. 17 FEP Cas. 730 
(N.D. Ala. 1978).

On appeal, the Fifth Circuit again reversed, holding 
that assignment discrimination continued after the effective date 
of Title VII, that the company had engaged in discrimination in 
the selection of supervisors, and that the disputed seniority 
system was not bona fide. Swint v. Pullman-Standard. 624 F.2d 
525 (5th Cir. 1980). The appellate court noted that, because of 
the 1972 amendments to Title VII, the limitations period 
commenced in September 1966, rather than December 1966. 624 F.2d 
at 528-29 n. 1.

The company and union sought certiorari on a variety of 
issues; the Supreme Court limited review to the question of

4



whether the Fifth Circuit, in holding the seniority system was 
not bona fide, had exceeded its authority under Rule 52(a). 
Pullman-Standard v. Swint. 456 U.S. 273 (1982). The Supreme
Court held that the bona fides of a seniority system, although 
the ultimate issue under Teamsters. was nonetheless an issue of 
fact to which Rule 52(a) applied. The company and union urged 
the Court to affirm the district court finding that the seniority 
system was bona fide; the Supreme Court, however, declined to do 
so, choosing instead to vacate and remand the case for further 
proceedings. 456 U.S. at 293. This court in turn remanded the 
case to the district court with instructions to address several 
specified issues, and to conduct such other proceedings as were 
"necessary in view of our prior opinion and that of the Supreme 
Court." 692 F.2d 1031 (5th Cir. 1983).

On remand the district court held an additional hearing 
in April and May, 1984; after a delay of over two years, the 
district court issued a new opinion on September 8, 1986.2
First, Judge Pointer held that the limitations period within 
which relief could be provided would begin on July 17, 1969 
(R.E., p. 109-111); the new date was some 2 years and 7 months 
later than the limitations date set in Judge Pointer's own 1977 
opinion, and 2 years and 10 months later than the limitations 
date approved by the Fifth Circuit in its 1980 opinion. Second,

The district court's decisions regarding discrimination 
in the selection of supervisors, and regarding the ability of the 
named plaintiffs to represent the class are the subject of a separate appeal by the company. No. 87-7057.

5



Judge Pointer held that all assignment discrimination ended by 
February 1969, two years and 4 months earlier than the date which 
Judge Pointer had identified in 1974 as marking the end of such 
discrimination. Id. at 118-121 The effect of these two changes 
was that, rather than receiving over five years of back pay, the 
plaintiff class was denied any relief for assignment 
discrimination. Third, Judge Pointer again held that the 
seniority system was bona fide. Id. at 115-117.

(b) Larkin
In 1966 and 1967 William Larkin, Spurgeon Seals, Edward 

Lofton and Jesse B. Terry each filed charges with the EEOC 
alleging that they had been the victims of racial discrimination 
at the Bessemer plant. The charges claimed, inter alia, that the 
complainants had been or were being denied assignments to more 
desirable jobs because of their race. (R.E.,pp. 16-17) On May 
21, 1971, the EEOC Birmingham Field Director, after investigating 
these charges, reported that the company's records "indicate that 
Caucasians have received more promotions and received promotions 
within a shorter period of time." (Id. at 18) The EEOC 
concluded in 1972 that the company's "hiring, job assignment and 
permanent promotion policies have been in violation of the Act 
and continue to be unlawful . . . ," noting that the hiring 
discrimination was a result of continued "segregated job 
classifications." (PX 58, p. 7). These practices, the 
Commission found, "limit a disproportionate number of Negro 
employees to the less desirable jobs in the plant." (Id. at 8).

6



On December 9, 197 5, Larkin, Seals, Lofton and Terry-
filed suit under Title VII on behalf of themselves and others
similarly situated. The complaint alleged, inter alia. that "the
Company discriminated against blacks by excluding them from its
more desirable jobs and departments." (R.E., p. 64) At the time
this complaint was filed, the first district court decision in
Swint was pending on appeal in the Fifth Circuit. On December
31, 1975, Pullman-Standard filed a motion to dismiss the Larkin
complaint on the following grounds:

"1. The complaint fails to state a claim upon which relief can be granted;
2. As shown by the records of this Honorable Court in 

case number 74-3726, of which judicial notice may 
be taken, the matters complained of are res judicata;

3. As shown by the records of this Honorable Court in 
said case, plaintiffs are collaterally estopped to maintain this action;

4. Case number 74-3726 is now pending on an appeal to 
the United States Court of Appeals for the Fifth 
Circuit taken by Louis Swint, and if that appeal 
was properly taken on behalf of the class of 
plaintiffs in that case, which included plaintiffs 
herein and the alleged class of plaintiffs, this 
action should be abated because of the prior action pending."

(R.E., p. 67). On January 20, 1976, the district judge in
Larkin, Judge Guin, granted the motion on the following grounds:

The court has considered said motion is of 
the opinion that same is due to be granted on 
the basis of either paragraph two, three, or 
four. It appears to this court that all
issues presented by the complaint are
presently on appeal to the Fifth Circuit 
Court of Appeals in the case of Louis Swint,
Appeals Case No. 74-3726, and that the
plaintiffs herein are included in the

7



putative class of plaintiffs on whose behalf 
said appeal was taken.

Accordingly, it is ORDERED ... that the 
motion to dismiss be, and hereby is GRANTED, 
and the above styled case be dismissed with 
prejudice.

(R.E., p. 69). On February 9, 1976, the plaintiffs in Larkin 
filed a notice of appeal. However, counsel for plaintiffs, 
agreeing with the company and Judge Guin that the Larkin issues 
were all within the scope of the Swint case, did not pursue the 
Larkin appeal, which was subsequently dismissed.

In June 1983, following the remand of Swint from the Fifth 
Circuit, Pullman-Standard urged Judge Pointer to change the 
limitations cut-off date in Swint from 1966 to 1969; the company 
based its proposal, in part, on its contention that only EEOC 
charges filed by the named plaintiffs in Swint could determine 
the limitations date in that case. Swint's original charge had 
been filed in 1969, some three years after the charge by Larkin 
plaintiff Spurgeon Seals. The company's request, if granted, 
would have placed outside of the Swint litigation the original 
individual charges of all of the four Larkin plaintiffs. In 
response to the potential problems raised by the company's new 
position, counsel for plaintiffs filed a motion seeking to add 
Seals as a named plaintiff and class representative in Swint 
(R.E., p. 110 and n. 4); the company asserted that Judge Guin's 
1976 order had resolved on the merits the claims of the Larkin



*

plaintiffs, thus precluding them from participating in the Swint 
case in any fashion whatever.3

Plaintiffs thereupon filed in Larkin a motion for relief 
from judgment, seeking an order to make clear that the court in 
Larkin "did not intend to bar Seals from pursuing his claims in 
the context of the Swint litigation." Plaintiffs urged Judge 
Guin to clarify the matter by deleting the words "with prejudice" 
from his 1976 order. 4 The company urged in response that, 
because the 1976 opinion contained the words "with prejudice," 
Judge Guin had indeed intended to make "an adjudication on the 
merits" on the individual claims of Larkin, Seals, Terry and 
Lofton.5 Counsel for the company attacked plaintiffs' different 
reading of the 1976 opinion as "deliberately false," and 
denounced the motion as an "outrageous" attempt to "backdate" the 
limitations date in Swint.6 On April 16, 1984, Judge Guin 
declined to modify his 1976 order, but made clear that the 1976 
order was not intended to bar the Larkin plaintiffs from seeking 
redress in Swint:

[T]he judgment need not be modified or 
expounded upon because the court finds that 
the order is clear on its face.... This 
court correctly stated in its order that, as

J Letter of Elaine Jones to Hon. J. Foy Guin, March 23,1984.
4 Motion for Relief from Judgment, p. 2-3.
5 Defendant's Memorandum in Opposition to Motion, p. 5.

Id. at 4, 7; see also id. at 11 ("outrage,"
"transparently false claim"), 12 ("a scandal in any civilizedsystem of justice."

9



members of the class whose case had already 
been heard on the merits, the plaintiffs 
named in the above-styled cause were barred 
by either res judicata or collateral 
estoppel.... The court expressed no opinion 
as to the rights which these plaintiffs might 
have as unnamed members of the Swint class.

(R.E.,pp. 79-80). This explanation reflected Judge Guin's 
original understanding in 1976, to which he adhered in 1984, that 
the claims of the Larkin plaintiffs were being "heard on the 
merits" in Swint. On May 11, 1984, plaintiffs appealed Judge 
Guin's refusal to remove the words "with prejudice" from his 1976 
order. This court stayed proceedings in the Larkin appeal 
pending disposition of the Swint remand.

(ii) Statement of the Facts
The facts of this case are set out in detail in the 

prior decisions of this court and the district court. We 
summarize briefly the circumstances of particular importance.

Until its closing Pullman-Standard's Bessemer plant was 
one of the largest facilities in the United States assembling 
railroad cars. The plant was divided into 28 departments, 26 
represented by the United Steelworkers of America and 2 
represented by the International Association of Machinists. The 
volume of work and thus the number of employees at the plant 
varied widely from month to month; at times the plant was working 
on as few as 25 cars, on other occasions the plant had several 
thousand cars on order. For this reason virtually all workers 
were laid off and recalled repeatedly over the course of their

10



careers and even during a single year. 11 FEP Cas. at 945-46 and 
nn. 3, 4 .

The wage for a particular position depended on its job 
classification; those classifications ranged from JC 1 for the 
lowest paid jobs to JC 20 for the highest. As of 1973, for 
example, a JC 20 job paid $5.39 per hour, while a JC 1 job paid 
$3.63 per hour. (15 FEP Cas. at 946 n. 8.)^ Newly hired workers 
were assigned to a specific job and department. When a vacancy 
arose in a higher paying position in a department, employees were 
not notified of the vacancy or permitted to bid on it. Rather, 
the relevant supervisor would simply assign a department employee 
to that position. 11 FEP Cas. at 959. In the 2 6 departments 
represented by the Steelworkers, management was required by the 
collective bargaining agreement to select the worker with the 
greatest departmental seniority. The company could pass over the 
senior employee if it believed he lacked the ability to do the 
job, but at least prior to 1965 it was the general practice at 
the plant to provide any needed training on an informal on-the- 
job basis.

Prior to 1965 job assignments at the plant were 
avowedly made on the basis of race. The defendants did not, 
however, simply utilize a crude system of all-white and all-black 
departments. Rather, the segregation took a more sophisticated 
form, with individual jobs being reserved for whites and blacks

This is the classification scheme in the 26 
Steelworkers departments. Wages in the 2 I AM departments are 
generally comparable to or higher than the wage for a JC 10 job.

11



respectively. When a vacancy arose in a "white" job it was 
filled by a white, regardless of the qualifications or seniority 
of blacks in the department. 11 FEP Cas. at 947; 15 FEP Cas. at 
147 n. 7, 148. Virtually all of the best jobs in the plant were 
reserved for whites:

Employees by Job Class (PX 1038, pp. 1-2)
Job Class Whites Blacks Percent Wh
JC 16-20 38 2 95.0%JC 15 12 0 100.0%JC 14 15 2 88.2%JC 13 23 0 100.0%JC 12 62 1 98.4%JC 11 64 9 87.7%JC 10 1 1 1 49 94.1%JC 9 46 13 78.0%JC 8 36 27 57.1%JC 7 19 32 37.3%JC 6 135 567 19.2%JC 5 4 72 5.3%JC 4 136 220 38.2%JC 3 2 5 28.6%JC 2 8 121 6.2%JC 1 3 14 17.6%

More than 71% of all whites were at JC 10 or above, compared to 
less than 6% of blacks. The racial composition of individual 
departments turned on the JC rating of jobs in the department. 
Some departments, with only low JC jobs, were as a result all­
black; some departments, with only high JC jobs, were as a 
consequence all-white. Most departments, however, had both high 
and low JC jobs, and were therefore racially "mixed." 11 FEP 
Cas. at 950. In the mixed departments, however, blacks were 
generally restricted to the low JC jobs.

12



Although there are a total of 28 departments at the 
plant, almost all of the lucrative jobs were concentrated in just 
four departments. Out of approximately 1,250 jobs classified as 
JC 10 or above, about 1,100, or 87% were in four departments—  
the welding department, the IAM die and tool department, and the 
two maintenance departments. Welding alone, with about 845 jobs 
at JC 10 and above, had 67% of the best paid jobs at the plant. 
Among the 2,545 whites employed in 1964, about 76% were in these 
four key departments. Among the 1,325 blacks, on the other hand, 
only 230, or 17% were in these four departments. (See PX 20)

In 1980 the Fifth Circuit concluded that 
discriminationO in the assignment of newly hired workers had 
continued after the enactment of Title VII. 624 F.2d. at 528-30. 
In 1965 the average white hire was assigned to a job class almost 
three classes higher than the average black hire of that year; 
not until well into the 1970's did such discrepancies disappear:

13



Average Job Class 
of Newly Hired Employees8

Year of 
Hire White
1965 8.18 (292 hires)
1966 6.99 (339)
1967 9.93 (213)1969 8.20 (385)1970 7.11 (134)1971 7.10 (727)
1973 9.85 (101)1974 6.99 (991)

Black Difference
5.27 (164 hires) 2.915.41 (151) 1.587.71 (24) 2.226.64 (215) 1.566.24 (86) .876.47 (318) .639.43 (76) .426.94 (543) .05

In 1966 the job assignments of workers hired in that year were as 
follows:

1966 Job Classifications of 
________ 1966 Hires________

(PX 1038, p. 3)
Job
Classification White Black Percent White
JC 11-20 17 3 85.0JC 10 99 20 83.2JC 7-9 19 3 86.4JC 6 57 42 57.6JC 4-5 123 66 65.0JC 1-3 14 17 45.2

For employees hired in 1966 and thereafter, the disparity between 
blacks and whites generally rose with each year they remained at 
the plant:

8
1968. PX 1038, pp. 17-29. There were no hires in 1972 or

14



Job Increase in Black/White 
Class Differential bv Year of Hire

(PX 1038, pp. 17-29)
Difference in DifferenceYear of Hire Year of Hire 1974

1966 1.58 3.341967 2.22 3.411969 1.56 1.931970 .87 .941971 . 63 1.561973 .42 .57
As of 1974 the disparities between the job classifications of 
blacks and whites hired in 1966-67 were actually greater than the 
disparities between blacks and whites hired during the pre-1966 
era of avowed racial discrimination.

During the decade after the adoption of Title VII, few
blacks who had been hired and assigned to lower paid black jobs
prior to 1965 were able to move into the higher-rated white jobs.
As of 1965 over 70% of all whites were assigned to jobs with a JC
rating of 10 or above, comparOed to less than 10% of all blacks;
in 1974 the proportion of blacks hired before 1965 who had
reached the JC 10 level or above was still under 20%:

Proportion of Pre-1965 Hires 
Assigned to JC 10 and Above 

(PX 1038, pp. 22-23)
1965 1974Year of Hire White Black White Black

Pre 1950 68% 5% 70% 14%1950-54 75% 9% 74% 22%1950-59 74% 8% 78% 20%1960-64 79% 3% 84% 13%
The difference in the average job class of blacl
declined only slightly from 1965 to 1974 :

15



Pre-Act Hires

Year of Hire

Black/White Job Class 
Differential bv Year of Hire

(PX 1038, p. 
1965 Differential

29)
1974 Differential

Pre-1950 3.64 3.251950-54 4.48 3.291955-59 4.04 3.411960-64 4.37 3.90
From 1965 through 1973 the average job classification of newly- 
hired whites was always higher than the average classification of 
the more senior pre-1965 blacks.^ As a general practice, in the 
years after 1965 Pullman—Standard chose to fill vacancies in 
higher paying jobs by hiring new white employees, rather than by 
reassigning senior black employees.* 10

Under the departmental seniority rules in effect at the 
Bessemer plant, an employee who moved into a new department lost 
a11 his seniority; for purposes of assigning workers to better 
jobs, and for layoffs and recalls, a transferring employee's 
seniority was based on the day he entered the new department. 11 
FEP Cas. at 94 6. Because of the large number of layoffs and 
recalls at the plant, an employee with 10 or 2 0 years seniority 
might enjoy relatively steady work in his original department, 
but would be employed only intermittently if he changed

Id. at 29. In 1973, for example, the average job 
classification of a newly hired white was 9.85, while the average 
classification for pre-1965 blacks ranged from 6.10 to 6.87.

10 In 1967, for example, the company hired 199 new employees into jobs at JC 10 or above, all but 11 of whom were 
white, despite the fact that there were then over 1000 existing black employees in jobs below JC 10. Id. at 1-4.

16



departments. Not surprisingly, there was only a minuscule number 
of transfers between departments. In the era after the adoption 
of Title VII, an average of only 17 employees a year changed 
departments at the plant, out of an annual workforce of 
approximately 2,500. (DX 1208, p. 15).

In 1972 the Labor Department entered into an agreement 
with Pullman-Standard designed to provide very limited relief 
from the deterrent effect of this departmental seniority rule. 
11 FEP Cas. at 947-48. Under the agreement, blacks in four small 
traditionally black departments who had been hired prior to April 
30, 1965, were permitted to transfer to any other department
without loss of seniority.11 Out of about 1,100 black employees 
at the plant in 1972, however, only 88 were eligible for this 
transfer, and 30 of them were already in better paid JC 9 jobs.12 
The agreement also permitted any black hired prior to April 30, 
1965, to transfer without loss of seniority into five small 
traditionally white departments.13 Out of approximately 1,250 
jobs classified at JC 10 and above, however, only 36 were located 
in the 5 departments ;into which all pre-1965 blacks could 
transfer. (See PX 20) . Vacancies in these 36 jobs of course
arose only occasionally; how many, if any, vacancies actually

11 The departments were Janitor, Steelworkers Die and Tool, Truck, and Steel Miscellaneous. 11 FEP Cas. at 948.
12 PX 19; Die and Tool (2 eligible employees), Janitors (7 

eligible employees), Steel Miscellaneous (64 eligible employees, 
30 of them already at JC 9), Truck (15 eligible employees).

13 The departments were Airbrake Pipe Shop, Inspection, Plant Protection, Powerhouse and Template.
17



occurred between 1972 and the 1980 plant closing is not revealed 
by the record. Overall, despite this 1972 agreement, 98% of all 
jobs at or above JC 10 were still effectively closed to 92% of 
all blacks at the plant. Black employees who were eligible for 
these transfers were not entitled to red circling, and thus might 
face a pay cut upon moving into an entry level position in a 
traditionally white department. 539 F.2d at 101. Not
surprisingly the Labor Department agreement had very little 
impact; only 17 blacks actually transferred under that program. 
(CDX 1208, p. 15). The Labor Agreement had absolutely no effect 
on the opportunities of the overwhelming majority of blacks at 
the plant.

(iii) Standard of Review
This appeal presents a large number of issues, most of 

which are entirely legal in nature and which are thus subject to 
de novo consideration by this court. In parts II (assignment 
discrimination) and IV (seniority system), we urge that certain 
factual findings made by the district court are clearly 
erroneous.

SUMMARY OF ARGUMENT
(1) In its 1980 opinion the Fifth Circuit in Swint found 

that there had been classwide post-Act discrimination in 
assignments and in the selection of foremen. The court of 
appeals set the limitation date as September 28, 1966, and
remanded the case for an award of back pay. On remand the

18



district judge in Swint improperly changed the limitations cut­
off date to July 17, 1969.

This new limitations date in Swint is inconsistent with 
the dismissal of the complaint in Larkin. Larkin was dismissed 
on the assumption that the claims of the Larkin plaintiffs were 
being litigated in Swint. The specific discriminatory acts 
complained of by the Larkin plaintiffs occurred in 1966 and 1967. 
If the Swint cut-off date is 1969, then the Swint litigation does 
not encompass the claims of the Larkin plaintiffs, and Larkin was 
improperly dismissed.

The Title VII cut-off date in Swint is no later than 
September 28, 1966, 180 days prior to the EEOC Commissioner's 
charge of March 27, 1966. Title VII clearly contemplates that an 
aggrieved individual may sue on the basis of a Commissioner's 
charge. Inda v. United Airlines. 565 F.2d 554 (9th Cir. 1977).

The section 1981 cut-off date in Swint is October 19, 
1965, six years before the filing of the complaint. The 
limitations period for a section 1983 claim arising in Alabama is 
6 years. Jones v. Preuitt & Maudlin. 763 F.2d 1250 (11th Cir. 
1985) . The same limitations rule must be utilized in a section 
1981 case, and should be applied to all pending cases. Goodman 
v. Lukens Steel Co.. 55 U.S.L.W. 4881 (1987).

(2) In his 1974 opinion Judge Pointer found that assignment 
discrimination at the Inspection, Air and Brake, and Steelworkers 
Die and Tool departments had continued until 1970 and 1971. The 
defendants chose not to appeal that finding, which became the law

19



of the case. The district court had no authority to thereafter 
reopen the question and hold that all discrimination ended in 
February, 1969.

It was clear error to hold that assignment 
discrimination at the two I AM departments ended in February, 
1969. Both departments were all-white in 1965; between 1965 and 
1969 every one of the several new employees assigned to these 
departments was white. No black was assigned to an IAM 
department until at least 1970.

(3) The complaint in Larkin alleged that the company 
"discriminated against blacks by excluding them from its more 
desirable jobs." (R.E., p. 64). The EEOC charges of Larkin and 
the other Larkin plaintiffs were particularly concerned with 
discrimination in the assignment of existing employees to better 
paid jobs in their own departments. Judge Guin in 1976 dismissed 
Larkin on the assumption that those claims were within the scope 
of the Swint litigation. On April 16, 1984, in denying our 
motion for relief from judgment in Larkin. Judge Guin made clear 
that he had not decided the Larkin claims on the merits, but was 
merely ruling that those claims had been or could be resolved in 
Swint. Two weeks later, on May 1, 1984, Judge Pointer ruled that 
discrimination in the assignments of existing employees was not 
and never had been within the scope of the Swint litigation. (R.

20



v. 14, p. 50.)14 Clearly these two decisions are inconsistent, 
and one must be reversed.

(4) The district court found, as had the Fifth Circuit in 
1980, that the I AM was racially motivated in 1941 when it 
gerrymandered department lines to exclude all blacks from IAM 
seniority units. The resulting system, which divided on racial 
lines both the then existing Maintenance department and the Die 
and Tool department into two new units, was not bona fide.

The departmental seniority rules in the Pullman- 
Standard-Steelworkers contracts were maintained with a 
discriminatory purpose. Under the facially neutral terms of 
those contracts, vacancies were to be awarded to the most senior 
departmental employee, regardless of race. In practice, however, 
at least until 1965, a vacancy in a "white" job was reserved for 
and filled only by a white, regardless of whether the senior 
department employee happened to be a black

STATEMENT OF JURISDICTION
The decision of the district court in Swint was entered on 

September 8, 1986. On September 18, 1986, both plaintiffs and
the company defendant filed motions to alter or amend that
decision. On November 15, 1986, the district court denied those 
motions. On November 25, 1986, the district court entered a
final judgment under Rule 54. On December 18, 1986, the

14 "R"
court record. cites are to the volumes of the original district

21



plaintiffs filed a notice of appeal. Jurisdiction over this 
appeal exists under 28 U.S.C. § 1291.

On March 23, 1984, the plaintiffs in Larkin filed a motion
for relief from judgment in that case. The district court denied 
that motion on April 16, 1984, and plaintiffs filed a notice of
appeal on May 11, 1984. Appellate proceedings in Larkin were
thereafter stayed pending developments in Swint. Jurisdiction 
over this appeal arises under 28 U.S.C. § 1291.

ARGUMENT
I. THE COURT BELOW ERRED IN REFUSING TO PROVIDE A REMEDY FORDISCRIMINATION OCCURRING PRIOR TO JULY 17. 1969___________

In 1980 the Fifth Circuit held that the defendants during 
the years after the enactment of Title VII had continued to 
engage in at least two unlawful discriminatory practices. First, 
employees continued to be assigned on the basis of race to 
particular jobs and departments. The court of appeals emphasized 
that prior to 1970 all employees assigned to certain tradition­
ally white departments were still white. 624 F.2d at 529. 
Second, the Fifth Circuit found that there had been unlawful 
discrimination in the selection of foremen from among the plants 
hourly employees. It noted that although blacks constituted 45- 
50% of the pool of employees from whom foremen were chosen, there 
were no black foremen in June 1965, and that from 1966 until 1974 
only 12 blacks were promoted into foremen jobs. 624 F.2d at 527- 
28, 534-36.

22



The Fifth Circuit's 1980 opinion contemplated that the 
limitations period for which backpay would be awarded on remand 
would commence no later than 1966. 624 F.2d at 528 n. 1. This 
case presents three independent bases for that 1966 cut-off date. 
First, the discriminatory practices at issue were the subject of 
a March, 1967, Commissioner's charge? litigation under this 
charge encompasses claims arising 180 days earlier, since the 
charge itself was still pending when Congress enacted the 180 day 
rule as part of the 1972 Title VII amendments. Second, the 
discriminatory practices at issue were the subject of individual 
Title VII charges filed in November, 1966 and April, 1967; these 
charges too were pending in 1972 and thus encompass claims 
arising 180 days before the date on which they were filed.15 
Third, the complaint filed in 1971 alleged a cause of action 
under 42 U.S.C. § 1981 as well as under Title VII; the 
limitations period for a section 1981 claim arising in Alabama is 
six years. Jones v. Preuitt & Maudlin. 763 F.2d 1250 (11th Cir. 
1985).

In his 1977 opinion Judge Pointer had expressly agreed that 
the limitations period commenced in 1966. This court's 1984 
remand contemplated that Judge Pointer would provide backpay for 
the assignment discrimination identified by the Fifth Circuit. 
Instead of providing that remedy, however, Judge Pointer on

The limitations date would be in September, 1966, under 
the Commissioner's charge, and May 1966 under the earliest 
individual chart; we urge the court to adopt the latter cut-off date.

23



remand overturned his own 1977 opinion, disregarded the Fifth 
Circuit's 1980 decision, and changed the cut-off date from 1966 
to 1969. Judge Pointer refused to base the Title VII cut-off 
date on either the 1967 Commissioner's charge or the 1966 and 
1967 individual charges, and applied to the section 1981 claim a 
one year limitation period

(1) The Pre-1980 Decisions in Swint Regarding the Relevant Limitations Period
In its pre-trial order of June 4, 1974, the district court 

defined the class to include any black employed at the Bessemer 
plant "within one year prior to the filing of any charges under 
Title VII." (R.E., p. 60) (Emphasis added). This unambiguous 
order was not limited to the EEOC charge filed by the named 
plaintiff in Swint itself, but extended to "any" charges. The 
significance of this order was unquestionably clear to the 
parties. Since, as was well known to counsel, a total of four 
different charges had been filed against Pullman-Standard prior 
to the end of 1967, it was evident that under the 1974 pre-trial 
order the class claims encompassed individuals employed, and 
claims arising, as early as 1966.16

When this case was first tried in July and August of 1974, 
much of the evidence dealt with alleged discriminatory acts 
occurring between 1966 and 1969.17 In its 1974 opinion the

16 The Larkin charges were discussed during the 1974 trial. R. v. 3, pp. 39-40, 162-63, 189-90.
17 See, e.g., R. v. 3, pp. 126-27, 160-61, 182; R. v. 4,

pp. 263-64, 416, 512; R. v. 5, pp. 554-56, 601-04, 611; R. V. 6,pp. 751, 753, 833-34, 891.
24



district court again noted that it was resolving the class claims 
"of all black persons who at any time subsequent to one year 
prior to the filing of any charges with EEOC had been employed at 
Pullman (at its Bessemer plant)". 11 FEP Cas. 944, 948 n.20 
(N.D. Ala. 1974) (Emphasis added).

On appeal we expressly asserted in the statement of the case 
in our 1975 brief that the effect of the 1974 pre-trial order was 
to include within the scope of the class individuals employed by 
Pullman-Standard since the spring of 1966. We referred in 
particular to the January 1967 Commissioner's charge and the 
April, 1967, individual charges.18 Although both the company and 
the union included in their 1975 briefs a "counter statement of 
the case",19 neither disputed our description of the scope of the 
class claims, objected to the terms of the 1974 pre-trial order, 
or suggested that the 1967 charges were an inappropriate basis 
for determining the commencement of the limitations period.

In 1976 the Fifth Circuit reversed the trial court's 1974 
decision, and remanded the case for further proceedings. The 
court of appeals noted that the class consisted of "all black 
persons who at any time subsequent to 1 year prior to the filing 
of any charges with the EEOC had been employed by Pullman- 
Standard." 539 F. 2d 77, 85 n.17 (5th Cir. 1976) (Emphasis

18 Brief for Plaintiffs-Appellants No. 74-3726, pp. 2-3 and n.2.
19 Brief of Defendant Appellee Pullman-Standard, No. 74- 

3726, p p . 3-6; Brief for Defendants-Appellants United 
Steelworkers of America, etc., et al., No. 74-3726, pp. 2-6.

25



added). On remand the district judge held, pursuant to the terms 
of the pre-trial order, that the class claims encompassed 
discrimination in or after late 1966. 15 FEP Cas. 144, 146 n.5, 
147 (N.D. Ala. 1977). The case was retried and decided in 1977 
on the basis of this 1966 cutoff date. The district judge held 
regarding discrimination in assignments and promotions to 
supervisory positions that both practices had ended prior to the 
1966 cut-off date. 15 FEP Cas. at 150, 153.

In the 1980 appeal the company again chose not to challenge 
the 1966 cut-off date set by the district court. On the 
contrary, although the district court had established a cut-off 
date in December of 1966, Pullman-Standard referred to September 
29, 1966, as the beginning of "the earliest possible limitations 
period."20 The company urged the Fifth Circuit to decide on the 
merits whether there had been discrimination during "the 
limitations period" considered by the district court.21 In its 
1980 decision the Fifth Circuit noted that the district court had 
set the limitations date at December 27, 1966, 90 days prior to 
the EEOC commissioner charge of March 27, 1967; the court of 
appeals held that, because of the 1972 amendments to Title VII, 
the correct date should have been 180 days prior to that charge, 
September 28, 1966. 624 F.2d 525, 528-29 at n. 1 (5th Cir.

20 Brief of Defendant-Appellant Pullman-Standard, No. 78- 2449, p. 50. In a subsequent 1977 order the district judge had 
indicated that the September 28, 1966 date was "probably 
correct." Swint v Pullman-Standard. 15 FEP Cas. 1638, 1639 (N.D. Ala. 1977).

21 Id. at 56, 67.
26



1980). The appellate court concluded, with regard to the merits, 
that discrimination in both assignments and supervisory 
promotions had occurred subsequent to that date. 624 F.2d at 
528-30, 534-36.

When this case was remanded to the district court in 1983, 
plaintiffs requested that court to establish as the anterior cut­
off September 28, 1966, the date specified in the Fifth Circuit's 
1980 opinion.22 in June, 1983, the Pullman-Standard company 
asserted in response that the cut-off date should be July 17, 
1969, 90 days prior to the filing of Swint's personal charge; the 
company described our proposal of a 19 66 cut-off date as an 
attempt to "push[] back" the time limit, "to enlarge the scope of 
litigation," and "to enlarge the time dimension of the case."* 23 
On September 19, 1983, the district court issued a pre-trial 
order which expressly deferred any decision regarding "which EEOC 
charge will control". (R.E., p. 70). The court admonished that 
"for the purposes of trial preparation, counsel should assume the 
anterior cut-off date is 180 days prior to October 30, 1966," the 
date of the Spurgeon Seals' charge. (Id.) The 1984 trial 
proceeded on the assumption that the anterior cut-off date was

Plaintiff's Motion for a Determination of the Earliest Proper Charge Related to the Issues in the Case, filed June 6, 1981.
23 Defendant Pullman's Response to Plaintiff's Motion for 

a Determination of the Earliest Proper Charge Related to the Issues in this Case, pp. 1, 3, 5.

27



1966. In its September, 1986 opinion, however, the district 
court set the cut-off date as July 17, 1969. (Id. at 113).

(2) The 1969 Limitation Date in Swint is Inconsistent with the Decision in Larkin
If this court now upholds Judge Pointer's 1986 decision 

establishing a 1969 cut-off date, it must overturn Judge Guin's 
197 6 and 1984 orders holding that the claims of the Larkin 
plaintiffs were within the scope of the Swint class, and could 
thus be pursued only in Swint itself.

When Larkin was first filed, the company expressly asserted 
that the claims of the Larkin plaintiffs were being litigated in 
Swint. (R.E., p. 67) Judge Guin dismissed Larkin because "all 
issues presented by the complaint are presently on appeal" in 
Swint. (R.E., p. 69). Insofar as the limitations issues were 
concerned in 1976, Judge Guin was correct. Although the claims 
of the Larkin plaintiffs arose in 1966 and 1967, the Swint class 
action, at the time of Judge Guin's 1976 decision, did encompass 
class claims for 1966 and 1967. In 1984 Judge Guin reiterated 
his original understanding that the claims of the Larkin 
plaintiffs "had already been heard on the merits" in Swint. 
(R.E., p. 80). Again, that was as recently as 1984 an accurate 
description of the temporal scope of the Swint class claims.

In September 1986, however, Judge Pointer announced that he 
would limit Swint class claims to claims arising after July, 
1969; the new cut-off date was two to three years after the 
original individual claims of Larkin, Seals, Lofton and Terry. 
Judge Pointer concluded, with regard to the merits in Swint. that

28



assignment discrimination lasted until 1969, and that supervisory 
promotion discrimination lasted until 1974. (R.E., pp. 114-15,
118-21) . But because he had redefined the scope of the class 
claims, Judge Pointer necessarily refused to hear on the merits 
any claim arising in 1966, 1967 or 1968 including those of the
Larkin plaintiffs themselves. In sum, Judge Guin decided in 1976 
to dismiss Larkin because he believed that the claims of the 
Larkin plaintiffs were being presented and heard in Swint; ten 
years later Judge Pointer decided he would not hear and decide 
those claims after all, at least insofar as the Larkin plaintiffs 
were complaining of discrimination in 1966 and 1967, the dates of 
their actual EEOC charges. If Judge Pointer's decision is 
upheld, Judge Guin's decision must now be reversed.

(3) The Title VII Cut-off Date In Swint Is No Later Than September 28. 1966__________ _________________ ______
(a) The Limitations Period May Be Based on the March 27. 1967 Commissioner's Charge
In his 1977 decision Judge Pointer held that the cut-off 

date should be based on the March 27, 1967, Title VII charge by
EEOC Commissioner Shulman, 15 FEP Cas. at 146 n. 3, a view 
concurred in by the Fifth Circuit. 624 F.2d at 528-29 n. 1. On 
remand, however, following the Fifth Circuit's holding that the 
company had engaged in post-Act discrimination, Judge Pointer in 
1986 reversed his earlier decision and held that the temporal 
scope of this action could not be based on that Commissioner's 
charge. Judge Pointer reasoned that while a Commissioner's 
charge might provide a basis for a suit by the government, a

29



private party could never rely on a Commissioner's charge which 
had not led to such a government lawsuit. (R.E., No. 87-7057, 
pp. 4-6).

The language and legislative history of Title VII make
abundantly clear that a private claimant may indeed rely on a
Commissioner's charge. Inda v. United Airlines. 565 F.2d 554,
559 (9th Cir. 1977). Section 706(e) provides that, if EEOC has
been unable to resolve a charge through conciliation,

a civil action may ... be brought against the respondent 
named in the charge (1) by the person claiming to be 
aggrieved; or (2) if such charge was filed by a member of 
the Commission, by any person whom the charge alleges was 
aggrieved by the alleged unlawful employment practice.

Subsection (2) manifestly authorizes private civil suits based
on a Commissioner's charge. The legislative history of the
statute confirms its plain meaning. Although the original
language of the House bill authorized the EEOC itself to sue on
the basis of a Commissioner's charge, the Senate bill, which
ultimately became Title VII, gave the EEOC itself no such
authority. EEOC, Legislative History of Titles VII and XI of
Civil Rights Act of 1964. 3003-04. Senator Saltonstall explained

The section has been modified so that the Commission itself 
cannot bring suit.... A single member ... may file a charge 
with the Commission . . . but the individual must take it to 
court, if ... the Federal Commission is not able to arrive 
at an agreement for voluntary compliance. (Id. at 3304)

Other members of the Senate expressed a similar understanding
that individuals could bring suit on the basis of Commissioner's
charges. Id. at 3307 (Sen. Yarborough), 3312 (Sen. Cotton).

30



Judge Pointer argued, in the alternative, that the 
Commissioner's charge "did not list any of the named plaintiffs 
or would-be intervenors as aggrieved or charging parties." 
(R.E., No. 87-7057, p. 47). But section 706(e) does not restrict 
civil suits based on a Commissioner's charge to those 
individuals, if any, whose proper names might be listed in the 
Commissioner's charge; on the contrary, the language of the 
statute extends more broadly to "any person whom the charge 
alleges was aggrieved by the alleged unlawful employment 
practice." It is inconceivable that Congress intended to require 
that a Commissioner's charge literally contain a list of names of 
aggrieved individuals, since one of the primary purposes of 
Congress in authorizing Commissioner's charges was to permit 
Commission action where aggrieved individuals were afraid to be 
named complainants. 1964 Legislative History, pp. 3305 (Sen. 
Case), 3311 (Sen. Keating). The EEOC regulations implementing
section 706(e) do not require that a Commissioner's charge list 
specific aggrieved persons, but provide for the issuance of a 
right-to-sue letter to any individual who is a member of the 
class of persons identified by the charge as aggrieved by the 
alleged discrimination. 29 C.F.R. §§ 1601.28(a),
1601.28(b)(3)(ii). The EEOC regulations interpreting Title VII 
are entitled to considerable deference. EEOC v. Shell Oil Co. . 
466 U.S. 54, 79 n.36 (1984); Griggs v. Duke Power Co. . 401 U.S. 
424, 433-34 (1970).

31



It is thus clear that Louis Swint, William Larkin, or any 
other of the more than 2 000 class members could now obtain a 
right-to-sue letter under the 1967 Commissioner's charge and 
bring a new class action. Title VII, however, surely does not 
require that the plaintiffs proceed in this cumbersome manner.

(b) The Limitations Period May Be Based On Title VII 
Charges Filed in 1966 and 1967 by Class Members Who Are Not Named Plaintiffs

The earliest EEOC charge by a member of the plaintiff class 
was dated October 30, 1966, and was filed on November 4, 1966, by 
Spurgeon Seals. Subsequent charges were filed in 1967 by Seals, 
William Larkin, Edward Lofton and Jesse Terry, who were all 
members of the Swint class, although not named plaintiffs in that 
litigation. In his 1986 opinion, however, Judge Pointer held 
that the limitations date could only be based on the 1969 charge 
filed by the named plaintiff Louis Swint. Judge Pointer reasoned 
that a limitations cut-off date could be based only on a Title 
VII charge filed by a named plaintiff, regardless of whether, as 
here, there were a significant number of earlier charges filed by 
other class members.

The district court relied on the statement in Payne v. 
Travenol Laboratories. 673 F.2d 798 (5th Cir. 1982), that, "The 
opening date for membership in a class in a Title VII claim 
should be set by reference to the earliest charge filed by a 
named plaintiff." 673 F.2d at 813. (R.E. p. 109 and n. 3) In
Payne, however, there is no indication that any class member 
other than the named plaintiff had filed a charge with EEOC, or

32



that the parties had asked the court to decide the legal 
significance of such charge filed by a class member who was not a 
named plaintiff. It would be inappropriate to read into the 
language of Payne an intent on the part of the court of appeals 
to address a legal issue which the parties had not presented and 
which the panel itself appears not to have contemplated.

The governing principle regarding Title VII class actions 
is that " [o]nce a complaint has been filed with the EEOC, the 
applicable statute of limitations is tolled." Johnson v. 
Goodyear Tire & Rubber Co.. 491 F.2d 1364, 1378 (5th Cir. 1974); 
see also Pettway v. American Cast Iron Pipe Co. . 494 F.2d 211, 
258 (5th Cir. 1974); United States v. Georgia Power Co.. 474 F.2d 
925, 906 (5th Cir. 1973). This tolling rule follows from the 
very rationale of the 180 day filing requirement, which is to 
provide for notice to the filing party, and to bring to bear the 
compliance and conciliation functions of the EEOC. zipes v. 
Trans World Airlines. 455 U.S. 385, 394 (1982). Once a 
discriminatory practice has been the subject of an EEOC charge, 
the statutory purpose has been fully satisfied; no legitimate 
further purpose would be fulfilled by requiring other employees 
to file additional charges reiterating the very grievance of 
which the respondent already has notice, and which is already the 
subject of EEOC proceedings.

The filing of EEOC charges in 1966 and 1967 by Seals, 
Larkin, Lofton and Terry tolled the filing period for all other 
black employees with similar claims, including the period

33



applicable to Louis Swint. Although Swint only filed his own 
charge in October, 1969, the effect of the tolling triggered by 
the earlier charges was that Swint's own claim reached, not 180 
days prior to his own charge, but 18 0 days prior to the Seals 
charge. If Swint himself had never brought his own action, the 
substantive issues would have been litigated and resolved in the 
Larkin litigation, and the anterior cut-off date, for Swint and 
all other blacks at the plant, would have been 1966. It is
inconceivable that Swint somehow expunged this tolling effect, 
and forfeited his own claims for the years 1966-68, because he 
brought his own suit in 1971 rather than waiting for Larkin, 
Seals, Lofton or Terry to sue. The equitable benefits of a 
tolling rule may sometimes be lost by those who sleep on their 
rights, but no court has ever fashioned a tolling rule which 
penalizes litigants who sue too soon.

(c) The_District Court Improperly Denied the Motion ofLarkin, et al. to Intervene in Swint
On June 4, 1984, counsel for plaintiffs, anticipating the

limitations problems raised two years later by the 1986 opinion, 
filed a motion to intervene in Swint on behalf of Larkin, Seals, 
Terry, and Lofton, all of whom, of course, were already members 
of the Swint class. The motion was denied without opinion on 
September 4, 1984; the district court explained that denial two 
years later in its 1986 decision on the merits. (R.E., pp. 110- 
111) .

Judge Pointer argued, first, that intervention would 
"broaden the temporal scope of the case, potentially increasing

34



the liability of the defendants fifteen years after the case was 
filed." (Id. at 111). That assertion was clearly incorrect. 
Only a year before the motion to intervene, Judge Pointer had 
issued a pre-trial order instructing counsel that the 1984 
retrial would encompass class claims arising in and after 1966. 
(Id. at 70) . Judge Pointer in his 1977 opinion had also used a 
1966 cut-off date. The year 1966 had since the 1974 pre-trial 
order defined the outset of "the temporal scope of the case." It 
was not until September 1986, some two and one-half years after 
the motion to intervene, that Judge Pointer moved the cut-off 
date to July, 1969.

Judge Pointer also insisted that denying intervention would
not cause Larkin, et al. . any "significant prejudice." Larkin
and the others, Pointer asserted,

are class members whose interests are adequately 
protected by the class representatives. They will 
hardly be deprived of their "day in court," as plaintiffs contend. (Id. at 111).

The individual EEOC charges of Larkin, Seals, Terry and Lofton
concerned alleged acts of discrimination in 1966 and 1967.
Having denied their motion to intervene, Judge Pointer then
restricted the Swint claims to discrimination occurring after
July, 1969, thus expressly refusing to consider the very claims
that they had raised with the EEOC. In a sense, of course,
Larkin and the others had more than a day in court; their claims
were within the scope of the Swint litigation for over 12 years,
from the June 4, 1974 pre-trial order until the September 6, 1986
opinion. But having accorded Larkin, Seals, Terry and Lofton

35



over a decade in court, Judge Pointer finally and simply refused 
to decide the merits of their claims.

Finally, Judge Pointer found the motion for intervention 
untimely; indeed, he went on to denounce counsel for plaintiffs 
for "inexcusable delay" and "lack of diligence." (Id. at 110- 
11) . The touchstone of timeliness, however is the point in time 
at which it became clear that the named plaintiffs in Swint would 
not be permitted to represent the interests of the Larkin 
intervenors by pursuing claims arising in 1966 and 1967. United 
Airlines Inc, v. McDonald. 432 U.S. 385, 394 (1977). No such 
problem existed in 1975-76 when the Larkin intervenors received 
their right-to-sue letter; on the contrary, the parties in Swint 
then clearly agreed that 1966-69 claims were within the scope of 
that case. No such problem existed in 1977 or 1980 when the 
district court and court of appeals, respectively, held that the 
cut-off date in Swint was 1966. The Larkin plaintiffs were not 
put on notice that their 1966-69 claims could not be presented by 
the named plaintiffs in Swint; until September 6, 1986, when the 
district court so limited the scope of the Swint proceeding. 
That clear notice, of course, came two and one half years after 
the Larkin plaintiffs took the precautionary step of moving to 
intervene in Swint.

We urged above that the district court erred when, in 1986, 
it shifted the limitations cut-off date from 1966 —  the date 
which had been repeatedly approved by the courts since 1974 —  to 
1969. Even if such a change were possible, Judge Pointer surely

36



erred when he penalized the Larkin plaintiffs for having relied 
on the judge's own repeated insistence that the Swint case did 
encompass their claims.

(d) The Defendants Have Waived Any Limitations Defense To 
Claims Arising in or After 1966______________________

Although Title VII requires that a charge be filed with EEOC 
within 180 days of the alleged discrimination, this rule is not 
jurisdictional in nature, but merely establishes a statute of 
limitations. Zipes v. Trans World Airlines. 455 U.S. 385, 394-98 
(1982) . Like any other statute of limitations rule, the defense 
afforded by the 180 day rule "is subject to waiver, estoppel, and 
equitable tolling." Id. at 393.

Under Rule 8(c) of the Federal Rules of Civil Procedure, any 
such statute of limitations defense must be affirmatively pleaded 
in a defendant's answer. In a class action, of course, the 
temporal scope of the class claims may not be apparent on the 
face of the complaint; where that is the case, however, the 
requirements of Rule (8) (c) certainly apply as soon as the 
temporal scope of the asserted claims becomes known. Even if the 
180 day limitations defense is raised in an appropriate pleading, 
the defense is necessarily waived if a defendant thereafter fails 
to actually press the defense in a timely manner during the 
course of the litigation. Zipes. 485 U.S. at 398; Mohasco Corp. 
v. Silver. 447 U.S. 807, 811 n. 9 (1980)

The 1971 Answer of the Steelworkers contained a summary 
assertion that the entire action was barred by the statute of 
limitations. (R.E., pp. 38, 48) However, since the 1971

37



complaint alleged that the then-existing practices of the 
defendants were unlawful, any contention that the entire claim 
was untimely would clearly have been frivolous. The union itself 
never took this argument seriously or actually argued that all of 
the class claims were untimely. The company asserted in its 1971 
Answer that the section 1981 limitations date was "six years 
prior to the filing of the complaint," and that the Title VII 
limitations date was "ninety days prior to the filing of any 
charge or charges with EEOC", (R.E., pp. 37-38), a position it 
disavowed 12 years later.

A defense assertion that class claims arising before a 
particular date were time barred would not have been frivolous. 
When the amended complaint was filed on June 5, 1974, it was
absolutely clear that the temporal scope of the alleged claims 
extended far earlier than 1969. The pre-trial order of June 5, 
1974, encompassed any black employed at Pullman-Standard within 
one upon prior to the earliest EEOC charge; the defendants 
certainly knew that the earliest such charge had been filed in 
October 1966. (See R. E., pp. 86-88) Despite the fact that 
plaintiffs were clearly seeking relief for violations occurring 
as early as October 1965, neither the company nor the union 
asserted in their supplemental answers that a portion of the 
class claims were time barred. (R.E., pp. 60-72). No limitations 
defense was raised during the 197 6 or 198 0 appeals. Not until 
after the 1980 Fifth Circuit opinion, when this case had been 
pending for over a decade, did either defendant question the 1966

38



cut-off date or suggest that in any way that some of the class 
claims were barred by the 180 or 90 day limitations rule. So 
long as they were prevailing on the merits, the defendants 
acquesced in a 1966 cut-off date; had the defendants ultimately 
prevailed on the liability issues, that 1966 cut-off date would 
have determined the scope of the res judicata effect against the 
class. Insofar as the plaintiffs seek to raise claims arising in 
or after 1966, the defendants have long ago waived any 
limitations defense they might have had under Title VII.

(4) The Section 1981 Cut-off Date In Swint Is October 19.1965^4
The complaint in this action also alleged a cause of action 

under 42 U.S.C. § 1981 (R.E., p. 20). Because section 1981, like 
section 1983, contains no specific statute of limitations, 42 
U.S.C. § 1988 directs the federal courts to select and apply the 
most analogous state statute of limitations. In Wilson v. 
Garcia, 85 L.Ed.2d 254 (1985), the Supreme Court held that the
state limitations statute governing personal injury claims should 
be applied to all section 1983 claims. In Jones v. Preuitt & 
Maudlin. 763 F.2d 1250 (11th Cir. 1985), this court held that
section 6-2-34(1)(1975) of the Alabama Code, which applies to 
various intentional torts, sets the appropriate limitations 
period in a section 1983 case arising in Alabama. 763 F.2d at 
1253-56. In Goodman v. Lukens Steel Co. . 55 U.S.L.W. 4881

^4 The difference between the Title VII and section 1981 
cut-off dates is of importance because plaintiffs' disparate 
impact claims are actionable only under Title VII.

39



(1987), the Supreme Court held that the same state limitations 
statute applied to a section 1983 case must also be applied in a 
section 1981 case. 55 U.S.L.W. at 4882-83. The complaint in 
this action was originally filed on October 19, 1971; 
accordingly, under Wilson. Jones and Goodman the section 1981 
limitations cut-off date is six years earlier, October 19, 1965. 
The district court below, however, refused to apply Wilson and 
Goodman to the instant case, terming such an application 
retroactive and unfair. (R.E., pp. 124-28).

The normal rule, of course, is that new Supreme Court 
decisions are applied to all cases pending at the time those 
decisions were handed down. The courts of appeals have been 
unanimous in applying Wilson to any pending case in which Wilson 
had the effect of lengthening the period of limitations.25 In 
Goodman the Supreme Court held that, even where Wilson has the 
effect of shortening the limitations period, Wilson must still be 
applied unless, at the time a particular case was filed, there 
was "clear Circuit precedent" setting a different limitations 
period than is now required by Wilson. 55 U.S.L.W. at 4882-83.

In the instant case the district court insisted on applying 
a one year statute of limitations based on the Alabama catch-all 
limitations law, §6-2-39 (a) (5) , relying on Fifth Circuit

Bartholomew v. Fischl. 782 F.2d 1148, 1155-56 (3d Cir. 1986) ; Jones v. Shankland. 800 F.2d 77, 88 (6th Cir. 1986);
Farmer v. Cook. , 782 F.2d 780-81 (8th Cir. 1986); Jones v.
Preuitt & Maudlin. 763 F.2d 1250 (11th Cir. 1985); Riviera v.
Green, 775 F.2d 1381, 1383-84 (9th Cir. 1985); Marks v. Parra.785 F.2d 1419, 1419-20 (9th Cir. 1986).

40



decisions in 1973 and 1977.26 But Judge Pointer did not suggest 
that Fifth Circuit precedent had endorsed any such a rule in 
1971., the year this suit was filed. As of 1971 the only Fifth 
Circuit precedent supported a 10 year limitations period in a 
section 1981 action. Boudreaux v. Baton Rouae Marine Contr. Co.. 
437 F. 2d 1011, 1017 n. 16 (5th Cir. 1971). In its 1971 Answer, 
Pullman Standard itself asserted that the limitations period 
applicable to the section 1981 claim was "six years prior to 
filing of the complaint." (R.E., p. 37). In 1972 Judge Pointer, 
writing in Buckner v. Goodyear Tire and Rubber Co. . 330 F.Supp. 
1108, 117-18 (N.D. Ala. 1972),- recognized the vague and 
conflicting state of Fifth Circuit precedent, and noted that 
when Buckner itself was tried, he himself had believed section 
1981 was subject to a six year limitations period. 339 F.Supp. 
at 1117 n. 10.

In his 1986 order in the instant case, Judge Pointer sought 
to justify imposing a one year limitation by arguing that his own 
opinions of 1974 and 1977, as well as the Fifth Circuit decision 
of 1976, had utilized a one year rule. Judge Pointer repeatedly 
described the limitations formula in those three opinions as the 
"law of the case." (R.E., pp. 124-26). But Judge Pointer 
inexplicably failed to note that under that formula, as it was 
set forth in all three opinions, the one year period was to be 
based, not on the date that the complaint in Swint was filed, but

R.E., p. 127, citing Ingram v. Steven Robert Coro.. 547 
F.2d 1260, 1263 (5th Cir. 1977); Buckner v. Goodyear Tire & Rubber Co. 476 F.2d 1287 (5th Cir. 1973).

41



Since the earlieston the date of the earliest EEOC charge.27 
EEOC charge was filed in October 1966, the formula of the 1974, 
197 6 and 1977 opinions would have resulted in an October 1965 
limitations cut-off.

At the time this suit was filed in 1971, and for several
years thereafter, the limitations period for the filing of a
section 1981 charge was tolled by the filing of an EEOC charge.
Boudreaux v. Baton Rouge Marine Contr. Co. . 437 F.2d at 1017 n.
16 (5th Cir. 1971). The tolling rule of Boudreaux was the clear
precedent in this circuit until overturned by Johnson v. Railway
Express Agency. 421 U.S. 454 (1975). There is no rational basis
for suggesting that the defendants might have relied on the one
year portion of the limitations formula in the 1974 opinion while
ignoring the portion of that opinion calculating the one year
period from the date of the first EEOC charge. It was certainly
improper for the district court to apply only Johnson, but not
Wilson, to a case filed in 1971, when the state of Fifth Circuit
precedent in 1971 required precisely the opposite result.
II. THE DISTRICT COURT IN SWINT ERRED IN HOLDING THAT

ASSIGNMENT DISCRIMINATION ENDED IN FEBRUARY 1969
(1) In its 1974 opinion the district court found

the company did not abandon racially 
discriminatory assignment practices regarding 
the Inspection department until June 1, 1970,

2 / This application of law of the case was inappropriate 
in light of the fact that there was an intervening controlling 
Supreme Court case inconsistent with the one year limitation. 
Gaines v. Dougherty County Bd. of Ed.. 775 F.2d 1565, 1569 (11th Cir. 1985) .

42



and regarding the Die and Tool28 and Air and 
Brake departments until June 1, 1971.

11 FEP Cas. at 54. (Emphasis added). The district court ordered
injunctive relief based on this finding of discrimination, and
directed "entry of final judgment" with regard to that issue and
order under Rule 54(b). 11 FEP Cas. at 961 Such a final
judgment awarding relief against the defendants was in fact
entered on September 13, 1974. (R.E., p. 62). 11 FEP Cas. at
961. The defendants never appealed from that finding that
assignment discrimination had lasted until 1970 and 1971 in the
three named departments. Accordingly, that factual finding is
the law of the case; the district court was simply without
authority to thereafter make a new finding of fact regarding
assignment practices to these departments.29 Joshi v. Florida
State University Health Center. 763 F.2d 1227, 1231 (11th Cir.
1985).

(2) As of 1966 the IAM Die and Tool department had 77 
whites and 0 blacks. In its 1974 opinion the district court made 
no findings regarding assignments to the Die and Tool department. 
On appeal the Fifth Circuit directed the lower court to do so. 
539 F.2d at 95-96. In 1977 the district court held regarding 
this department, "six blacks and one white were assigned in 1966,

This refers to the black Die and Tool department organized by the Steelworkers.
A finding that discrimination in these departments ended in February, 1969, would be clear error. Long after that 

date only whites were assigned to the all-white Inspection and 
Air and Brake departments, and only blacks were assigned to the 
all-black Die and Tool department. 11 FEP Cas. at 54.

43



and over the next four years seven other blacks and eight whites 
were assigned to it." 15 FEP Cas. at 149. On appeal Pullman- 
Standard conceded that Judge Pointer's figures were incorrect.3  ̂
In 1980 the Fifth Circuit concluded that from 1965 until the end 
of 1970 approximately 36 new assignments, all of them white, were 
made to the department; the first black was not hired into the 
department until 1970, and two more were added in 1971. 624 F.2d
at 529. It was clear error to hold, as the district court did in 
1986, that assignment discrimination at this department ended in 
February 1969; as of that date not a single black had ever been 
assigned to the IAM Die and Tool department.

(3) As of 1966 the IAM Maintenance department included 70 
whites and 0 blacks. 624 F.2d at 529. In its 1974 opinion the 
district court made no findings regarding assignments to the IAM 
Maintenance department. On appeal the Fifth Circuit directed the 
lower court to do so. 539 F.2d at 95-96. In 1977 the district 
court held regarding this department, "the first post-1966 
assignments to the Machinist [sic] Department (IAM) were three 
blacks and four whites." 15 FEP Cas. at 149. On appeal Pullman- 
Standard conceded that the first eight new employees assigned to 
the department after 1966 were actually all white.30 31 In its 1980 
opinion the Fifth Circuit noted that the first blacks were not 
assigned to the department until 1970, a fact which has never

30 Brief for Defendant-Appellee Pullman-Standard, No. 78- 2449, pp. 51-2.
31 Id. at 52.

44



been denied. It was clear error to hold —  as the district court 
did in 1986 —  that assignment discrimination at this department 
ended in February, 1969; as of that date not a single black had 
ever been assigned to the IAM Maintenance department.

(4) The district court's conclusion regarding the period of 
assignment discrimination is, as to the remaining 23 departments, 
tainted by a variety of errors.

First, as the Fifth Circuit expressly held in 1976, a 
district court in assessing whether there was discrimination in 
any one department must consider the fact of proven 
discrimination in other departments. 539 F.2d at 95. Since the 
district judge in 1986 failed to recognize the post-1968 
discrimination in assignments to the Inspection, Air and Brake, 
and IAM Machinist departments and the two Die and Tool units, he 
necessarily failed to evaluate correctly the extent of 
discrimination in the other 23 departments.

Second, in reaching his conclusion that assignment 
discrimination ended in February 1969, the district judge 
expressly relied on the defendant's statistical analysis of post- 
Act assignment patterns. (R.E., p. 120). This was clear error. 
The company statistician did not undertake an analysis of 
assignment patterns in the year 1969; rather, the statistician 
undertook a single analysis of the combined data for the years 
from 1969 through 1974. (CDX 1208, p. 4). That study was based on 
a random sample of 210 hires between January 1969 and December 
1974; only 20% of the assignments in this study actually occurred

45



in 1969 itself. The resulting conclusion was of no evidentiary 
value in assessing whether discrimination occurred in 1969 or 
1970, since continued discrimination in those years could well 
have been obscured by assignments in later years. The company's 
statistician conceded that his study would not support an 
inference that discrimination had ended in 1969 rather than in a 
subsequent year:

"Q. ...[T]he ... table on page 4, it really doesn't tell us
whether the change in distribution across departments 
occurred all in 1969 or all in 1974 or were spread out over the four year, five year period.

A. Overall that is a correct statement with the possible 
reservation that I think some of the changes are great 
enough that they could have not occurred only in '74."

(R.v. 14, p. 201) The company's analysis, for example,
calculated that during this 6-year period 20% of assignments to
the I AM Die and Tool Department were black (id.); in fact, of
course, no such assignments began until 1971.

Third, the district judge in 1986 relied on a January 1969 
agreement between Pullman-Standard and Labor Department, 
suggesting that the agreement "put into motion the engines of 
change." (R.E., p. 120). In 1974, however, the district court 
had found "the 19 69 memorandum of understanding, for lack of 
union acceptance, never became effective". 11 FEP Cas. at 953
n.32. (Emphasis added). In nonetheless relying on that 
agreement 12 years later, Judge Pointer suggested only that 
"[t]his agreement was never termed official because the union 
never voted its approval." (R.E., p. 120 n. 35). (Emphasis 
added). There is, of course, a world of difference between a pro

46



forma but ineffective policy, and an unofficial but efficacious 
program. There was no evidence introduced at the 1984 trial 
dealing with the effectiveness of the 1969 memorandum, and the 
district judge offered no explanation for his change of 
terminology upgrading the program to "unofficial" from "not 
effective." Absent such evidence or explanation, it was clear 
error for the district judge to treat as merely "unofficial" a 
program whose actual effectiveness he had earlier found wanting.

Finally, the district judge erred in refusing to admit 
evidence of continued job segregation of existing employees in 
the years after 1968. The judge insisted at trial that such 
evidence was irrelevant to the existence of discrimination in 
departmental assignments. (R.v. 14, pp. 47-55). But the 
district court's original finding of departmental assignment 
discrimination was based on a finding that the company engaged in 
job segregation within departments, and the court's 
unchallengeable observation that "[t]he segregation of jobs ... 
meant that departmental assignments were likewise dependent upon 
the nature of the jobs where vacancies existed." 15 FEP Cas. at 
148. If the company in 1969 still had a practice of refusing to 
assign existing black employees to a particular position, such a 
practice would be weighty evidence of racial motivation in any 
failure to assign newly hired blacks to the same job.

(5) This appeal marks the third time in the history of this 
litigation that an appellate court has been required to overturn 
Judge Pointer's treatment of assignment discrimination. We

47



believe the point has come for the court of appeals to fix the 
anterior cutoff date. The determination of that date does not 
constitute a finding of fact that all previous assignments were 
racially motivated; rather, the date merely serves to delineate 
which black employees will be in the class whose claims will be 
considered at Stage II. The final factual determination 
regarding which assignments were racially motivated will occur in 
those Stage II proceedings.

In this case the equitable consideration of paramount 
importance is the need to avoid further delay. Following the 
issuance of this court's mandate in early 1983, over three and 
one-half years were consumed in the district court; more than two 
years of this period were spent waiting for the district court to 
issue what proved to be a cursory opinion regarding the posterior 
cutoff date. Another remand could easily result in yet another 
postponement of the point at which Stage II proceedings will 
finally begin. At this juncture, 7 years after the Fifth 
Circuit's finding of post-Act discrimination in assignments, 13 
years after the district court's original finding of post-Act 
discrimination in assignments, and 16 years after the filing of 
the complaint, further delay would be intolerable.

The range of plausible posterior cutoff dates is relatively 
narrow. For the reasons set out above, it is clear that 
assignment discrimination continued through at least 1971; as the 
Fifth Circuit observed in 1976, the hiring of the first token 
black into a previously all-white department does not prove that

48



discrimination has ended. 539 F.2d at 99. On the other hand, 
the class definition in the original pre-trial order included 
only individuals hired prior to June 4, 1974. The appropriate
cutoff date should fall between January 1, 1972, and June 4, 
1974. We urge this court to set a cutoff date no earlier than 
January 1, 1972.
III. THE COURT BELOW ERRED IN REFUSING TO PROVIDE A REMEDY FOR

THE DISCRIMINATION IN THE ASSIGNMENTS OF EXISTING EMPLOYEES
(1) The 197 5 complaint in Larkin contained several 

allegations of racial discrimination; the first of those claims 
was that "the Company discriminated against blacks by excluding 
them from its more desirable iobs and departments." (R.E., p. 
64). (Emphasis added). The 1966 EEOC charge of Larkin plaintiff 
Spurgeon Seals was particularly concerned with job assignments of 
existing employees, and alleged that Seals had been denied "a 
higher paid job" because of his race. (R.E., p. 84). The EEOC 
findings with regard to the subsequent charges filed by the 
Larkin plaintiffs found substantial evidence of both 
discrimination in promotions and segregation of particular jobs. 
(PX 58, 60) .

Had the Larkin plaintiffs been permitted to try the merits 
of their claims in Larkin itself, those claims would clearly have 
included discrimination in the intra-departmental job assignments 
of existing employees. Subsequent to the filing of the Larkin 
complaint, however, Pullman-Standard represented to Judge Guin 
that all of the claims raised by the Larkin plaintiffs were 
within the scope of the Swint litigation. (R.E., p. 67) In

49



dismissing the Larkin complaint in 1976, Judge Guin clearly 
believed, as he evidently still did in 1984, that the Larkin 
claims, including the claim of discrimination in the job 
assignments of existing employees, were within the scope of 
Swint. That belief was entirely reasonable; when Judge Guin in 
April 16, 1984, denied plaintiffs' motion for relief from
judgment in Larkin, the 1983 pretrial order isued by Judge 
Pointer for the then impending retrial in Swint stated that there 
had been a "finding of discrimination in assignments to jobs and 
departments," and that the forthcoming 1984 trial in Swint would 
focus on that date on which those two practices ended. (R.E., 
pp. 70-71).

Two weeks after Judge Guin denied our motion for relief from
judgment in Larkin, however, Judge Pointer held that the issue of
job assignment discrimination was not and had never been within
the scope of Swint. On May 1, 1984, when the plaintiffs in Swint
sought to offer evidence regarding the continuation of
discrimination in job assignments, Judge Pointer ruled the
evidence irrelevant. Such evidence, he commented,

might show that some person was discriminatorily given 
a particular job assignment or not given a particular 
job independent of any seniority rights, independent of 
any impact of the seniority system. And what I am
saying is that that issue is not in the case. You can 
go back to 1974 and at each stage since then, that has 
never been an issue in this for resolution. (R.v. 14, p. 50).

Judge Pointer expressly disavowed the broader language of his 
1983 pre-trial order:

50



[Counsel for Plaintiffs] ... [I]t would be a fair statement 
that Your Honor's pre-trial order could read 
clearly as saying the issue an issue in this case 
is when assignments -- discrimination in 
assignments to jobs ended. It says "jobs and departments...."

The Court: Well, if you have any guestions about it in the
language of the opinion, I am clearing it up for 
you now. I am talking about in that pretrial 
order the assignment of people to departments.... 
I was talking about the issue of when the company 
stopped making discriminatory assignments to departments. (Id. at 54).

When Judge Pointer refused to hear further testimony regarding 
discrimination in job assignments, the Swint plaintiffs made 
written proffers of testimony by 28 class members regarding post- 
Act racial discrimination in the job assignments of existing 
company employees. (PX 1037).

In short, on April 16, 1984, Judge Guin denied relief from
the judgment in Larkin on the continued assumption that the 
Larkin claims, including the job assignment claim, were within 
the scope of the Swint litigation. Two weeks later, on May 1, 
1984, Judge Pointer held that discrimination in job assignments 
was not and never had been within the scope of Swint. Clearly 
one of these conflicting decisions must be overturned on appeal. 
If, as Judge Pointer held in 1984, job assignments are outside 
the scope of the class claims in Swint. then there is no legal 
basis for denying the Larkin plaintiffs the right to litigate 
their individual and class job assignment claims in Larkin.

(2) Judge Pointer's 1984 directive drew a rigid distinction 
between discrimination in the assignments of newly hired 
employees, and discrimination in the job assignments of existing

51



Pullman-Standard workers. Only the former practice, he held, was 
within the scope of Swint, and could be remedied in that case.

During the period of avowed intentional job segregation, 
however, discrimination in the assignment of new hires and 
discrimination in the assignments of existing employees were 
inextricably intertwined. The practice of reserving certain jobs 
for whites necessarily had two types of victims, new black hires 
denied initial assignments to "white" job, and existing black 
employees denied assignments to those very same jobs. If a 
vacancy occurred in a "white" job, no existing black employee, 
regardless of his skill or competence, would be assigned to the 
job. If a vacancy occurred in a "white" job and no white 
employee wanted the position, the job would then be filled with a 
newly hired worker; no matter how superior the skills of black 
job applicants, the vacancy would always be filled with a white 
applicant. Thus, a single hiring decision could have had both 
types of black victims; if a vacancy occurred in a "white" job 
not desired by any white employee, Pullman-Standard would not 
only disregard the skills and seniority of any existing black 
workers, but would also reject any new black worker seeking that 
same position, even if the available white applicants were less 
qualified. Under Judge Pointer's May 1984, directive, however, 
only the claims of newly hired blacks may be redressed in Swint; 
existing black employees who wanted the very same positions, and 
who also were rejected because of the same discriminatory policy, 
cannot obtain redress.

52



The distinction drawn by Judge Pointer is untenable. 
The job segregation policy at the Bessemer plant was generally 
directed at all blacks; in the face of that classwide practice, 
it would clearly violate the very purpose of Rule 23(b)(2) to 
provide a remedy for only some of the victims. It is 
particularly incongruous, in a case brought by several long­
standing black employees of Pullman-Standard, to direct that, 
among the victims of a particular act or practice of 
discrimination, only newly hired blacks can receive a remedy.

(3) Judge Pointer's assertion that job discrimination had 
never been withih the scope of the Swint litigation is simply 
wrong. The complaint alleged that

the defendants have established a promotional 
system, the design intent and purpose of which is to 
continue ... the defendants' policy ... of limiting the 
. . . promotional opportunity of Negro employees of the company because of race or color.

(R.E., p. 53) The complaint further asserted that the members of
the plaintiff class were "qualified for promotions and for
training which could lead to promotions on the same basis as ...
white employees." (Id. at p. 54). The original 1972 pre-trial
order correctly described the plaintiffs as asserting "that the
defendant company discriminates against blacks in its ... job
assignment and promotional policies." (Id. at p. 58). The 1974
pre-trial order authorized the plaintiffs to seek at trial
injunctive relief in the form of the posting of notices of
vacancies to be filled by existing workers. (Id. at p. 61).

53



Plaintiffs' claim that the company continued to discriminate 
against blacks in making assignments to higher paid jobs within a 
department was one of the central issues at the 1974 trial. A 
substantial portion of plaintiffs' case was devoted to testimony 
by existing employees alleging that in the years after 1965 they 
were denied such assignments because of their race;32 the most 
frequent complaint was that blacks were denied training available 
to whites, and were then denied better paying jobs because they 
lacked such training.33 Spurgeon Seals, one of the Larkin 
plaintiffs, complained, for example, that he was denied an 
assignment to a JC 11 tool repairman position within his 
departments. (R.v. 3, pp. 159-60)

In its 1974 decision the district court declined to order 
the posting remedy plaintiffs sought to redress discrimination in 
the assignments of existing employees. 11 FEP Cas. at 959. In 
1976 the Fifth Circuit directed that "posting be examined to see 
if the lack of a formal system itself discriminates or 
perpetuates past discrimination against blacks." 539 F.2d at 
102. The Fifth Circuit ordered that particular attention be paid 
to the word of mouth system for notifying workers of vacancies, 
noting that such systems were often "inherently prejudicial to
blacks." 539 F. 2d at 102 . On remand in 1977, however, the

32 See e.cr. . R.v. 3, pp. 56-62, 81, 103-04, 126-32, 160-61, 191, 210-12; R.v. 4, pp. 311-13 341-42, 375-76, 471, 481,528; R.v. 5, pp. 534, 580; R.v. 6, pp. 840, 847, 895.
See, e.g. . R.v. 3, pp. 103, 105, 126-28, 139-45, 207- 

09, 238-42; R.v. 4, pp. 262, 342, 347-48; R.v. 5, pp. 615-16, 
630; R.v. 6, pp. 753, 923-24, 948, 951-52.

54



district judge refused to consider whether a formal posting and 
bidding system might be needed to end either discrimination or 
the perpetuation of past discrimination. Judge Pointer assumed—  
incorrectly in our view —  that the Fifth Circuit remand only 
directed consideration of this problem if there were post-Act 
assignment discrimination, a practice which he believed had not 
occurred. 15 FEP Cas. at 150. In 1980 the Fifth Circuit held 
that there had indeed been such post—Act assignment 
discrimination, thus eliminating the district court's purported 
justification for failing to deal with the job assignment issue.

IV. THE PULLMAN-STANDARD SENIORITY SYSTEM IS NOT BONA FIDE
In 1978, following a retrial in light of Teamsters, the 

district court held that the seniority system at the Bessemer 
Plant was bona fide. In 1980 the Fifth Circuit concluded that 
the district court decision was based on several legal errors, 
that certain of the district court's subsidiary factual findings 
were clearly erroneous, and that the trial court's finding on the 
"ultimate issue" of the bona fides of the system was not 
supported by the record. In 1982 the Supreme Court held that the 
Fifth Circuit had erred in applying to its review of that 
"ultimate issue" a standard different than the clear error rule 
of Rule 52. This court thereafter remanded the case to the trial 
judge for appropriate further proceedings. On remand the 
district court restricted its inquiry to the bona fides of that 
part of the seniority system contained in the collective 
bargaining agreements of the United Steelworkers; the district

55



judge, having "considered afresh" the bona fides of that part of 
the system, held that it was untainted by any discriminatory 
purpose. (R.E., pp. 115-118).

(1) Discrimination in the Genesis of the System 
(a) The Motives of the IAM

At the 1978 trial, and during the appeal which followed, we 
urged that the Pullman-Standard seniority system was fatally 
tainted in its origins by a racially discriminatory motive on the 
part of the I AM. In its 1978 opinion the district court held 
that the motives of the IAM, even if discriminatory in nature, 
were legally irrelevant. * 15 FEP Cas. at 736, 739. On appeal in 
1980 the Fifth Circuit held that the motives of the AIM were 
indeed relevant. 624 F.2d at 532-33. On remand in 1986 Judge 
Pointer agreed that the IAM was motivated by a discriminatory 
purpose in taking certain actions, described below, which 
determined the contours of the Pullman-Standard seniority system 
(R.E., pp. 116 and n. 20) a view shared by the Fifth Circuit. 
624 F.2d at 532-33.

The racial motivation of the IAM raises two distinct issues. 
The first is whether the racial motives of the IAM demonstrate a 
similar discriminatory motive on the part of the Steelworkers. 
We urged during the 1984-86 remand, as we had before, that in the 
overall context of this case the discriminatory intent of the IAM 
warranted an inference of a similar intent on the part of the 
Steelworkers. The district court declined to draw such a factual

56



inference; although we disagree with the district judge's 
conclusion, we do not contend that it is clear error.

(i) The second guestion raised by the IAM's motive is 
whether plaintiffs are entitled to a back pay remedy against the 
company for injuries occasioned by those aspects of the Pullman- 
Standard seniority system that were tainted by those motives.34 
The seniority system at the plant was embodied in two collective 
bargaining agreements, one between Pullman-Standard and the 
Steelworkers, and a second between Pullman-Standard and the IAM. 
The Pullman-Standard-IAM contract provides, inter alia. that an 
employee in the Steelworkers Die and Tool Department cannot use 
his seniority in the I AM Die and Tool Department; a similar 
restriction applies to an employee of the Steelworkers 
Maintenance Department who moves to' the I AM Maintenance 
Department. It is undisputed that prior to 1965 Pullman- 
Standard' s policy was to assign only whites to these IAM 
departments; indeed, no blacks were assigned to these departments 
until 1970. 624 F.2d at 525. For blacks initially excluded from
the IAM departments because of those discriminatory assignments, 
the seniority rules in the Pullman-Standard-IAM contract 
effectively precluded a transfer into those departments, and thus 
perpetuated the effects of that earlier discrimination.

We contend that the class members are entitled to a remedy 
against Pullman-Standard for the injuries caused by the Pullman-

34 Such a remedy would be available only against the company, since the Steelworkers neither were party to, nor 
administered, the Pullman-Standard-IAM rules.

57



Standard-IAM seniority rules. In its 1983 pre-trial order,
however, the district judge refused even to consider this claim:

Evidence of IAM policies, practices and purposes, 
insofar as they relate to and affect the seniority 
system between the Company and USW, shall be 
considered.... However, plaintiffs cannot now assert a 
claim for . . . damages against the Company . . . based 
upon exclusion of blacks from the IAM bargaining 
unit.... [T]he court finds that no claim as to the 
culpability of the other defendants for IAM's exclusion 
of blacks has ever been presented in the EEOC charges, 
the initial or amended complaint, or the pretrial 
orders; such a claim cannot be initiated now.

(R.E., p. 72)
The district court did not, of course, deny that plaintiffs7 

had- throughout the litigation challenged the entire Pullman- 
Standard seniority system, including those portions contained in 
the Pullman-Standard-IAM contract. The amended complaint alleged 
that the I AM should be added as a party under Rule 19 because 
"[i]n its absence, complete relief cannot be accorded" (id. at 
53); that claim made clear that the plaintiffs were challenging, 
and would seek modification of, the seniority rules contained in 
the Pullman-Standard-IAM collective bargaining agreement. In the 
1974 pre-trial order, the district court noted that the first of 
the plaintiffs7 claims was that the "system of departmental 
seniority ... perpetuates the effects of past discrimination", 
and was not limited to those portions of the system in the 
Steelworkers contracts. The 1974 pre-trial order also expressly 
noted that the plaintiffs objected to the lack of "transfer 
rights ... to jobs in the machine shop represented by the IAM."

58



That pre-trial order granted plaintiffs' motion to add the IAM as
a party, explaining that leave was granted because

the relief requested may involve or infringe upon the 
provisions of such Union's collective bargaining 
agreement with the Company, it being noted however that 
no request for monetary relief is being sought against 
said union. (Id. at 60).

This limitation made clear the Court's understanding that the 
plaintiffs were challenging the Pullman-Standard-IAM seniority 
rules, and that plaintiffs were seeking monetary relief based on 
those rules, albeit only from the company. See also 11 FEP Cas. 
at 948 n. 21) .

In its 1974 opinion the district court in fact afforded some 
relief regarding the seniority rules in the Pullman-Standard-IAM 
contract, declaring that the 1972 OFCC agreement regarding 
transfer rights would be binding on the IAM itself, which had 
never signed or formally concurred in that agreement. 15 FEP 
Cas. at 948 nn. 18, 21, 961. In its 1976 opinion the Fifth 
Circuit criticized the district court for not addressing in 
greater detail plaintiffs' claims regarding the two IAM 
departments:

Pu 11 m a n -S t anda rd made assignments to these 
departments.... Plaintiffs claim that those
departments were still all-white in 1974.... If blacks 
were excluded from these departments in the past, the 
departments must be included in the relief ordered by the court....

539 F.2d at 96. On remand in 1977 the district court described 
the issue before it as "whether the seniority system at Pullman 
is 'valid'", 15 FEP Cas. at 147 (emphasis added), and held that 
the system at the plant was lawful. Later in 1977 the district

59



court, in light of Teamsters. ordered an additional hearing
regarding "the invalidity of the seniority system," 15 FEP Cas. 
at 1639, without any intimation that only part of that system was 
at issue. Not until the plaintiffs had offered substantial 
evidence of discriminatory motive on the part of the IAM did the 
district court suggest that the Pullman-Standard-IAM seniority 
rules might be outside the scope of the claim or requested 
relief.

It is literally true, as the district court observed, that 
"the culpability of the other defendants for IAM's exclusion of 
blacks"35 is not expressly mentioned in the 1969 EEOC charge, the 
1971 complaint, the 1972 amended complaint, or the 1974 pre-trial 
order. Prior to the 1977 decision in Teamsters. however, it was 
legally irrelevant whether either the unions or company were 
racially motivated in establishing the disputed seniority system. 
Under the law in existence before 1977, Pullman-Standard was 
subject to liability if any aspect of the seniority system 
perpetuated prior discrimination, regardless of the author or 
purpose of the system. Plaintiffs clearly claimed and sought to 
prove that the entire system, not just the Steelworkers portion, 
had such a discriminatory effect.

(ii) The district court properly recognized, as had the 
Fifth Circuit, that the IAM was motivated by a discriminatory

This is, presumably, a reference to the IAM's action in 
gerrymandering departmental lines to exclude blacks from the IAM 
bargaining and seniority units. It was the company, not the IAM, 
which at least until 1971 refused to assign blacks to the IAM departments.

60



purpose when it framed the seniority system in such a way as to 
exclude blacks from transferring to most Maintenance and Die and 
Tool jobs. Prior to unionization the Bessemer plant had only a 
single Maintenance department and a single Die and Tool 
Department. The IAM proposed that each of these departments be 
subdivided into two separate seniority units; in each case all 
black workers were to be placed in one unit, and the IAM sought 
to represent only the all-white unit which would remain. The IAM 
also sought to represent workers in a variety of production jobs, 
in each instance carefully selecting only jobs held by whites.36 
The IAM's motives in seeking this job segregation were avowedly 
racial; because the union's own charter then restricted 
membership to whites (R.E., p. 116 n. 20), the union neither 
wished to represent blacks, nor wanted a seniority system that 
would enable blacks to move into IAM jobs. Following 
certification proceedings before the NLRB, the board in 1941 
certified the IAM as representatives of a group of positions, 24 
of which, despite the union's wishes, were held by blacks. The 
IAM promptly ceded to the Steelworkers jurisdiction over all of 
the jobs held by blacks, thus removing the black workers from the 
seniority units represented by the IAM. 624 F.2d at 531.

The result of these racially motivated machinations was that 
after 1941 there were two Maintenance departments, one 
represented by the IAM and one by the Steelworkers, and two Die

The IAM's machinations are described in detail in 
Plaintiffs' Post-Trial Brief on the Illegality of Seniority System, Appendix A (1984).

61



and Tool Departments, divided between the unions in the same way. 
As of 19 65 all of the employees in the IAM departments were 
white, and a majority of the workers in the corresponding 
Steelworker units were black. The salary levels in the IAM units 
were generally higher, and the seniority rules in the Pullman- 
Standard-IAM collective bargaining agreement effectively 
precluded blacks in the Steelworker units from moving into the 
comparable IAM units. These circumstances would clearly require 
an award of back pay against the IAM; the only remaining question 
is whether they warrant a similar remedy against Pullman-Standard 
itself.

It is irrelevant whether company officials were also 
racially motivated when in 1941 they acquiesced in the race 
conscious creation of separate seniority units for blacks and 
whites, a factual issue not addressed by the district court. It 
is undisputed that prior to 1965, and for some time thereafter, 
Pullman-Standard deliberately assigned only whites to IAM 
departments. The seniority rules which precluded black employees 
from moving into those departments, and which thus perpetuated 
the effects of past company discrimination, were contained in a 
collective bargaining agreement executed by Pullman-Standard, and 
administered by company supervisors. It is undisputed that the 
particular form of those seniority rules, which refuse for 
example to permit seniority accumulated in the integrated 
Steelworkers Maintenance department to be utilized in the all­

62



white I AM Maintenance department, were racially motivated in 
their inception.

Teamsters recognized that facially neutral seniority rules 
which limit transfer rights between segregated departments would 
often perpetuate the effects of past discrimination in 
assignments. Under most circumstances an employer which engages 
in a practice with such a discriminatory effect violates Title 
VII. Teamsters held that under section 703(h) a defendant can 
establish an affirmative defense to such a charge by showing that 
the discriminatory impact was the result of "a bona fide 
seniority ... system." But it is the bona fides of the • system 
that controls. If a particular seniority system is bona fide, it 
provides an affirmative defense for all defendants; if, as here, 
the system was not bona fide, the implementation of that system 
by any defendant constitutes a violation of Title VII.

(2) The Creation of Single-Race SteelworkerDepartments
As of 1965 there were a total of 9 single-race 

Steelworkers departments at the Bessemer plant. 11 FEP Cas. at 
950. Of these absolutely segregated departments, 8 had been 
created out of mixed departments in or immediately before 1954, 
the year in which the defendants established the departmental 
seniority system: Air Brake (all-white), Inspection (all-white),
Powerhouse (all-white), Plant Protection (all-white), Boilerhouse 
(all-white), Steelworkers Die and Tool (all-black), Janitors 
(all-black), and Truck (all-black). (1978 Exhibits, PX 2-9). 
Plaintiffs at the 1978 trial that the creation of new single-race

63



departments at the time departmental seniority was adopted was 
the result of an intent to limit the promotional opportunities 
that would have existed for blacks had the jobs in these 8 new 
single-race departments remained in mixed departments.

In its 1978 opinion the district court dealt with this 
issue only in passing. Noting that jobs in the Powerhouse and 
Air Brake Shop had originally been organized by all white unions, 
the IBEW and I AM, before being represented by the Steelworkers, 
Judge Pointer argued that the effect of the creation of these 
separate single-race departments in 1954 was no worse than the 
earlier de jure system.37 In our brief during the 1980 appeal we 
urged that the creation of these eight single-race departments 
was racially motivated. (Brief of Appellants, No. 78-2449, pp. 
23-26, 62-63.)

In its 1980 opinion the Fifth Circuit concluded:
[A] significant number of one-race 
departments . . . were carved out of
previously mixed departments. The
establishment and maintenance of the 
segregated departments appear to be based on 
no other considerations than the objective to separate the races.

624 F. 2d at 531; see also id. at 531-33. The court of appeals 
indicated that any district court decision to the contrary would

17 FEP Cas. at 738 (1954 spin-off of all-white Power 
House unit provided white workers there "with no greater 
seniority protection than they had enjoyed during the 1941-46 
period when they were part of an all-white representational unit"), 739.

64



be clear error. 624 F.2d at 533 and n. 6.38 When the case was 
in the Supreme Court, the union urged that Court to overturn the 
Fifth Circuit's conclusion, and to hold that the creation of 
these 8 single-race departments were motivated by legitimate 
considerations. The Supreme Court, however, declined to do so, 
holding only that the Fifth Circuit had applied an improper 
standard of review to the broader "ultimate fact," whether the 
seniority system as a whole was bona fide. 456 U.S. at 290-93. 
Accordingly, the Fifth Circuit's original determination of this 
issue remains the law of the case.

(3) Discrimination in the Maintenance of the System
(i) From 1954 until at least 1965 the actual operation 

of the seniority system utilized in the 26 Steelworkers 
departments was very different than the facially neutral system 
contained in the collective bargaining agreements between the 
Pullman-Standard and the Steelworkers. Under the terms of those 
union contracts a vacancy in a higher paying job was to be 
awarded to the senior department worker, regardless of race, able 
to do the job. But prior to 1965 the rules actually utilized at 
the plant were quite different from the words of the contracts. 
As the courts in this litigation have repeatedly observed, most 
of the best jobs in the plant were, at least until 1965, 
deliberately reserved for whites. 11 FEP Cas. at 947 and n. 12;

15 FEP Cas. at 147 n. 7, 148; 539 F.2d at 83. If a vacancy

It is far from clear that the district judge made a 
factual finding regarding the creation of these departments.

65



occurred in such a well paid white job, the company would not 
assign to that job the senior qualified employee, as required by 
the contract, if that employee were black. Rather, if a
particular position was reserved for whites, it was of course 
filled only by whites, whether those whites were newly hired 
workers or existing employees reassigned from lower paid 
positions. Although the actual assignments were made by Pullman- 
Standard officials, there is no claim that the union was somehow 
unaware of the manner in which seniority actually affected the 
selection of employees for higher paid positions.

The seniority system as it actually existed prior to 
1965 was certainly not bona fide. The nature of an employee's 
seniority rights depended, quite literally, on the color of his 
skin. If a vacancy arose in a "white'1 JC 10 job in a mixed 
department, whether or not the senior department employee under 
JC 10 would be assigned to that job turned on whether that senior 
employee was white or black. "[I]n mixed departments 
assignments were dependent upon whether particular job openings 
were for a white or black position." 15 FEP Cas. at 148. When 
the literal seniority rules worked to the advantage of whites, 
they were consistently enforced; the barriers to 
interdepartmental transfers were of particular value to whites, 
since they protected relatively junior whites in desirable 
departments from having to compete with senior experienced blacks 
in less well-paid departments. But when seniority rules worked 
to the advantage of blacks —  as they would have in filling

- 66 -



higher level positions within a given department —  those rules 
were generally disregarded. Not until after the enactment of 
Title VII did the defendants even purport to implement the 
seniority rules in a racially neutral manner. At least prior to 
1965 Pullman-Standard, with the undoubted knowledge and 
acquiescence of the Steelworkers local and international, overtly 
operated and maintained the departmental seniority rules in a 
deliberately discriminatory manner. (R.v. 14, pp. 21-22)

(ii) Under the seniority system as it existed before 
and after 1965, a vacancy in a higher paying job was filled in 
theory by the most senior worker qualified to do the work. At 
least until 1965 the normal practice was to give the senior 
worker whatever on-the-job training was needed to perform the 
work involved. In some instances the senior employee would be 
given such informal training prior to the actual reassignment; in 
other instances he would be trained while actually in the higher 
position.39

The most important application of this practice was in 
the Welding department. Two-thirds of all plant positions at JC 
10 and above were welder jobs in the Welding Department. Prior 
to 1965, when welder jobs were expressly reserved for whites, 
white employees interested in welder positions could receive any 
needed training at the plant.40 After a white employee had

39 11 FEP Cas. at 947 n. 16; R.v. 14, p. 11; PX 69 
(Deposition of James Hudson) pp. 43, 55, 119, 220.

40 PX 66, Deposition of Harry P. Crane, p.14.

67



received that on the-job-training, the company would administer a 
hands-on test of his actual welding skills.

In 1965, following the enactment of Title VII and a 
related arbitration decision, blacks in the welding department 
began to have at least a colorable right to be considered for 
welder jobs. Because of the long history of discrimination, 
there were a large number of black welder helpers with literally 
decades of seniority in the welding department; although all of 
the welders were whites, a majority of the welder helpers were 
black. At this juncture Pullman-Standard changed the rules 
regarding the exercise of seniority rights within the Welding 
department. Under the new procedure, the company discontinued 
the practice —  available to whites prior to the enactment of 
Title VII —  of providing on the job training to welder helpers. 
In addition, the company announced it would refuse even to test 
the competency of any person under consideration for a welder job 
unless he had either completed a welding training class at a 
school outside the plant, or had related experience with some 
other company.41 The company would not, however, test the 
welding skills of an individual if he had acquired his welding 
experience or training at Pullman-Standard itself. The immediate 
consequence of these changes was to render virtually all welder 
helpers ineligible for reassignment to welder positions, and thus

41 At about the point in time when Title VII was adopted, 
the company ruled, on the basis of an unannounced test given to 
the black welder helpers, that all of the black welder helpers 
were not qualified to be welders. R.v. 5, pp. 619-22; R.v. 6 pp. 752, 763-64.

68



to nullify their seniority rights to priority consideration for 
those positions. As of 1965 198 of the 201 welder helpers were 
black. (PX 12)

The company acknowledged that it was no coincidence 
that this change in the method of training and selecting welders 
was made in the wake of Title VII. A key company personnel 
official conceded that the change occurred because of fears that 
black helpers would use their seniority and become welders, thus 
competing for work with white welders. The company insisted, 
however, that this discriminatory motive existed only on the part 
of the white welders responsible for training, and that Pullman- 
Standard was merely giving in to inexorable resistance from 
whites when it created the new barriers to the movement of blacks 
into welder jobs.

When asked why Pullman-Standard had suddenly altered 
its practices in a way which precluded most welder helpers from 
being assigned to welder jobs, the key company supervisor 
explained that the new policy was adopted because white welders 
refused to provide on-the-job training to the black helpers:

Q... [W]hy didn't Pullman just go out and tell the 
White employees to start training the Black 
employees.... [W]hy didn't Pullman go tell the 
White employees that were on the higher jobs to 
start training the Black employees that had the seniority?

A... Well, mister, ... there is no man can force me to 
train somebody I don't want to train. Those 
fellows in their estimation, they had a valid 
reason for not training me with 40 years service 
and they didn't have but 15 because it was taking 
bread and money out of his mouth and pocket. In

69



other words, people were caught in that they were 
victims of a situation they had no control over.

(R.v. 14, pp. 127-28). Counsel for the company offered the same
justification. (R.v. 13, pp. 127, 162-63.)

What the whites objected to was that, if black helpers 
were provided the training previously available to whites, the 
blacks could at long last use their departmental seniority rights 
to move into welder jobs. Due to the long history of racial 
discrimination, many black helpers had more departmental 
seniority than most white welders. Thus once a senior black 
helper became a welder, he would outrank many whites, and be 
entitled to priority in subsequent layoffs and recalls. A senior 
black helper who was trained and became a welder would 
immediately reach his rightful place on the seniority roster. 
The ordinary consequence of permitting blacks to reach their 
rightful places was that whites would no longer enjoy the special 
advantages that existed due to past discrimination, and would no 
longer be recalled or assigned ahead of the more senior blacks in 
the past relegated to welder helper jobs. The motive of whites 
who refused to train blacks, which the company termed "a valid 
reason," was simply a desire to perpetuate the effects of past 
discrimination, and to prevent implementation of the seniority 
rules when, and because, they worked to the advantage of blacks. 
The assistant director of the welding department conceded there

70



was no other practical reason not to afford the blacks the on- 
the-job training and testing utilized before 1965.42

By forbidding welder helpers to use their seniority to 
move into welder jobs, until and unless they attended an after 
hours trade school,43 the company thwarted the movement of most 
black helpers into welder jobs. As of 1964 there were 198 black 
welder helpers; seven years later only 26 of them had moved into 
welder jobs. During the same period, 417 whites hired after 1964 
into the welding department became welders. (PX 12, 18; Exhibit 
Appendix, No. 74-3726, pp. 65X, 285X.)

This change in the method of selecting welders, which 
impsed on blacks a burden never faced by pre-1965 whites, was as 
even the district court apparently recognized a per se violation 
of Title VII. 11 FEP Cas. at 947 n. 16. If high level company
officials had rescinded the on-the-job training and testing 
program because they personally wanted to obstruct the exercise 
of black seniority rights, that would unquestionably have 
constituted discriminatory manipulation and maintenance of the 
seniority system. The same is true, we urge, in a case such as 
this where the company obstructed exercise of those rights merely 
to accommodate the prejudices and desires of white workers. The 
company personnel official suggested that Pullman-Standard was

42 PX 66, Deposition of Harry P. Crane, pp. 13-14.
43 Although some employees received tuition assistance to 

pay for such trade school training, the fact remains that blacks 
were never able to move into welder jobs under the same terms and 
conditions afforded to pre-1965 whites.

71



powerless to deal with this situation, because there was no way 
to "force" whites to train blacks when "they don't want to 
train." The recalcitrant whites, however, were not independent 
third parties, but Pullman-Standard employees. If, as the 
company suggested, its white welders were threatening to refuse 
to train blacks, the company had the power and obligation to deal 
with that action as it dealt with any other act of 
insubordination —  by instructing the whites to obey management 
directives or face dismissal

C. The Lock-In Effect
The effect of a departmental seniority system, as this 

court has repeatedly observed, is often to lock minority 
employees into departments to which they were initially assigned 
on the basis of race. Even though jobs in predominantly white 
departments may be more lucrative than positions in predominantly 
black units, a black employee may be prevented from transferring 
to a white department if by so doing he will forfeit the 
seniority rights that govern layoffs and recalls. The extent of 
such a lock in effect depends on the frequency with which layoffs 
occur; if layoffs are rare, minority employees may be willing to 
run the small risk involved in changing departments.

At the Pullman-Standard plant, however, layoffs were 
virtually an everyday occurrence. As the district court 
correctly found, large numbers of employees were repeatedly laid 
off and later recalled as work at the plant varied from as many 
as several thousand cars to as few as 25. Under these

72



circumstances it was economic suicide for any employee with 
substantial seniority, black or white, to transfer out of the 
department to which he was first assigned. Between 1965 and 1980 
an average of only 17 employees a year out of an annual workforce 
of about 2500 transferred into new departments. (DX 1208, p. 15)

In 1977 the district court found that the seniority 
forfeiture rule was administered in a non-discriminatory manner, 
and locked in blacks and whites to an equal degree. 17 FEP Cas. 
at 733-34. Judge Pointer refused to inquire whether the rule 
might be locking blacks into poorly paid departments, while 
whites were locked into lucrative units, arguing that he was 
precluded from considering that possibility by the Fifth 
Circuit's 1976 decision. (Id.) In 1980 the Fifth Circuit held 
that the district court erred in refusing to consider whether the 
lock in effect had such an adverse impact on blacks. 624 F.2d 
at 531.

On remand the district court again refused to consider 
whether the blacks subject to the seniority forfeiture rule were 
in less desirable departments.44 A second remand on this 
question is not necessary, however, because the facts are not in
dispute. As of 1965 more than 70% of all whites were

44 The 1986 district court opinion may assert thatemployees were locked into their departments. (R.E., p. 1Any such holding would be clear error. In any year less than one 
employee out of 100 changed departments. Nothing in the record 
supports Judge Pointer's intimation that this occurred because, 
although white workers had a "personal preference" for the well 
paid jobs to which they had been assigned because of their race, 
black workers had a "personal preference" for the worst paid jobs in the plant.

73



departments with a median JC of 10 or above, whereas more than 
70% of all blacks were in departments with a median JC of 6 or 
below. 539 F.2d at 87. Thus the overwhelming majority of blacks 
were adversely affected by the lock-in effect, and the 
overwhelming majority of the beneficiaries were white.

CONCLUSION
For the above reasons the decision of the district court in 

Swint must be reversed. On a number of issues the district court 
decisions in Swint and Larkin are clearly inconsistent, and one 
or the other must be overturned; for the reasons set out above, 
we believe the more appropriate resolution of this conflict would 
be to reverse the relevant portions of the Swint decision. That 
course of action will permit all the claims regarding the 
Bessemer plant to be resolved expeditiously in a single 
proceeding

Many of the issues raised by this appeal, and in No. 87- 
7057, were resolved by the Fifth Circuit in 1980 and 1976. It is 
evident that the next opinion of this court must be framed with 
unusual specificity if the litigation is ever to come to a 
conclusion. We urge the court to indicate with precision the 
issues which have now been definitively resolved, and the 
proceedings which are to occur on remand. Chris-Craft Industries 
v. Piper Aircraft Corn.. 516 F.2d 172, 186-87 (2d Cir. 1975). 
All of the issues in Swint, we believe, are now ripe for Stage II 
proceedings. We ask the court to make clear as well that the 
Stage II proceedings should not be permitted to degenerate into

74



#
an attempt to relitigate the very issues which were resolved 
during the 16 years of Stage I proceedings.

Resspectfully submitted,

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

JULIUS L. CHAMBERS 
PAMELA S. KARLAN 
ERIC SCHNAPPER 

16th Floor 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

JAMES U. BLACKSHER
465 Dauphin Street 
Mobile, Alabama 36602 
(205) 433-2000

OSCAR W. ADAMS, III
Brown Marx Building Suite 729
2000 1st Avenue, North 
Birmingham, Alabama 35203 
(205) 324-4445

Counsel for Plaintiffs-Appellants

75



Certificate of Service

I hereby certify that on this 13th day of July, 1987, I
served copies of the Brief for Plaintiffs-Appellees on counsel
for the parties by causing them to be deposited in the United
States mail, first class postage prepaid, addressed to:

C. V. Stelzenmuller 
3000 South Trust Tower 
Birmingham, Alabama 35203
William J. Marshall, Jr.
827 Westerfield 
Wilmette, Illinois 60091
F. B. Snyder 
1218 Heather Lane 
Glenview, Illinois 60025
Jerome A. Jerome 
Suite 201
409 North 21st Street 
Birmingham, Alabama 35203
John Falkenberry 
300 North 21st Street 
500 Title Building 
Birmingham, Alabama 35* )3.

for Pla



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