Swint v. Pullman-Standard Reply Brief for Plaintiffs-Appellants

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

NO. 74-3726

LOUIS SWINT, et al.,
Plaintif f s-Appe Hants

v s .

PULLMAN-STANDARD, et al. ,
Defendants-Appe1lees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF ALABAMA

REPLY BRIEF OF PLAINTIFFS-APPELLANTS

U. W. CLEMON 
ADAMS, BAKER & CLEMON 

1600 - 2121 Building 
Birmingham, Alabama 35203

JACK GREENBERG 
MORRIS J. BALLER 
BARRY GOLDSTEIN 
MARILYN HOLIFIELD 

10 Columbus Circle 
New York, New York 10019

ATTORNEYS FOR PLAINTIFFS



TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................. ii

INTRODUCTION .........................................  1

RESTATEMENT OF THE CASE.............................. 1

RESTATEMENT OF PERTINENT FACTS .....................  2

ARGUMENTS ...........................................  6

CONCLUSION ..........................................  13

CERTIFICATE OF SERVICE ............................. 14

l



Cobb v. Lewis, 488 F.2d 41 (5th Cir., 1974)........  7
Forman vs. Davis, 371 U.S. 178, 181, 182
83 S.Ct. 227, 230 (1962X............................. 7
Galena Oaks Corp, v. Scofield, 218 F .2d
217 (5th Cir. , 19 64)................................. 12
Hester v. Southern Railway, 497 F .2d
1374, 1381 (5th Cir., 1974)........................  13
Jones v. Chaney & James Construction Co.,
J99 F. 2d 84,'86 (5th Cir., 1968)...................  7
Knuth v. Erie-Crawford, 395 F.2d 420, 428
T3rd Cir., 1968*..................................... 7
Manning v. MN "Sea Road", 417 F.2d
603 (5th Cir. , 1969) ............................... 12
Markham v. Holt, 369 F.2d 940, 943
(5th Cir., 1966).................................... 7
Olympic Ins. Co. v. H. D. Harrison,
4X3 F .2d 973 (5th Cir., 1969).................. .... 7
Parks v. B. F. Leaman & Sons, 279 F . 2d
529 (5th Cir. , 1960)................................. 7
Pettway v. American Cast Iron Pipe Co.,
494 F. 2d 2lT, 234, ftn. 56 (5th Cir. , 1974)........  12
Reynolds Trading Corp. v. U.S., 4 86 F . 2d
1077, 1080 (C.Ct., 1973).......  7
Schultz v. First Victoria National Bank,
420 F. 2d 648 (5th Cir. , 1969)....................... 12
U. S. v. Central Motor Lines, 338 F. Supp.
532”, 4 EPD 11 7 624 , at p. 5456, (W.D. N.C. 1971)..... 12
United States v. Hayes International, 456 F .2d
112, 120 (5th Cir., 1972) ......................... 10
United States Vs. International Brotherhood of 
Electrical Workers, 428 F.2d 144 (6th Cir., 1970)....11

TABLE OF AUTHORITIES



INTRODUCTION

The purpose of this reply brief is to respond 
briefly to an issue sought to be raised by the appellee 
Company, and to clarify certain erroneous factual and 
legal assertions raised in the briefs of both the 
appellees Company and Union. To a limited extent, the 
reply brief will remind this Court of the consistent 
failure of both appellees to address themselves to the 
proper issues involved in this appeal.

RESTATEMENT OF THE CASE

As stated in the main brief of appellants, the 
district court determined prior to trial that Louis 
Swint represented all of the. production and maintenance 
workers employed at Pullman-Standard. (R.I [7]). The 
final order of the district court was captioned, "Louis 
Swint, et al v. Pullman-Standard, et al." (R.I [16]).

The notice of appeal herein did not suggest, 
either in its caption or body, that the appeal was being 
limited in any respect to the individual discharge claim
of Louis Swint.



V: 1 j i l O

RESTATEMENT OF FACTS

The brief of appellee Union correctly called 
the Court's attention to the fact that in 1964, there 
were 1,035 white employees in the Welding Department 
assigned to JC 10 jobs. (Union's Brief, p. 12). 
Appellants' had made an error in addition and this error 
was reflected in their brief at page 10. However, as 
conceded by the Union at page 13 of its brief, the error 
is insignificant - for the fact is that all of the JC 10- 
14 jobs in the Welding Department in 1964 were occupied 
by whites alone; and that blacks could only be found in 
the JC 6 jobs - where they comprised 93% of the workers 
in such occupations.

The Union's brief, at p. 13-14, notes that it 
is "...an absurd assertion" that 61.7% of all whites in 
the plant in June, 1965 worked in the Welding Depart- • 
ment. In the first place, the Union obviously failed to 
comprehend the subject of the chart which it purports 
to attack. That chart, at page 44, of our main brief, 
clearly indicates that the figures therein refer only to 
"mixed" departments; it plainly does not include those 
Pullman employees assigned to one-race departments. 
Secondly, the accumulating percentages chart constructed 
(erroneously, we contend) by the district court clearly

2



shows, and the district court found, that 33.90% of the 
white employees in 1964 were assigned to those depart­
ments listed ahead of the Welding Department. When the 
white employees in the Welding Department are added to 
the chart, 96.05% of all the white employees assigned to 
mixed departments are accounted for. This would indi­
cate that 62.14% of all whites in mixed departments are 
assigned to the Welding Department. The statistic cited 
in our main brief at p. 44, showing that the Welding 
Department accounted for 61.7% of all whites assigned to 
mixed departments in 1964, was derived by dividing the 
total number of whites working in mixed departments in 
1965 as shown by the chart of the court below, (1099) 
into the number of whites assigned to the Welding Depart­
ment (678). (R.I [16] p. 10). The Union's effort to 
discredit this plain and immutable fact, therefore, falls 
on its face.

The Union's brief devotes substantial discussion 
to an allegedly erroneous assumption by appellants that 
all of the paint helpers prior to 1965 were blacks (Brief 
of Union, pp. 14-16). In its original answer to Plaintiffs' 
Interrogatory No. 32, the Company indicated that as of 
1964, whites at Pullman had never held the job of paint 
helper. On the eve of trial, the Company amended its

3



answer to show that whites had at some time prior to 
1964 served as paint helpers; but the district court 
found, with respect to the claim that certain jobs had 
once been worked on a desegregated basis, that:

"Pullman's old records, quite incomplete, 
do reflect a mixing of the races in some 
of these jobs in the 1920's and 30's.
Nevertheless, it is clear that by the late 
40's many of the jobs had become racially 
segregated, and remained so into the mid- 
601s "
(R.I [16], p. 4, ftn. 12).

Trial testimony confirmed that prior to 1964, blacks 
served as spray paint helpers and whites served as 
stencillers and chaulkers. (Tr. 158, 885).

Moreover, even assuming that the Union's 
position is correct, such position complements the un­
contradicted evidence that prior to 1964, blacks were 
assigned to departments with low median job classes; and 
that the highest job class held by any significant num­
ber of blacks was JC 7.

Though the Union's brief alludes to "numerous
other erroneous and meaningless statistics scattered
throughout the brief [of appellant], it declined to
point out such statistics pretextually due to space limi-

1/tations. (Brief of Union, p. 16)

1/ However, the Union's brief is roughly half of the 
page limitation on briefs under FRAP.

4



Since we are unaware of any other alleged inaccuracies, 
we are here unable to rebut them.

Both the Union and the Company have attacked 
the use of seniority rosters as an indicator of job 
assignment patterns at Pullman. While the seniority 
rosters may not indicate the occupation which an em­
ployee may be working on a particular day, they do, 
according to the Company, indicate the predominant 
occupation of each employee during normal periods of em­
ployment. (CDX 274, p. 10). The correlation between these 
rosters and actual work assignments is established by 
one of the Company's exhibits (CDX 274). A comparison 
of the 1973 seniority roster (PX 10) with the actual work 
assignments as of May 8, 1975 shows the following:

1973 Seniority 5/8/73 Actual 
Roster________ Assignments

Black Workers in JC 8 
or Below
White Workers in JC 8 
or Below
Black Workers in JC 10 
or Above

i
White Workers in JC 10 
or Above

74.1%

15.8%

19.9%

74.53%

18.18%

19.10%

80.7% 79.01%
Obviously then, the occupations listed for employees on 
the the seniority rosters bear a very high relationship 
to actual job assignments on a given day at the Company.

5



ARGUMENT

THE NOTICE OF APPEAL HEREIN DID NOT MISLEAD OR PREJUDICE 
THE APPELLEES

The appellee Company's last minute effort to 
foreclose a decision by this Court on the merits of this 
case is, both factually and legally, groundless. The 
notice of appeal, filed on the next business day following 
the entry of the final order by the court below, did not 
except any issue or party from the appeal; moreover, it 
did not indicate that the appeal was being pursued by 
Louis Swint in his individual, rather than representative, 
capacity. In all the papers filed by appellants in this 
Court related to the appeal, nothing less than an over­
riding intent to generally appeal the adverse final order 
has been evident.

It is understandable that the appellee Company 
does not claim that it was prejudiced or misled by the 
notice of appeal, for they have not occasioned such in­
jury. Quite to the contrary, the appellee Company did 
not even raise the issue until it became their turn to 
respond to appellants' brief. Additionally, the Company 
cannot be heard to say that the issues on this appeal 
are frivolous - the fact that its brief utilizes the

6



maximum pages permitted under FRAP clearly suggests other­

wise .
The relevant authorities all require that the 

Company's effort to limit this appeal be rejected. Forman 
v. Davis, 371 U.S. 178, 181, 182, 83,S.Ct. 227, 230 (1962); 
Knuth v. Erie-Crawford, 395 F .2d 420, 428 (3rd Cir., 1968); 
Parks v. B. F. Leaman & Sons, 279 F.2d 529 (5th Cir., 1960); 
Cobb v. Lewis, 488 F.2d 41 (5th Cir., 1974); Jones v.
Chaney & James Construction Co., 399 F.2d 84, 86 (5th Cir., 
1968): Markham v. Holt, 369 F.2d 940, 943 (5th Cir., 1966); 
Reynolds Trading Corp. v. U.5., 486 F .2d 1077, 1080 
(C.Ct., 1973); Olympic Ins. Co. v. H. D. Harrison, 413 F.2d 
973 (5th Cir., 1969).

THE DISTRICT COURT ERRONEOUSLY EXCLUDED CONSIDERATION OF 
RELEVANT DATA AND APPLIED ERRONEOUS STANDARDS IN REACHING 
ITS CONCLUSION THAT THE SENIORITY SYSTEM AT PULLMAN DOES 
NOT PERPETUATE THE EFFECTS OF PAST DISCRIMINATION

The district court's conclusion that pre '65 
blacks received equal, if not favorable, treatment in 
assignments to the better departments at Pullman rests 
largely on its chart reproduced in its opinion. As pointed 
out in appellants' main brief, the court's chart is 
deficient in several respects. First, the chart omits 
three of the all-white production and maintenance depart-

7



merits - which in 1964 accounted for 17 3 of the Company's 
workers. These departments included the traditional craft 
jobs as well as occupations found in the other departments 
at Pullman. It is clear as crystal that no blacks were 
assigned to either these departments in the pre-'65 era.

Our main brief, at pp. 40-44, contains a de­
tailed discussion of the other fallacious assumptions and 
deficiencies of the court's chart, and for that reason, 
they will not be repeated here. However, it bears re­
membering that while the court's chart lists the Forge 
Department, with a median job class of 6, as the third 
most desirable department at the Company, there are at 
least six other departments which have both a higher median 
job class and a larger work force. The court's chart ranks 
the Welding Department as No. 16 on the scale of 25 de­
partments. Yet, with two exceptions, the Welding Depart­
ment has a higher median job class than all the other de 
partments save two; it is the largest department at the 
Company; and perhaps most telling of all, most of the in­
terdepartmental transfers are made to the Welding Depart­
ment, from all the other departments, including Forge. 
Neither the brief of the Company nor that of the Union 
addresses itself to the omissions and obviously fallacious 
assumptions of the court's chart, from which the court's 

conclusions were drawn.
8



We do not contend, as suggested by the Union, 
that all department seniority systems are per se violative 
of Title VII. Rather, we contend that under the undis­
puted facts at Pullman, its department seniority system 
perpetuates the effects of past discrimination because 
of the historical existence of twelve one-race depart­
ments, the heavy concentration of blacks in the less de­
sirable departments, the absence of red-circling, the 
failure to post vacancies, and the inability of blacks 
to carry-over seniority into the predominately white de 
partments other than the five outlined in the OFCC agree­

ment.
It is demonstrably untrue that

"All of the other departments at the 
Bessemer facility (other than the five 
all-white departments covered by the OFCC 
agreement), where the vast majority of the 
work force and the greatest job opportuni­
ties may be found, were always open to em­
ployees without regard to race."
(Brief of Appellee Union, p. 25) .

In the Welding Department, and the Maintenance CIO Depart­
ment which because of their size and median job classes 
offer the greatest job opportunities, the most populous 
occupations (e.g., welder) were filled by whites alone. 
Only those occupations in JC 7 or below were open to 
blacks, and since such occupations accounted for less 
than a fourth of these departments' employees, the number

9



of blacks assigned to the Welding and Maintenance CIO 
Departments was grossly disproportionate to the black 
percentage of the work force. Even the most cursory re­
view of the seniority rosters discloses that the over­
whelming majority of senior men in both departments are 
whites. In the Maintenance IAM and Die and Tool IAM 
Departments, virtually all of the senior men are whites.

The district court applied another improper 
legal standard when it concluded that despite the fact 
that the Company admittedly maintained racially segre­
gated jobs in the pre '65 era, plaintiffs nonetheless 
had the burden of studying the qualifications of all appli­
cants for jobs at Pullman and establishing that the 
Company had declined to assign qualified blacks to the 
Maintenance and Welding Departments. The standard was an 
improper one. See, United States v. Hayes International, 
456 F.2d 112, 120 (5th Cir., 1972).

At pp. 28-34 of our main brief, we discuss the 
virtual failure of the OFCC agreement to remedy the 
present effects of the past discrimination at Pullman. In 
addition to the considerations therein set forth, the 
OFCC agreement as modified by the court is defective in 
that it does not offer to qualified black production and 
maintenance workers the opportunity to transfer into the

10



at Pullmanvarious non-union and clerical departments 
which, in 1964, were all white. (PX 1-10). u -s- V-  
........ international, supra, at 110. The district court

erred by denying such relief.

TTVT rvr rdpkPAY FOR UNCONTROVERTED 
THE DISTRICT COURT'S DENIA ‘ FILING OF THIS LAWSUITDISCRIMINATION at the time of the Ilia
CONSTITUTED REVERSIBLE ERROR

This is another issue fully discussed in our 

main brief at pp. 62-64. The Union and the Company's 
briefs are conspicuously silent on this issue, probably 
due to the almost self-evident proposition that where, 
as here, discrimination is found to have existed within

■ h r i;ma.nfion the discriminatees the applicable period oi limitatior
are presumptively entitled to a backpay award.

It is apparent that the district court denied
cm Semite its finding that the dis- backpay in this cause, despite

crimination did not cease until some time in 1972, 
because of the conditions at the Company at the time of 
trial, as perceived by the Court. This legal standard

was an impermissible one.
states v. InternationpjL_j)£gtherhood_gjL

i v F 2d 144 (6th Cir., 1970) standsElectrical Workers, 428 F . za
for the unshaken proposition that the trial court 
quired, for relief purposes, to consider the state of

11



i
jr

facts as they existed at the time of the filing of the 
lawsuit. Id., at 151. Accord: U. S. v. Central Motor
Lines, 338 F.Supp. 532, 4EPD <[ 7624, at p. 5456, (W.D.

N.C., 1971).

THE "CLEARLY ERRONEOUS" RULE DOES NOT INSULATE THE 
FINDINGS OF THE DISTRICT COURT

It is settled that under Rule 52(a), findings 
of fact or fact - legal conclusions induced by erroneous 
legal standards are not insulated on appellate review by 
the'clearly erroneous doctrine. Schultz v. First Victoria 
National Bank, 420 F.2d 648 (5th Cir., 1969); Manning v.
HN "Sea Road", 417 F.2d 603 (5th Cir., 1969); Galena Oaks 
Corp. v. Scofield, 218 F.2d 217 (5th Cir., 1964). We 
have indicated, both in this reply brief and in our main 
brief, several of the erroneous legal standards which in­
duced the findings of fact and fact-legal conclusions 
of the court below.

Moreover, several of the crucial findings by 
the district court lack adequate evidentiary support in 
the record, and, as such, are not entitled to the pro­
tection of the "clearly erroneous" doctrine. Pettway v .
American Cast Iron Pipe Co., 494 F .2d 211, 234, ftn. 56 

(5th Cir., 1974).
12



The district court's disregard o£ certain all-white de­
partments, its arbitrary desirability ranting of depart-

r- n nqciimntions concerning the abments, and its unfounded assumption
-ill rest on a non-existingsence of black foremen - all rest on

evidentiary base in the record. The foregoing examples 
are illustrative, and by no means exhaustive, of instances
in which the district court's findings lack an adequate

tTocter v. Southern Railway, evidentiary base in the record. Heste---_----
497 F.2d 1374, 1381 <5th Cir., 1974).

Finally, the findings of the district court are

largely based on documentary evidence, which said evidence
is now equally available. Under such circumstances,
standard of proof required to overturn a finding

as great as it would be otherwise.

CONCLUSION

For the reasons herein stated, as well as those 

stated in our main brief, we respectfully urge this Court 

to reverse the order appealed from.

Respectfully submitted,

Irr'wT- clemont i T  W . .  CLEM ON 
ADAMS, BAKER & CLEMON 

1.600 - 2121 Building 
Birmingham, Alabama Jd/u.3

13