535 F.2d 257 (4th Cir. 1976), 75-1259, Patterson v. American Tobacco Co.

Docket Nº:75-1259 to 75-1263.
Citation:535 F.2d 257
Party Name:John PATTERSON et al., Appellees, v. The AMERICAN TOBACCO COMPANY, a Division of American Brands, Incorporated, Appellant. John PATTERSON et al., Appellees, v. TOBACCO WORKERS' INTERNATIONAL UNION, an unincorporated association and Local 182, Tobacco Workers' International Union, an unincorporated association, Appellants. John PATTERSON et al., App
Case Date:February 23, 1976
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 257

535 F.2d 257 (4th Cir. 1976)

John PATTERSON et al., Appellees,

v.

The AMERICAN TOBACCO COMPANY, a Division of American Brands,

Incorporated, Appellant.

John PATTERSON et al., Appellees,

v.

TOBACCO WORKERS' INTERNATIONAL UNION, an unincorporated

association and Local 182, Tobacco Workers'

International Union, an unincorporated

association, Appellants.

John PATTERSON et al., Appellants,

v.

The AMERICAN TOBACCO COMPANY, a Division of American Brands,

Incorporated, et al., Appellees.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellee,

v.

LOCAL 182, TOBACCO WORKERS' INTERNATIONAL UNION (AFL-CIO),

Appellant.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellee,

v.

AMERICAN BRANDS, INC., d/b/a American Tobacco Company, Inc.,

Appellant.

Nos. 75-1259 to 75-1263.

United States Court of Appeals, Fourth Circuit

February 23, 1976

Argued May 7, 1975.

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Henry L. Marsh, III, Richmond, Va. (S. W. Tucker, John W. Scott, Jr., Randall G. Johnson, Hill, Tucker & Marsh, Richmond, Va., Jack Greenberg, Elaine R. Jones, Barry L. Goldstein, and Morris J. Baller,

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New York City, on brief), for John Patterson, and others.

Henry T. Wickham, Richmond, Va. (John F. Kay, Jr., Kenneth V. Farino, Mays, Valentine, Davenport & Moore, Richmond, Va., Chadbourne, Parke, Whiteside & Wolff, Paul G. Pennoyer, Jr., Arnold Henson, Bernard W. McCarthy, and Bernard J. Dushman, New York City, on brief), for The American Tobacco Co. and American Brands, Incorporated.

Herbert L. Segal, Louisville, Ky. (Irwin H. Cutler, Jr., Walter Lapp Sales, Segal, Isenberg, Sales & Stewart, Louisville, Ky., Jay J. Levit, Stallard & Levit, Richmond, Va., and James F. Carroll, Washington, D. C., on brief), for Tobacco Workers' International Union and Local 182.

Margaret C. Poles, Atty., Equal Employment Opportunity Commission, Washington, D. C. (Julia P. Cooper, Gen. Counsel, Joseph T. Eddins, Associate Gen. Counsel, and Beatrice Rosenberg and Charles L. Reischel, Attys., Washington, D. C., on brief), for the Equal Employment Opportunity Commission.

Before WINTER, BUTZNER and WIDENER, Circuit Judges.

BUTZNER, Circuit Judge:

These appeals and cross appeals question certain provisions of a judgment entered in consolidated actions brought by the Equal Employment Opportunity Commission and several black employees of the American Tobacco Co. against the company, the Tobacco Workers' International Union, and its Local 182. The case concerns the application of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) and 42 U.S.C. § 1981 to redress race and sex discrimination in working conditions. 1 Following is a summary of the district court's decision and our disposition of the assignments of error:

I. The district court defined the class of black employees as those, whether currently employed or not, who worked on or after July 2, 1965, the date Title VII became effective. It found no discrimination in hiring but ruled that the company and the labor organizations had engaged in unlawful employment practices by racial discrimination in the promotion of employees. It ordered American to institute company-wide seniority, eliminate certain lines of progression from lower to higher paying jobs, post definite job descriptions, grant back pay, and adjust pensions and profit sharing plans in amounts to be determined at a subsequent hearing. The court also ordered that white incumbents be bumped from jobs for which senior black employees were qualified.

Neither party has assigned error to the court's finding of no discrimination in hiring. We find no error in the designation of the class. We affirm the finding of discrimination in promotions and approve the relief ordered by the court, except for provisions of the judgment dealing with company-wide seniority and bumping.

II. The district court ruled that the EEOC was empowered to bring suit to eliminate discrimination against women, although the initial charge dealt only with discrimination against men. It defined the class of aggrieved women in terms similar to those used to describe the class of black employees. The court found discrimination in promotions but not in hiring, and it ordered relief similar to that afforded black employees.

On these issues we affirm the district court, modifying only its grant of relief.

III. The district court found discrimination in the selection of supervisors and ordered the company to prepare written job descriptions and objective criteria for appointments. It also ordered preferential hiring of blacks and women to fill supervisory vacancies.

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We affirm these aspects of the court's judgment except for those dealing with preferential hiring.

IV. The district court held that the actions were timely filed, that the statute of limitations for an action brought under § 1981 is five years, and that the statute is not tolled by filing a charge with the EEOC. It also held that back pay for discrimination against women should accrue from two years before the charge was filed.

Except for the application of the five-year statute of limitations and the accrual of liability for the women's back pay, we affirm these rulings. The proper limitation, we hold, is two years, and the accrual date for back pay must be reexamined in light of EEOC v. General Electric Co., 532 F.2d 359 (4th Cir. 1975), which was decided after the district court wrote its opinion.

I

American operates three facilities in Richmond, Virginia. The "Virginia Branch" makes cigarettes; the "Richmond Branch" makes pipe tobacco; and the "Richmond Office" keeps accounts and records for both branches. Approximately 250 of the 1,280 employees at both branches are black, and in the Richmond office 13 of the 62 employees are black. In each branch the prefabrication department blends and prepares tobacco before sending it to the fabrication department, which manufactures the finished products. Workers in prefabrication generally earn less than those in fabrication, and most employees at the Richmond branch make less than those at the Virginia branch.

Before 1963 the union and the company overtly segregated employees by race with respect to job assignments, cafeterias, restrooms, lockers, and plant entrances. White employees were represented by Local 182 of the Tobacco Workers' International Union, while black employees were represented by Local 216. Blacks were generally assigned to positions in the prefabrication departments. The higher paying jobs in fabrication were largely reserved for white employees. Each department had its own seniority roster, on which promotions depended. Employees could not transfer from one department to another without forfeiting their seniority.

In September 1963 the black union was assimilated by the white Local 182 to comply with an executive order relating to the government's purchase of supplies. Simultaneously, the company abolished departmental seniority, but it continued to maintain separate rosters at the two branches. The 1963 changes did not eliminate racial discrimination from the company's promotion practices. The district court found that until 1968 the company utilized a system of unwritten qualifications which denied black employees access to the higher paying jobs at the Virginia branch. For certain positions an employee had to be familiar with the duties of the new job in the opinion of his supervisor. Also, he had to work a minimum number of hours on a temporary basis to qualify as an operator of a making or packing machine. Consequently, black employees not working in proximity to the higher paying jobs had limited opportunity to qualify, regardless of their seniority. Combined with static employment in the tobacco industry, this system allowed little advancement of black employees from jobs in prefabrication to those in fabrication. Indeed, from 1963 to 1968 there was an increase of only four blacks in the fabrication department at the Virginia branch.

The Richmond branch had no qualification restrictions on promotions. Instead, supervisors canvassed employees, seeking the senior worker willing to fill a vacancy. There were, however, no written job descriptions. This system provided slight opportunity for black employees to move from prefabrication to fabrication, and from 1963 to 1968 there was an increase of only six black employees in the latter department. As of 1968, only three of the 26 machine operators were black.

In January 1968 the company discontinued its qualifications system. Instead, it posted vacancies and promoted the senior employee who bid for the job. The district

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court found that this innovation was "facially fair and neutral" but ordered that it be implemented by posting written job descriptions. Furthermore, the district court found that access to certain jobs was barred to black employees by lines of progression and the maintenance of separate seniority rosters for each branch.

Although the company and the union have taken steps in recent years to correct some of the inequalities of the past, the lines of progression, the lack of definite written job descriptions, and barriers to transfer between the branches remain impediments to fair and neutral employment practices. Much must still be done to eradicate any taint of racial discrimination at the plant. The most recent figures available indicate that as of the end of 1973, more than 80 percent of all the employees in the Virginia branch's prefabrication department were black, while in the fabrication department only about 14...

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