Page v. U.S. Industries, Inc.

• Decision Date: 12 March 1984
• Docket Number: No. 82-2083,82-2083
• Citation: 726 F.2d 1038
• Parties: 34 Fair Empl.Prac.Cas. 430, 33 Empl. Prac. Dec. P 34,249 John PAGE and Don Thomas, Individually and On Behalf of All Others Similarly Situated, Plaintiffs-Appellants, v. U.S. INDUSTRIES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1038

726 F.2d 1038

34 Fair Empl.Prac.Cas. 430,

33 Empl. Prac. Dec. P 34,249

John PAGE and Don Thomas, Individually and On Behalf of All Others Similarly Situated, Plaintiffs-Appellants, v. U.S. INDUSTRIES, INC., Defendant-Appellee.

No. 82-2083.

United States Court of Appeals Fifth Circuit.

March 12, 1984.

Carol Nelkin, Houston, Tex., for plaintiffs-appellants.

Samuel E. Hooper, Houston, Tex., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before POLITZ, JOHNSON and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

John D. Page and Don Thomas, black citizens of the United States, brought suit against U.S. Industries, Inc., ¹ contending that defendant engaged in individual and classwide discrimination in violation of Title VII, 42 U.S.C. Sec. 2000e et seq. and 42 U.S.C. Sec. 1981. ² The named plaintiffs represent a class of black and Mexican-American, past, present and future employees of U.S. Industries, Inc., seeking redress for alleged violations stemming from defendant's employment policies relating to promotion, progression, job placement, initial work assignments and pay. ³ After a bench trial the district court determined that plaintiffs failed to demonstrate that defendant had engaged in unlawful discrimination in violation of Title VII and Sec. 1981.

We have reviewed the anecdotal, documentary, and statistical evidence presented by both parties, and we affirm the judgment of the district court.

I. PROCEDURAL HISTORY

At the time this suit was filed, plaintiffs were employed in Houston, Texas, at the Kansas Street facility of U.S. Industries, Inc., Wyatt Division. Wyatt is a Texas corporation which owns and operates the Kansas Street plant as a wholly owned subsidiary of U.S. Industries, Inc. The Kansas Street plant is engaged in the fabrication of heavy gauge steel for use primarily in the manufacture of pressure vessels for oil refineries and petrochemical plants.

During the period covered by plaintiffs' claims, Wyatt employed a large number of hourly paid production and maintenance workers at the Kansas Street facility. These employees performed their job duties within one of several departments. Within each department were various levels of welders, fitters, crane operators and helpers. The employees were assigned to various job classifications established by the collective bargaining agreement executed by Wyatt and the Boilermakers Union and its affiliate, Local 561. Job descriptions for each classification and rates of pay were also established by the collective bargaining agreement. Within each job classification employees were designated at one of three levels of skill and experience--A, B, or C. A was the highest level, and C was a learner classification.

The large majority of new hires at the plant were hired into the entry level position of helper although some experienced or qualified new hires entered at other levels. During the hiring process, a prospective employee was interviewed and his or her application for employment was reviewed to determine if the individual possessed any prior experience. When an individual was hired, a form was prepared reflecting any prior experience that the new hire had. This form was transmitted to the new employee's foreman for use in making initial work assignments. The department to which a newly hired helper was assigned depended upon the needs of the various departments at the time and on any related experience the individual may have had. The majority of those hired as helpers were assigned to one of the assembly departments. Once a person was hired and assigned to a department, the foreman designated the task the helper was required to perform. These tasks included grinding welds on vessels, sweeping and cleaning the department, helping move parts of vessels within the department, or working as an assistant to an employee in a higher classification.

Once assigned to a department, an employee had the opportunity to develop his skills and thus increase his chances of progression to the extent that he was permitted to assist a craftsman. Although the company from time to time maintained welder and fitter training classes, an important factor in obtaining the skills required for promotion was an assignment to work as a helper to a craftsman. Whether an employee was assigned to assist a craftsman depended wholly upon the decision of his foreman.

The job descriptions for helper found in the collective bargaining agreement did not specify what steps a Helper B had to take in order to qualify himself to be promoted to Helper A. Whether a particular employee progressed to Helper A or had the opportunity to learn a trade or occupation depended primarily on the discretion of the employee's foreman. The foreman evaluated the ability of an employee to perform new tasks on the basis of his own prior experience at the plant and observation of the employee.

The collective bargaining agreement contained more specific guidelines on the qualifications necessary for promotion into Wyatt's higher level job classifications. For example, the collective bargaining agreement effective November 18, 1977, supplied the following job descriptions:

Fitter A --assembles all types of complicated products according to drawings. Interprets and works from drawings or prints to assemble fabricated or prefabricated parts. Is skilled in the fabrication and working of materials with knowledge of tolerances and allowances. Must use applied mathematics. Is responsible for proper fitup of the product without supervision.

Welder, Electric Automatic A --Sets up and operates automatic fusion electric welding machines. Adjusts speeds and controls operation, including feed of electrode, flux and speed of travel. Knows proper fit-up and positions work properly. Does normal maintenance and adjustments of equipment. Selects proper size and types of flux and rod. Adjusts controls, operates, and maintains incidental equipment and appurtenances. Performs arc-air grooving operations when required. Performs work without supervision.

Job vacancies were not posted at the Kansas Street plant. Employees made known their preference for a position within a certain job classification by signing a job preference log maintained in the personnel office.

In order to progress from helper into one of the upper level welder classifications an employee had to pass standard tests set out in the American Society of Mechanical Engineers Boiler and Pressure Vessel ("ASME") Code Manual. The foreman of the department determined when an employee could take such a test based on the foreman's personal experience at the plant and his personal observation of the employee. The foreman could also consult with a leadman to determine whether an employee was ready to take such a test. Promotions were not, however, entirely dependent upon an employee's skill. The collective bargaining agreement stated that seniority, as well as ability and qualifications, was to be evaluated when considering eligibility for promotion.

In order to obtain certification to weld on portions of the pressure vessels under the ASME Code, welders had to pass welding tests which consisted of welding steel plates in various welding positions (horizontal, vertical or overhead). The test plates had to be x-rayed and show no flaws before a welder could be certified for a particular welding position. Welders also were required to pass tests before welding on different types of steel alloys. If a foreman decided that a particular employee could not take a test, that employee could obtain the assistance of a welding instructor or speak to the plant manager. Additionally, an employee could file a grievance pursuant to the collective bargaining agreement.

In order to progress within the fitter classification, an employee was required to demonstrate certain mathematical skills. Unlike the ASME Code test for welders, no test was used to measure an employee's applied mathematical skills. Accordingly, the foremen had to observe each employee to decide whether he had the requisite skills required for promotion under the collective bargaining agreement.

The collective bargaining agreement provided for wage rate ranges within each job classification. As employees developed skill and ability, they were awarded merit increases within the wage rate ranges in each classification. It was the foreman's initial decision as to whether an employee received a merit increase. The amount of the merit increase was determined by the ranges set out in the collective bargaining agreement subject to the approval of the shop superintendent. The foreman was not required to submit any written justification for the granting or withholding of a merit increase or for the amount of an increase. There was no fixed period of time during which a performance review had to be made or an increase granted.

On August 13, 1974, Page and Thomas filed a complaint in the U.S. District Court for the Southern District of Texas alleging that defendant had discriminated against them and the class they purported to represent in violation of Title VII and 42 U.S.C. Sec. 1981 with respect to hiring and layoff policies, entry level wages, job assignments, wage rate increases, transfers, overtime, and lines of progression. At trial, plaintiffs abandoned their claims with respect to hiring and layoff policies. ⁴ They ultimately characterized this case as "basically a promotion-progression case" and limited the issues to allegations that defendant had discriminated against plaintiffs with respect to entry-level wage rates, initial job assignments, promotion to higher-paying job classifications and merit increases.

The district court certified the following class on September 8, 1978:

All Blacks and Mexican-Americans who are, or have been, or have applied to be, or may apply to be employed by Wyatt Division, U.S. Industries,...