854 F.2d 1549 (11th Cir. 1988), 84-7319, Larkin v. Pullman-Standard Div., Pullman, Inc.
|Docket Nº:||84-7319, 86-7886 and 87-7057.|
|Citation:||854 F.2d 1549|
|Party Name:||12 Fed.R.Serv.3d 1500 William B. LARKIN; Louise Seals, as personal representative of Spurgeon Seals, deceased; Lillie Lofton, as personal representative of Edward Lofton, deceased; Jesse B. Terry, on behalf of himself and others similarly situated, Plaintiffs-Appellants, v. PULLMAN-STANDARD DIVISION, PULLMAN, INC., a corporation, Defendant- Appelle|
|Case Date:||September 21, 1988|
|Court:||United States Courts of Appeals, Court of Appeals for the Eleventh Circuit|
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O. William Adams, III, Birmingham, Ala., Elaine R. Jones, Washington, D.C., James U. Blacksher, Birmingham, Ala., Eric Schnapper, NAACP Legal Defense Fund, New York City, for plaintiffs-appellants in No. 84-7319.
C.V. Stelzenmuller, Burr & Forman, Birmingham, Ala., for defendant-appellee in No. 84-7319.
James U. Blacksher, Mobile, Ala., Oscar W. Adams, III, Birmingham, Ala., Elaine R. Jones, NAACP Legal Defense & Educational Fund, Washington, D.C., Julius L. Chambers, Pamela S. Karlan, Eric Schnapper, NAACP Legal Defense Fund, New York City, for plaintiffs-appellants in No. 86-7886.
Jerome A. Cooper, Cooper, Mitch & Crawford, Birmingham, Ala., for defendants-appellees in No. 86-7886.
C.V. Stelzenmuller, Burr & Forman, Birmingham, Ala., for defendant-appellant in No. 87-7057.
Appeals from the United States District Court for the Northern District of Alabama.
Before JOHNSON and CLARK, Circuit Judges, and DUMBAULD [*], Senior District Judge.
CLARK, Circuit Judge:
Few cases better represent the idea that the road to justice can be a long and tortured one. The class action giving rise to two of these three consolidated appeals was filed in 1971. The named plaintiffs, Louis Swint and Willie Johnson (the "Swint plaintiffs"), alleged that Pullman-Standard, Inc. (Pullman), the United Steelworkers, and United Steelworkers Local 1466 (collectively USW) had engaged in a number of racially discriminatory employment practices in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-2 (1982), 1 and 42 U.S.C. Sec. 1981 (1982). 2 Since the complaint was filed, many members of the plaintiff class have died, and our consideration of the case marks its fourth appearance before this court. Both sides have appealed certain aspects of the district court's decision.
A related suit, from which the remaining appeal arises, was filed in 1975. The plaintiffs in that suit--William Larkin, Spurgeon Seals, Edward Lofton, and Jesse Terry (the "Larkinplaintiffs")--brought similar charges against Pullman, and our consideration of their case marks its second appearance here. The Larkin plaintiffs appeal a separate district court's decision in favor of Pullman.
Regretting that we cannot resolve the case in its entirety, we affirm in part and reverse in part the Swint district court decision, and affirm the Larkin district court decision.
TABLE OF CONTENTS
The Factual Background
The Liability Period
The Nontransferable Seniority System
The Selection of Supervisors
The Larkin Appeal
I. The Factual Background
Both the Swint and Larkin lawsuits challenge employment practices at Pullman's Bessemer, Alabama plant before it closed in 1980. Employees at the plant during the general 3 time frame covered by the complaints were drawn from twenty-eight departments, each department covering roughly a particular phase of Pullman's manufacture of railroad cars. Pursuant to collective bargaining agreements with the two unions, two of the departments were represented by the International Association of Machinists (IAM); and the remaining twenty-six by USW. 4 The agreements were different, but they had one important provision in common: seniority, the primary factor upon which promotions were based, was not transferable between the various departments, 5 at least prior to 1972. 6 If an employee transferred to another department, he 7 lost his seniority.
Assignments and Promotions
There is little dispute that, prior to 1965, there were both segregated departments and mixed-race departments. Four USW departments--Die & Tool, Janitor, Steel Miscellaneous, and Truck--were all black. Five USW departments--Air Brake, Inspection, Plant Protection, Powerhouse, and Template--and the two IAM departments--Die & Tool and Maintenance--were all white. 8 There were also, within each mixed-race department, "white" jobs and "black" jobs, meaning that when a particular job was vacated, it was necessarily filled with an employee of the same race. The "white" jobs tended to be the higher-paying, and the "black" jobs the lower-paying. Within the USW departments, in addition to the racial division of job assignments, there were specific pay-skill levels, each represented by a job class (JC) number. The JC number reflected the highest level of skill at which an employee had demonstrated he could work, and it determined what the employee's base pay would be.
Both before and after 1965, when a person was hired, he was assigned to both a department and a particular job. The job assignment would set the employee's JC level. Under the collective bargaining agreement, promotions to higher JC-level jobs were to be awarded on the basis of seniority (which in effect meant they were intradepartmental only), provided that the employee could actually perform the work and that the position was not filled from the outside. The highest JC level an employee could achieve within his department varied with the department. In the all-black departments, the maximum JC level varied from 1-9; in the mixed-race departments, the maximum varied from 8-18; and in the all-white departments, the maximum
varied from 8-20. 9 Vacancies were not announced or posted. Pullman supervisors would choose the employee to fill the position or make the determination to hire from the outside.
In 1965, after an arbitration decision had opened up the previously all-white riveter job to blacks, some changes began to take place. The system of nontransferable seniority and promotions remained in place, 10 but a reporting system of hires and promotions was developed, and Pullman expressed its desire to recruit blacks for the highly-skilled positions. Unfortunately, at the same time, Pullman terminated its practice of offering on-the-job training and began to require that employees wanting to move to a higher skill level demonstrate that they had formal outside training or experience.
In January 1969, Pullman entered a conditional memorandum of understanding with the Department of Labor's Office of Federal Contract Compliance (OFCC) that it would encourage blacks to move from "low-ceiling" departments (where the highest JC level available was still quite low) to higher-ceiling ones. Pullman also agreed to offer at the company's expense, and encourage black employees to take part in, a program of outside vocational education. The memorandum, however, did not officially become effective because the union did not approve it. In May 1972, Pullman entered another agreement with OFCC that allowed blacks who were hired into the four traditionally black departments prior to April 30, 1965 to transfer into any department without losing their seniority. Additionally, any black whatsoever hired prior to April 30, 1965 was permitted to transfer to one of the five traditionally white departments without losing his seniority. The transfers, of course, were dependent on there being a vacancy in the department to which an employee wished to transfer. Seventeen blacks used this agreement to transfer, though it, like the 1969 memorandum, was not formally adopted by the unions.
Selection of Supervisors
The selection of supervisors, both before and after 1965, was not based on seniority. There were four levels of supervisors: "hourly foremen," who alternated between regular and supervisory work; "A foremen," the lowest-level salaried employees; "B foremen"; and Department Heads. These positions were considered within Pullman's (rather than USW's) purview. The B foremen would select the hourly and A foremen, and the Department Head would select the B foremen. The selections were based on the relevant supervisor's subjective evaluations of the employees, which were in turn based on what Pullman calls "objective" criteria, such as the ability to get along with other employees and knowledge of the particular department's operations. Foremen were not necessarily drawn from the department they would ultimately supervise.
II. The Litigation
The EEOC Proceedings
After Title VII became effective in June of 1965, the Equal Employment Opportunity Commission (EEOC) received several charges complaining that Pullman had engaged in racially discriminatory employment practices. Five of these charges are relevant here. On November 4, 1966, 11 Spurgeon Seals, a Larkin plaintiff, filed a charge alleging that he had been passed over for a better paying job in spite of his
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