Buckner v. Goodyear Tire and Rubber Company, Civ. A. No. 70-844.

• Decision Date: 07 March 1972
• Docket Number: Civ. A. No. 70-844.
• Citation: 339 F. Supp. 1108
• Parties: David BUCKNER et al., Plaintiffs, v. GOODYEAR TIRE AND RUBBER COMPANY, a corporation, et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

339 F. Supp. 1108

David BUCKNER et al., Plaintiffs, v. GOODYEAR TIRE AND RUBBER COMPANY, a corporation, et al., Defendants.

Civ. A. No. 70-844.

United States District Court, N. D. Alabama, M. D.

March 7, 1972.

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David H. Hood, Jr., Bessemer, Ala., for plaintiffs.

Cabaniss, Johnston, Gardner & Clark, Birmingham, Ala., for defendants.

MEMORANDUM OF OPINION AND ORDER

POINTER, District Judge.

This action, presaged by charges filed with the EEOC in 1967 against Goodyear Tire & Rubber Company, was brought by the plaintiffs, seven black employees of Goodyear, under Title VII of the Civil Rights Act of 1964, 42 U.S. C.A. § 2000e et seq. Injunctive relief and back pay are sought under Title VII and under Rule 23 for the benefit of all black employees hired by Goodyear after 1958. Local 12, United Rubber, Cork, Linoleum and Plastic Workers of America, the bargaining representative for production and maintenance workers at Goodyear's plant at Gadsden, Alabama, was added as a defendant in view of the possibility of a decree affecting the terms of the collective bargaining agreement.¹

Proceedings in this case were temporarily stayed to allow further conciliation efforts through the EEOC. These efforts were partially successful, principally in matters relating to hiring and recruitment practices, use of company facilities, and commitment to non-discriminatory employment policies. Three subjects remain in dispute: (1) the validity of tests used by Goodyear in selecting entrants into its apprenticeship program; (2) whether discrimination remains in the assignment of lockers; and (3) whether promotion and transfer policies are discriminatory or perpetuate the effects of past discrimination.

Plaintiffs were at trial allowed to amend their complaint to assert a cause of action under 42 U.S.C. § 1981 in addition to that under Title VII. The amendment was sought not on the premise that the ambit of § 1981 is broader than that of Title VII, but rather in hopes of extending the applicable period of limitations. It is undenied that there were employment practices discriminatory against blacks prior to March 15, 1962; plaintiffs not only say that these practices have significance in determining under Title VII the perpetuation effect of post-1965 practices, but also seek monetary compensation for the pre-1962 discrimination.

I. OVERVIEW

Goodyear is engaged at its Gadsden plant in the manufacture of tires and tubes for cars and trucks. Its some 3,550 employees can be roughly grouped as follows: non-bargaining unit employees (managers, supervisors, professionals, technicians and clerical workers), 625; craftsmen, 325; and production workers, 2,600. Black employees constitute approximately 7% of the work force, with virtually all being in production jobs.

Prior to 1962 the company and the union adhered to a number of employment practices discriminatory against blacks — practices followed in fact although in no way authorized by the formal collective bargaining agreement. Work in a few departments was reserved exclusively for black employees; work in the others, exclusively for white employees. Promotions, transfers and lay-offs were determined from three separate seniority lists, one for white males, one for black males, and one for females. Restroom and bathhouse facilities were formally segregated on the basis of race as well as sex.

Effective March 15, 1962, Goodyear entered into a "Plans for Progress" program for equalization of job opportunities. The three seniority lists were combined into a single, consolidated plant-wide roster; exclusion of persons from particular jobs or departments on account of their color was renounced; facilities were declared to be available without regard to race; and the company announced its intention to hire and promote in a non-discriminatory manner.² Significant changes have taken place in the employment opportunities for blacks as a result of this program; the perception of how adequate and sufficient have been the changes tends to have a direct correlation with the color of one's skin.

Goodyear performs only what are essentially administrative functions in the assignments and promotions for production jobs. Interested employees sign their names to notices of job vacancies posted on bulletin boards. The job goes to that bidding employee having the longest plant-wide seniority, except that an employee with "prior similar service experience" is given preference over more senior employees having no such experience. Each production job is basically an original entry position; there are no lines of progression. Eligibility for "PSE" preference was given a liberal interpretation under an arbitration decision in March 1964; and it is clear under the evidence, if not actually admitted by the plaintiffs, that use of the "PSE" factor has not worked to the disadvantage of blacks bidding on jobs since that date.

Transfer into craft jobs presents a different situation because other plant jobs do not provide comparable experience or necessary skill development. Over the years approximately 90% of the craft vacancies have been filled through employment of outside journeymen. A few — only six since 1965 — have been filled by bidding production workers, but in virtually each such case the employee was a journeyman craftsman who had taken a production job with Goodyear until some vacancy should occur in the craft positions. The remainder of the craft jobs have been filled through Goodyear's apprenticeship program, which has had nine new classes started over the past fifteen years. Selection of members of the apprenticeship program is made by Goodyear, with use being made by it of a battery of tests.

Non-bargaining unit positions are filled by Goodyear both by outside hiring and by internal transfers. The internal transfers have, with rare exception, been made by Goodyear only after a request for such transfer or promotion made by the interested employee.

II. TEST VALIDATION

Use of tests by employers is recognized as a permissible tool for personnel actions under limited conditions:

Nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin. 42 U.S.C.A. § 2000e-2(h).

There must, however, be a demonstrable relationship between the test and the successful performance of the job for which the test is used. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); United States v. Jacksonville Terminal Co., 451 F.2d 418 (5th Cir. 1971). In line with the suggestion made in such cases, the company has here attempted to establish such a validation following the method³ outlined in the EEOC Guidelines. See 29 C.F.R. §§ 1607.1-1607.9 (1971). The court concludes from the evidence that the company has carried its burden — that there is a demonstrable relationship between the tests used and the job (i. e., participation in the four year apprenticeship program) for which the tests are used.

The apprenticeship program is a four year, 8000 hour, program. Six hundred hours of academic course work is conducted at Gadsden State Junior College; the other hours consist of on-the-job training at the plant under a journeyman craftsman. Tuition and expenses at the college are paid by Goodyear, and of course the apprentices are in Goodyear's payroll during the program. The cost to the company per class member was estimated at $36,000 for the four year period, the greater cost coming in the first years when the apprentice is thought to provide little benefit to the company in his on-the-job training. The objective of the program is to produce at the end of the training period persons qualified for employment in several of the key craft jobs at the Gadsden plant.⁴ The number of persons to be selected depends upon the company's projected needs for future craft positions, and has ranged from a low of four class members to a high of seventeen in another.

The classes were reinstituted on a regular basis in 1956.⁵ Beginning in 1964 new classes were started each year (rather than waiting for the "graduation" of the prior class), and this practice has been followed in each subsequent year except 1970. Applications are solicited through notices posted on plant bulletin boards and notices to high schools in the area. Applications have far exceeded the number of persons to be selected. By way of example, for the 1971 class, with ten spots to be filled, there were 241 applicants.

No person has been selected for entrance into the program since 1956 without successfully completing a series of aptitude tests. The tests — the California Test Bureau Mathematics Test, the Otis Mental Ability Test, the Bennett Mechanical Comprehension Test, the Educational Testing Service Reading Comprehension and Expression Test, and the Minnesota Paper Form Board Test — were adopted upon the recommendation of an independent professional consultant in guidance and testing. The same tests are used in apprenticeship selection in Goodyear's plant in Akron, Ohio. The tests are administered in the plant (with no suggestion in the evidence of impropriety in such administration), and are scored on objective standards prescribed by the test publishers. It is clear that no one is given any coaching or an advance copy of the tests.

A validation study was conducted by independent professional consultants in Fall of 1971. The study followed the method set forth in the regulations, 29 C.F.R. §§ 1607.1 et seq. Details of the study were presented to the court by several witnesses and numerous exhibits. It included both a criterion-related validity study and a content validity study. The sample did not...