Carson v. American Brands, Inc.

• Decision Date: 02 June 1977
• Docket Number: Civ. A. No. 75-0553-R.
• Citation: 446 F. Supp. 780
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Frank L. CARSON et al. v. AMERICAN BRANDS, INC., et al.

446 F. Supp. 780

Frank L. CARSON et al. v. AMERICAN BRANDS, INC., et al.

Civ. A. No. 75-0553-R.

United States District Court, E. D. Virginia, Richmond Division.

June 2, 1977.

John W. Scott, Jr., Hill, Tucker & Marsh, Fredericksburg, Va., Jack Greenberg, Barry Goldstein, New York City, for plaintiffs.

Henry T. Wickham, Bradfute W. Davenport, Jr., John F. Kay, Jr., Kenneth V. Farino, Jay J. Levit, Richmond, Va., for defendants.

MEMORANDUM

WARRINER, District Judge.

I

Plaintiffs brought this class action against the abovenamed defendants under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. as amended, 42 U.S.C. § 1981 and the Fourteenth Amendment. Jurisdiction is invoked pursuant to 42 U.S.C. § 2000e-5(f) and 28 U.S.C. § 1343(4).

Negotiations in an attempt to settle the issues raised by the complaint have resulted in a proposed Consent Decree which the parties requested the Court to enter at the final pretrial conference on 1 April 1977. At that conference, the Court expressed concern that certain provisions of the Decree might be violative of the law and that provisions of the Decree would affect parties other than those before the Court. The Court noted that the parties were jointly seeking entry of the Decree and to that extent were no longer in an adversary posture. The Court requested counsel to brief the issues of concern. The briefs having been filed the Court must now decide whether or not it is just and proper and in accordance with the law to enter the Decree.

II

Plaintiffs have included a statement of facts in their brief in support of the proposed Consent Decree. For this purpose only, we accept these facts to be true as follows:

The defendant American Brands, Inc., (hereinafter referred to as the "Company"), operates the Richmond Leaf Department of the American Tobacco Company in Richmond, Virginia, for the purpose of processing and storing leaf tobacco. The defendant Local 182 Tobacco Workers International Union has exclusive bargaining rights for the establishment of wage rates and other terms and conditions of employment for all hourly paid production unit positions at the Richmond Leaf Department. The defendant Tobacco Workers International Union is a national organization consisting of local unions, including Local 182.

The plaintiffs are present and former black seasonal employees at the Richmond Leaf Department and held jobs under the jurisdiction of Local 182, TWIU, during their employment. As seasonal employees, the plaintiffs all worked at the Richmond Leaf Plant an average of six months each year. Regular employees worked at this same facility all year.

The Company employs approximately 150 seasonal employees, all of whom at the present time are black, and approximately 100 regular employees, of whom 66% are black. Plaintiffs are not aware of any white individuals who have ever been employed as seasonal employees at the Company's Richmond Leaf Plant.

Prior to September 1963, the regular job classifications of truck driver, watchman, maintenance, storage, and boiler operator at the Leaf Plant were reserved for whites only. As of 15 February 1976 these positions were staffed as follows:

                  Position               Whites       Blacks
                  Truck Drivers             5           4
                  Watchmen                 15           1
                  Maintenance Storage       1           0
                  Boiler Operators          0           3
                

Regular employees have the right to obtain any permanent position for which the TWIU has bargaining rights within the Richmond Leaf Department. Seasonal employees have the right to obtain any seasonal position for which the TWIU has bargaining rights within the Richmond Leaf Plant. Seasonal employees may transfer to positions in regular classifications only when no regular employee desires that position. Should the seasonal employee transfer to a regular position, he loses all of his seniority and is treated as a new hire for seniority purposes. Separate seniority rosters are maintained for regular and for seasonal employees.

When a seasonal employee transfers to a regular position he is placed at the bottom of the regular seniority roster irrespective of the number of years he has worked as a seasonal employee with the Company. This loss of seniority affects his status for promotions, demotions, lay-offs, recalls and vacations, and, in short, the principal terms and conditions of his employment.

Since 1971, the vast majority of applicants and new hires at all of the Company's locations in the Richmond area have been black, as indicated by the following chart:

                YEAR    APPLICANTS      NEW HIRES
                      BLACKS  WHITES  BLACKS  WHITES
                1971    97       1      88     1
                1972   118       5      97     2
                1973    94       4      93     1
                1974    71       7      64     2
                1975    77       3      22     2
                

The racial composition of the production unit at the Richmond Leaf Department is as follows:

                        REGULAR          SEASONAL
                YEAR   EMPLOYEES        EMPLOYEES
                      WHITES  BLACKS  WHITES  BLACKS
                1968    41      52      -       116
                1970    40      59      -       175
                1973    40      56      -       176
                1976    37      57      -       135
                

Of the 35 supervisory positions at the Company's Richmond Leaf Department as of 5 April 1976, seven, or 20%, were filled by blacks. Of the 229 persons in hourly paid production unit jobs at the Richmond Leaf Department in that same year, 192, or 84% were black.

III

In the proposed Consent Decree defendants "expressly deny any violation of . . any . . . equal employment law, regulation, or order." Plaintiffs conversely state that "consent to this Decree does not constitute a finding or admission that any of the employment practices of . . . defendants are lawful." The proposed Decree further states that "the Court finds from the evidence previously filed in the form of answers to interrogatories that there are no discriminatory hiring practices at the Richmond Leaf Department."

In light of the facts outlined above, the foregoing provisions, and the applicable law, the Court questioned the propriety of the following provisions of the proposed Consent Decree:

In full and final settlement of any and all claims for injunctive relief alleged in the Complaint, the parties agree to the following:

1. For the purposes of determining eligibility for vacations and for promotions, demotions, lay-offs and recalls, every current and future regular hourly paid production employee of the Richmond Leaf Department will be credited with actual time worked as a seasonal employee commencing with the date of hire of the last period of continuous employment as a seasonal employee in accordance with Section I of Article 7 of the current collective bargaining agreement governing seasonal employees. The combined total of such seasonal and regular employment will apply toward service requirements for vacations, and for promotions, demotions, layoffs and recalls.

2. Regular employees who have served the probationary period as a seasonal employee during the last period of his or her continuous seasonal employment at Leaf prior to being transferred to regular Leaf employment will become eligible for medical benefits and sick benefits immediately upon such transfer to regular employment.

3. In the event that vacancies in hourly paid permanent production job classifications at the Richmond Leaf Department are not filled by regular production employees, then all qualified hourly paid seasonal production employees will be given the opportunity to fill such vacancies prior to hiring from the outside.

4. In the event that vacancies in the job classification, Watchman, at the Richmond Leaf Department are not filled by regular production employees, then all qualified hourly paid seasonal production employees will be given the opportunity to fill such vacancies prior to hiring from the outside.

5. The Richmond Leaf Department adopts a goal of filling the production supervisory positions of Foreman and Assistant Foreman with qualified blacks until the percentage of blacks in such positions equals 1/3 of the total of such positions. The date of December 31, 1980 is hereby established for the accomplishment of this goal.

IV

Before discussing these provisions specifically, a general discussion of what this Court perceives to be the controlling law is appropriate.

Plaintiffs based this suit on Title VII, Section 1981 and the Fourteenth Amendment. As defendants herein are private parties, the Court does not find the precepts of the Fourteenth Amendment to be applicable per se. But the guarantees of the Equal Protection clause against State action by the Fourteenth Amendment nevertheless are afforded plaintiffs by Title VII and Section 1981 which, with respect to private parties defendant, have their underpinnings in the Thirteenth Amendment. This Court is also cognizant that the Supreme Court of the United States has read the guarantees of the Equal Protection clause into the Due Process clause of the Fifth Amendment protecting against arbitrary and capricious¹ federal action.

Thus, the Fifth Amendment may well protect citizens against arbitrary and capricious federal action in the form of a federal court Consent Decree that would place a federal stamp of approval, with the full force and effect of contempt proceedings, to what would otherwise be a mere agreement between private parties. See Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1947). In sum, we opine that the mandates of the United States Constitution as well as the statutes invoked by plaintiffs require us to insure that this Court plays no role in perpetuating, promulgating or acquiescing in improper discrimination on the basis of race.

V

Keeping the above in mind, we shall focus on the law of Title VII as this statute speaks specifically to the area of concern herein, that is, discriminatory employment practices.

Title VII states in pertinent part that it is unlawful:

(1) to fail or

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