Heard v. Mueller Company, 72-1189.

• Decision Date: 14 July 1972
• Docket Number: No. 72-1189.,72-1189.
• Citation: 464 F.2d 190
• Parties: James HEARD, Plaintiff-Appellant, v. The MUELLER COMPANY, Defendant-Appellee, and United Steelworkers of America, AFL-CIO, Intervening Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

464 F.2d 190 (1972)

James HEARD, Plaintiff-Appellant, v. The MUELLER COMPANY, Defendant-Appellee, and United Steelworkers of America, AFL-CIO, Intervening Defendant-Appellee.

No. 72-1189.

United States Court of Appeals, Sixth Circuit.

July 14, 1972.

Phillip A. Fleissner, Chattanooga, Tenn., for plaintiff-appellant; Sizer Chambliss, Chattanooga, Tenn., on brief.

William D. Spears, Chattanooga, Tenn., for Mueller Co.; W. Ferber Tracy, Spears, Moore, Rebman & Williams, Chattanooga, Tenn., on brief.

John C. Falkenberry, Birmingham, Ala., for United Steelworkers; Bernard

Kleiman, Chicago, Ill., Michael H. Gottesman, Bredhoff, Barr, Gottesman, Cohen & Peer, Washington, D. C., Benj. L. Erdreich, John C. Falkenberry, Cooper, Mitch & Crawford, Birmingham, Ala., on brief.

Before PHILLIPS, Chief Judge, PECK, Circuit Judge, and McALLISTER, Senior Circuit Judge.

JOHN W. PECK, Circuit Judge.

This is a Civil Rights action in which the Negro plaintiff-appellant alleged that his former employer,¹ the Mueller Company, denied him promotional opportunities by maintaining a departmental seniority system which perpetuates the effects of historic or traditional racial discrimination. This departmental seniority system was established by the collective bargaining agreement between the Company and the United Steelworkers Union. Under it each department within the Company maintains its own seniority system for the purpose of determining promotions and layoffs (vacations and other benefits are determined by company seniority). When an employee transfers from one department to another, he enters the new department at the bottom of the seniority scale. When an opening occurs in any department, that opening is filled by the employee in that department with the highest seniority who applies; there is no contention that race or any factor other than departmental seniority is used to determine who will fill these vacancies. The appellant contends that this system has acted to discourage an employee from transferring to another department and thereby has effectively frozen most of the black employees in the foundry department, perpetuating the results of former discriminatory hiring practices.

At trial, the appellant relied primarily upon statistical evidence of the racial composition of the Mueller work force. This evidence shows that:

"Mueller employs at its facility in Chattanooga, Tennessee, approximately 950 workers, 55% of which are black persons. Almost all of such employees are members of one trade union or another. 514 of the employees of this plant work in its foundry, assembly and shipping departments. 78.4% of this number in these departments are black persons. About 90% of the workers in the foundry department, including core-room and cleaning-room units, are black persons and about 75% of the foremen therein are white persons. Some 65% of the employees of the assembly department are black persons, and there has never been in recent times more than one black person employed as a foreman in this department. Of the 243 employees in the machine shop of the facility, 48 are black persons. 95% of the patternmakers, expediters and clerks in the facility are white persons. Executive and supervisory personnel of Mueller seek actively to employ black persons in every type of job in every department in its Chattanooga facility." (Memorandum Opinion of the District Court.)

The appellant was first employed at Mueller Company in 1959 as a "chipper and grinder" in the foundry department, one of three departments within the Steelworkers bargaining unit. In 1968 he filed a charge against his employer with the EEOC, claiming that he was unfairly denied a patternmaker vacancy for which he and 154 other employees had applied. Subsequently, he filed this civil action against the company, in which the United Steelworkers was permitted to intervene. The District Court granted summary judgment for the Company on the issue of whether the appellant had been wrongfully denied the patternmaker vacancy because the EEOC charge was filed more than 90 days after the alleged violation of the Act, and the appellant does not appeal from that portion of the District Court's order. Because the complaint also alleged violations of a continuing nature, the Court refused to dismiss those allegations of the complaint, and a trial to the Court was had on these issues. At the close of all evidence, the Court granted judgment for the Company, and the appellant has perfected this appeal from that judgment.

The appellant's contention at trial was that the departmental seniority system serves to preserve the consequences of past or traditional racial discrimination. On this appeal, he contends that his statistical evidence created a prima facie case of a continuous policy of racial discrimination and that the burden of proof therefore devolved upon the defendants to refute his statistical evidence. We disagree. Had the District Court granted a motion for a directed verdict at the close of appellant's case, we might be inclined to agree with the appellant on the basis of Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir. 1972) (4 FEP Cases ¶ 7689) and United States v. Hayes International Corp., 456 F.2d 112 (5th Cir. 1972) (4 FEP Cases 411). That, however, is not the case, and we think that the appellant has misconstrued the determination of the District Court. The Court found that there was "no preponderate evidence" of a violation of the Act, or, in other words, that the appellant failed to show by a preponderance of the evidence that there was a violation of the Civil Rights Act of 1964. In reaching this conclusion, the Court evaluated the evidence presented by the appellant, including the statistical evidence, and the evidence offered by the defendant Company and by the intervening Union as to past and present employment practices. On the basis of this...