Lewis v. Bethlehem Steel Corp., Civ. A. No. 70-1127-M

• Decision Date: 19 October 1977
• Docket Number: Civ. A. No. 70-1127-M,M-75-1536.
• Citation: 440 F. Supp. 949
• Parties: Foster LEWIS v. BETHLEHEM STEEL CORPORATION and United Steelworkers of America, AFL-CIO, Local 2610 and United Steelworkers of America, AFL-CIO.
• Court: U.S. District Court — District of Maryland

440 F. Supp. 949

Foster LEWIS v. BETHLEHEM STEEL CORPORATION and United Steelworkers of America, AFL-CIO, Local 2610 and United Steelworkers of America, AFL-CIO.

Civ. A. Nos. 70-1127-M, M-75-1536.

United States District Court, D. Maryland.

October 19, 1977.

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Kenneth L. Johnson and Norris C. Ramsey, Baltimore, Md., for plaintiff.

Douglas D. Connah, Jr., Baltimore, Md., for defendant, Bethlehem Steel Corp.

Frank Petramalo, Jr., Washington, D.C., and I. Duke Avnet, Baltimore, Md., for defendants, United Steelworkers of America, AFL-CIO, Local 2610, and United Steelworkers of America, AFL-CIO.

MEMORANDUM

JAMES R. MILLER, Jr., District Judge.

Introduction

Foster Lewis (Lewis), a black man, is, and has been since 1955, a Production and Maintenance (a generic term) employee of the defendant, Bethlehem Steel Corporation (Company). The Company is a Delaware Corporation doing business in the State of Maryland. During the term of Lewis' employment with the Company, he has worked at its plant at Sparrows Point, Maryland.

The defendant, United Steelworkers of America, AFL-CIO, Local 2610 (Local 2610), is the local affiliate of the defendant, United Steelworkers of America, AFL-CIO (Union) (hereinafter the Union and Local 2610 are sometimes collectively referred to as "Unions"). Local 2610 negotiates with the Company concerning its members' grievances and the terms and conditions of employment of employees in the Department in which Lewis works at the Sparrows Point Plant. The Union also negotiates with the Company on these same matters but at different levels than Local 2610. There is no dispute concerning the Unions qualifying as labor organizations within the meaning of ? 701(d) and (e) of Title VII, 42 U.S.C. ? 2000e(d) and (e) and within the meaning of ? 2(5) of the National Labor Relations Act, 29 U.S.C. ? 152(5).

In these two cases, consolidated for trial, Lewis has charged the defendants with acts of racial discrimination against him.

In his first action, Civil Action No. 70-1127-M, Lewis charges, generally, that all the defendants have treated him in a discriminatory manner vis-a-vis similarly situated white employees in regard to opportunities for training necessary for promotions, the standards applied for the awarding of promotions, and the actual awarding of promotions. (70-1127-M, Paper No. 30). In the same action, Lewis charges that the Unions have not processed his employment grievances against the Company in a manner equivalent to the Unions' processing of the grievances of similarly situated white employees. This is claimed to violate the Unions' statutory duty to render their members "fair representation." (70-1127-M, Paper Nos. 30 and 50). In Civil Action No. 70-1127-M, Lewis' claims against the Company, Local 2610, and the Union are brought under the Civil Rights Act of 1866, ? 1 (42 U.S.C. ? 1981), and the Labor Management Relations Act, 1947 (29 U.S.C. ?? 151 et seq.). In addition, Lewis has a claim against Local 2610 under Title VII of the Civil Rights Act of 1964 (42 U.S.C. ?? 200e et seq.).¹

In his second action, Civil Action No. M-75-1536, Lewis claims the defendants retaliated against him for the filing of his first suit in that they refused to process his labor grievances against the Company, and the Company discriminated against him in the awarding of overtime and regular hours in his permanent position of Winch Truck Operator. In Civil Action No. M-75-1536, Lewis has brought claims against all the defendants under the purported authority of 42 U.S.C. ? 1981. In addition, he has sued the Company and Local 2610 under 42 U.S.C. ?? 2000e et seq.

In both suits Lewis has sought back pay, attorneys' fees, and a wide range of injunctive relief relating to the defendants' alleged discriminatory practices in the areas of training opportunities, job qualifications and assignments, grievance proceedings, and seniority rights.

This Memorandum represents the court's Findings of Fact and Conclusions of Law pursuant to Rule 52, F.R.Civ.P.

Limitations Periods In Civil Action 70-1127-M

Lewis filed the action in C.A. No. 70-1127-M on September 30, 1970. The court ruled at trial that Lewis, in order to sustain his ? 1981 claims, must establish by a preponderance of the evidence that he was the subject of an act of unlawful discrimination by the respective defendants at some point on or after September 30, 1967 or that an earlier discriminatory act had an effect upon him that continued after that date because of a policy or practice of the defendants in effect or occurring after that date.²Md.Ann.Code, Cts. & Jud.Proc. ? 5-101 (1975); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462-463, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975); Hall v. Asher, 355 F.Supp. 808, 811 n. 6 (D.Md.1973). Similarly, to sustain his Title VII claim against Local 2610, Lewis must establish by a preponderance of the evidence that he was the subject of an act or the continuing effects of an act of unlawful discrimination by Local 2610 at some point on or after July 17, 1968, his charge having been filed with the Equal Employment Opportunity Commission on January 17, 1969. 42 U.S.C. ? 2000e-5(e).³

FACTS

A. Civil Action 70-1127-M?€”The Company's Actions

When Lewis was first employed by the Company in June, 1955, he was assigned to the General Labor Department as a laborer at a job class 2 pay scale, the lowest paying job. A Production and Maintenance employee's rate of pay rises as his job class number rises. The defendants stipulated at trial that this initial assignment was made based upon Lewis' race.

In September, 1955, Lewis resigned from the Company in order to be rehired into a different department, there being no procedure at that time for effecting a transfer. Lewis was rehired and assigned to Unit 438 in Department 32 as a laborer, job class 2. Upon resigning Lewis lost the three months' seniority he had accumulated in the General Labor Department.

Seniority Department 32 is known as "Electrical Maintenance General." It is one of several "shops" at Sparrows Point, the function of which is to perform repairs on plant equipment. It is made up of seven sub-units, or sections, including the Electrical Repair Shop, Section 438, in which the plaintiff is employed. For purposes of collective bargaining, Seniority Department 32 is treated as one department and one unit and is not treated as having sub-units or sections. This has prevailed at least since the early 1950s. The other sections, by number and name, are as follows:

(a) 337 ?€” sub-station

(b) 437 ?€” power house

(c) 400 ?€” Electric Department ?€” windings

(d) 441 ?€” Electric Department ?€” outside shops

(e) 442 ?€” cranes

(f) 443 ?€” Electric Department ?€” construction

At the time this action was filed, Seniority Department 32 did include Section 436 (Electric Department ?€” General); since then, Section 436 has been moved and it is no longer in this department.

Lewis has remained in Unit 438 to the present. Within Unit 438, Lewis has progressed from laborer to crane follower, job class 4, November, 1956; to electrical rigger, job class 7, March, 1963; and finally to winch truck operator, job class 9, from July, 1970, to the present.

Beginning in 1953 and continuing through the time of trial of this case, the Company has required the passage of an Electrical Helper Test by an employee who desires an entry level position in a line of progression leading to either (1) non-craft jobs with a current job class above 9, or (2) craft jobs all of which currently have a job class above 9. This is a pencil and paper test.⁴

Lewis first requested to take the Electrical Helper Test prior to 1958, but was told by George Moore, a white foreman, that the Company did not allow blacks to work on the electrical bench. The Company maintained its policy of not allowing blacks to take the test until March, 1960, when, apparently in response to a grievance filed with Local 2610 against the practice, 14 blacks, including Lewis, were given the test. Neither Lewis nor the other blacks passed the test. Lewis was not told his score on the test, nor were the test results shown to him.

Lewis testified at trial that he took the Electrical Helper Test three or four times after his 1960 failure without success.⁵ Assuming this to be true, the evidence does not disclose the dates when Lewis repeated the test nor whether at least one of his unsuccessful attempts at passing the test occurred after September 30, 1967, the statute of limitations date.

Richard Waybright, a white employee of the Company, testified at trial that he applied in 1956 for any position the Company had. He was given the Electrical Helper Test without requesting to take it. He failed the test and was told to study fractions. He retook the test several weeks later and passed it. Waybright was hired into Unit 438 as a Helper, a position leading to the higher paying noncraft and craft jobs.

In 1964 there were no black craftsmen in Department 32, nor were there any blacks in jobs leading to craft positions such as electrical helper and shop helper positions. The preponderance of blacks were in the position of Electrical Rigger, job class 7, or below. Waybright testified at trial and the court finds that the Company maintained a policy of totally excluding black employees from the Shop Electrician and Electrical Wireman positions until approximately 1964.

In 1968 the Company initiated, in response to a Labor Department proceeding regarding alleged discriminatory treatment of blacks at the Company's Sparrows Point plant, a program designed to assist employees in obtaining the knowledge necessary to pass the Electrical Helper Test. Prior to this time the Company did not have any training program designed to aid employees in passing the test. Most, but not all, black employees who passed the test did so after completing the pretest training programs, some...