Local 189, United Papermak. & Paperwork. v. United States, No. 25956.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPER CURIAM
PartiesLOCAL 189, UNITED PAPERMAKERS AND PAPERWORKERS, AFL-CIO, CLC; United Papermakers and Paperworkers, AFL-CIO, CLC; and Crown Zellerbach Corporation, Appellants, v. UNITED STATES of America, by John MITCHELL, Attorney General, et al., Appellees.
Docket NumberNo. 25956.
Decision Date01 October 1969

416 F.2d 980 (1969)

LOCAL 189, UNITED PAPERMAKERS AND PAPERWORKERS, AFL-CIO, CLC; United Papermakers and Paperworkers, AFL-CIO, CLC; and Crown Zellerbach Corporation, Appellants,
v.
UNITED STATES of America, by John MITCHELL, Attorney General, et al., Appellees.

No. 25956.

United States Court of Appeals Fifth Circuit.

July 28, 1969.

Rehearing Denied and Rehearing Denied October 1, 1969.


416 F.2d 981
COPYRIGHT MATERIAL OMITTED
416 F.2d 982
C. Paul Barker, Dodd, Hirsch, Barker & Meunier, New Orleans, La., Warren Woods, Louis F. Oberdorfer, Washington, D. C., Michael J. Molony, Jr., Jerry L. Gardner, New Orleans, La., Betty Southard Murphy, Washington, D. C., for defendant-appellants Local 189, United Papermakers and Paperworkers, AFL-CIO, CLC; United Papermakers and Paperworkers, AFL-CIO, CLC; McInnis, Wilson, Munson & Woods, Washington, D. C., of counsel

John W. Vardaman, Jr., Sally Katzen, Washington, D. C., Wilmer, Cutler & Pickering, Washington, D. C., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., of counsel, for appellant Crown Zellerbach Corporation.

Louis C. La Cour, U. S. Atty., Jerris Leonard, Asst. Atty. Gen., Kenneth L. Johnson, Denis F. Gordon, Attorneys, Department of Justice, Washington, D. C., for the United States.

David L. Rose, U. S. Department of Justice, Washington, D. C., Richard B. Sobol, Ann Arbor, Mich., George Cooper, New York City., Collins, Douglas & Elie, New Orleans, La., for appellees Local 189a, United Papermakers and Paperworkers, AFL-CIO, CLC, David Johnson, Sr., and Anthony Hill.

Before WISDOM and DYER, Circuit Judges, and KRENTZMAN, District Judge.

Rehearing Denied and Rehearing En Banc Denied October 1, 1969.

WISDOM, Circuit Judge:

Title VII of the Civil Rights Act of 1964 prohibits discrimination in all aspects of employment.1 In this case we deal with one of the most perplexing issues troubling the courts under Title VII:2 how to reconcile equal employment

416 F.2d 983
opportunity today with seniority expectations based on yesterday's built-in racial discrimination. May an employer continue to award formerly "white jobs" on the basis of seniority attained in other formerly white jobs, or must the employer consider the employee's experience in formerly "Negro jobs" as an equivalent measure of seniority? We affirm the decision of the district court. We hold that Crown Zellerbach's job seniority system in effect at its Bogalusa Paper Mill prior to February 1, 1968, was unlawful because by carrying forward the effects of former discriminatory practices the system results in present and future discrimination. When a Negro applicant has the qualifications to handle a particular job, the Act requires that Negro seniority be equated with white seniority

I.

A. The parties stipulated most of the basic facts. Crown Zellerbach (Crown) runs a paper mill at Bogalusa, Louisiana. The Company employs about 950 white workers and 250 Negro workers. Jobs there have always been organized hierarchically within "lines of progression". The jobs within each line for the most part are related functionally so that experience in one job serves as training for the next.

Until May 1964, the Company segregated the lines of progression by race, reserving some lines to white employees and others to Negroes. Local 189 of the United Papermakers and Paperworkers, the white local, had jurisdiction over the more desirable lines; Local 189-A, the Negro local, had jurisdiction over the left-overs. With very few exceptions, the lowliest white jobs paid more and carried greater responsibility than the most exalted Negro jobs. Promotion within each line was determined by "job seniority"; when a vacancy occurred, the workers in the slot below it could bid for the job, and the one who had worked the longest in the job slot below had priority.

The Company put new employees on "extra boards". These boards were labor pools used to fill temporary vacancies within the lines of progression. The senior men had first call on vacancies in the entry jobs at the bottom of the various lines. When lay-offs occurred, those at the bottom of the line were bumped back to the extra board. They had first claim, however, on any vacancies in their old jobs under "rights of recall". Crown segregated its extra boards, like its lines of progression, by race, one for Negroes and one for whites.

The Company merged the extra boards in May 1964. Whoever, regardless of race, had the longest term on the board now gained priority to bid on entry jobs in the white lines. Merger opened up the lines to Negro entrants, and helped the relatively recent Negro employees on the board. It did not help more senior Negroes already in the lines of progression. Moreover, the rights of recall gave any white who had served in a white line preference over others on the board in bidding on his old job. That fact slowed the advance of even newer Negro employees. A "transfer provision" added in 1965 enabled Negroes already in black lines of progression to bid on the bottom jobs in white lines on the basis of their

416 F.2d 984
"mill seniority", or time worked at the mill. This change meant that they did not have to become junior men on the extra board in order to bid on the starting job in previously white lines. It also meant that they did not have to surrender certain benefits accruing to mill seniority when they made the transfer

Title VII went into effect with regard to Crown on July 2, 1965. Section 703 (a) (2) makes it unlawful for an employer

"to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual\'s race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a) (2).

Later in 1965 the Equal Employment Opportunity Commission discussed with the Company and the Papermakers the effect of Title VII on seniority arrangements. A letter from Herman Edelsberg, the Executive Director of the EEOC, stated that the Commission would be satisfied by the "non-discriminatory application of the seniority agreement established by collective bargaining," i. e. job seniority, provided that Crown discontinue segregation of the progression lines. The Chairman of the Commission, Franklin D. Roosevelt, Jr., met with representatives of the Company and the unions in December 1965 and declared that "application of the seniority system established by collective bargaining" would comply with the statute.

In January 1966 the unions and the Company amended the collective bargaining agreement so as to merge the progression lines within each department on the basis of existing pay rates. Except for one job in the plant, merger by pay rates merely meant tacking the Negro lines to the bottom of white lines. Whites on the extra boards who had rights of recall to jobs formerly entry jobs retained those rights to the same jobs, even though the positions were now in the middle of the merged lines. More importantly, Crown continued to award promotions according to job seniority: the man with the most years in the job slot below the vacancy had first call. Time worked in the mill counted for nothing as such. As a necessary result, Negroes had no seniority in bidding for formerly white jobs except as against each other and new white employees. They could not have such seniority, since the Company had not allowed them into the white progression lines. Crown gave no recognition to years spent in the Negro lines, and continued to make years spent in formerly white jobs the determinative factor in awarding all former white jobs except those previously at the entry level. The system conditioned job advancement upon a qualification that the Company itself had limited racially, regardless of whether the qualification — seniority in previously white jobs — was necessary to do the work. The legality of that arrangement is the main issue here.

In February 1967, more than a year after the merger of the lines, the Office of Federal Contract Compliance entered the picture. That agency has responsibility for overseeing compliance with Executive Order 11246 requiring non-discrimination assurances from all employers who contract with the federal government.3 The OFCC attacked what

416 F.2d 985
the EEOC had previously seemed to approve, Crown Zellerbach's system of job seniority. In place of job seniority the OFCC proposed an "A + B" system which would combine an employee's time in the job below the vacancy and his total time at the mill in computing seniority. The Company accepted this compromise and tried to get the Papermakers to go along with it. The two locals, 189 and 189-A, both refused, although for different reasons. Crown thus faced a strike if it went ahead with the "A + B" system and the loss of future federal contracts if it did not.4 In January it notified the unions that it would install the "A + B" system unilaterally on February 1, 1968. Local 189, the white union, responded by voting to strike on that date. Local 189-A, the Negro union, refused to join in the strike warning, calling the "A + B" system "a step in the right direction"

The Government filed this suit on January 30, 1968, to enjoin the strike as an effort "to perpetuate a seniority and recall system which discriminates against Negro employees". The district court granted the injunction the next day. The United States then asked the courts to strike down the "A + B" system as illegal, and to require that mill experience alone become the standard of seniority. The Government now was asking the court to set aside job seniority in any form, a stronger measure than the one requested earlier by the OFCC, which in turn had gone beyond the original position of the EEOC.5 Local 189-A and two Negro employees intervened as plaintiffs on behalf of all Negro employees at the mill.

After a three-day hearing on job...

To continue reading

Request your trial
215 practice notes
  • Chrapliwy v. Uniroyal, Inc., Civ. No. 72 S 243.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • May 31, 1977
    ...decree. Defendant's claim has no merit. See, Local 189, United Papermakers & Paperworkers, A.F. L.-C.I.O., C.L.C. v. United States, 416 F.2d 980, 987-91 (5th Cir. 1969); Myers v. Gilmore Paper Co., 392 F.Supp. 413, 420 (S.D. Ga.1975); Stevenson v. International Paper Co., 352 F.Supp. 230 (S......
  • West Virginia Human Rights Commission v. United Transp. Union, Local No. 655, Nos. 14212
    • United States
    • Supreme Court of West Virginia
    • July 2, 1981
    ...189, United Papermakers & Paperworkers v. United States, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100. The Fifth Circuit Court of Appeals, 416 F.2d 980 (1969), had found an employer liable under Title VII because its policies renewed or exaggerated effects of past discrimination. Then the Cou......
  • Nance v. Union Carbide Corp., Consumer Prod. Div., No. C-C-72-185.
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • April 28, 1975
    ...to Executive Order 11246 and the Regulations implementing this Order. See Local 189, United Papermakers and Paperworkers v. United States, 416 F.2d 980, 984, n.3 (5th Cir. 1969), cert. denied, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100 (1969). Executive Order 11246 is a federal regulation t......
  • Harriss v. Pan Am. World Airways, Inc., No. C-74-1884-WWS.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • September 2, 1977
    ...Cir., 1970), cert. den., 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (1971); Local 189, United Papermakers & Paperworkers v. United States, 416 F.2d 980, 989 (5th Cir., 1969), cert. den., 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100 (1970); see, also, Note, Business Necessity Under Title VII o......
  • Request a trial to view additional results
215 cases
  • Chrapliwy v. Uniroyal, Inc., Civ. No. 72 S 243.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • May 31, 1977
    ...decree. Defendant's claim has no merit. See, Local 189, United Papermakers & Paperworkers, A.F. L.-C.I.O., C.L.C. v. United States, 416 F.2d 980, 987-91 (5th Cir. 1969); Myers v. Gilmore Paper Co., 392 F.Supp. 413, 420 (S.D. Ga.1975); Stevenson v. International Paper Co., 352 F.Supp. 230 (S......
  • West Virginia Human Rights Commission v. United Transp. Union, Local No. 655, Nos. 14212
    • United States
    • Supreme Court of West Virginia
    • July 2, 1981
    ...189, United Papermakers & Paperworkers v. United States, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100. The Fifth Circuit Court of Appeals, 416 F.2d 980 (1969), had found an employer liable under Title VII because its policies renewed or exaggerated effects of past discrimination. Then the Cou......
  • Nance v. Union Carbide Corp., Consumer Prod. Div., No. C-C-72-185.
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • April 28, 1975
    ...to Executive Order 11246 and the Regulations implementing this Order. See Local 189, United Papermakers and Paperworkers v. United States, 416 F.2d 980, 984, n.3 (5th Cir. 1969), cert. denied, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100 (1969). Executive Order 11246 is a federal regulation t......
  • Harriss v. Pan Am. World Airways, Inc., No. C-74-1884-WWS.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • September 2, 1977
    ...Cir., 1970), cert. den., 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (1971); Local 189, United Papermakers & Paperworkers v. United States, 416 F.2d 980, 989 (5th Cir., 1969), cert. den., 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100 (1970); see, also, Note, Business Necessity Under Title VII o......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT