Myers v. Gilman Paper Corp., AFL-CIO

Citation544 F.2d 837
Decision Date03 January 1977
Docket NumberAFL-CIO,No. 75-2201,75-2201
Parties14 Fair Empl.Prac.Cas. 218 Elmo V. MYERS et al., Plaintiffs-Appellees, v. GILMAN PAPER CORPORATION, Defendant-Appellee, v. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS (), et al., Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

J. R. Goldthwaite, Jr., Atlanta, Ga., Louis P. Poulton, Plato E. Papps, Washington, D.C., for IAM, Etc.

Jerome A. Cooper, John C. Falkenberry, Birmingham, Ala., for L. 741 IBEW.

James E. McAleer, Savannah, Ga., Michael H. Gottesman, Frank Petramalo, Jr., Washington, D.C., Benjamin Wyle, New York City, for UPIU.

Louis Sherman, Elihu I. Leifer, Washington, D.C., Stanley Karsman, Savannah, Ga., for IBEW.

Fletcher Farrington, Savannah, Ga., O. Peter Sherwood, Jack Greenberg, Morris J. Baller, New York City, Taylor, Bishop & Lee, Brunswick, Ga., for E. Myers and others.

Guy O. Farmer, II, Jacksonville, Fla., Nolly S. Evans, New York City, for Gilman, Etc.

Abner W. Sibal, Gen. Counsel, E.E.O.C., Joseph T. Eddins, Assoc. Gen. Counsel, Beatrice Rosenberg, Charles L. Reischel, Marian Halley, Washington, D.C., for amicus curiae.

Appeals from the United States District Court for the Southern District of Georgia.

Before RIVES, * GEWIN and MORGAN, Circuit Judges.

GEWIN, Circuit Judge:

Three international and five local unions appeal from a district court order finding the unions liable, apportioning the share of liability to be borne by each union, and approving a consent decree between the plaintiffs and defendant employer in this class action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and under 42 U.S.C. § 1981. 1 See Myers v. Gilman Paper Corporation, 392 F.Supp. 413 (S.D.Ga.1975). Appellees, representing five classes of black employees and former employees of Gilman Paper Company ("the company"), 2 sought affirmative relief in addition to back pay for alleged racial discrimination in employment, promotions, and transfers by the company and the union defendants. The eight defendant unions are the United Paperworkers International Union ("UPIU"), the International Brotherhood of Electrical Workers ("IBEW"), the International Association of Machinists and Aerospace Workers ("IAM"), UPIU Locals 453, 446, and 958, IBEW Local 741, and IAM Local 1128. 3

This case is perhaps part of a new era of employment discrimination litigation in the Fifth Circuit. Our cases to date primarily have involved questions of whether Title VII liability could be based on certain company and union practices, such as departmental seniority and rules providing for no transfers between lines of progression or departments and for no posting of vacancy notices. To be sure, issues involving those practices are presented here. However, in this case we are also asked to decide issues of apportioning monetary liability between the company and unions and among the unions themselves based on such discriminatory practices. Further, we must decide the power of a district court in a Title VII action to approve a consent decree negotiated between the plaintiffs and the employer, over union objections, which supersedes certain provisions of collective bargaining agreements not expressly found to be either in violation of Title VII or insufficient to eliminate the present effects of past discrimination. A detailed review of the complex procedural and factual history of this case is necessary in order to resolve these difficult issues.

I. Factual and Procedural Background.

Gilman Paper Company is a New Hampshire corporation that operates two facilities in St. Mary's, Georgia. One is a plant for manufacturing paper bags ("the bag plant"). All of the employees at the bag plant are in a single bargaining unit represented by UPIU Local 958. The other facility is a paper mill ("the mill"). UPIU Locals 446 and 453 represent 72% of the mill employees, with other unions representing the mill's two craft units: IAM Local 1128 represents the machinist unit, which constitutes 18% of the mill work force; IBEW Local 741 represents the remaining 10% of the mill work force, in the electrician unit. Fourteen hundred people work in bag plant or mill bargaining units represented by the unions, 700 at each facility. Plaintiffs represent approximately 369 people, 321 of whom were in the employ of the company in December, 1973. Prior to the effective date of the Civil Rights Act of 1964, July 2, 1965, the company assigned blacks to work in mill jobs traditionally reserved for them: laborer, janitor, unloader, and yard servicer. The UPIU chartered a local union (No. 616) to represent employees in those jobs. After the bag plant opened in 1959, UPIU assigned jurisdiction of the few blacks in that plant to Local 616, even though all other bargaining unit jobs at the bag plant were assigned to the subsequently organized UPIU Local 958, and even though no other mill local represented bag plant employees. There was some testimony that Local 616 initiated inquiries as early as 1963 about merging with the white locals and that an international representative in 1965 may have urged the locals to merge, but a merger was effected in 1970 only upon the express instructions of UPIU.

With the effective date of Title VII, the company began hiring blacks in significant numbers at the bag plant, placing 80 percent of them in traditionally white jobs. However, even after the effective date of Title VII, the company assigned few whites to traditionally black jobs at both facilities. In the late 1960's, for example, Local 616 had only one white member. Fifty-five of the 77 new black hires in the mill between 1965 and 1972 were assigned to "black jobs." The company in 1965 also began considering incumbent blacks for transfers to the lucrative production and maintenance jobs under the jurisdiction of the then all-white locals. From 1965 to 1972 five blacks transferred to formerly white jobs in the bag plant, and thirty blacks transferred to formerly white jobs in the mill, including at least two to IAM maintenance jobs and one to an IBEW job in the powerhouse. Barriers existed, however, to blacks attempting to take advantage of the company's new policy of considering them for transfers to formerly white lines of progression. First, the company reserved the right to deny transfers and would normally deny transfers to persons who were skilled in certain lines. Second, the company had no policy of posting notices of vacancies and was not required to do so by its collective bargaining agreements with the unions. Third, under the collective bargaining agreements a transferring employee could not take his job seniority with him. If he transferred, he gave up his accumulated seniority. As a consequence of these factors, relatively few blacks sought transfer between 1965 and 1972.

During the 1960's and early 1970's the unions occasionally sought to broaden discriminatees' job opportunities. In 1963 UPIU proposed additional language to the collective bargaining agreement guaranteeing "each employee equal opportunity in all aspects of employment." The company rejected the clause and the employees voted to accept the company's last offer rather than to strike. In 1965 the UPIU renewed its proposal of the clause and the company accepted. In 1968 the UPIU sought a provision which would have compelled the company to fill vacancies in lines of progression with existing employees. Under the proposal a labor pool would have been created which would feed all lines of progression on a plant seniority basis. The company rejected this proposal and the employees voted to accept a contract without such a provision. In 1970 UPIU suggested that all vacancies be posted throughout the plant for bidding; that the employee with the greatest plant seniority bidding for a vacancy receive it; that transferring employees be assured that they would not suffer a pay cut upon transfer to a new line of progression; and that transferring employees be able to use their plant seniority to hold a job if confronted with permanent layoffs in their new unit. However, under the union proposal job, not plant, seniority would still govern promotion within lines of progression. The company rejected these and other UPIU proposals, and UPIU struck for four weeks. The primary issue from the bargaining unit membership's viewpoint, however, concerned pension rights, not enhanced job opportunities for blacks.

In August, 1972, the unions and the company negotiated supplemental labor agreements, all of which were executed on August 25, 1972. The agreements were substantially the same and were designed to comply fully with Title VII requirements. They created an "affected class" consisting of all incumbent black and female employees. Henceforth, job vacancies were to be posted throughout the plant, and the most senior employee who bid for a job, measured by plant seniority, would receive it, if qualified. Those affected class employees who accomplished transfers pursuant to this procedure would enjoy in their new lines of progression the use of full plant seniority for all purposes, such as permanent and temporary promotions, demotions, layoffs and recalls. The company agreed that tests would not be used to disqualify any affected employee from a vacancy to which his plant seniority entitled him, unless those tests had first been validated pursuant to federal guidelines. Each affected employee who transferred would receive "rate of pay protection," that is, continuation of his former rate of pay until he progressed in his new line of progression to a job paying more than he had been receiving in his former job. The company agreed to provide training so that affected employees could qualify for higher-rated jobs. Some lines of progression were restructured to afford discriminatees quicker access to preferred jobs.

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