Myers v. Gilman Paper Corporation, Civ. A. No. 1120.

CourtUnited States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
Writing for the CourtGuy O. Farmer, Jacksonville, Fla., Nolly S. Evans, New York City, for Gilman Paper Co
Citation392 F. Supp. 413
Decision Date14 January 1975
Docket NumberCiv. A. No. 1120.
PartiesElmo V. MYERS et al., Plaintiffs, v. GILMAN PAPER CORPORATION et al., Defendants.

392 F. Supp. 413

Elmo V. MYERS et al., Plaintiffs,
v.
GILMAN PAPER CORPORATION et al., Defendants.

Civ. A. No. 1120.

United States District Court, S. D. Georgia, Brunswick Division.

January 14, 1975.


392 F. Supp. 414
COPYRIGHT MATERIAL OMITTED
392 F. Supp. 415
COPYRIGHT MATERIAL OMITTED
392 F. Supp. 416
Fletcher N. Farrington, Savannah, Ga., A. Blenn Taylor, Brunswick, Ga., Jack Greenberg, New York City, for plaintiffs

Guy O. Farmer, Jacksonville, Fla., Nolly S. Evans, New York City, for Gilman Paper Co.

J. R. Goldthwaite, Jr., Atlanta, Ga., Edward M. Booth, Jacksonville, Fla., Louis P. Poulton, Washington, D. C., for Int'l Ass'n of Machinists.

James Edward McAleer, Savannah, Ga., for United Paperworkers Int'l Union.

Stanley M. Karsman, Savannah, Ga., for Int'l Brotherhood of Electrical Workers.

Joseph S. Farley, Jr., Jacksonville, Fla., for Local 741, IBEW.

ORDER DETERMINING LIABILITY FOR DISCRIMINATION

ALAIMO, District Judge.

A recent trilogy of decisions by the Court of Appeals for the Fifth Circuit1 has substantially eased the Court's burden in applying the law to the facts in this action under the equal employment opportunities provisions of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.). However, the Court is faced with one substantial issue — the liability of an international union for failure to take affirmative steps to correct discriminatory practices by one of its local unions.

In this class action under Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1866, plaintiffs, five classes of black employees and former employees of Gilman Paper Company, seek affirmative relief in addition to back pay for alleged racial discrimination in employment, promotion, and transfers by Gilman and the defendant Unions.

After filing a charge of discrimination with the Equal Employment Opportunities Commission on May 4, 1970, nine of the plaintiffs received a "Notice of Right to Sue within 90 Days" on September 20, 1972. Receipt of this notice cured a defect in their original complaint which had been filed on September 1, 1972.

This amended complaint alleged that the defendants, Gilman Paper Corporation (hereinafter sometimes referred to as the Company), the United Paperworkers International Union (UPIU), the International Brotherhood of Electrical Workers (IBEW), the International Association of Machinists, the International Association of Machinists and Aerospace Workers (IAM), Locals Numbered 453, 446, and 958 of the UPIU, Local 741 of the IBEW and Local 1128 of the IAM had been engaged in racial discrimination in employment at the Saint Marys Division of the Company in violation of 42 U.S.C. § 1981, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiffs prayed for affirmative equitable relief including back pay and attorneys fees.

The procedural steps, taken by the Court in this action, have at best created a substantial controversy between the plaintiffs and Gilman on the one hand and the defendant Unions on the other. In early 1974, plaintiffs and Gilman sought to settle the issues between them by an affirmative action plan in a proposed consent decree along with a substantial payment as back pay. Following the submission of the proposed consent decree, the Court on August 30, 1974, certified the suit as an appropriate class

392 F. Supp. 417
action pursuant to Rule 23, Fed.R.Civ.P. Five affected classes were described in the Order, only two of which are of significance at this stage of the litigation, i. e., "Class A" which consisted of three hundred twenty incumbent black employees hired prior to September 1, 1972, continuously employed since that time, and who were still employed as of December 31, 1973; and "Class B" consisting of thirty-four Blacks (or their surviving legal representatives) who had worked for Gilman longer than twelve months but whose employment had terminated by retirement or disability between May 4, 1968, and December 31, 1973. Even though the Unions vehemently opposed the settlement, the Court found the partial settlement fair and equitable and gave the consent decree its stamp of approval. As a result of the partial settlement, focus during the trial of the liability phase on December 2-5, 1974, shifted primarily to the acts and omissions of the defendant Unions. Gilman's practices are placed in issue by the Unions' cross-actions only as far as they affect the Unions' liability

I. FACTUAL BACKGROUND

In 1941, Gilman Paper Company, a New Hampshire corporation, began the operation of its St. Marys Kraft Division, a paper mill in St. Marys, Georgia. Its operations there were expanded in 1950 to include the St. Marys Kraft Bag Division which converts paper into bags. Shortly after beginning its operations, Gilman voluntarily recognized the defendant Unions, or their predecessors as the collective bargaining representatives of its employees.

Prior to July 2, 1965, the effective date of Title VII of the Civil Rights Act of 1964 (Title VII), Gilman assigned its black employees only to jobs in the wood yard and the yard labor lines of progression and to certain other jobs not within any line of progression. Jobs in more lucrative and more desirable lines of progression in the Kraft Division (the Mill) and the Kraft Bag Division (Bag Plant) were reserved, almost without exception, for white employees. Prior to July 2, 1965, Gilman did not post job vacancies within traditionally all-white jobs and lines of progression and had never transferred a black employee into a traditionally all-white job or line of progression.

At that time, Local 446 of the International Brotherhood of Pulp, Sulphite and Paper Mill Workers and Local 453 of the United Paperworkers and Papermakers Union2 represented non-supervisory production employees in the Mill. Local 958, International Brotherhood of Pulp, Sulphite and Paper Mill Workers, represented non-supervisory production employees in the Bag Plant. Locals 446, 453, and 958 were predominantly, if not entirely, "lily white." Local 616, International Brotherhood of Pulp, Sulphite and Paper Mill Workers, represented production and "clean-up" jobs at both the Mill and the Bag Plant to which all Blacks and a few Whites were assigned.

In 1970, after a number of unsuccessful attempts, Local 616 merged into Locals 446 and 958. Prior attempts had been thwarted by a number of factors, including the refusal of the members of Local 616 to agree to demands they apparently considered unreasonable. However, in 1970, substantial pressures from the International Union led to the merger and ultimate disbandment of Local 616.

The crux of the liability claim against the defendant Unions involves "job" seniority provisions and the absence of provisions for the posting of job vacancies in the collective bargaining agreements and the plaintiffs' contentions that these agreements constituted present discrimination by their perpetuation of the effects of past discriminatory practice of Gilman Paper Corporation.

392 F. Supp. 418

Up until Supplemental Labor Agreements were reached in August, 1972, the collective bargaining agreements contained provisions stating that "seniority" would control with respect to promotions, demotions, and layoffs. Section 5 of the 1968 agreement between Gilman and Local 741, IBEW, exemplifies the typical seniority provisions of the various collective bargaining agreements:

"If employees are to be promoted, demoted or laid off, the Management shall take into consideration seniority and ability, and when all the factors that constitute ability are relatively equal, then seniority shall prevail. * * *
"For the purposes of this Agreement there shall be three types of seniority:
"A. Job Seniority . . ..
B. Department Seniority . . ..
C. Mill Seniority . . ..
* * * * * *
"In cases of layoffs seniority shall prevail." (Emphasis added)

Obviously, the meaning of the above provisions with respect to the type of seniority that is controlling for promotions, demotions, and layoffs is not discernible from the above language or any language in the collective bargaining agreement. The other collective bargaining agreements are equally vague. Consequently, the practices recognized by the parties under these vague seniority provisions are of controlling significance in this action.

The evidence at trial showed that, until 1972, "job" seniority, defined uniformly as an employee's time of employment within a line of progression, rather than "plant or mill" seniority, controlled in cases of promotions, demotions, and layoffs. The evidence further showed that, prior to the Supplemental Labor Agreements, job seniority was also important for the purposes of vacation preferences and assignments of overtime work and in limited cases for the choice of shifts.

A critical fact in this case arises from the undisputed testimony that, until 1972, following a thirty-day trial period, an individual transferring from one line of progression to another would lose the benefits of seniority accrued in the line of progression he left and that his seniority in the new line would measure from the time of his entry into the new line of progression. Thus, a Black, hired before 1965 into a traditionally all-black job or line of progression and transferring after 1965 into a formerly all-white line of progression, would have less seniority than a White hired on the same day but initially assigned to that all-white line of progression.

Other evidence, including testimony and the 1968 Labor Agreement between Gilman and the Papermakers Unions, showed that the effects of pre-Title VII discrimination continued after the effective date of Title VII. Until 1970, the lowest pay rate for painter helper and carpenter helper job classifications in the carpenters line of progression under the jurisdiction of the "lily-white" Local 446 exceeded the highest pay rates for painter helper and carpenter helper...

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8 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
    ...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.D.Ala.1972); United States v. Central Motor Lines, Inc., 338 F......
  • Freeman v. Motor Convoy, Inc., Civ. A. No. 16185.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • February 10, 1976
    ...locals. The presumptive approach to International Union liability adopted in some jurisdictions, see Myers v. Gilman Paper Corp., 392 F.Supp. 413, (S.D.Ga.1975), has been specifically rejected by this court in Sinyard v. Foote & Davies, supra. Nevertheless, the fact that the E.E.O.C. may di......
  • Myers v. Gilman Paper Corp., AFL-CIO
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 21, 1977
    ...Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, and under 42 U.S.C. Sec. 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 sou......
  • Myers v. Gilman Paper Corp., AFL-CIO
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 3, 1977
    ...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 Page 843 company......
  • Request a trial to view additional results
8 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
    ...& 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.D.Ala.1972); United States v. Central Motor Lines, Inc., 338 F.Supp. 5......
  • Freeman v. Motor Convoy, Inc., Civ. A. No. 16185.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • February 10, 1976
    ...locals. The presumptive approach to International Union liability adopted in some jurisdictions, see Myers v. Gilman Paper Corp., 392 F.Supp. 413, (S.D.Ga.1975), has been specifically rejected by this court in Sinyard v. Foote & Davies, supra. Nevertheless, the fact that the E.E.O.C. ma......
  • Myers v. Gilman Paper Corp., AFL-CIO
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 21, 1977
    ...Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, and under 42 U.S.C. Sec. 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&quo......
  • Myers v. Gilman Paper Corp., AFL-CIO
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 3, 1977
    ...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 Page 843 co......
  • Request a trial to view additional results

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