Pettway v. American Cast Iron Pipe Company

Decision Date22 May 1974
Docket NumberNo. 73-1163.,73-1163.
Citation494 F.2d 211
PartiesRush PETTWAY et al., etc., Plaintiffs-Appellants, v. AMERICAN CAST IRON PIPE COMPANY, Defendant-Appellee, United States Equal Employment Opportunity Commission, Intervenor.
CourtU.S. Court of Appeals — Fifth Circuit

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Oscar W. Adams, Jr., Birmingham, Ala., Robert Belton, Charlotte, N. C., Jack Greenberg, Barry L. Goldstein, New York City, for plaintiffs-appellants.

Gerald D. Letwin, E. E. O. C., Washington, D. C., amicus curiae.

J. R. Forman, Jr., Samuel H. Burr, Birmingham, Ala., for defendant-appellee.

Before TUTTLE, BELL and GOLDBERG, Circuit Judges.

Rehearing and Rehearing En Banc Denied May 22, 1974.

TUTTLE, Circuit Judge:

This complex, class action employment discrimination suit was filed on May 13, 1966 under the provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq., and 42 U.S.C.A. § 1981. The racial discrimination charges are derived from complaints filed on November 22, 1965 with the Equal Employment Opportunity Commission.

Introduction

Although the path of this law suit is strewn with the corpses of intermediate decisions,1 the posture of the present cases on appeal will hopefully allow final resolution. In order to accomplish this the opinion must unfortunately be long and complex.

On July 22, 1969 plaintiffs requested a restraining order to prevent the defendant from vacating the offices of several black employees on the Auxiliary Board, a company governing board composed of black employees, and a declaratory judgment that segregation of black and white employees on two governing boards is in violation of Title VII, 42 U.S.C.A. § 2000e et seq. The district court agreed with the plaintiffs and directed the defendant to prepare a plan to eliminate the racial restrictions on the Board of Operatives, the Board of white employees, and to disestablish the separate black Auxiliary Board. The court adopted the defendant's reorganization plan, overruling the objections filed by the plaintiffs. 332 F.Supp. 811 (N.D.Ala.1970).

When the employee discrimination charges were tried in October, 1971, the district court held that the testing conducted by the company did not pass muster under Griggs v. Duke Power Company, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), and had an adverse impact on the employment opportunities of black employees. The district court, nevertheless, then denied all requested relief, except for an award of attorney's fees and costs.

The plaintiffs-appellants appeal from these two decisions on the following grounds: (1) refusal to enjoin the company from requiring improper test and educational requirements, (2) failure to require restructuring of the departmental seniority system and the posting and bidding procedure for job vacancies based on the departmental seniority system, (3) failure to order red circling and advance entry for discriminatees,2 (4) refusal to require changes in the apprenticeship and on-the-job training in the crafts programs, (5) refusal to remedy unlawful exclusion of blacks from supervisory positions, (6) granting inadequate relief in desegregating the company's employees management board, and (7) failure to award back pay.

Defendant-appellee, American Cast Iron Pipe Co., incorporated under the laws of the State of Georgia with its principle place of business in Birmingham, Alabama, is engaged in the production of cast iron and ductile ironpipe and fittings and various other miscellaneous cast iron and steel products. As of August 12, 1971, the company employed 2,551 persons of whom 927 were black.3

Plaintiffs-appellants have brought this action on their own behalf and on the behalf of other persons similarly situated pursuant to Federal Rules of Civil Procedure 23(b)(2).4 The class of persons represented by plaintiffs-appellants are "those negro employees of defendant employed as of May 13, 1966 and negro persons who have been employed subsequent to May 13, 1966 who have been, continued to be, or in the future will be denied equal employment opportunities by defendant on the ground of race or color."5

As discussed supra, appellants are requesting extensive relief from the present impact of past intentional discrimination and illegal testing and educational requirements utilized by the company-defendant from December, 1964 until March 25, 1971, relief from certain present discriminatory practices, and relief from the inadequate remedy granted by the district court desegregating the employee management boards. The district court denied their requests. We reverse in part, affirm in part, and remand.6

I. COMPANY ORGANIZATION AND EMPLOYMENT PRACTICES
A. Company Organization

1. Departments. The company's operations are organized into various departments. There are five primary production departments, each having separate and distinct functions from the other. They consist of: (1) the mono-cast department containing three pipe shops for the production of cast iron and ductile iron pipe; (2) the fittings foundry which produces between 35,000 to 40,000 different accessories to complement the pipe produced in the pipe shops; (3) the steel foundry which produces steel tubes and castings of various alloys and shapes; (4) the melting department which melts all of the hot metal required by the mono-cast department, the fittings foundry, and the steel foundry; (5) the steel pipe foundry which produces steel pipe from steel skelp. In addition, there is a machine shop which performs all the labor required on items produced in the steel foundry, the fittings foundry, and the mono-cast department, as well as replacement maintenance on all machinery. Four of these departments—all except the steel pipe foundry and the machine shop—have employed the majority of black employees within the company between 1963 and 1971.

The company also has service departments consisting of the general yards department, central stores, the shipping department, electrical department, maintenance department, inspection department, and the construction department. These departments perform services in the receipt of raw materials, the shipment of finished products, and various maintenance functions in the company's operations. Of these departments, the general yards, shipping, and construction departments have had substantial numbers of black employees.7 The machine, electrical, maintenance, and inspection departments consist principally of the higher skilled jobs and craft positions with a small turnover in personnel. Fewer blacks have been employed in these departments.8

2. Wage progression and advancement. The method of advancement within these departments is a wage progression schedule, a ladder of pay groups, embracing one or more jobs. The company alleges that these are job-to-job sequences with functional relationship. The appellants argue that the company admitted that no formal, functional lines of job progressions have ever been maintained. Until 1968 the company maintained twenty-three pay groups, but on February 19, 1968, the structure was consolidated into fifteen pay groups: (a) groups 1-8 include the unskilled and semi-skilled functions; (b) groups 9 and 10 contain the more semi-skilled positions; (c) group 11 is the skilled non-craft, technical and clerical positions; (d) groups 12 and 13 are the skilled craft and technical jobs; (e) group 14 includes the secondary supervisory, and group 15, the primary supervisory positions (leadmen and foremen). The district court found that "the overwhelming majority of the black employees historically were and continue to be employed in the pay groups 1-8 jobs in the various departments and particularly in the mono-cast 1, 2, and 3, and foundry." (Emphasis added).9

B. Employment Practices

1. Intentional discrimination. Until 1961 the company formally maintained exclusively black jobs and exclusively white jobs.10 Departments were not totally segregated, but there were predominantly black and predominantly white departments. When Presidential Executive Order No. 10925 made such a policy unlawful in 1961, the company terminated this practice. The resulting employment segregated profile, however, was preserved until 1963 by economic conditions requiring lay-offs and subsequent rehiring of laid-off workers. The process of lay-off and rehiring meant that any movement of black employees into traditional white jobs would come to an end. As lay-offs occurred, the employees with the least departmental seniority, e. g. the newly hired, promoted, or transferred black employees, would be either (1) furloughed, if newly hired, or (2) dropped back into the department from which they transferred, as they retained former departmental seniority in that department for lay-off purposes.11 As production increased in 1964, and re-employment of blacks might normally be expected to increase, the company instituted its illegal testing and educational requirements. As of 1963 black employees constituted about half the work force of the company, but only three blacks earned more than any white production workers, and few if any jobs had racially mixed staffing.

2. Hiring. Sometime prior to 1960, the company had instituted a hiring requirement of a high school education or its equivalent for all white applicants. By 1960 white applicants were also required to pass a screening test battery and a physical examination. Black applicants employed prior to 1964 were only required to pass the physical examination. In 1964, after a compliance review under Order No. 10925 by the Department of Army and Office of Federal Contract Compliance, the company was informed that to be eligible for federal contracts it could no longer maintain different standards for hiring black and white applicants. The company at that time extended the testing and education...

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