Robinson v. Union Carbide Corp.
| Decision Date | 10 September 1976 |
| Docket Number | No. 75-1008,75-1008 |
| Citation | 538 F.2d 652 |
| Parties | 13 Fair Empl.Prac.Cas. 645, 12 Empl. Prac. Dec. P 11,179 Freddie D. ROBINSON et al., Plaintiffs-Appellants, v. UNION CARBIDE CORPORATION, etc., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
J. U. Blacksher, Mobile, Ala., Jack Greenberg, Melvyn Leventhal, New York City, Caryl P. Privett, Birmingham, Ala., for plaintiffs-appellants.
Vincent McAlister, Sheffield, Ala., for defendant-appellee.
Appeal from the United States District Court for the Southern District of Alabama.
Before WISDOM and INGRAHAM, Circuit Judges, and GROOMS, District judge.
Nine blacks (appellants) filed a civil rights action against Union Carbide Corporation, charging it with various discriminatory employment practices perpetrated at the Chickasaw, Alabama plant. On appellants' motion the district court certified the case as a class action filed in behalf of:
Those black job applicants who had an outstanding job application at the time of the commencement of this cause and those black job applicants who have filed job applications since the commencement of this cause and all future black job applicants, along with all current black employees of defendant Union Carbide Corporation, Materials System Division.
Additionally, the district court included a provision in its Notice of Pendency of Class Action which required potential class members to "opt-in" to preserve their back pay claims. 1
After considering all the evidence, the district court concluded that Union Carbide's hiring and promotional practices were not discriminatory and did not violate Title VII of the Civil Rights Act. 2 On appeal appellants claim that the district court's ruling was clearly erroneous and that the order requiring class members to opt-in to obtain back pay is contrary to Rule 23 of the Federal Rules of Civil Procedure and Title VII of the Civil Rights Act.
In 1965 Union Carbide opened a plant in Mobile County, Alabama for the manufacture of "molecular sieves," a product that strains and filters liquid or gaseous molecules. The work force at the plant is composed primarily of residents in the vicinity of Mobile, Alabama, an area which is approximately 26% black. When the plant began operations, the work force consisted of 35 whites and 1 black. Nevertheless, within nine years the plant hired 84 black Union Carbide continually accepts employment applications irrespective of the existence of current vacancies. The personnel files keep a record of applicants; whenever a position becomes available, the applications from the "active" file are reviewed for employment consideration. 4 If the files contain an insufficient number of applications, Union Carbide places advertisements in the local newspaper. Then the plant conducts short screening interviews to determine the applicants' basic vocational interests and to answer any questions relating to the job openings. Following the initial interview, selected applicants are requested to return for an in-depth interview with three or four other plant employees usually two engineers and one foreman. The applicant also tours the plant to view the working conditions. According to Mr. James W. Garner, manager of employee relations, the plant prefers applicants who are "more likely to be long term Carbide employees (and) who want the kind of work and opportunities that (the plant has) to offer." Three members of the personnel department discuss the qualifications of each applicant and decide which of the applicants Appellants claim that the Union Carbide hiring practices were discriminatory and violative of the Civil Rights Act, Title VII. Nevertheless, the employment practices of Union Carbide appear to be fair in form that is, reasonably directed to secure the best qualified candidate for the position available. Although perhaps fair in form, the hiring and promotional practices must also be fair in operation. In Rowe v. General Motors Corp., 457 F.2d 348, 355 (5th Cir. 1972), Chief Judge Brown stated:
An examination of the consequences of Union Carbide's employment practices is thus critical to a disposition of this case.
The litigants proposed separate methods to analyze the hiring data. The appellants suggested that the total number of applications filed by black persons is the critical factor to be considered. Their statistical analysis showed that blacks filed approximately 50% of all applications but secured only 26% of new hourly positions:
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Year Hirees Applicants
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Black White Black White
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1971 10 7 572 587
1972 25 48 1177 1071
1973 19 68 1114 1018
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Total 54 123 2863 2676
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At least one witness, however, cast suspicion on the reliability of appellants' approach, comparing it to
Union Carbide, offering an alternative method of analysis, urged that the employment record should be proportionate to the composition of the local work force. Since 1970 approximately 33% of all employees hired by Union Carbide have been black. Operating its plant in an area where the labor force is approximately 26% black, Union Carbide presents convincing statistics tending to negate the existence of a discriminatory effect of its hiring practices and procedures:
-----------------------------------
Year Hirees % Black
-----------------------------------
Blacks Whites
-----------------------
1965-1969 37 166 18%
1970 5 9 35%
1971 10 7 58%
1972 25 48 34%
1973 19 68 21%
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Total 96 298 24%
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Adopting Union Carbide's method of analysis, the district court concluded that the employer " . . . has truly equal access to jobs at its Chickasaw plant by blacks and whites and the Court finds that this has in fact produced an employee population with substantially the same proportion of blacks represented as are in the Mobile area work force." The district court's recognition of the employer's method of analysis as more reliable and indicative of racial discrimination is supported by testimony that appellants' alternative analysis is subject to suspect data, such as the duplication of employment applications. Additionally, the trial court's finding that Union Carbide's method is more reliable is supported by the practice of other federal courts. On many occasions federal courts have compared the composition of the company's work force to the composition of the labor force in the surrounding area. E. g., Jones v. Tri-County Elec. Cooperative, Inc., 512 F.2d 1 (5th Cir. 1975); Morrow v. Crisler, 479 F.2d 960 (5th Cir. 1973), rehearing, 491 F.2d 1053, cert. denied, 419 U.S. 895, 95 S.Ct. 173, 42 L.Ed.2d 139 (1974); NAACP v. Beecher, 371 F.Supp. 507, 515 (D.Mass.Mod.) aff'd 504 F.2d 1017 (1st Cir. 1974), cert denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775; Crockett v. Green, 388 F.Supp. 912, 917 (E.D.Wis.1975); Fowler v. Schwartzwalder, 351 F.Supp. 721 (D.Minn.1972).
Under the standard of review in this circuit there must be "requisite subsidiary facts to undergird the ultimate facts." Causey v. Ford Motor Co., 516 F.2d 416, 420-21 (5th Cir. 1975). We conclude that the record presents sufficient underpinnings to support the ultimate finding that Union Carbide did not engage in discriminatory hiring practices.
Even an employer who exhibits nondiscriminatory hiring practices can fall short in its system of promotion, Rowe v. General Motors Corp., 457 F.2d 348, 355-59 (5th Cir. 1972) (Brown, C. J.), and that appears to be the situation in the instant case. Although the employer's affirmative action hiring program has resulted in the employment of blacks in close proportion to the composition of the area labor force, the system of promotion has failed to provide equal access to the most preferred positions at the Chickasaw plant. For this reason we REVERSE and REMAND on the issue of Union Carbide's promotional practices.
( a) System of promotion. The plant uses a seniority system to promote employees within the rank of "hourly personnel." When there is an hourly position available, current employees can bid for the job. The senior employee satisfying the minimum qualifications for the position will secure the job....
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