Stamps v. Detroit Edison Co.

• Decision Date: 02 October 1973
• Docket Number: Civ. A. No. 36515,38479.
• Citation: 365 F. Supp. 87
• Parties: Willie STAMPS et al., Plaintiffs, v. DETROIT EDISON CO. et al., Defendants. UNITED STATES of America, Plaintiffs, v. DETROIT EDISON CO. et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

365 F. Supp. 87

Willie STAMPS et al., Plaintiffs, v. DETROIT EDISON CO. et al., Defendants.

UNITED STATES of America, Plaintiffs, v. DETROIT EDISON CO. et al., Defendants.

Civ. A. Nos. 36515, 38479.

United States District Court, E. D. Michigan, S. D.

October 2, 1973.

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David W. Allen, Robert P. Gallagher and Michael A. Middleton, Dept. of Justice, Washington, D. C., for United States.

Roger E. Craig, Detroit, Mich., William B. Gould, Professor of Law, Stanford, Cal., for other plaintiffs.

Richard Ford, Detroit, Mich., for Detroit Edison Co., defendant.

Rolland O'Hare, Detroit, Mich., for Local 17, International Brotherhood of Electrical Workers, defendant.

Sanford Jay Rosen, New York City, for American Civil Liberties Union, plaintiffs.

Raymond Willis, Detroit, Mich., for Assn. for the Betterment of Black Employees, and others, plaintiffs.

OPINION AND ORDER

KEITH, District Judge.

I. INTRODUCTION

The Complaint in Civil Action No. 36512 was filed by the above captioned plaintiffs¹ on May 17, 1971. The Complaint in Civil Action No. 38479 was filed by the Government on June 22, 1972. This Court on July 21, 1972 ordered the cases consolidated after finding there to be common issues of law and fact. The Court has previously made a finding that the remaining plaintiffs have standing and may prosecute this class action law suit under the statutes and court decisions invoked and specified by plaintiffs. Jurisdiction is conferred on this Court inasmuch as the cases arise under the Civil Rights Act of May 31, 1870, c. 114, 16 Stat. 140, 42 U. S.C.A. § 1981; the Civil Rights Act of 1964, 78 Stat. 259, 42 U.S.C.A. § 2000e-5(e); the National Labor Relations Act, 61 Stat. 136, 29 U.S.C.A. § 151 and § 185; and 28 U.S.C.A. §§ 2201 and 2202.

II. THEORIES OF THE PARTIES

The Final Pretrial Order entered by this Court and signed by all parties dated January 12, 1973, states the following theories of the litigants:

A. THEORY OF PLAINTIFF UNITED STATES:

The following is a brief statement of the government's theory:

Until recent years, the defendant Detroit Edison Company discriminated against its black employees by excluding them from its desirable jobs except in token numbers. Prior to the end of 1968 the Company employed a relatively small number of blacks in a few jobs, primarily as janitors and servicemen in the Building and Properties Department, as utility servicemen and more recently as laborers and stockmen in the Stores and Transportation Department. These few jobs in which blacks were employed offered lower pay than most of its skilled trade occupations and little or no advancement opportunities. Some whites were also employed in these low opportunity jobs, but virtually no blacks were employed in high opportunity, skilled jobs. Many black employees who were limited to low opportunity jobs possessed qualifications equal to or greater than many of the whites whom the Company hired without prior skills or experience and trained for specific trades or crafts within the Company. Since 1965, when Title VII of the Civil Rights Act became effective, the Company has hired blacks in some formerly all white jobs, especially in clerical jobs, in increasing numbers; but its high opportunity hourly paid occupations remained virtually all white until after 1968, and blacks remained concentrated in low opportunity jobs.

The collective bargaining agreements between the Company and the defendants, Local 17 and Local 223, grant preference to employees already in high-opportunity departments and occupational groups in competition for vacancies in those departments and occupational groups and allow employees who transfer to new departments and occupational groups no credit for time spent in their former departments when competing for future promotions or retention against layoff. A transferring employee who begins at the bottom of a new line of progression or occupational group must also work at a reduced pay rate if this new position pays less than his former position.

Although racially neutral on their face, these collective bargaining provisions carry forward into the present and future the effects of the Company's pattern of excluding blacks from high opportunity jobs by allowing whites the benefit of seniority and preferred bidding positions obtained during a time when blacks were not able to acquire the same advantages. The Courts have uniformly held that where the effects of such a pattern of discriminatory job assignment are carried forward by the operation of such a seniority system, Title VII of the Civil Rights Act of 1964 requires that the responsible defendants provide the class of affected black employees with the employment opportunities they would have received but for the pattern of racial assignment or exclusion. Therefore, the government requests an injunction providing an affected class of black incumbents (i. e., those who were assigned to lower paying jobs on the basis of their race) with opportunities to compete for positions in high opportunity occupational groups on the basis of their Company seniority, to transfer, if successful, without loss of earnings, and to carry their Company seniority with them to such new occupational groups for all purposes, including future promotions and protection against layoff. The government also requests a determination that the defendants² are liable to pay back pay to those affected class members, who in an ancillary proceeding, may be shown to have suffered financial loss as a result of the pattern of racially discriminatory assignment.

Until the commencement of Title VII enforcement proceeding, and until the present in the case of some practices, the defendant Company has discriminated against black applicants and potential applicants for employment in its recruiting and hiring practices. Despite recent increases in the number of blacks hired, in 1972 the Company employed approximately 860 blacks, making up only 7.5% of the Company's total employment of approximately 11,500. Approximately 55% of the Company's work force is employed in the City of Detroit which has a black population of 44%. Approximately 75% of the Company's work force is employed within Wayne County which has a black population of 27%; and approximately 85% of its work force is located within the three county area.

The Courts have held in Title VII cases that where blacks traditionally have been excluded from employment, affirmative steps are necessary to recruit and employ qualified applicants. The government therefore requests an injunction requiring the Company to cease relying on recruiting through friends and relatives of incumbent employees; to exercise more direct control over the hiring decisions of its department supervisors; to remove test standards as a barrier to black hiring; and, subject to the availability of qualified applicants, to recruit and hire blacks throughout the Company and in specific occupational groups in accordance with numerical goals sufficient to overcome past exclusion of blacks within a reasonable time.

B. THEORY OF PRIVATE PLAINTIFFS:

The theory of private plaintiffs Complaint is as follows:

Racial discrimination with regard to both hiring and promotion is proved by the small number of black employees employed at Detroit Edison. The percentage of blacks employed in the work force of Detroit Edison— particularly in the classifications of official, manager, and skilled craftsmen —is substantially smaller than the percentage of blacks in the City of Detroit. Overt and active racial discrimination has been practiced by defendants against individual black employees through 1973.

Certain practices, arguably neutral and non-discriminatory on their face —have the effect of perpetuating past discrimination and embody such discrimination in the present system:

1. Word of mouth referrals by incumbent white employees of Edison and the compilation of lists of employees who have been recommended by such incumbent whites by various Edison Department Heads.

2. An interview system which does not put employees on notice as to the job opportunities in the company and which accordingly has the effect of denying blacks higher paying jobs because their friends and relatives are blacks, and unlikely to have held such jobs or to know of such jobs in any kind of detail.

3. A departmental and job seniority system utilized for competitive status jobs which penalizes the black employee who has seniority granted in a lower paying job or department because a past discriminatory hiring policy has relegated blacks to such jobs and departments. Moreover, some black employees would be required to take wage cuts in order to transfer.

4. Non-job related tests utilized for both hiring and promotion which have the effect of screening out blacks disproportionate to whites and/or preserve the discriminatory status quo.

5. Educational and other non-job related requirements which screen out blacks disproportionate to whites and/or preserve the discriminatory status quo.

6. Subjective criteria and interview system which screens out blacks disproportionately both from employment and better paying jobs and/or preserve the discriminatory status quo.

7. Subjective criteria utilized by supervisors and other responsible corporate officials and/or preserve the discriminatory status quo.

8. The existence of all white and near all white supervisory work-force has the effect of excluding black employees from consolidation for both hiring and promotion.

Defendant unions liability are specifically predicated upon the following factors:

The negotiation of the above-referred-to-seniority system which embodies within it the effects of past discrimination;

The failure to take any kind of affirmative action through negotiation, arbitration, or any other means to alter defendant Edison's discriminatory hiring and testing policy;

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