Stevenson v. International Paper Co., Mobile, Alabama

• Decision Date: 16 July 1975
• Docket Number: No. 73-1758,73-1758
• Citation: 516 F.2d 103
• Parties: 10 Fair Empl.Prac.Cas. 1386, 10 Empl. Prac. Dec. P 10,320 Jessie STEVENSON et al., etc., Plaintiffs-Appellants, v. INTERNATIONAL PAPER COMPANY, MOBILE, ALABAMA, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 103

516 F.2d 103

10 Fair Empl.Prac.Cas. 1386,

10 Empl. Prac. Dec. P 10,320

Jessie STEVENSON et al., etc., Plaintiffs-Appellants, v. INTERNATIONAL PAPER COMPANY, MOBILE, ALABAMA, et al Defendants-Appellees.

No. 73-1758.

United States Court of Appeals, Fifth Circuit.

July 16, 1975.

Jack Greenberg, Sylvia Drew, Morris J. Baller, New York City, J. U. Blacksher, Mobile, Ala., for plaintiffs-appellants.

Wm. A. Carey, Gen. Counsel, EEOC, Margaret C. Poles, Washington, D. C., amicus curiae.

R. F. Adams, Brock B. Gordon, Mobile, Ala., for Int'l Paper Co.

Benj. L. Erdreich, John C. Falkenberry, Birmingham, Ala., for United Paperworkers Int'l Union.

James D. Hutchinson, N. Thompson Powers, Washington, D. C., for International Paper Co.

Appeal from the United States District Court for the Southern District of Alabama.

Before GOLDBERG and RONEY, Circuit Judges, and LYNNE, District Judge.

RONEY, Circuit Judge:

Black employees at International Paper Company's Mobile, Alabama, mill brought this class action against International Paper Company (IP), their employer, and the various labor unions involved, asserting racial discrimination in two broad categories: first, transfer and promotion practices presently discriminatory, and second, practices which, although neutral on their face, perpetuate the effects of past discrimination. Although not always so, present hiring practices are concededly nondiscriminatory. Specifically, however, the Title VII complaint, filed after EEOC conciliation had failed, attacked as discriminatory the testing, seniority and certain other requirements for promotion and transfer purposes. The district court held for the employer on all issues.

We hold that the court erred in giving undue res judicata effect to prior litigation by the employees against certain unions, but not the employer, in the so-called Herron-Fluker cases. We cannot ascertain the extent to which this error permeated the findings and conclusions of the district court. In addition, a large number of cases with extensive opinions explicating the developing law in this field have been issued since the date of the district court's order, December 7, 1972. In view of these recent cases, it is apparent that the district court erred in ruling that compliance with the agreements approved by the Office of Federal Contract Compliance, the so-called Jackson Memorandum, was sufficient to show compliance with Title VII.

The principal cases upon which we rely and to which we commend the district court's attention on remand are: Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437 (5th Cir.), cert. denied, 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed.2d 308 (1974); Franks v. Bowman Transportation Corp., 495 F.2d 398 (5th Cir. 1974), cert. granted, --- U.S. ---, 95 S.Ct. 1421, 43 L.Ed.2d 669 (1975); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974); Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364 (5th Cir. 1974); United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973). Pettway contains appropriate reference to practically every case in this Circuit in which the issues presented in this appeal are involved. The application of these cases is for the initial consideration of the trial court after making findings as to the controlling facts.

We vacate and remand for full consideration of plaintiffs' claims in light of the correct legal standards set forth in these cases and this opinion.

The claims asserted are of the type now familiar to this Court and known collectively as a "Title VII" suit, even though the claims are alleged not only under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq., but also under 42 U.S.C.A. § 1981, and under the duty of fair representation subsumed in the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. As in most Title VII cases the facts are particularly important in evaluating the plaintiffs' claims. We will outline the facts briefly here and give them in more detail where necessary in the discussion of the law.

I. FACTS

So far as relevant here, the work force is divided into three groups production, maintenance and supervisory. The production jobs are arranged in several lines of progression. That means that a new employee starts at the bottom and advances, a step at a time, as vacancies occur in higher paying jobs.

The maintenance department consists largely of higher paying craft jobs. These positions are filled by journeymen or apprentices IP has itself trained. Apprentices may be chosen from production workers but such workers must fulfill age, education and testing requirements. Basically, the production jobs are concerned with making the mill's primary product, paper, while the maintenance employees are responsible for keeping the plant and equipment running. Maintenance employees are generally more highly paid and more skilled.

Except for "straw bosses" in the maintenance department, supervisors are salaried employees. Most lower-level supervisors and foremen are former hourly paid employees promoted from the ranks.

There is no dispute that prior to September 1962, IP operated on a segregated basis, pursuant to the policy of IP and the unions. All black employees had the lowest paid and most menial jobs in the production department. All the other departments and the lines of progression leading to the best paid jobs in the production department were reserved for whites.

The local unions, which had jurisdiction over the jobs within the department, were also racially segregated. The all-black locals of the International Brotherhood of Pulp, Sulphite and Paper Mill Workers (Sulphite Workers) and United Papermakers and Paperworkers, AFL-CIO (Papermakers) represented black employees, and the all-white locals of the Sulphite Workers, Papermakers and International Brotherhood of Electrical Workers unions represented the whites.

In September 1962, responsive to Executive Order No. 10925 relating to nondiscriminatory employment practices required of government contractors, IP, with the cooperation of the unions, abandoned its prior policy, desegregating the personal facilities and opening the various lines of progression to everyone. No actual job desegregation occurred, however, as whites and blacks continued to migrate to those jobs in which their race was in the majority. This is understandable, as the various lines of progression were within the work jurisdiction of different, segregated locals of the various unions.

In May 1966, the Sulphite Workers merged their previously racially segregated locals and merged the lines of progression under their jurisdiction. Since the relationship of the jobs after the merger of the lines was based on the relative pay rates and the black jobs were basically menial and low-paying, the effect was to "stack" the white lines on top of the black lines, locking the blacks into the lower paying jobs.

In 1968, black employees complained to the Office of Federal Contract Compliance (OFCC) which was charged with the enforcement of Executive Order No. 11246, the successor of No. 10925. After investigation OFCC notified IP that it was in violation of the order and proposed a 12-point plan to achieve compliance. This led to a meeting in August 1968, at Jackson, Mississippi, between representatives of IP, the unions, the locals and OFCC. An agreement was reached which modified the then-existing collective bargaining agreement in the production department. This agreement was reflected in the Jackson Memorandum of Understanding. It did not encompass the maintenance department at the Mobile mill or the supervisory jobs.

The object of the Jackson Memorandum was to provide blacks, who had previously been subjected to employment discrimination, the opportunity to reach their rightful place in the mill labor force.

After IP had been administering the Jackson Memorandum for less than a year, the unions challenged the interpretation which IP had given some of its provisions. OFCC was requested to settle the dispute. Around the first of May 1969, IP received a letter from OFCC, referred to by all parties as the McCreedy Letter, which authorized IP to modify its administration of the Jackson Memorandum, thereby restricting some of the opportunities previously available to former discriminatees.

A second Jackson Memorandum was negotiated in 1972, which agreement expanded the opportunities of former discriminatees, partially by repudiating the restrictions contained in the McCreedy Letter. The 1972 Jackson Memorandum was in effect at the time the district court rendered its decision in December 1972, but it had not been administered long enough to ascertain what effect it might have on former discriminatees.

The Jackson Memorandum did not attempt any change in the practices relating to the maintenance craft positions, only in those regarding production positions. While a production employee progresses up a "line of progression" within his department, some lines having fifteen or more positions, the maintenance crafts generally have two positions, apprentice and journeyman. While in the apprentice position, the employee gains the skill and experience necessary independently to accomplish the mission of the journeyman. Since 1954, when IP recognized the increasingly complex technology developing in the paper industry, an applicant for a maintenance apprenticeship has been required to achieve a minimum score on a battery of tests, whether he was applying for original employment in maintenance, or transferring from the production department or another maintenance craft position into the apprentice position. Passage of the battery of tests relieves an applicant from IP's requirement for new maintenance employees to have a high school education. Since 1966, IP has continually evaluated its maintenance selection procedures to insure that they were effectively screening applicants.

II. THE HERRON-FLUKER CASES AND RES...