U.S. v. U.S. Steel Corp.
| Decision Date | 08 October 1975 |
| Docket Number | No. 73-3907,73-3907 |
| Citation | 520 F.2d 1043 |
| Parties | 11 Fair Empl.Prac.Cas. 553, 10 Empl. Prac. Dec. P 10,436 UNITED STATES of America, Plaintiff-Appellant, v. UNITED STATES STEEL CORPORATION et al., Defendants-Appellees. John S. FORD, et al., Plaintiffs-Appellants, Clifford Craig and L. G.Phillips, Movants-Appellants, v. UNITED STATES STEEL CORPORATION et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Beatrice Rosenberg, Asst. Gen. Counsel, EEOC, Washington, D. C., Robert T. Moore,, Louis G. Ferrand, Employment Section, Dept. of Justice, Washington, D. C., Wayman G. Sherrer, U. S. Atty., Birmingham, Ala., for United States.
James K. Baker, Oscar W. Adams, Jr., U. W. Clemon, Birmingham, Ala., Barry Goldstein, William L. Robinson, Jack Greenberg, New York City, for John S. Ford, and others.
Demetrius C. Newton, David H. Coar, Birmingham, Ala., for C. Craig & L. G. Phillips.
Jerome A. Cooper, Birmingham, Ala., Michael H. Gottesman, Washington, D.C., for United Steelworkers of America.
James R. Forman, Jr., W. K. Murray, Birmingham, Ala., for U. S. Steel.
Appeals from the United States District Court for the Northern District of Alabama.
Before THORNBERRY, MORGAN and CLARK, Circuit Judges.
These appeals arise from a sharply-contested employment discrimination case which involves over 3,000 black steelworkers. The proceedings below culminated in a decree, entered May 2, 1973, in which District Judge Pointer ordered major changes in the seniority structures at the nine plants of defendant United States Steel Corporation's Fairfield Works, Birmingham, Alabama. Of main interest for present purposes, Judge Pointer found that the Fairfield seniority systems (occupational, line of progression, and departmental) products of collective bargaining between the company, the United Steelworkers of America, AFL-CIO, and various locals operated to lock blacks into lower-paying and less-desirable jobs, and thus perpetuated the effects of the company's pre-Title VII active racial discrimination in hiring and initial assignments. The district court ordered implementation of a broad scheme of plant service seniority, rate retention ("red circling"), racial quotas for hiring and promotion, and other remedies designed to eradicate continuing impediments to blacks' reaching their "rightful places." Those measures are not before us for review, as the defendants did not appeal from the court's findings or the decree.
A number of complaints were consolidated below for trial. Out of six certified private class actions brought pursuant to 42 U.S.C. § 2000e-5 and 42 U.S.C. § 1981, involving 464 black employees, the district court awarded back pay to sixty-one members of three classes (the Hardy, McKinstry, and "original" Ford classes). No appeals were taken with respect to those three classes. The government also litigated a "pattern or practice" suit, 42 U.S.C. § 2000e-6, and sought back pay for the approximately 2,700 remaining blacks in the Fairfield production and maintenance workforce. This prayer was denied, and is the subject of the present appeal.
The government, however, has withdrawn its appeal in favor of the nationwide steel industry settlement, to which United States Steel and the Union are parties. See United States v. Allegheny-Ludlum Industries, Inc., 5 Cir. 1975, 517 F.2d 826. In this court the representative appellant for the rank and file black workers on whose behalf the government unsuccessfully sought back pay below is John S. Ford, who, throughout the trial, represented only thirty-five blacks in the Fairfield Car Shop of the Rail Transportation Division (the "original" Ford class). The substitution was accomplished by Judge Pointer in the May 2 decree, wherein he summarily enlarged the "original" Ford class so as to include in a F.R.Civ.P. 23(b)(2) class action judgment all blacks employed at Fairfield prior to January 1, 1973 who were not otherwise represented in a private class action. Thus, the district court designated in practical and legal effect a "new" Ford class.
The now-unchallenged facts which supplied the bases for findings of liability on the part of the company and the unions, and hence the works-wide injunctive relief, are reported with the opinion of the district court, United States v. United States Steel Corp., N.D.Ala.1973, 371 F.Supp. 1045, 1049-57. The "new" Ford class appeal involves issues concerning the manageability of the class action and whether back pay is available to putative class members. There is in addition an appeal by a group of former black and white ore miners from the denial of their application for permissive intervention pursuant to F.R.Civ.P. 24(b). That is denominated the Craig appeal. Following careful consideration of the district court's opinion, the briefs and oral arguments of the parties, together with the parties' Joint Appendix, we are of the opinion that the district court must be charged with an abuse of discretion in the denial of back pay to every member of the new Ford class. This is largely due to a recent series of binding case law developments in this circuit and in the Supreme Court. These cases were decided subsequent to December 11, 1973, the date of the district court's opinion, and therefore Judge Pointer did not have the benefit of them. Furthermore, subsequent to the May 2, 1973 enlargement of the "original" Ford class or, if one prefers, substitution of the "new" Ford class this court sitting en banc issued guidelines addressed to the handling of Rule 23(b)(2) employment discrimination class actions in the trial courts. Whether the substance of these guidelines was observed below is not apparent from the record.
On remand, a variety of additional determinations must be made before this case will be capable of assured resolution. We therefore vacate the denial of back pay to the group on whose behalf the government sought back pay below (the "new" Ford class), and remand for further proceedings consistent with this opinion and other controlling authority. On remand the district court should carefully redetermine the propriety of the amorphous "new" Ford class in light of the consequences of binding such a group to a final judgment. Also, specific findings should be made with regard to the availability of back pay and certain of the defendants' special defenses. Finally, it is necessary that the district court reexamine its legal approach in the context of the foregoing tasks. The existing analysis is no longer acceptable if ever it was to justify a generalized conclusion that back pay should not be awarded to victims of employment discrimination. To the extent that the trial court may conclude that additional back pay is now warranted, it should proceed to Stage II of the bifurcated class action procedure, discussed infra. At that point it should invite the parties' proposals for computation and distribution, and select a reasonable method for making the affected class whole, while avoiding as far as possible the "quagmire of hypothetical judgments."
We are of the view that the present record in the Craig appeal presents essentially a grievance by ore miners generally the use of plant age instead of company age for seniority purposes rather than a complaint by blacks that whites were discriminatorily favored in promotion and regression. The testimony relevant to intervenors' application indicated that the focal feature of the seniority system affected the 593 whites and 331 blacks in the same manner: all lost company (ore mine) seniority when assigned to Fairfield Steel Plant. The district court correctly determined that this does not present a palpable Title VII dispute. "The Act does not require a remedy for those not discriminated against." Gamble v. Birmingham Southern R.R., 5 Cir. 1975, 514 F.2d 678, 686. Intervenors now indicate they are prepared to make a specific showing of discrimination directed at black ore miners in violation of Title VII. We conclude that this appeal must be dismissed for want of Title VII jurisdiction, irrespective of other requirements for intervention. Whether the proffered showing should be allowed by way of a repleaded application and new evidence in support of intervention will be a question for the district court on remand.
We now proceed to outline the parameters of the district court's inquiry on remand.
Judge Pointer's designation of the "new" Ford class dovetails with his most complicated set of findings and reasons for denying back pay to the class's members: "failure of proof" or "equitably determining the true balance of interests." 371 F.Supp. at 1061. In three private class actions, involving around 360 black steelworkers, the court found from the evidence specific aspects of the pertinent seniority structures which it was able to identify as having caused economic injury to certain class members. Id. at 1059-60. Sixty-one individuals received awards of back pay which were measured with a substantial degree of certitude. In the broader government ("new" Ford) action, Judge Pointer denied back pay, not for want of evidence of racial discrimination such evidence was abundant in statistical form but because he was unable to isolate specific causal factors to explain earnings disparities between an average black and average white worker in a given production and maintenance line, ability and plant seniority being relatively equal. Noting that under the Fairfield open bidding and job classification scheme "choice and chance," id at 1053 (emphasis in original), played major roles in predicting every line or pool employee's success irrespective of race or seniority lock-in, see id. at 1059 n.36 Judge Pointer "presumed" damages for purposes of injunctive relief, id. at 1058, but concluded that individualized back pay could not reasonably be afforded "within the physical and fiscal limitations of the court." ...
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