United States v. Hayes International Corporation

• Decision Date: 19 August 1969
• Docket Number: No. 26809.,26809.
• Parties: UNITED STATES of America, by John N. MITCHELL, Attorney General, Plaintiff-Appellant, v. HAYES INTERNATIONAL CORPORATION et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

415 F.2d 1038 (1969)

UNITED STATES of America, by John N. MITCHELL, Attorney General, Plaintiff-Appellant, v. HAYES INTERNATIONAL CORPORATION et al., Defendants-Appellees.

No. 26809.

United States Court of Appeals Fifth Circuit.

August 19, 1969.

Ramsey Clark, U. S. Atty. Gen., Department of Justice, Washington, D. C., Nathan Lewin, Deputy Asst. Atty. Gen., Gary J. Greenberg, Thomas R. Ewald, Stephen J. Pollak, Attys., Dept. of Justice, Civil Rights Div., Washington, D. C., Macon L. Weaver, U. S. Atty., Birmingham, Ala., for appellant.

Joseph F. Johnston, William F. Gardner, Drayton Nabers, Jr., Birmingham, Ala., Bernard G. Link, Baltimore, Md., John A. Fillion, Stephen I. Schlossberg, Detroit, Mich., for appellees.

Before TUTTLE and SIMPSON, Circuit Judges, and CASSIBRY, District Judge.

TUTTLE, Circuit Judge:

On March 25, 1968, the Attorney General filed a complaint in the district court pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-6(a).¹ The complaint alleged that the company maintained racially segregated divisions and lines of progression; discriminated in its hiring practices; and assigned whites to jobs offering higher pay, better advancement and security than similarly qualified black employees.² The complaint requested that the company be permanently enjoined from continuing such violations and from failing to take reasonable steps to correct the effects of past discriminatory practices.

The company repairs and rebuilds airplanes and airplane parts largely pursuant to government contracts. As of March 11, 1968 eight percent or 145 of the company's 1781 production and maintenance employees were black. The jobs in the unit were arranged in ten seniority divisions. Each division contained from one to seven lines of progression. Each line contained jobs requiring similar job skills in which the employee could normally expect to advance as he gained experience and vacancies occurred. Because some seniority divisions contained a number of lines of progression which involved similar job skills, in some cases it was possible to move laterally or upward between lines. Further, in case of layoff some employees could "bump" less senior men in their present line as well as in related lines within the seniority division.

One hundred twenty-two of the 145 blacks were employed in two seniority divisions. Many held "Cleaner" jobs (washing the outside of airplanes) in seniority division 7. There was but one line of progression in this division. The remainder were employed in maintenance and janitorial jobs in division 8. From a practical standpoint, there was virtually no chance to move from the lines of progression containing the predominantly black jobs into the white lines in this division.

The remaining blacks were scattered in seven of the other divisions. What their jobs were did not appear in the record. However, the company did concede that 138 of the black employees were in "predominantly Negro" jobs.

There were 13 pay grades. Ninety-six percent of the white employees were in the seven highest grades while 77 percent of the blacks were in the three lowest grades. The company's board chairman testified that the average annual pay of "selected" white employees was $7865 and of blacks $7117.³

The collective bargaining agreement gave the company broad rights to fill high level vacancies with employees who had less seniority than other employees who might also be qualified to perform the work. For example, Article IV, § 17(a) provided that the company could transfer employees to any position provided only that there were no employees laid off or downgraded from the job group of the vacancy and that the person filling the vacancy was qualified.

Article IV, § 6(c) also provided that in terms of layoff, an employee holding a traditionally white position in a division could bump black employees with more seniority who were holding lower level jobs in that division.

The company apparently had no formal policy of filling job vacancies from among its present black employees even if they were qualified. At least once in the past it provided black employees with limited transfer opportunities but at the cost of loss of seniority and a drop in pay. The company could and did, however, transfer white employees into vacancies ahead of more senior employees.⁴ The distribution of black and white employees demonstrates that the company chose not to transfer black employees into white jobs and vice versa even though qualified blacks may have been available or could have been trained. Whatever in-service training programs were offered obviously did not provide black employees with a chance to gain the skills necessary to fill the jobs held by whites.

In short, black employees performed the lowest paid, unskilled jobs. Although the plant was operative since 1951, the company apparently was unable to recruit or train black employees to perform skilled jobs except in the most token manner. This condition remained substantially unchanged even after the effective date of Title VII of the Civil Rights Act of 1964. The black employees were segregated in their jobs in a manner which deprived them of the opportunity for advancement that white employees enjoyed.

The case in this posture never reached the court. One month after the filing of the original complaint, the Attorney General filed a motion for a preliminary injunction. This was occasioned by three significant changes at the plant. First, on March 28 the government awarded the company a contract for the repair of KC-135 jet tankers. This contract would create 740 jobs, of which 294 would not be filled by employees with transfer, promotion or recall rights. Second, on April 8, the company and union signed a new collective bargaining agreement which made some changes in the prior seniority divisions and in seniority provisions which would effect transfer, promotion, recall and layoff rights. Third, on April 12, the company instituted a transfer program which gave black employees an opportunity to transfer to some formerly white jobs.

The government contract provided a unique opportunity to provide black employees with equal employment opportunities. The collective bargaining agreement largely merged the black lines of progression with white lines but the company substantially retained its powers to transfer and promote employees as described above.

After some initial confusion, the company adequately explained the transfer program to the black employees. Each was told to fill out an application blank and designate which five from among the 57 available job titles he was interested in transferring to. They were given a week to return the forms. After the company made an offer, the employee had three days to accept. Failure to comply with either rule was a waiver of rights under the program although in practice these limitations were not strictly adhered to. Any employee who accepted a transfer had no further rights under the program.

The program made available 57 largely entry-level job title previously closed to blacks. The remainder of the company's 140 job titles were not affected.⁵

Because of the unique opportunites thus present to rectify past discriminatory practice, the Attorney General moved for a preliminary injunction. The denial of this request is the subject of this appeal.

The district court's decision largely turned on the conclusion that the transfer program did not violate Title VII.⁶ The court found that the transfer program did not violate the Act because; (1) the black employees who transferred to Beginner positions in the Sheet Metal and General Mechanic lines would be promoted to permanent "B" level jobs during the life of the KC-135 contract. They would then be protected against layoff in accordance with their plant-wide seniority; (2) Remanning provisions would allow white employees to be promoted to higher level positions in the Sheet Metal and General Mechanic lines in preference to more senior black employees then at the "B" level in those lines only in remote cases;⁷ (3) those black employees who chose not to transfer did so for personal reasons, and (4) the program was fairly administered.

The United States argues that the district court's view of the case was erroneous. We agree.

The question was not whether the transfer program itself violated Title VII. The question, rather, was: In view of the prima facie case established by the government that the company was intentionally engaged in a pattern or practice of resistance to the full enjoyment of Title VII rights, did the fact that the new collective bargaining agreement and the transfer program partially corrected the violations negate the need for the preliminary injunction? That issue was not decided by the district court.

We are met initially by the company contention that the United States is now arguing an entirely new theory of the case and it should be limited to the theory that the transfer program violated Title VII.

However, we do not view the matter that way. Of course, if the United States were now setting forth new arguments on facts never presented to the trial court, the company would be correct. But its position is bottomed on the fact that after all the evidence was in and the court requested counsel for both sides to summarize their positions, government counsel concentrated on the transfer program. There is no doubt about that. But he also argued the relevance to his case of the KC-135 contract and the collective bargaining agreement. Furthermore, he was responding to a request by the trial judge to discuss but one aspect of the case: the irreparable harm requirement for issuance of a preliminary injunction.

It seems unlikely that the court was misled by the oral argument. The motion for preliminary injunction clearly set forth the government's theory as to what established the pattern or practice of resistance and the impact...