United States v. National Lead Company, 20427.

• Decision Date: 26 February 1971
• Docket Number: No. 20427.,20427.
• Citation: 438 F.2d 935
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. NATIONAL LEAD COMPANY, a Corporation, and Chemical Workers' Basic Union Local 1744, AFL-CIO, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

438 F.2d 935 (1971)

UNITED STATES of America, Plaintiff-Appellant, v. NATIONAL LEAD COMPANY, a Corporation, and Chemical Workers' Basic Union Local 1744, AFL-CIO, Defendants-Appellees.

No. 20427.

United States Court of Appeals, Eighth Circuit.

February 26, 1971.

Jerris Leonard, Asst. Atty. Gen., Daniel Bartlett, Jr., U. S. Atty., David L. Rose, Stuart P. Herman, Attys., Dept. of Justice, Washington, D. C., for plaintiff-appellant.

Edward Weakley, Howard Elliott, Boyle, Priest, Elliott & Weakley, St. Louis, Mo., for National Lead Co.

Harry Moline, Jr., Thomas, Busse, Cullen, Clooney, Weil & King, St. Louis, Mo., for Chemical Workers' Basic Union, Local 1744, AFL-CIO.

Before GIBSON and BRIGHT, Circuit Judges, and McMANUS, Chief District Judge.

BRIGHT, Circuit Judge.

The United States by its Attorney General brings this action seeking injunctive relief against the defendants pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.¹ In its complaint, the government asserts that the defendants, National Lead Company (National Lead) and Chemical Workers' Basic Union Local 1744, AFL-CIO (Local 1744), discriminate in their employment policies and practices against blacks who work in or seek employment at National Lead's St. Louis, Missouri, plant. The government initially moved for a preliminary injunction. The district court, following a hearing, denied the motion, 315 F.Supp. 912, and the government appeals. On appeal, the government urges the following contentions as grounds for reversal:

(1) The plaintiff established a prima facie case that National Lead's seniority system operates to discriminate against blacks seeking promotion or job transfers within the plant and that such a showing entitled the government to immediate relief by way of a preliminary injunction;

(2) The district court erred in finding National Lead free of racial discrimination in the selection of plant foremen; and

(3) The district court erred in denying relief from National Lead's discriminatory employment practices in hiring guards and clerical personnel, since the union representing National Lead employees in these classifications had not been joined as a party to the litigation.

We consider each of these issues mindful of the fact that the case comes to us on appeal from a preliminary ruling by the district court and not following a full trial on the merits. We turn to a discussion of each issue.

THE EXISTING SENIORITY SYSTEM

Defendant National Lead operates and maintains a plant in St. Louis, Missouri, known as its Titanium Pigment Division. Defendant Local 1744 represents all production and maintenance employees at National Lead's St. Louis plant. National Lead employs about 1,100 production workers there, including 254 non-whites. These employees work in one of six departments: Titanium, Acid, Water & Power, Stores, Mechanical, and Labor. Prior to 1962, National Lead assigned only blacks to the Labor department and did not permit Labor department employees to transfer to any other department.

The collective bargaining agreement between National Lead and Local 1744 creates a dual system of seniority. Seniority based upon length of service in a particular department (departmental seniority) governs bidding on vacant jobs within that department. Seniority based upon length of service with National Lead (plant-wide seniority) determines lay-off, demotion, transfer to other departments and reassignment. When a vacancy occurs in any department, the job is first open to bids within that department. The company maintains no line of progression for promotion within a department and the employee with greatest seniority who bids upon that job will be entitled to fill the vacancy. If no bid is received from within that department, or if the departmental bids create vacancies, the employees from other departments can bid on the job and the job is awarded on the basis of plant-wide seniority.

When an employee changes departments, he cannot transfer his accumulated departmental seniority to the new department. Thus, the transferred employee will be junior in seniority to those employees already working within that department. Should a force reduction occur, the transferred employee will lose his position in his new department before any other employee possessing greater departmental seniority. Plantwide seniority, however, affords some protection to that employee. Upon the force reduction, the employee returns to his former department. There he must take whatever job is available until a vacancy occurs when he may then exercise his previously accrued high seniority rating within his original department.

In March, 1963, National Lead and Local 1744 modified the existing collective bargaining agreement to provide that Labor department employees could bid for a job in the Mechanical department and, after working there for one year, bid on job vacancies in any other department. Employees in the other five departments had already possessed this privilege of inter-departmental bidding. Appellees changed the collective bargaining agreement again in 1969 to permit any employee hired prior to March 13, 1963, to bid on any job opening in any department without first going through the Mechanical department. This right of transfer to bid on jobs in other departments applies only after the employees within that department have relinquished their preference to first bid for the vacant jobs within that department.

The government argues that the present seniority system capitalizes upon the pre-1963 discrimination which locked blacks into the Labor department. The plaintiff-government argues that these employees were thus deprived of the opportunity to acquire seniority in any other department. It alleges that this discrimination carries over to the present, with only the least desirable job openings available to them on transfer, and that they further acquire inferior seniority to white employees who have not been subjected to these discriminatory practices.

We think the case, in its present posture, raises an inference that the current seniority provisions operate to perpetuate the discriminatory effects of pre-1963 discrimination, although the impact of said discrimination is difficult to ascertain. The law is well established that employment policies which appear racially neutral but build upon pre-Title VII bias to produce present discrimination are actionable under Title VII. Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 427 (8th Cir. 1970); United States v. Sheet Metal Workers Local 36, AFL-CIO, 416 F.2d 123, 131 (8th Cir. 1969). See also, United States v. Dillon Supply Company, 429 F.2d 800, 803 (4th Cir. 1970); Local 189, Papermakers and Paperworkers, AFL-CIO v. United States, 416 F.2d 980, 989 (5th Cir. 1969); United States v. Bethlehem Steel Corp., 312 F.Supp. 977, 992 (W.D. N.Y.1970); Quarles v. Philip Morris, Incorporated, 279 F.Supp. 505, 518 (E. D.Va.1968).

The government urges that the presentation of these facts establishes a violation of the statute and thus furnishes an adequate basis to require the district court to grant a preliminary injunction. Appellant-government relies principally upon the Fifth Circuit's decision in United States v. Hayes International Corporation, 415 F.2d 1038 (5th Cir. 1969). There, Judge Tuttle, speaking for the court, said:

Where an employer has engaged in a pattern and practice of discrimination on account of race, etc., in order to insure the full enjoyment of the rights protected by Title VII of the 1964 Civil Rights Act, affirmative and mandatory preliminary relief is required. 415 F.2d at 1045

The court further declared:

We take the position that in such a case, irreparable injury should be presumed from the very fact that the statute has been violated. Whenever a qualified Negro employee is discriminatorily denied a chance to fill a position for which he is qualified and has the seniority to obtain, he suffers irreparable injury and so does the labor force of the country as a whole. Id.

Although, on the present record, some of the vestiges of past discrimination seem preserved in National Lead's transfer and promotion procedures, the actual impact of this discrimination upon black employees possessing pre-1963 seniority is unclear. Many of these employees have acquired, through their departmental seniority, positions possessing substantial advantages in pay rates, working hours and conditions as compared to positions in other departments. On the other hand, others claim to suffer from the existing seniority system.² On the existing record, however, we cannot say that the existence of remnants of pre-1963 discrimination within the plant calls for complete abolition of departmental seniority or some merging arrangement of the Labor department into other departments, as has been suggested by the...