United States v. NL Industries, Inc.

Citation479 F.2d 354
Decision Date28 March 1973
Docket NumberNo. 72-1143.,72-1143.
PartiesUNITED STATES of America, Plaintiff-Appellant, v. N. L. INDUSTRIES, INC., and Chemical Workers' Basic Union, Local 1744, AFL-CIO, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

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Stuart P. Herman, Atty., Department of Justice, Washington, D. C., for plaintiff-appellant.

Harry O. Moline, Jr., St. Louis, Mo., for Chemical Workers, etc.

Howard Elliott, St. Louis, Mo., for National Lead Co.

Before BRIGHT and STEPHENSON, Circuit Judges, and TALBOT SMITH, Senior District Judge.*

Rehearing and Rehearings En Banc Denied May 21, 1973.

BRIGHT, Circuit Judge.

This appeal by the United States brings before us for the second time an action brought by the Attorney General under the Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e et seq. to enjoin N. L. Industries (formerly National Lead Co., hereinafter the Company or National Lead) and Chemical Workers' Basic Union Local 1744, AFL-CIO (Local 1744), from discriminating against blacks who seek employment or are employed at the Company's St. Louis, Missouri, plant. The case came before us previously when the Government appealed the district court's denial of a preliminary injunction. United States v. National Lead Co., 438 F.2d 935 (8th Cir. 1971), aff'g, 315 F.Supp. 912 (E.D.Mo. 1970). In affirming the district court's denial of preliminary relief, we noted that evidence presented by the Government at that time raised an inference of discrimination, but we felt that a full scale trial on the merits would be beneficial in fashioning appropriate relief. The action has now been tried and the district court has completely rejected the Government's requests for relief.1 After an exhaustive review of the complex and extensive trial records and exhibits, we reverse the district court and direct the entry of injunctive and other appropriate relief.2

The Company operates a plant in St. Louis known as the Titanium Pigment Division. This plant employs approximately 1100 production workers, including about 250 blacks. Local 1744 represents these production workers.

In this suit the Government makes the following charges of discrimination against the Company:

(1) The Company's departmental seniority system perpetuates the effects of past assignment of black employees to a racially segregated department and thus blacks hired prior to 1963 are denied an equal opportunity to compete with their contemporaries for the most desirable production jobs.

(2) The Company's assignment policies relating to new employees discriminates against blacks by assigning them in disproportionate numbers to the Labor department for seniority purposes.

(3) The Company discriminates against blacks in the selection of plant foremen.

(4) The Company engages in racially-discriminatory policies in its hiring of office, clerical, and technical personnel.

We turn to an examination of each of the Government's allegations.

I. THE SENIORITY SYSTEM

Since the basic provisions of the Company's seniority system, as described in our earlier opinion, remain unchanged, we will repeat them here, with some amplification as provided by the completed record.

The collective bargaining agreement between the Company and Local 1744 creates a dual system of seniority, departmental and plantwide. Departmental seniority, based upon length of service in a particular department, governs bidding for vacant jobs within that department, choice of vacation schedule, order of layoff within a department and order of recall within that department after a layoff. Plantwide seniority, based upon length of service with the Company, determines such matters as success in interdepartmental bidding (where permitted), length of vacation, and insurance and annuity benefits.

For the purposes of departmental seniority, the production workers within the Local 1744 bargaining unit are divided into six departments: Acid, Water and Power, Stores, Mechanical, Titanium, and Labor. When a vacancy occurs within any department, the job is first open only to intradepartmental bids. There are no lines of progression within a department, and the employee with the greatest seniority within that department will attain the position if he bids for it; thus "leapfrogging" is permitted by this system.

If no bid is received from within a department, or if departmental bids leave a vacancy, employees from other departments may bid on the job and, under the 1972 bargaining agreement,3 the job is then awarded to the bidder with the highest plantwide seniority.

When an employee changes departments, he cannot transfer his accumulated departmental seniority to the new department. The transferred employee is therefore junior in departmental seniority to those employees already working within the department, although the transferee may have considerably greater plantwide seniority. Thus, should a work force reduction occur within a department, 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 the employee who is thus "rolled-back" from his new department, because he is permitted to return to his former department where he takes whatever job is available until a desirable vacancy in that department occurs. He may then exercise his total departmental seniority, which includes that accrued in the new department prior to roll-back, to bid for that job.

Prior to mid-1962, the Company practiced employment discrimination by assigning blacks exclusively to the Labor department seniority group. With few exceptions, whites did not work in the Labor department prior to the effective date of Title VII, July 1, 1965. Until March, 1963, employees in the Labor seniority group were prohibited from transferring from the Labor department into any other department. The bargaining agreement was modified at that time to permit Labor department employees to bid into the Mechanical department, and after working there for one year, to bid on job vacancies in the three operating departments after intradepartmental bidding was exhausted. Employees in the other five departments already possessed this privilege of interdepartmental bidding, i. e., into the mechanical department and from it to another department.

In 1969, the collective bargaining agreement was again changed to permit an employee hired prior to March 14, 1963, to bid directly into one of the three operating departments (Acid, Water and Power, and Titanium), without first spending a year in the Mechanical department.4 However, under the 1969 contract and under the present contract, bids from outside a department are permitted only after intradepartmental bidding is completed. Employees assigned to the Labor seniority group frequently assist in operations carried on in other departments such as Acid, Water and Power, and Titanium, but regardless of where they perform their work, they continue to accrue seniority only in the Labor group.

Numerous black employees with extensive Labor department seniority testified that the reason they had not bid into another department was because of the high risk involved since they are unable to carry Labor department seniority into the new department. This is especially true for the Labor department employee who has attained a desirable Labor department position because of seniority. If he bids into another department and then is bumped back into Labor, he does not return to his former job but instead becomes a "floater." As such he performs the least desirable jobs in the Labor department until he has had the opportunity to bid into another Labor department position.5

Thus the undisputed facts show (1) that prior to about July, 1962, National Lead assigned blacks to the Labor department only, which for all practical purposes was a segregated department, and (2) that the departmental seniority system inhibits blacks hired prior to March 14, 1963, from competing for desirable positions in the previously allwhite departments on an equal basis with white employees who have received a preference by being initially assigned to these departments. The statistics also reveal that many of the jobs in the Labor department carry a lower basic pay scale than many jobs in other departments.

The Company does not maintain job descriptions for each job classification within the plant. However, the evidence is undisputed that although black and white riggers and riggers' helpers use the same equipment, perform identical duties, and receive the same pay, the white riggers and their helpers accrue seniority in the Mechanical department while their black counterparts accrue seniority in the Labor department. Thus, under the present seniority system, a black rigger's helper desiring to bid on a rigger's job now held by a white would be permitted to make such a bid only after the job had been turned down by every employee in the Mechanical department. In 1967, the plant manager indicated that there was no reason why the riggers in the Labor department should not be transferred to the Mechanical department seniority list.

Under the collective bargaining agreement, an employee accepted for a new job shall have six days to qualify for the job, and if he fails to qualify, he may return to his old job without loss of seniority.

It is now beyond cavil that Title VII of the Civil Rights Act of 1964 proscribes employment practices and procedures which, although presently neutral and nondiscriminatory on their face, tend to preserve or continue the effects of past discriminatory practices. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); United States v. St. Louis-San Francisco Ry. Co., 464 F.2d 301 ...

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