Williams v. New Orleans S.S. Ass'n

Decision Date09 April 1982
Docket NumberNo. 80-3886,80-3886
Citation673 F.2d 742
Parties28 Fair Empl.Prac.Cas. 1092, 28 Empl. Prac. Dec. P 32,677 George James WILLIAMS, et al., Plaintiffs-Appellants, v. NEW ORLEANS STEAMSHIP ASSOCIATION, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

George M. Strickler, Jr., New Orleans, La., Richard B. Sobol, Richard T. Seymour, Washington, D. C., for plaintiffs-appellants.

Andrew P. Carter, David E. Walker, New Orleans, La., for N. O. Steamship Ass'n.

Victor H. Hess, Jr., New Orleans, La., Seymour M. Waldman, New York City, Dennis M. Angelico, New Orleans, La., for Unions.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before THORNBERRY, TATE and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Plaintiffs George Williams, Duralph Hayes, and Ernest Turner, Jr. and intervenors Matthew Richard and John Aaron sued New Orleans Steamship Association (NOSA), sixteen 1 of its member stevedoring companies, Locals 1418 and 1419 General Longshore Workers, International Longshoremen Association (ILA), and Locals 1802 and 1863 Sacksewers, Sweepers, Waterboys, and Coopers, ILA, alleging individual and class-wide employment discrimination in the Port of New Orleans in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. 2 After an eighteen day trial, the court ordered the merger of the previously segregated Locals 1418 and 1419 and Locals 1802 and 1863 but dismissed the remainder of plaintiffs' claims and refused to certify a class pursuant to Fed.R.Civ.P. 23. In this appeal, plaintiffs contest the court's dismissal of their claims of discrimination in the allocation of grain work and in the assignment of preferred positions in general cargo gangs as well as the court's refusal to certify a plaintiff class. We hold that the court erred in denying plaintiffs' claim concerning the allocation of grain work and in refusing to certify a class with respect to that claim. We affirm the dismissal of the discriminatory assignment claim and the court's refusal to certify a class in that instance.


The district court's opinion amply describes the factual background of this eleven year old case. See Williams v. New Orleans Steamship Association, 466 F.Supp. 662 (E.D.La.1979). Because this appeal concerns the employment practices in particular areas of the stevedoring industry, it is necessary to describe briefly the operation of the industry in the Port of New Orleans.

Originally, employment on the waterfront was casual and unsystematic. After a 1974 Department of Labor study, a registration system was instituted. Today, waterfront workers are categorized by craft and registered accordingly. Each craft is under the jurisdiction of a different ILA local.

This appeal involves alleged discrimination against Craft I workers. Craft I is comprised of general longshoremen previously under the jurisdiction of Locals 1418 (white) and 1419 (black), 3 now under the jurisdiction of the merged Local 3000. Within each craft, workers are classified according to their priority for employment opportunities based upon their length of service with a particular company. The highest ranking categories are considered "registered" (as opposed to "casual") and comprise the majority of longshoremen. Throughout the relevant time period, 4 approximately 75% of all registered longshoremen were black. Thus membership in Local 1419 was three times as great as that of Local 1418. 5

Longshoremen load and unload ships. The work is performed on a day-to-day basis, seven days a week. Stevedoring companies hire longshoremen daily through the Waterfront Employment Center owned and operated by NOSA. The workers are organized into "gangs" of varying size, depending on the type of cargo to be loaded or unloaded. Typically, grain gangs employ eight men and general cargo gangs sixteen. Pay rates for the various jobs are set out in the Deep Sea Agreement negotiated between NOSA and the Locals.

Hiring is done twice daily at "shape-ups." Each stevedore chooses a foreman for each gang needed that day and the foreman then hires the necessary gang members. Many companies have "regular" gangs comprised of registered longshoremen who frequently work for that company and are given preference on available work. If a company has more work than can be handled by its regular gangs, it employs "non-regulars" who are either regulars with other companies or "casuals" not associated with any particular company. This results in all longshoremen working for virtually all the stevedores at one time or another. Although many workers become associated with a particular company from time to time, none works exclusively for one company.

Despite the registration system, employment is still largely casual. The work performed by a longshoreman varies from day to day depending on a variety of factors including the work available as well as personal choice. Longshoremen are not required to work any particular days or hours. If they want to work, they simply come to a shape-up. The rates of pay vary for different jobs and different shifts. For example, in 1973, grain work paid a 20cents per hour premium. Work performed during mealtimes, weekends, and holidays also pays a premium. A longshoreman may choose to shape-up only when there is a certain type of work available or only during certain hours. Thus the longshoreman's job and wages are determined in part by personal factors.

The employment relationship ultimately is controlled by the Deep Sea Agreement which specifies the terms and conditions of employment and the varying wages for each job. In this appeal, plaintiffs contest the employment practices concerning the allocation of grain work and the job assignments in general cargo gangs. Before 1974, the Agreement required that so far as practicable, grain work should be divided evenly between Locals 1418 and 1419, notwithstanding their disproportionate memberships. 6 There was no corresponding provision respecting assignments in general cargo gangs; plaintiffs contest an alleged practice by white foremen of assigning white longshoremen to the more preferable jobs.

A. Separate Claim of Racial Discrimination in Grain Work.

Grain work comprises approximately 8% of all longshore work and involves the loading and unloading of ships carrying grain. It is physically less demanding than other types of work because the cargo is pumped rather than carried onto and off of vessels. Grain workers often become covered from head to toe in grain and inhale particles, however, and because of this unpleasantness, a premium is paid for grain work.

Pursuant to the Deep Sea Agreement, grain work was allocated equally between the members of the black and white locals. Plaintiffs contend that this practice violated Title VII and § 1981.

The district court's original order in this case, dated February 14, 1979, 466 F.Supp. 662, was five years after the trial. In that order, the court found that the 50-50 allocation of grain work was discriminatory, yet it did not find a violation of Title VII. Upon plaintiffs' motion for reconsideration of the issue, the court clarified by saying its earlier holding meant that the contract clause requiring 50-50 allocation was not discriminatory but that it was evidence of the discriminatory potential inherent in a system that maintained segregated local unions.

The court then reconsidered plaintiffs' allegation that the practice of 50-50 allocation was discriminatory in and of itself. Again, the court did not find a violation of Title VII. This time its conclusion was based upon its finding that, because longshoremen perform more than one type of work, evidence focusing on only one of these jobs, i.e., grain work, would distort the analysis. "The important thing is how (the black longshoreman) fares overall." The court then considered the overall welfare of black longshoremen and concluded that in the Port of New Orleans, they received their proportionate share of work and pay. Thus the court found no discrimination.

An appellate court must accept a trial court's findings of subsidiary facts unless clearly erroneous; however, the court's ultimate finding on the issue of discrimination is subject to review free of the clearly erroneous standard. Wright v. Western Electric Co., 664 F.2d 959, 963 (5th Cir. 1981). Furthermore, this Court is not bound to any degree by the district court's conclusions as to the law, Parson v. Kaiser Aluminum & Chemical Corp., 575 F.2d 1374, 1382 (5th Cir. 1978), cert. denied, 441 U.S. 968, 99 S.Ct. 2417, 60 L.Ed.2d 1073 (1979), nor are we bound by findings of fact based upon erroneous applications of law, Johnson v. Uncle Ben's, Inc., 628 F.2d 419, 422 (5th Cir. 1980), vacated on other grounds, 451 U.S. 902, 101 S.Ct. 1967, 68 L.Ed.2d 290 (1981). We find that the district court's opinion was based upon an erroneous legal conclusion as to the viability of plaintiffs' grain claim. Thus our review of the court's findings of fact is not bound by the clearly erroneous standard of Fed.R.Civ.P. 52(a).

In concluding that the plaintiffs failed to prove discrimination, the district court misconstrued plaintiffs' allegation. By comparing the overall economic picture of blacks and whites, the court transformed plaintiffs' claim of discrimination in the allocation of grain work into a claim of discrimination in the entire industry. 7 The court erroneously concluded that plaintiffs' segmented claim was not cognizable under Title VII and § 1981.

Claims alleging discrimination in only one segment of an employer's workforce are cognizable under Title VII and § 1981. The Supreme Court recognized this principle in one of the landmark Title VII cases, International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). There, the United States brought...

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