TAYLOR v. ARMCO STEEL CORPORATION
373 F.Supp. 885 (1973)
John TAYLOR et al., Plaintiffs, Alfred James et al., Intervenors,
v.
ARMCO STEEL CORPORATION et al., Defendants.
Civ. A. No. 68-H-129.
United States District Court, S. D. Texas, Houston Division.
September 14, 1973.
Mandell & Wright (Arthur J. Mandell), McDonald & McDonald (Gabrielle K. McDonald), Houston, Tex., for plaintiffs & intervenors.
Butler, Binion, Rice, Cook & Knapp (George W. Rice), Houston, Tex., Dixie, Wolf & Hall (Chris Dixie), Houston, Tex., for defendants.
MEMORANDUM AND ORDERSEALS, District Judge.
PREFACE"As a man is said to have a right to his property, he may be equally said to have a property in his rights * * * * If the United States mean to obtain or deserve the full praise due to wise and just governments, they will equally respect the rights of property, and the property in rights." James Madison, in the National Gazette, March 29, 1792.
BACKGROUNDThis is a class action suit under Rule 23(b)(2), F.R.Civ.P., by and on behalf of certain black employees of Armco Steel against their employer and their collective bargaining representative, United Steelworkers of America, AFL-CIO, Local 2708, and its parent organization, the United Steelworkers of America, AFL-CIO, for alleged racial discrimination in the seniority and promotion/demotion systems at the Armco plant in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq. The Court has jurisdiction of the parties and subject matter. 28 U.S.C. §§ 1331, 1343(4) and 42 U.S. C. § 2000e-5(f).
The Plaintiffs and Plaintiff-Intervenors will be referred to collectively as
"the Plaintiffs" or will be identified by their surnames where appropriate. The Defendants will be referred to as "Armco," "the International" and "the Local." The Defendant Armco is an employer within the meaning of 42 U.S.C. § 2000e(b). The Defendant International and the Defendant Local are labor organizations within the meaning of 42 U.S.C. § 2000e(d) and (e).
1. The departments at issue here are: (a) Structural Mill; (b) the Electric Furnace, or Melt Shops, formerly part of the Open Hearth; (c) Blooming Mill; (d) Plate Mill; (e) Merchant Mill; (f) Rod Mill; (g) Wire Mill; (h) Nail Mill; (i) Shipping Department; (j) Blast Furnace; (k) Coke Plant; (1) Sintering and Ore Bed Plant; (m) Roll Shop. The Rod Mill, Wire Mill and the Nail Mill have closed since May 31, 1956. The Sintering and Ore Bedding Department was established as a new department after that date. It had formerly been part of the Blast Furnace.
2. In Local 189 v. United States, the Fifth Circuit accepted a district court's distinction of Whitfield upon the following basis: "`Whitfield does not stand for the proposition that present discrimination can be justified simply because it was caused by conditions in the past. Present discrimination was allowed in Whitfield only because it was rooted in the Negro employees' lack of ability and training to take skilled jobs on the same basis as white employees'." 416 F.2d 980 at 992 citing Quarles v. Philip Morris, Inc., 279 F.Supp. 505 at 518 (E.D.Va., 1968). The "present discrimination" allowed in Whitfield, is the "residual" or "hang-over" discrimination attacked here. It was not actionable under the duty of fair representation. It is actionable under Title VII of the 1964 Civil Rights Act. 42 U.S.C. § 2000e, et seq. 3. Similar vestiges of our past have been called "the badges and incidents of slavery." Jones v. Alfred H. Mayer Co., 392 U.S. 409, 441, 88 S.Ct. 2186, 2204, 20 L.Ed.2d 1189 (1968). 4. The short description of the function of each department is taken from Plaintiffs' Exhibit 28, which was admitted without objection.
5. The Electric Furnace replaced the Open Hearth which could not meet state pollution requirements. It has two Lines 1, the Crane Line and the Helper Line. Seniority is accumulated in each line separately. When the Open Hearths closed in May of 1970 those workers were absorbed by the Electric Furnace.
* One man, A. Major, has a 1942 department date, but did not enter the crane line until
1966. He is JC 9.
† Only five of these men (two whites and three blacks) hold permanent positions in Line 1
at the present time.
* Did not serve in Line 2 before entering Line 1.
* All seven whites and two of the blacks entered Line 1 directly without serving in Line 2.
* None of the whites and only one black served in Line 2 before entering Line 1.
6. The Railway Labor Act, 45 U.S.C. § 152, was construed to include such a duty in Steele v. Louisville & N.R.R. Co., 323 U.S. 192, 202-203, 65 S.Ct. 226, 89 L.Ed. 173 (1944). A similar statutory duty was held to be imposed by the National Labor Relations Act, 29 U.S.C. § 158(b), in Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). 7. Under the contract seniority is only one of three criteria. Ability and physical fitness are the others. Agreement between Armco Steel Corporation and United Steelworkers of America, 13.1 (Aug. 1, 1968 — Pltf. Ex. 19) (Aug. 1, 1971 — Pltf. Ex. 45). However, the evidence from all parties was clear that the men and the Union regarded seniority as the controlling factor and required Armco to go to great lengths to show that a man was unable or unfit.
8. In the "Numbers Game" discussion, supra, it was determined that entrance into the Blooming Mill, the Wire Mill (closed) and the Blast Furnace was non-discriminatory on and after July 31, 1956. No evidence was presented on the Nail Mill (closed) to show that discrimination in initial job assignments continued after the end of official segregation on July 31, 1956.
9. Cf., Sparrows Point, 5 EPD ¶ 5128 pp. 3255-3256, where the Secretary held that "requiring employees who wish to transfer to seniority units from which they were previously excluded on the basis of race to suffer a reduction in pay as a condition of transfer is in itself discriminatory."
10. From the testimony adduced at the hearing, it is clear that entrances are not always made into the bottom job. The entering or transferring employee takes the lowest job opening in Line 1 to which incumbent Line 1 employees refuse to promote. The testimony produced numerous instances of employees who are quite comfortable on the bottom job, consistently refuse promotions, and are therefore constantly passed over by workers entering the line.