Patrick JAMES et al., Plaintiffs-Appellants, v.

STOCKHAM VALVES AND FITTINGS CO. et al., Defendants-Appellees. No. 75-2176.

United States Court of Appeals, Fifth Circuit. Sept. 19, 1977.

As Corrected Nov. 18, 1977.

________

Demetrius C. Newton, Birmingham, Ala., Jack Greenberg, Barry L. Goldstein, New York City, for plaintiffs-appellants.

Richard A. Cohen, Phoenix, Ariz., Charles L. Reischel, EEOC, Washington, D. C, for amicus curiae.

John C. Falkenberry, Jerome A. Cooper, John J. Coleman, Jr., James P. Alexander, Birmingham, Ala., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before WISDOM, CLARK, and RONEY, Circuit Judges.

WISDOM, Circuit Judge: This appeal presents issues of segregated facilities and programs that were long ago resolved in the courts of this country. The case also raises issues related to job assignment, transfer, promotion, training, recruitment, seniority, and testing; some of the answers to these questions seem clear, but others are still being formulated by legal processes. All of the issues, the settled and the unsettled, are intertwined.

I.

STATEMENT OF THE CASE On October 5, 1966, the named plaintiffs, Patrick James, Howard Harville and Louis Winston, black employees at Stockham's Birmingham facilities, filed charges of discrimination with the Equal Employment Opportunity Commission ("EEOC") against Stockham Valves and Fittings, Inc. ("Stockham" or "company"), alleging that the company maintained racially segregated facilities; discriminated against black employees in job assignment, promotion, training, and transfer; and employed discriminatory testing, education, and age requirements. The EEOC found "reasonable cause" to believe that Stockham engaged in discriminatory practices and issued the plaintiffs a "right to sue" notice in February 1970.

The plaintiffs brought this class action suit on March 16, 1970, within the thirtyday statutory period, against Stockham under the Civil Rights Act of 1866, 42 U.S.C. § 1981, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The plaintiffs filed an amended charge of discrimination with the EEOC on June 8,1970, against the United Steelworkers of America, AFL-CIO ("Steelworkers") and its Local 3036 ("Local" or "Union"), and later amended its complaint by adding the Steelworkers and the Local as defendants. The union defendants are alleged to have violated Title VII and 29 U.S.C §§ 151 et seq. ("the duty of fair representation"). The district court referred the case to the EEOC for conciliation until June 1973 when the district court granted the plaintiffs' motion to set aside the stay order. The court certified the class represented by the named

plaintiffs under Rule 23(b)(l), F.R.Civ.P., to include all black hourly production and maintenance employees of Stockham who are currently employed and all black persons who have been so employed at Stockham from July 2, 1965, to the date of trial. The trial was held from February 4 through February 22, 1974.

The district court rendered final judgment March 19, 1975. Relying heavily on the proposed findings of fact and conclusions of law filed by the defendant Stockham,^{Footnote 1} the court found that, except for those segregated facilities maintained by Stockham and resolved in a conciliation agreement between the EEOC and Stockham two weeks before the trial, Stockham had engaged in no employment discrimination.^{Footnote 2} The plaintiffs appeal from the district court's judgment in favor of the defendants.^{Footnote 3}

II.

FACTS

A. Introduction Stockham is engaged in the manufacture of cast iron valves; malleable fittings; bronze, iron and steel valves; and other industrial valves and fittings at its facilities in Birmingham, Alabama. The product diversity and overall capacity of the company have gradually increased since Stockham

was founded in 1903. By 1973 Stockham's work force in Birmingham was comprised of more than two thousand employees. Although the district court found that "[historically, approximately two-thirds of Stockham's employees have been black", 394 F.Supp, at 443, the record reveals that the two-thirds figure applies to production and maintenance workers during the years from 1966 to 1973. Approximately 56 percent of the entire work force at Stockham's Birmingham facility was black during that. same period, a figure larger than the percentage of blacks in the Birmingham area.

The district court found that Stockham has a multi-plant complex in Birmingham that is, in effect, six plants in one, comprised of a cast iron fittings plant, a malleable iron fittings plant, a bronze valve plant, an iron valve plant, a steel valve plant, and a butterfly valve plant. That finding is overstated, for at least four of the twentytwo seniority departments at Stockham, valve machining and assembly, electrical, machine shop, and construction, extend over all or virtually all of the "plants".

The defendant unions, the Steelworkers and its Local, have been the bargaining unit representatives for the production and maintenance hourly employees at Stockham since 1944. A majority of the local union's members have been black since World War II, and a majority of the members of the Local's grievance committee and of its officers have been black since 1967. Plaintiffs James and Winston have been officers of the Local and participated in collective bargaining negotiations. The Steelworkers' staff representative who has aided the Local in contract negotiations is black.

All the plaintiffs were black hourly employees of Stockham. Patrick James, a high school graduate and a graduate of Booker T. Washington Business College, was hired as a laborer at Stockham in 1950 and twenty-four years later at the time of trial was still working in that capacity. Howard Harville was hired in 1946 and worked as an arbor molder in the grey foundry until 1970 when he retired on a medical disability. Louis Winston was hired as a laborer for the galvanizing department in 1964, was transferred to the electrical department as a laborer in 1965, and in 1971 became one of the first blacks enrolled in the apprenticeship program.

B. Organization

1.

Departments By agreement with the Local, Stockham has maintained a formal departmental seniority system since 1949. There are twenty-two seniority departments. The foundry departments produce the basic materials and molds for Stockham's products (e. g. grey iron foundry, bronze foundry, and malleable foundry); other departments assemble, finish, and machine products (e. g. tapping room and valve machining and assembly); and another group of departments perform maintenance functions (e. g. electrical shop, machine shop, valve tool room, and construction).

Since 1965 the company has regularly employed approximately two hundred office and clerical personnel. In addition, the work force includes twenty-two non-union, salaried timekeepers. As of June 1973, there were also thirty-two plant guards. The Stockham sales department in Birmingham included twenty-two employees at the time of trial. At that time a total of fortysix salesmen were employed by Stockham throughout the country.

2.

Wage Determinants Within each seniority department bargaining unit jobs are divided into twelve job classes in ascending order of hourly wage from JC 2 to JC 13. These classifications reflect the increasingly complex nature of the jobs and the level of skill necessary to perform them. An employee's job classification determines his base pay rate. Other factors such as incentive earnings and merit raises also determine actual earnings. For each job classification there are different gradations of pay for non-incentive employees. Under Stockham's incentive system employees in highly repetitive jobs can add to their base pay if their work

output reaches a sufficiently high level. A direct incentive worker's earnings averages approximately twenty-five percent above his base pay rate. Indirect incentive workers provide support services to direct incentive workers and receive incentive pay based on the output of the incentive workers. Non-incentive workers advance from one grade of pay to the next within a job classification if they achieve a predetermined score under a formal merit rating system. Although incentive workers are not eligible for merit pay raises, all employees receive merit ratings from their foremen every six months.

3. Advancement and Transfers The merit scores received by both incentive and non-incentive employees become part of their personnel records; such ratings constitute one of the factors considered in promotion and training selection. ^{Footnote 4}

Job vacancies have never been posted at Stockham and the company does not have a formal bidding system. In 1965 Stockham instituted a "timely application" procedure that received a formal blessing in the 1970 collective bargaining agreement. An employee may ask his supervisor to prepare an application on his behalf for any job at Stockham, whether or not a vacancy for that job exists at the time of the application. The application is considered "timely" regardless of when the vacancy occurs. In filling vacancies company officials are not restricted to those employees who have filed timely applications. In practice many promotion and training selections are made in favor of employees who have not filed such applications.

Stockham administered the Wonderlic Test (discussed later in this opinion) to job applicants and employees seeking promotions and transfers from August 1965 until April 1971. To be considered for a position an employee was required to attain the Wonderlic score designated for the job. An employee seeking a job in a new department, another department from the one in which he was working, was required to obtain the higher "norm" score on the test; a worker seeking promotion within his own department was eligible for the job if he achieved the lower "minimum" score on the test, provided that he had attained "basic departmental job skills".

Under the seniority system at Stockham a senior employee is entitled to preference only when two or more competing workers possess the same degree of qualifications. An employee's foreman decides whether he meets this test and is entitled to promotion or training opportunities. This decision is totally within the discretion of the foreman and is not subject to review.

C. Employment Practices

1. Initial Job Assignments According to company officials, it has been and still is the practice at Stockham for the initial job assignments of new employees to be made by the supervisors, both superintendents and foremen, of the departments containing the vacancies. The personnel office at Stockham serves as a recruiting agency and interviews and screens job applicants. The supervisor of a department advises the personnel office of any need for additional employees, and he is informed when suitable applications are available for review. In some cases the supervisor will request a particular individual whom he knows has filed an application. In other cases the personnel office will present the supervisor with a group of applications for examination. The supervisor, either the foreman or superintendent depending on- the department, makes the hiring decision, which is totally discretionary

and without written guidelines. Supervisors usually accept approximately seventyfive percent of the applicants recommended by the personnel department.

2. Seniority System As stated, a StOckham employee seeking a new job in his existing department or desiring to transfer to a position in another department may file a timely application. A supervisor fills the vacancy within his department from employees who have filed timely applications, other employees, and applicants from outside the company. If two Stockham applicants are about equal in qualifications, the collective bargaining agreement requires that the employee with the most departmental seniority be selected.

If other factors are equal, departmental seniority determines not only promotions but also lay-offs and recalls. A worker who transfers between departments is a new employee for purposes of promotion and regression in the transferee department. Before June 1970 if a worker transferred departments he immediately lost all seniority in his old department. In 1970 this requirement was modified in the collective bargaining agreement. An employee was given eighteen months after transfer to the new department to decide if he wanted to return to his old department. If within that time he decided to return, he would be permitted to reenter his old department within twenty-four months of his transfer with his accumulated seniority. The 1973 collective agreement further modified these seniority provisions. If after eighteen months an employee elected to remain in the transferee department, then he would be allowed to retain his seniority in his old department solely for lay-offs, but only until he had been in the new department as long as he had been in the old. If he was laid off during this period, he would be permitted to return to his old department with his accumulated seniority.

The basic features of Stockham's seniority system have remained unchanged: (1) an employee who transfers between departments forfeits his accumulated seniority at some point; (2) an employee who transfers between departments is a new employee for all promotion and regression purposes; and (3) a departmental employee has preference over employees from other departments for promotion to all vacancies within his department.

3. Craft Training Craft positions, defined by the company as jobs with classifications from JC 10 through JC 13, are filled through on-the-job training and the apprenticeship program. More skilled tradesmen are trained through the apprenticeship program at Stockham than exclusively through on-the-job training. The program at Stockham involves four years and nine thousand hours of training in shops and apprentice classes. There are no formal lines of progression for the craft jobs. The craft skilled maintenance positions include millwright, electrician, carpenter, patternmaker, blacksmith, and machinist. The craft skilled production jobs include box floor molder, ductile melter, oven operator, crane operator, heat treater, and service mechanic.

The foreman or superintendent of the department in which a craft vacancy occurs selects a candidate for the apprenticeship program. Although timely applications are filed for openings in the apprenticeship program, the supervisor may select an employee who has not filed an application. A majority of employees selected for the program between 1965 and 1971 had not filed timely applications. Apart from several specific requirements, there are no formal guidelines for the supervisor's selection; he considers such general factors as "desire" and "aptitude" for the craft position. The foreman or superintendent recommends his candidate for the apprentice program vacancy to the apprenticeship committee. As a practical matter, the committee approves the supervisor's selection virtually automatically.

The specific requirements for the apprenticeship program have changed over the years. From August 1965 until April 1971, an applicant for the program was required

to score at least 18 on the Wonderlic Test. Also, beginning in 1953 employees were required to achieve a passing score on the Bennett Mechanical Test. In addition to the testing requirements, in 1970 the company instituted a thirty-year maximum age limit, excluding time spent in military service, and a requirement that the applicant have a high school education or its equivalent for eligibility in the program. Before 1970 a grammar school education was required. Company officials have the discretion to waive either the age or the high school education requirement and have done so for a few individuals.

4. Supervisory Selection Supervisors of the seniority departments at Stockham are selected either directly from the hourly work force without specific training or after completion of one of two training programs maintained by the company. The personnel development program ("PDP"), established in 1960, is designed to train the company's own employees. Before 1969 the program was informal and unstructured; only three classes were held between 1960 and 1969. There is an allocation of positions in the program among the departments at Stockham and final selection of participants is made by superintendents and foremen. There are no formal, written guidelines for the selection of employee participants in the PDP. The management training program ("MTP") and its predecessor, the organizational apprentice program ("OAP"), were designed to train individuals with technical skills who could eventually assume positions in upper level management. The OAP was instituted in 1950 and replaced by the MTP in 1969. Under both programs Stockham recruited participants only from nearby predominantly white universities such as Auburn University, the University of Alabama, the University of Tennessee, Georgia Institute of Technology, and Samford University.

As for employees selected directly from the hourly work force for supervisory positions, specific training is not a prerequisite. The superintendent of a division that has a supervisory vacancy may select candidates for the position after consultation with the company's production manager. An employee may make a timely application for a supervisory position, but the overwhelming majority of the employees selected to be supervisors have never filed such an application. A majority of Stockham's foremen were promoted from the ranks of hourly workers.

A company official testified that the principal criterion for selecting a foreman is'"who is the best man for the job at the particular time?". Other considerations are the candidate's desire to be a foreman, work record, knowledge of the job, training, physical fitness, and common sense. Whether the candidate has a high school education is also considered although employees without high school educations have been selected as foremen and superintendents. There are no specific written standards for the selection of supervisors.

5. Testing Program In recent years at Stockham testing has come to play an increasingly large part in the selection of individuals for initial employment, training programs, promotion, and transfers. A large-scale testing program was initiated at Stockham in August 1965. Before then only the Bennett Mechanical Comprehension Test for screening apprentice program candidates was in use. In 1965 the company instituted the Wonderlic Personnel Test to screen applicants for initial hire, promotion, and transfer. In October 1966 Stockham formally adopted dual scoring standards for transfers to the three groups of job classes. As discussed above, the minimum score for intradepartmental job candidates was set at a lower level for each group of job classes than was the score for transfers between departments. The candidates for interdepartmental transfers were required to obtain the higher "norm" score while the intradepart-

mental job candidates were eligible for consideration if they achieved the "minimum" score, provided that they had developed "basic departmental job skills". ^{Footnote 5}

imum" score was established by a committee composed of Stockham management personnel and the company attorney. No one in the group and no company official associated with the administration of the testing had training in the testing field. The Wonderlic Test was never validated at Stockham. In 1971, apparently as a result of the Supreme Court's decision in Griggs v. Duke Power Co., 1971,  401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158, Stockham terminated its testing program.

In early 1973, however, the company hired Victor Tabaka, a management consultant, to develop new testing procedures for implementation at Stockham. In April 1973 Tabaka submitted his testing proposal to the company. According to Tabaka he validated the use of tests for specific jobs at Stockham by means of a "concurrent criterion" study. The district court found that the Tabaka tests were put into formal use at Stockham on July 17, 1973. But the company official responsible for employee testing testified that the Tabaka test had not been used in any employee selection decision at Stockham by the time of trial. He stated that the test was administered to employees only for the purpose of accumulating data. The Tabaka test was not proposed for use with supervisory, clerical, or other salaried jobs. In addition, Tabaka concluded that the test was not applicable to eighty-six additional job titles because the associated job aptitudes were not measurable by pen and pencil tests. ^{Footnote 6}

III.

DISCRIMINATION, ADVERSE IMPACT, AND THE BUSINESS NECESSITY DOCTRINE The "minThe plaintiffs-appellants raise a broad spectrum of issues in this appeal, challenging every aspect of the district court's finding that Stockham and the unions were not guilty of discriminatory employment practices.

A. Segregated Facilities Segregation of many of Stockham's facilities and programs continued into the 1970's and, in some cases, until a few weeks before trial. In 1965 the system of total segregation extended to the entrance gates of the plant, employee identification numbers, pay windows, toilet facilities, the cafeteria, drinking fountains, the locker rooms, and bathhouses. In addition, the companysponsored Young Men's Christian Association ("YMCA") had two boards and separate Bible classes, one board and one Bible class composed of white members and the other board and Bible class of black members. In addition, there were racially separate company baseball and bowling teams.

Until 1969 all black hourly employees at Stockham had badge identification numbers ranging from 300 to 2999, while all white employees had badge numbers above 2999. Employees with numbers up to 2999, that is, the blacks, used one set of pay windows for cash payments; whereas, white employees with numbers greater than 2999 used another set of windows. In 1969 the company began to assign badge identification numbers by departments and in 1972 abandoned cash payments and the use of pay windows.

The partitions in the cafeteria, ^{Footnote 7} toilets, and bathhouse, ^{Footnote 8} the racial assignment of

lockers, and the racially separate YMCA boards were the subjects of a conciliation agreement between Stockham and the EEOC entered into January 21, 1974. In addition, the plaintiffs adduced testimony at trial on the existence of racially separate toilet facilities for the seven female employees in the dispensary at Stockham. ^{Footnote 9}

The district court denied an injunction against the continued segregation of facilities at Stockham because he concluded that the issue was "effectively resolved" by the

conciliation agreement. 394 F.Supp, at 499. In addition, the court found that as to the two women's restrooms in the dispensary, the plaintiffs failed to establish racially discriminatory practices. 394 F.Supp, at 481.

The plaintiffs and the amicus EEOC contend that the district court erred in its finding that the conciliation agreement resolved all issues of segregated facilities at Stockham. The evidence of the two racially separate women's restrooms in the dispensary at Stockham supports this contention. That evidence and the showing of the company's intransigent resistance to desegregation of plant facilities and programs convinces us that the district court over-relied on the conciliation agreement. The plaintiffs and the EEOC request that this Court grant broad injunctive relief against the continued segregation of facilities at Stockham. We reserve that issue for our discussion in subsection "VA." on the injunctive relief appropriate for this case.

B. Job Allocations The plaintiffs-appellants and the amicus EEOC contend that the district court committed plain error in its finding that "Stockham has at no time made initial job assignments (either to departments or to specific jobs) on the basis of an employee's race." 394 F.Supp, at 455. We agree.

The evidence in the record of pre-Act assignment of employees to departments and jobs by race at Stockham is overwhelming. The plaintiffs adduced testimony from a variety of company officials that the racial allocation of jobs was the "general rule". E. Reeves Sims, the employee relations manager, testified: Q [Plaintiffs' attorney] Mr. Sims, do you know of any job prior to 1965 which was manned by both black and white employ

A [Sims] I can't remember one.

Q Mr. Sims, I'm referring to your deposition which was taken on the 6th day of November, 1973, to Page 146 and 147 starting on line 17. A May I see it? Q I was going to say'

MR. NEWTON: Right there.

Q Now, if I may, I will read the question. The question was, "Was there a time, Mr. Sims, when blacks were initially assigned to some jobs and whites were initially assigned to other jobs as a general rule? Answer: Was there a time? Question: Yes. Answer: Yes". A As a general rule, yes, as a general rule. But you asked me another question in a different context, Mr. Goldstein. Q And if we can continue then on 147, "And did this practice continue until 1965? Answer: Yes, sir".

Now, Mr. Sims, you say as a general rule that was true? A (Nodding head affirmatively). Q Can you think of any exceptions to that general rule? A Not offhand right now, no sir.

Q Now, Mr. Sims, this general rule which we have discussed about there being black jobs and white jobs at the company, is that written down anywhere? A No sir. Q How was it enforced, or how was it put into practice? A It was in practice when I came to Stockham, and' Q Would you just say it was a custom? A Yes, sir, custom.

Harry M. Burns, vice-president for corporate products, confirmed that there were no jobs at Stockham before 1965 in which both black and white employees were working.

Norman E. Carlisle, superintendent of the tapping room, and an employee at Stockees? ham since 1942, reiterated this fact. Terrell G. Burt, manager of technical services, admitted that prior to 1965 only the best qualified whites were considered for clerical positions at Stockham. ^{Footnote 10}

Finally, in addition to the uncontradicted testimony of company officials, the plaintiffs introduced evidence that in June 1965 not one of the several hundred hourly jobs at Stockham was filled by both a black and a white. ^{Footnote 11}

The plaintiffs augmented the evidence of racial staffing by jobs with statistics showing that in 1965 jobs for whole seniority departments were allocated on the basis of race. For example, eight of n twenty departments were 100 percent black in 1965 and two others were more than 95 percent black while two departments were 100 percent white and two additional ones were more than 85 percent white. ^{Footnote 13}

Further, in those departments staffed by black and white employees blacks were concentrated in jobs with the lowest job classifications. While no blacks worked in jobs classified in job class seven ("JC 7") or above, 95 percent of the white workers were employed in jobs classed above JC 6. ^{Footnote 14}

The employee relations manager, E. Reeves Sims, also testified that blacks were not hired for clerical positions 1B until 1965.

In addition, there were no black timekeepers or guards at Stockham before 1965. The salesforce was all white at least until the time of trial. In short, the record demonstrates that the district court plainly erred in concluding that at no time were initial job assignments made on the basis of race at Stockham. The "custom" of job assignments by race at least until 1965 was established without contrary evidence. The testimony of Stockham officials that segregation within and between departments was the "rule" plus the plaintiffs' statistics on racial staffing discussed above establish conclusively that Stockham engaged in racially motivated job assignments before 1965. The plaintiffs carry their assertion of discrimination in job assignments into the post-Act period. They contend that all relevant evidence compels the conclusion that discrimination in job assignments continued at least until the time of trial. In support of their contention that racial allocation of employees by departments and by jobs within departments is the usual rule at Stockham the plaintiffs emphasize the patterns revealed by statistical evidence.

Chart A bears out this contention. Chart ment in 1973, as compared with the perA presents data on the percentage of black centage of those employees working in each employees working in each seniority depart- department in 1965.

DEPARTMENTAL EMPLOYEES BY RACE

Sonioritv Departments B Galvanizing 9 Coreroom & Yard 24 Grey Iron Foundry 92 Final Inspection ^{Footnote 16} Malleable 88 Brass Foundry 30 Shipping 22 Foundry Inspection 25 Dispatching 4 Brass Core Room 11 Tapping Room 53 Valve Finishing Insp.

8 Construction 5 Valve Machining & Assembly 76 Foundry Repairs 4 Machine Shop 3 Electrical 1 Pattern Shop 1 Valve Tool Room 0 Tapping Tool Room 0

Chart A reveals a slight reduction in racial staffing by departments between 1965 and 1973. Nevertheless, in 1973 eleven of the twenty departments 16 were predominantly black, while seven of the departments were predominantly white. Only two departments contained black and white employees in approximately equal numbers. As of September 1973 nine hundred and three or 72 percent of all blacks in the hourly work force worked in the departments of galvanizing, coreroom and yard, grey iron foundry, final inspection, malleaCHART A

1965 %B 1973 %B W 1965

B W 1973

0

100% 15

0

100% 0

100% 76

1

99% 0

100% 292

16

95% 0

100% 52

4

93% 4

96% 259

19

93% 1

97% 59

8

88% 0

100% 56

8

88% 0

100% 56

9

86% 0

100% 27

7

79% 0

100% 11

3

79% 16

77% 151

45

77% 4

67% 20

18

53% 6

45% 15

18

45% 36

68% 70

171

29% 10

29% 12

55

18% 9

25% 8

50

14% 7

12% 2

19

10% 7

12% 3

37

8% 5

0% 1

17

6% 11

0% 2

30

6% ble, brass foundry, shipping, foundry inspection, dispatching, and brass coreroom.

Only 75 whites or 13 percent of all whites worked in those departments. In September 1973 thirty-six percent or 208 of all whites in the hourly work force and two percent or 28 of all blacks worked in the seniority departments of the tapping tool room, valve tool room, pattern shop, electrical shop, machine shop, and foundry repairs.

Even more significantly, of the 162 employees hired since 1965 to work in predominantly white departments, and working as

of September 1973, 147 or 90.7 percent were white; whereas, of the 695 hired since 1965 to work in predominantly black departments, 624 or 89.8 percent were black. ^{Footnote 17}

RACIAL STAFFING OF JOBS AT STOCKHAM'

SENIORITY DEPARTMENT JUNE 1966

AW AB BW Malleable Brass Foundry Grey Iron Foundry _ Core Room & Yard _ Pattern Shop Valve Mach. & Assembly Valve Tool Room Electrical Machine Shop Foundry Repairs Final Inspection Foundry Inspection _ 6 Valve Finishing Inspection Galvanizing _ 6 Tapping Room Tapping Tool Room Shipping _ Dispatching Metallurgical _ Brass Core Room Construction Purchasing _ Employment/Industrial Plant Protection & Personnel Services , Medical , Y.M.C.A.

TOTAL 161 61 (Percentage of integrated jobs) "AW" designates jobs filled by white employees; "AB" designates jobs filled by black employees; "BW" designates integrated jobs.

24

29

180

According to the plaintiffs, individual jobs at Stockham have also continued to be assigned largely on the basis of race. Chart B offers statistical support for this contention.

CHART B

NOVEMBER JUNE JUNE 1968

1970

1973

AW AB BW AW AB BW AW AB BW 2

3

25 2

24

2

3

25

6

1

11 14 _ _ 12 _ 3

14

5

2

37 _ 2

36

5

41

3 _ 18 _ 21

12 _ 23

2

3

1 5

1 _ 7

1 g 1

1

20

20

17

13 1

16

15

3

18

18

6

3 3 5

2 4 4 1 5

1 ¦ 6

1

4

1

2

6

3

6

2 g 4 _ 11

4

1

3 _ 2 3

1 5 2 4

1

6 7 _ _ 7 _ 2

7

1 ' _ 5 7

1 8

3

3

6

2

6 1

2

6

1

6

9

3 _ 5 _ _ 5 _ _ 6 _ 5

5

5

9 3

2

11

8

2

15

7. .

4 _ 4 _ _ 4 _ 4 _ _ 12 _ _ 13

1 _ 18

3

9 ¦¦> 2 2 1

1

2

4 _ _ 1 _ _" 1 _ 1

1 ~ 7

7

9 _ ' 6

3

8

3

4

3 1

6

4

1

5

3

2 -, 1 _ _ 3

1

2 _ - -' 1 1

1

8 ' 1

5 1

6

2

3

5

1 - ¦-¹ 1 _ 1 _ 5

5 _ 5

5 _ 58 _ 8

62

194

15

87

212

56 (0%) (6%) (8%) (16%)

The data reveal that while no jobs were staffed by both blacks and whites in any department in 1965, that pattern had improved only slightly by 1973 when only 16 percent of all production and maintenance jobs were integrated. In addition, much of the improvement came between November 1970 and June 1973, after the plaintiffs had brought this action in the district court and

CLERICAL EMPLOYEES BY RACE

1966

1968 White 193

200 Black 5

6 % black 2.5 2.9

Thus, in 1973 only 8.7 percent of clerical workers were black. In addition, although the company employs 22 timekeepers, only two blacks have ever been chosen for that job. About half of all timekeepers are selected from the hourly production and maintenance work force, which is 66 percent black. As of June 1973 there were 25 white plant guards and seven black guards. All three of the sergeants were white. Finally, in 1973 the company's Birmingham sales department had twenty-two employees; all were white.

JOB CLASSES OF WHITE AND BLACK INCENTIVE AND NON-INCENTIVE WORKERS

June 1965 Job Class B. _W_ B9 0 5 B8 0 47 B7 0 4 long after the initial EEOC charge was filed. ^{Footnote 18}

The plaintiffs also make the point that post-Act racial allocation of job opportunities extended to clerical, timekeeper, and guard positions. Chart C gives the number of black and white clerical employees for selected years between 1966 and 1973.

CHART C

1971

1973 184

189 14

18 7.1 8.7

The plaintiffs point out that in production and maintenance departments staffed with white and black employees, the blacks were principally concentrated in jobs with the lowest job classifications whereas whites worked largely in jobs with the highest job classifications. Chart D lists the job classes of white and black employees, working at Stockham in September 1973, ^{Footnote 19} for four different time periods between June 1965 and June 1973.

CHART D

INCENTIVE WORKERS June 1968 Nov.

1970

June 1973

3. _B.

3. JL 3L w.

0 1 0

11

2

22

2 53 4

60

18

111

18 1 23

1

70

9

INCENTIVE WORKERS'Continued Class June el965 Jun W_ B.

B6 25

0 B5 134

0 B4 21

1 B3 89

0 B2 _58 _o TOTALS 327

57

NON-INCENTIVE WORKERS i Class Jun e 1965 June B.

W_ B.

13 0

46 12 0

9 11 0

10 10 0

5 9 0

24 8 0

2 7 0

2 6 2

9 5

103

3 4 8

0 3 31

0

178 2 no TOTALS

Because base pay rates at Stockham are determined by job classifications, the data revealed in Chart D support the conclusion that lower-paying jobs were allocated to blacks at Stockham, at least until 1973. The plaintiffs emphasize that the job class statistics reveal that of 366 white non-incentive workers, 274, or 75 percent, were in JC 9 or above while only 11, or 3 percent, of the 371 black non-incentive workers were in 1970

Nov.

June 1968

1973

W_ B_ _W -W.

34

0

47

0

64

0

214

1

235

1

279

11

72

1

82

0

109

5

80

0

94

0

102

4

441 ~58 _3J 1

177

157

517

74

801

June 1973

1968

1970

Nov.

J_ W_ W.

B.

0

55

4

77

1

144

0

7

0

9

3

34

0

9

0

14

0

22

0

14

0

14

2

30

2

34

3

42

9

52

1

4

3

6

7

7

1

5

2

11

24

24

16

11

19

8

27

25

108

1

129

5

143

9

11

0

15

1

40

1

43

1

45

0