Full opinion text
OPINION AND ORDER KEITH, District Judge. I. INTRODUCTION The Complaint in Civil Action No. 36512 was filed by the above captioned plaintiffs on May 17, 1971. The Complaint in Civil Action No. 38479 was filed by the Government on June 22, 1972. This Court on July 21, 1972 ordered the cases consolidated after finding there to be common issues of law and fact. The Court has previously made a finding that the remaining plaintiffs have standing and may prosecute this class action law suit under the statutes and court decisions invoked and specified by plaintiffs. Jurisdiction is conferred on this Court inasmuch as the cases arise under the Civil Rights Act of May 31, 1870, c. 114, 16 Stat. 140, 42 U. S.C.A. § 1981; the Civil Rights Act of 1964, 78 Stat. 259, 42 U.S.C.A. § 2000e-5(e); the National Labor Relations Act, 61 Stat. 136, 29 U.S.C.A. § 151 and § 185; and 28 U.S.C.A. §§ 2201 and 2202. II. THEORIES OF THE PARTIES The Final Pretrial Order entered by this Court and signed by all parties dated January 12, 1973, states the following theories of the litigants: A. THEORY OF PLAINTIFF UNITED STATES: The following is a brief statement of the government’s theory: Until recent years, the defendant Detroit Edison Company discriminated against its black employees by excluding them from its desirable jobs except in token numbers. Prior to the end of 1968 the Company employed a relatively small number of blacks in a few jobs, primarily as janitors and servicemen in the Building and Properties Department, as utility servicemen and more recently as laborers and stockmen in the Stores and Transportation Department. These few jobs in which blacks were employed offered lower pay than most of its skilled trade occupations and little or no advancement opportunities. Some whites were also employed in these low opportunity jobs, but virtually no blacks were employed in high opportunity, skilled jobs. Many black employees who were limited to low opportunity jobs possessed qualifications equal to or greater than many of the whites whom the Company hired without prior skills or experience and trained for specific trades or crafts within the Company. Since 1965, when Title VII of the Civil Rights Act became effective, the Company has hired blacks in some formerly all white jobs, especially in clerical jobs, in increasing numbers; but its high opportunity hourly paid occupations remained virtually all white until after 1968, and blacks remained concentrated in low opportunity jobs. The collective bargaining agreements between the Company and the defendants, Local 17 and Local 223, grant preference to employees already in high-opportunity departments and occupational groups in competition for vacancies in those departments and occupational groups and allow employees who transfer to new departments and occupational groups no credit for time ■spent in their former departments when competing for future promotions or retention against layoff. A transferring employee who begins at the bottom of a new line of progression or occupational group must also work at a reduced pay rate if this new position pays'less than his former position. Although racially neutral on their face, these collective bargaining provisions carry forward into the present and future the effects of the Company’s pattern of excluding blacks from high opportunity jobs by allowing whites the benefit of seniority and preferred bidding positions obtained during a time when blacks were not able to acquire the same advantages. The Courts have uniformly held that where the effects of such a pattern of discriminatory job assignment are carried forward by the operation of such a seniority system, Title VII of the Civil Rights Act of 1964 requires that the responsible defendants provide the class of affected black employees with the employment opportunities they would have received but for the pattern of racial assignment or exclusion. Therefore, the government requests an injunction providing an affected class of black incumbents (i. e., those who were assigned to lower paying jobs on the basis of their race) with opportunities to compete for positions in high opportunity occupational groups on the basis of their Company seniority, to transfer, if successful, without loss of earnings, and to carry their Company seniority with them to such new occupational groups for all purposes, including future promotions and protection against layoff. The government also requests a determination that the defendants are liable to pay back pay to those affected class members, who in an ancillary proceeding, may be shown to have suffered financial loss as a result of the pattern of racially discriminatory assignment. Until the commencement of Title VII enforcement proceeding, and until the present in the case of some practices, the defendant Company has discriminated against black applicants and potential applicants for employment in its recruiting and hiring practices. Despite recent increases in the number of blacks hired, in 1972 the Company employed approximately 860 blacks, making up only 7.5% of the Company’s total employment of approximately 11,500. Approximately 55% of the Company’s work force is employed in the City of Detroit which has a black population of 44%. Approximately 75% of the Company’s work force is employed within Wayne County which has a black population of 27%; .and approximately 85% of its work force is located within the three county area. The Courts have held in Title VII cases that where blacks traditionally have been excluded from employment, affirmative steps are necessary to recruit and employ qualified applicants. The government therefore requests an injunction requiring the Company to cease relying on recruiting through friends and relatives of incumbent employees; to exercise more direct control over the hiring decisions of its department supervisors; to remove test standards as a barrier to black hiring; and, subject to the availability of qualified applicants, to recruit and hire blacks throughout the Company and in specific occupational groups in accordance with numerical goals sufficient to overcome past exclusion of blacks within a reasonable time. B. THEORY OF PRIVATE PLAINTIFFS : The theory of private plaintiffs Complaint is as follows: Racial discrimination with regard to both hiring and promotion is proved by the small number of black employees employed at Detroit Edison. The percentage of blacks employed in the work force of Detroit Edison— particularly in the classifications of official, manager, and skilled craftsmen — is substantially smaller than the percentage of blacks in the City of Detroit. Overt and active racial discrimination has been practiced by defendants against individual black employees through 1973. Certain practices, arguably neutral and non-discriminatory on their face —have the effect of perpetuating past discrimination and embody such discrimination in the present system: 1. Word of mouth referrals by incumbent white employees of Edison and the compilation of lists of employees who have been recommended by such incumbent whites by various Edison Department Heads. 2. An interview system which does not put employees on notice as to the job opportunities in the company and which accordingly has the effect of denying blacks higher paying jobs because their friends and relatives are blacks, and unlikely to have held such jobs or to know of such jobs in any kind of detail. 3. A departmental and job seniority system utilized for competitive status jobs which penalizes the black employee who has seniority granted in a lower paying job or department because a past discriminatory hiring policy has relegated blacks to such jobs and departments. Moreover, some black employees would be required to take wage cuts in order to transfer. 4. Non-job related tests utilized for both hiring and'promotion which have the effect of screening out blacks disproportionate to whites and/or preserve the discriminatory status quo. 5. Educational and other non-job related requirements which screen out blacks disproportionate to whites and/or preserve the discriminatory status quo. 6. Subjective criteria and interview system which screens out blacks disproportionately both from employment and better paying jobs and/or preserve the discriminatory status quo. 7. Subjective criteria utilized by supervisors and other responsible corporate officials and/or preserve the discriminatory status quo. 8. The existence of all white and near all white supervisory workforce has the effect of excluding black employees from consolidation for both hiring and promotion. Defendant unions liability are specifically predicated upon the following factors: The negotiation of the above-referred-to-seniority system which embodies within it the effects of past discrimination; The failure to take any kind of affirmative action through negotiation, arbitration, or any other means to alter defendant Edison’s discriminatory hiring and testing policy; Individual instances of discrimination against black employees who had appropriate seniority credits under the collectively negotiated system but who nevertheless were excluded for other reasons and for whom the union refused to act affirmatively; Black employees denied promotion because of discrimination: The difference between the amount of pay in the job or department where discrimination has prevailed and the amount of pay that such employee has in fact received. Black employees denied hiring because of discrimination: The difference between the amount of pay in the job or department in which discrimination prevailed and the amount of pay that such individual earned or might have earned with reasonable diligence. Edison, through its supervisory and other employees had retaliated, intimidated and interrogated Black employees because of the filing of the original complaint with the Equal Employment Opportunity Commission and the subsequent suit filed in the District Court. C. THEORY OF DEFENDANT EDISON COMPANY: The vaguely-worded allegations, charges, and claims made against Defendant Detroit Edison Company (hereinafter referred to simply as Defendant) are without basis in fact or law. Defendant continues to deny each and every one of them. Affirmatively Defendant says that its employment practices have been and are free from racial discrimination. If any of its employment practices have resulted or do result in differential racial impact (and Defendant does not admit that they have or do), such practices have been and are necessary to the business in which Defendant engages. Defendant has and does recruit, hire, transfer, and promote qualified persons according to their availability and their ability without regard to race or color. Any exceptions to this policy have been and are in favor of black persons pursuant to the standards set down by federal and state government. Furthermore, Defendant has and does vigorously attempt to further the interests of black persons in equal employment opportunity over and above what is required by law or regulation. True to this goal, Defendant has pursued and will continue to pursue the development of an effective affirmative action program at the Detroit Edison Company. D. THEORY OF DEFENDANT LOCAL 223: Local 223 continues to adhere to the denials and affirmative defenses set out in the answers heretofore filed. It denies engaging in any act, pattern or practice violative of Title VII. It denies that the collective bargaining agreements it has negotiated with the Detroit Edison Company violate the law. It denies that it has failed or refused to represent any person or group of persons employed by the Detroit Edison Company or has differentially treated any person or group of persons for which it is the recognized collective bargaining agent employed by the Detroit Edison Company because of the race of that person or group of persons. E. THEORY OF DEFENDANT LOCAL 17: Local 17 continues to adhere to the denials and affirmative defenses set out in the answers heretofore filed. It denies engaging in any act, pattern or practice violative of Title VII. It denies that the collective bargaining agreements it has negotiated with The Detroit Edison Company violate the law. It denies that it has failed or refused to represent any person or group of persons employed by The Detroit Edison Company or has differentially treated any person or group of persons for which it is the recognized collective bargaining agent employed by The Detroit Edison Company because of the race of that person or group of persons. III. SUMMARY OF THE FINDINGS AND CONCLUSIONS OF THE COURT Plaintiffs have alleged, among other things, that The Detroit Edison Company has traditionally excluded blacks in a discriminatory manner from its high opportunity skilled trades and supervisory positions and that it continues to discriminate against blacks in its hiring and promotion policies and practices. The plaintiffs have also alleged that the Defendant Unions, which are parties to collective bargaining agreements with the Company, have aided and abetted the Company in its discrimination. This Court has listened carefully to the presentation of evidence in the course of a three month trial in this cause. The evidence was overwhelming that invidious racial discrimination in employment practices permeates the corporate entity of The Detroit Edison Company. The Court finds as proven facts that upward mobility of blacks presently employed at Detroit Edison is almost non-existent, and that qualified potential black employees are refused employment or refrain from applying for employment because of the Company’s reputation in the Black Detroit Community for racial discrimination. The Company has taken the position that if any inequities exist between blacks and whites at Detroit Edison, such inequities have accidentally evolved and have not resulted from deliberate discrimination. While this Court believes that the law would require it to find that Detroit Edison has violated the law if it has, without intent to discriminate, fostered practices which have resulted in a racially discriminatory impact, the evidence in this ease demonstrates that the Company’s discrimination has been deliberate and by design. It is the conclusion of the Court that Defendant Detroit Edison must alter its posture in the area of race relations and immediately begin to deal with the problem of racial discrimination seriously and with moral integrity if it is to fulfill its obligation under the law. It is a matter of public knowledge in this community that new leaders have taken over the management of this important Company. It is imperative that, if this Company is to move forward economically and competitively as its management wants it jEb, equal employment opportunity for all must be one of the yardsticks, as well as increased sales and profit margins, by which the Company measures its achievements and accomplishments. It is unfortunate in the view of the Court, that the Company has consistently refused to admit, much less seek to remedy, that its employment practices perpetrate racial discrimination. Indeed, the Company at trial simply denied that it has ever engaged in racial discrimination in employment: “The Court: Is it your position on behalf of Detroit Edison, Mr. Ford, that as you have checked the records, and you have done it very masterfully and meticulously, that Edison has never been guilty of any racial discrimination in its employment policies ? Mr. Ford: Yes sir. The Court: That is your position? Mr. Ford: That is my position, and anybody that thinks differently is certainly invited to come forward with the evidence of it and I don’t believe they can do it.” [Transcript, pages 113-114.] It is the conclusion of the Court, in light of the evidence adduced, that the Company is refusing to acknowledge the obvious and has therefore adopted an intractable position. Its denials of culpability only serve to indicate the myopia in the history of the Company with regard to its recognition and treatment of the ignoble disease of racial discrimination. Implicit in these Findings and Conclusions is the guiding principle that the Company will not be allowed to continue to violate the law with impunity and will, instead, be required to implement corrective measures designed to treat the root causes of the conditions which bring the Company in violation of the law. With regard to the Defendant Unions, the Court has heard evidence during the course of the trial that the collective bargaining engaged in by these Unions has resulted in agreements perpetrating racial discrimination and preventing affirmative action to eliminate racial discrimination and the vestiges of such discrimination. The Unions encouraged black employees to withdraw or not press grievances protesting discrimination practices. Collective bargaining agreements define seniority in a way that represses the possibility of advancement by black employees. Defendant Local 223 has misinformed black members with advice that unsuccessful bids involving jobs outside their departments cannot be put through the grievance procedure under the collective bargaining agreement. Defendant Local 223 has insisted upon adherence to seniority where black members were involved to a much stricter degree than for whites. Defendant Local 223 and the Company have deliberately gerrymandered seniority districts so as to deny black members promotional opportunities in the better paying jobs. Defendant Local 223 and Defendant Local 17 have negotiated for and acquiesced in procedures which lock' blacks into low opportunity jobs and have never protested the obviously discriminatory practices of the Company. The President of Defendant Local 223 has insisted upon rerun elections solely for elected black officials, has attempted to exclude blacks from leadership positions, and has failed to take steps against threatening and hostile actions and attitudes of white members expressed towards black members. Defendant Local 17, by referring workers to the Company has directly aided and abetted the Company’s discriminatory hiring practices. The unions have an especially heavy burden to represent the best interests of all of their members. The evidence clearly demonstrates that they failed to do so in this case. The long and short of the evidence with respect to the Defendant Unions is simply that the Unions have promoted the interests of its white members without regard to the interests of its black members, and have ignored the plight of the black members in gaining the equal employment opportunity that is their due under the Constitution and laws of the United States. Tragically, the Unions, which one would look to for leadership in improving the lot of this sector of the population, have instead become an obstacle to human progress to the point where the Court has reluctantly concluded that they are justifiably made defendants in this law suit. The Constitutional provisions and the statutes enacted by Congress on the subject of equal employment opportunity all find their objective in the brief and eloquent phrase of Thomas Jefferson in the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness. * -» *» In the modern industrial society which is the United States, and certainly in the modern industrial urban society which is Detroit, to be denied an equal chance at decent employment, and an equal chance at advancement within one’s employment, is to be denied that equality so nobly articulated by Jefferson. It is in this context unthinkable that a person would be denied equal employment opportunities at The Detroit Edison Company when employment to a man means earning a living which will enable him to provide adequately for his family and provide a good education for his children. Being denied a job is demeaning to a person and strips him of his dignity and assurance. A person has a right to extend his God-given working abilities to their fullest without being encumbered by artificial, irrelevant, insignificant and superficial barriers, and reasons such as the color of his skin. The Company and the Unions by their individual and collective actions are guilty of denying this fundamental equality to the members of the class who are the plaintiffs in this law suit, and the Court will accordingly move on to consider and put into effect suitable remedies. IV. FINDINGS OF FACT A. Preliminary Findings 1. Defendant, Detroit Edison Company, is a public utility, incorporated under the laws of the State of Michigan and doing business in a 7,600 square mile area in southeastern Michigan, where it furnishes electric power to homes, businesses and offices in the Metropolitan-Detroit area. The Detroit Edison Company employs approximately 11,000 employees. 2. Defendant Local 223, Utility Workers Union of America, is an unincorporated association doing business in the State of Michigan and is the exclusive bargaining representative for approximately 4,000 employees working in job classifications represented by Local 223 and grouped in approximately 28 bargaining units. 3. Defendant Local 17, International Brotherhood of Electrical Workers, is an unincorporated association doing business in the State of Michigan and is the exclusive bargaining representative for approximately 800 hourly paid employees working in job classifications in the Underground Lines and Overhead Lines, Field Division, of the Transmission and Distribution Department and the Elevator Division of the Building and Properties Department. 4. The Standard Metropolitan Statistical Area (SMSA) racial statistics for 1970 indicate that 44% of the City of Detroit is composed of blacks and 18.-2% of the SMSA total population is black. As of 1971, 73.28% of Detroit Edison’s employment positions were in Wayne County and 84.11% were in the Tri-County area. As of 1966, 304 of Edison’s 9,475 employees were black. At that time, 4 of Edison’s 1,722 officials and managers were black (1966 EEOC Report). B. Edison Employment Practices— Generally 5. Testimony shows that for many years Edison employed only a few blacks and only in menial jobs such as janitor, porter, shoe shine boy, elevator operator, and utility servicemen. In the 1940’s, ’50’s and '60’s prior to and subsequent to July 2, 1965, Detroit Edison had a reputation of hiring few blacks. Defendant Detroit Edison has had a reputation of limiting those blacks who were hired to low-opportunity jobs such as those which are known as of this time to be 1) In the Property Right of Way Department — Building Cleaner, Janitor, Porter, Serviceman, Wall Washer, Lamp Changer, Elevator Operator and Attendant; 2) In what is now the Stores and Transportation Department — all jobs except for Mechanic; 3) In the Production Department — Plant Cleaner; 4) In the Central Heating Plant, Coal and Ash Handler. Such jobs are low-opportunity jobs because of certain posting, bidding and seniority provisions which give an almost absolute preference to employees already in high opportunity jobs, units and departments. C. Union Representation— Background Facts 6. The record reflects that all collective bargaining representatives for Local 223, Utility Workers of America; Local 17, International Brotherhood of Electrical Workers; and Detroit Edison are white with the exception of plaintiff Willie Stamps. All collective bargaining representatives of all three parties have always been white except for plaintiffs Stamps, James Atkinson and William Armstead, all of whom have been division chairmen in Local 223, Utility Workers of America. All officers of Defendant Detroit Edison are white. At the time of the trial in this case, Stamps was the only black out of approximately 28 chairmen from Local 223 and the only black on either side of the bargaining table. D. Specific Indicia of Racial Discrimination 7. The evidence submitted in this case indicates that defendant Detroit Edison Company has in the past assigned those few blacks who were hired almost exclusively to the low-opportunity jobs referred to in Finding No. 5, supra. Defendant Detroit Edison employed no black linesmen in Transmission and Distribution Overhead Lines until 1963. It employed no black sub-station operators until 1968. It employed no black meter readers until 1964. The stated reason of Detroit Edison Company for not employing black meter readers was that the white community was not ready. Defendant Detroit Edison employed no black appliance repair servicemen until 1962. 8. Beginning in the mid or late 1950’s, Detroit Edison Company had its personnel interviewers use a racial code or identification system to identify the race of applicants on application forms. The system consisted of the interviewers placing a black dot on the application forms of black applicants so that the race of a black applicant could be easily ascertained at any point in the hiring process. This Court finds that the racial code or identification system was used by Detroit Edison to racially discriminate against black applicants. The defendant Detroit Edison asserted and maintained through the course of the trial that this black dot system was inaugurated to insure that more blacks became employed at the Company. The record and testimony in the case negates this position, and indicates very clearly that the black dot system was used to perpetuate and maintain blacks in low paying positions in the Company and exclude them from others. This coding system was known to and acquiesced in by the highest levels of Detroit Edison Company’s employment office and management. 9. The disparity in numbers of whites and blacks hired at Detroit Edison has a historical basis which continues to exist to this day. In 1955, 232 whites and 4 blacks were hired. In 1956, 199 whites and 5 blacks were hired. In 1957, 97 whites and 3 blacks were hired. At some point between 1955 and 1957, the racial coding system came into being. In 1958, 18 whites and 1 black were hired. In 1959, 29 whites and 1 black were hired. In 1960, 39 whites and no blacks were hired. In 1961, 52 whites and 2 blacks were hired. In 1962, 74 whites and 2 blacks were hired. In 1963, 142 whites and 9 blacks were hired. In 1964, 229 whites and 33 blacks were hired, in 1965, 481 whites and 34 blacks were hired.. In light of the fact that so few blacks were hired, subsequent to the implementation of the racial coding system, this Court can only infer that the racial coding system was instituted for some purpose other than that of achieving racial equality in. the employment practices of the Edison Company. Indeed, during the six years subsequent to the introduction of the racial coding system the percentage of blacks hired by Defendant Detroit Edison declined. 10. Testimony demonstrates, and this Court finds, that in many cases black employees with work experience and education superior to that of white employees in skilled trades, were denied high opportunity jobs and were assigned to and refused transfer from low-opportunity jobs, referred to above. White employees lacking a high school diploma or related work experience were and continued to be frequently promoted ahead of black employees with high school diplomas and work experience superior to said white employees. 11. The foregoing-described practices may be illustrated by a few representative examples. Horace Henry, a black high school graduate with credit hours at Detroit City College and an inspector for the government during World War II was refused transfer from utility serviceman from 1945 through 1962 or 1963. Local 223 Utility Workers Union of America encouraged Mr. Henry to withdraw grievances protesting transfer refusals. McKinley Ogletree, a black employee, was hired as a utility serviceman in 1945 and was an apprentice electrician from 1950 through 1955. Mr. Ogletree filed numerous requests for transfer to an electrician’s job from 1950 to 1969 and was always denied the right to transfer, being advised by Detroit Edison representatives that “You know you’re not going to get the job.” Catherine Gafford and Mary Harris, black female elevator operators and high school graduates filed numerous applications for transfers in the 1940’s, ’50’s and ’60’s without being given the opportunity to transfer. 12. Both prior to and subsequent to July 2, 1965, plaintiff James Atkinson was discriminatorily assigned to low-opportunity jobs. In connection with his applications for transfers and promotions, James Atkinson was advised by Detroit Edison representatives that it was futile for him to apply and that a decision had been made concerning who would get the job before bids were invited. In some situations, Atkinson had observed the job performed whereas the successful white applicant had not. In other situations, Atkinson had actually performed the work which he sought whereas the successful white applicant had not. 13. Plaintiff Willie Stamps, a high school graduate with further education at the Dunbar Trade School in Chicago and Worshin College of Mortuary Science was discriminatorily refused employment on at least five occasions at Detroit Edison Company in 1956 and between 1965 and 1967. In 1965 and 1966, Stamps was deprived of employment on the pretext that he was not properly dressed and that he was over-weight. On approximately fifteen occasions between 1967 and 1972, Stamps was denied transfer because of his race. In no instance has the Company contended that white employees who were selected instead of Stamps possess superior or equal qualifications. Among the pretexts used to discriminate against Stamps was the contention that he was over qualified for the job for which he' applied. Stamps was also harassed and discriminated against by Defendants Detroit Edison and Local 223 because of his civil rights activities at Detroit Edison. 14. The record in this case' indicates that in order to implement and perpetuate discriminatory policies and practices, Detroit Edison relied heavily on its transfer policies with respect to low-opportunity and high-opportunity jobs. High-opportunity jobs possess pay grades and working conditions demonstrably higher and superior to the pay grade of low-opportunity jobs. High-opportunity jobs for blue collar employees at Detroit Edison are in, for instance, Construction and Maintenance, the Transmission and Distribution Departments and the Production Department. Starting pay grades in Construction is generally pay grade 5 ($4.32 per hour). Skilled trade jobs such as Brickmason, Carpenter, Electrician, Mechanic Fitter, Plumber, Rigger and Welder enable journeymen to receive wages between pay grades 16 ($5.935 per hour) and 18 ($6.27 per hour). In Transmission and Distribution, the pay grade for Maintenance Cable Splicer reaches 18 ($6.27 per hour). In Production and Senior Plant Operator it reaches 17 ($6.13 per hour). 15. In low-opportunity jobs — out of which transfer to high-opportunity jobs is precluded because of Detroit Edison’s posting, bidding and seniority as described below — the highest pay grade is 5 ($4.32 per hour). For example, Building Cleaner is pay grade 2 ($4.03 per hour) and Building Attendant begins at pay grade 0 ($3.89 per hour). Coal-Ash Handler in Production (Central Heating) is pay grade 3 ($4.125 per hour) and Plant Cleaner begins at 2 and can advance- to 3. High opportunity jobs have been and remain nearly all white. 16. As of April 24, 1973, there were 832 blacks out of 10,630 employees. As of April 24, 1972, there were 12 blacks and 1,099 whites in supervisory positions by the Defendant Detroit Edison Company. As of April 24, 1972, there were 73 blacks and 1,785 whites in professional and technical jobs. As of April 24, 1972 the 24, 1972, in bargaining unit jobs represented by Local 223, at the Delray Plant, there were 14 blacks and 113 whites. There are 9 white firemen earning $4.9 to $5.46 but there are no black firemen. There are 20 general mechanics A employees earning $5.26 to $5.93 but there are no blacks. There are seven white instrument men but no black. The greatest percentage of blacks at Delray are to be found at the plant cleaner classification where there are 4 whites and 2 blacks. At the Conner Creek Plant there are 156 whites and 20 blacks. There are 21 general mechanic A white employees but no blacks. There are 6 general mechanic apprentices but no blacks. There are 9 white instrument men but no black instrument men. Once again, the most significant percentage of blacks is to be found among plant cleaners where there are 7 white plant cleaners and 3 blacks. In the Marysville plant there are 142 white employees and 5 blacks. There are 22 white power plant operators and one black. There are 29 white assistant power plant operators and two blacks. There are no blacks in the classification of turbine operator, auxiliary, combination firemen, senior plant operator, water tender, switchboard operator 1st, yard equipment operator, coal handling equipment operator, general mechanic A, general mechanic A apprentices, instrument man, plant warehouse man, and senior tool crib man. 17. In the Trenton production plant there are 225 white employees and 3 black employees. Once again there are no black employees with such classification as general mechanic A, and general mechanic A apprentice, and instrument man. The only classification in which blacks are present are plant cleaner, tool crib man and coal handling yard operator. In the St. Clair Plant, there are 178 white employees and 4 black employees. Three of these black employees are in the classification of plant cleaner and fourth is a serviceman. There are no blacks in the classification of general mechanic A, general mechanic A apprentices and instrument man. 18. In the River Rouge plant there are 99 white employees and 12 black employees. There are 17 white general mechanic A employees and one black general mechanic A employee. There are 6 general mechanic A white apprentices and one black general A apprentice. There are 17 white instrument A men and no black instrument employees. However, there are 3 white plant cleaners and 6 black plant cleaners, this classification once again providing the highest percentage of black participation. At the Industrial Power Plant & Penn Salt there are 52 white employees and 4 black employees. There are seven general mechanics A white employees and no general mechanic A black employees. There are 2 general mechanic A white apprentices and one general mechanic A black apprentice. At the Port Huron plant there are 13 white employees and no black employees. At the Monroe plant there are 100 white employees and 2 black employees. There are no black general mechanic A employees in these jobs at the Monroe plants. The 2 blacks are in the classification of plant cleaner and utility man. At the Wyandotte North Industrial plant there are 37 white employees and 5 black employees. At the Wyandotte South Industrial plant there are 50 white employees and 1 black employee. 19. At central Heating there are 87 white employees and 16 black employees. In the meter department there are 116 white employees and 10 black employees. Until approximately 1968 it was the practice of defendant Detroit Edison Company to deliberately exclude black employees from the meter department because of the fear of community reaction. Although seniority was not always adhered to in connection with job assignments in the meter department prior to the time that blacks were hired, once blacks were hired and protested the undesirable route into which they were placed because of their low seniority, defendants Detroit Edison Company and Local 223 refused to alter such assignments even though seniority was not uniformly adhered to in the past in connection with such assignments. 20. In the Stores Department there are 201 whites and 34 blacks. In the Transportation Department there are 92 whites and 22 blacks. The highest percentage of blacks is to be found in the Utility Servicemen classification where there are 19 whites and 13 blacks. Until some point subsequent to July 2, 1965, the Utilities Servicemen classification was one of low opportunity classifications to which blacks were assigned in the overwhelming number of instances. There are 47 white auto mechanics and one black auto mechanic. There are 4 white mechanic apprentices and 1 black mechanic apprentice. 21. In the electrical substations represented by Local 17, International Brotherhood of Electrical Workers, there are 334 whites and 15 blacks. There are no black journeymen first or second class and out of a total of 67 journeymen positions 3 are held by blacks. In the transmission and Distribution and Overhead Department, represented by Local 17, IBEW, there are 741 whites employed and 21 blacks. There are 221 white journeymen linemen employed and 4 black journeymen linemen. Ninety-one apprentice linemen are employed and 6 blacks are so employed. There are 105 white journeymen linemen B Crew and 2 blacks. In most classifications in the department, no blacks are employed. 22. In the Transmission and Distribution Underground represented by Local 17, IBEW, there are 337 white employees and 38 blacks. In the journeymen and apprentice categories for cable splicers, there are 170 whites employed and 8 blacks. The most significant percentage of blacks in the department is to be found in the labor category where there are 5 blacks and 20 whites. In the construction field division represented by Local 223, Utility Workers of America, there are 851 whites employed and 50 blacks. Among electrical journeymen and apprentices there are 176 whites and 8 blacks. Among journeymen apprentice carpenters, there are 34 whites and 3 blacks. There are 34 whites and 4 blacks employed in the Pipe Cover Category. There are 31 white painters and 2 black painters. There are 24 Sheetmetal workers and 1 black Sheetmetal worker. There are 69 white welders and 3 black welders. There are 269 white mechanic fitter journeymen apprentices and 11 blacks. 23. In construction Shops Department represented by Local 223, there are 142 whites and 21 blacks. There are no black shop machinists. In the Customer Service Division there are 236 whites and 22 blacks. In the Meter Reading Department Districts there are 378 whites and 10 blacks. Except for 1 black at the River Rouge Plant, the classification of general mechanic A is all whité. The classification of general mechanic A apprentices remains almost completely white. 24. In Transmission and Distribution and Overhead Department journeymen and apprentice linemen are almost all white. The same is true for most other classifications in the department. In Transmission and Distribution Underground, journeymen and apprentice cable splicer are almost completely all white classifications. In Construction, electricians, journeymen and apprentice, journeymen and apprentice carpenters, pipecoverers, sheetmetal workers, welders, and shop machinists are almost all white classifications. It would be fair to say that there is an almost complete statistical absence of blacks in most classifications. 25. In Buildings and Properties Department there are 141 whites and 78 blacks. The overwhelming majority of the blacks work as janitors, servicemen and elevator operators, which are the other categories in addition to those of utility servicemen and others referred to above, to which blacks were restricted in the overwhelming percentage of instances until some point subsequent to July 2, 1965. 26. Testimony at trial clearly shows that subsequent to July 2, 1965, defendant Detroit Edison Company had, and continues to have, a reputation in the black community in the Metropolitan area as an employer that generally does not hire blacks and continues to assign those blacks that are hired to low opportunity, non-promotable jobs such as those described above. Many blacks who have been hired at Detroit Edison believe that they are fortunate to be employed with Edison on any basis and they are afraid to protest the absence of blacks at Detroit Edison in numbers representative of their presence in the Detroit City population. 27. It is important to observe that until some point subsequent to July 2, 1965, all hiring interviewers who hired employees for defendant Detroit Edison Company were white. Through the present date no attempt has ever been made with either black or white interviewers to determine whether such interviewers are racially prejudiced nor have any steps been taken to correct such prejudice if it exists. 28. Applicants are asked if they have relatives employed by the Company. A percentage of employees hired by Detroit Edison have been hired as the result of contacts through friends and relatives. A study of the Federal Bureau of Investigation in the course of which 86 white employees were contacted indicates that 43 of such employees had friends and acquaintances who were employed by Detroit Edison and discussed job opportunities with such friends and relatives. Since a disproportionate percentage of employees at Detroit Edison Company are white and since the overwhelming percentage of employees in the higher opportunity jobs referred to above are white, such a hiring practice in this instance had the effect of perpetuating the exclusion of black applicants from employment with Detroit Edison Company and from the jobs referred to above. 29. Interviewers and supervisory personnel in high opportunity jobs and departments make the final decision regarding who is to be employed in such departments. Hiring takes place as the result of word-of-mouth recruitment. In order to advance to high opportunity jobs and departments such as Production, Construction, Transmission and Distribution and Electrical Substations, employees must be hired into those departments at an entry level in practically every instance. All interviewers and supervisory personnel in departments which contain higher opportunity jobs are white. Supervisory personnel in departments which contain higher opportunity jobs are white. Supervisory personnel in such departments have no personal and social contact with blacks. Thirty-five and four-tenths percent of white employees who applied to Detroit Edison Company in 1969-1970 had relatives employed by the Company. Sixteen and three-tenths percent of such white employees had relatives in the same department where they sought employment. Thirty-seven and one-half-percent of white employees had relatives employed by the Company. Fourteen and two-tenths percent of the white employees have relatives employed in the same department. This phenomenon in practice perpetuates the racial composition of the work force. Until September, 1972, Edison’s applicants were asked if they had arrest records. Interviewers, until the eve of the trial of this case, have been required to make extremely subjective judgments about an applicant’s personality, appearance, dress and speech. ’ There is no structured or written format for questions to be asked of applicants which is provided interviewers by the Company. Defendant Detroit Edison did not list employment vacancies with the Michigan Employment Security Commission until required to do so by law in late 1971 or early 1972. 30. After an employment application is rejected by Edison, an employee may renew his application by expressing continued interest in employment with the Company. An interviewer may mark an application “unrated”. This generally means that the applicant cannot be considered further. If an interest in renewal of the application is not expressed by the applicant, the unrated application will be destroyed at the end of a 6 month period. If a renewal of interest is expressed the unrated application will be held for another- 6 month period. In 1968, 12.5 percent of white applicants and 22.5 percent of black applicants were unrated. In 1969 it was 10.9 percent for whites and 18.5 percent for 4 blacks. In 1970 it was 17.9 percent for whites and 26.9 percent for blacks. In 1969 and 1970, blacks hired at Detroit Edison Company continued to be disproportionately assigned to low opportunity jobs. E. Testing 31. The only standards which Edison does apply uniformly in the selection of applicants are standards of performance on written mental ability tests which are administered to nearly all applicants who reach the final stage of consideration in the employment department before referral to line department supervisors for final consideration. (Tr. Vol. IX, pp. 129-130; Vol. VIII, pp. 44-46) 32. The Company administers a variety of test batteries, each consisting of one or several tests, in its selection of new employees for entry level hourly paid and clerical jobs. The following table shows the test batteries which are administered to candidates for those entry, level jobs at issue here: Test Battery Entry Level Job Mechanical Placement Utility Serviceman, Appliance Repair, Meter Reader, Janitor, Construction Laborer, Warehouse & Yard Laborer, Metal Shop Helper, Stockman Clerical Placement Messenger, File Clerk, General Clerk, Telephone Clerk, Customer Telephone Rep., Commercial Office Rep., Computer, Programmer, FT Steno, FT Typist, Switchboard Operator, Tab Machine Operator, Janitor, Warehouse & Yard Laborer Apprentice Lineman Apprentice Lineman Apprentice Draftsman Draftsman General, Junior Draftsman, Rodman Customer Serviceman Customer Serviceman Substation Operator Substation Operator Apprentice Cable Splicing Laborer Conduit Meter Reader Meter Reader Power Plant Assistant Power Plant Operator, Substation Operator Trainee, Coal Ash Handler Henry Ford Comm. College Proficiency Test Construction Laborer (Gov. Ex. 19) 33. A larger percentage of the black applicants for employment have failed these tests than the percentage of white applicants for employment who have failed them. Edison’s employment department relies on its psychological services section for test administration and evaluation. (Tr. Vol. VIII, pp. 44-46). This section .ordinarily evaluates an applicant’s test performance by either reporting him as “acceptable” or “not recommended” depending on whether he has given sufficient numbers of right answers and thereby passed certain fixed standards of performance (Tr. Vol. XXI, p. 27). The following table shows for each test battery listed above, except the apprentice lineman’s battery, the approximate proportion of white and black applicants taking each test who received evaluations of “not recommended” and were not hired in 1970 and 1971: 1970 1971 Test White Black White Black Cable Splicer 31.8 66.7 29.2 67.3 Meter Reader 26.7 66.7 0 50.0 Draftsmen 0 0 15.8 25.0 Customer Serviceman 51.9 85.7 57.6 61.1 Power Plant Operator 37.8 77.0 37.5 61.9 Substation Operator Helper 44.6 78.9 42.9 69.8 Mechanical Placement 25.2 68.5 24.8 52.8 Clerical Placement 21.4 63.2 21.7 (Gov. Ex. 91) 34. Although insufficient numbers of blacks have taken the apprentice lineman’s battery to conclude from their performance that blacks have failed this battery more often than whites (Gov. Ex. 83), this test would exclude a greater percentage of blacks than whites if increased numbers of blacks were measured by it. This battery consists only of tests which are also included in several other batteries which blacks have taken at Edison frequently, and they have consistently scored significantly lower on each of these tests in such batteries (Tr. Vol. IX, pp. 82-86; Gov. Ex. 83). 35. For most applicants, both black and white, meeting the prescribed cutoff scores or performance standards on test batteries they are given is a prerequisite for employment. While a small fraction of those applicants hired into some entry level jobs have not met all of the standards of performance on all of the tests in the batteries administered for their jobs, (Gov. Ex. 100), the_overwhelming majority of those applicants who do not meet these standards are not employed in the occupations for which they are tested (Gov. Ex. 100; 91). 36. The Company has also administered an entrance examination for the Henry Ford Community College, on which a passing score has been required as a condition of admission to courses offered there as part of the Construction and Maintenance Department apprenticeship training. Obtaining such a passing score has been an additional prerequisite for entry into these apprenticeship programs. (Tr. Yol. VII, p. 122). Among those employees who could be race identified who have taken this college entrance examination, the failure rate among blacks has been significantly higher than that among whites (Gov. Ex. 92). 37. Under guidelines promulgated by the Equal Employment Opportunity Commission, an employer may use a test which has the effect of excluding significantly larger numbers of blacks than whites only if the test has been shown to be a valid predictor of job performance. “Validity” as used by the Equal Employment Opportunity Commission means that the relationship of test scores to an appropriate criterion of job performance must, at a minimum, be statistically significant at the 95 percent level of confidence. Stated another way, this means that there must be no more than one chance in 20 that the relationship between test scores and the measure of job performance occurred by chance. Guidelines on Employee Selection Procedures (revised), 35 Fed.Reg. 12333, 29 C.F.R. 1607.5(e)(1) 38. The EEOC Guidelines also require that validity be established separately or “differentially” for blacks where absence of sufficient numbers of blacks among those employed makes such differential validation infeasible, the tests in question may be regarded as valid on the basis of other evidence only provisionally until separate evidence of validity for the minority group is produced. A test which otherwise has the effect of under predicting the job performance of blacks should be scored in such a way as to correct this. 29 C.F.R. 1607.5(b)(5) 39. Measurements of such relationships, often expressed as correlation coefficients, are determined by comparison of test scores and performance criteria measures for groups of individuals who have been tested and also rated on the job. A correlation coefficient is high or low depending on whether individuals in the group tend to have test scores and criterion ratings of corresponding levels (Tr. Vol. XXIII, pp. 156-160). It is possible for such a correlation to achieve the level of statistical significance required by the EEOC Guidelines while a substantial number of the individuals in the group among whom the correlation is computed have combinations of test scores and performance criterion ratings contrary to the trend, that is substantial numbers receiving high test scores may have lower performance ratings than others who received lower test scores and substantial numbers who received low test scores may have received higher performance ratings than those receiving higher test scores (Tr. Vol. XXIV, pp. 4-5, 96-98, 104-109, Gov. Ex. 103, p. 345, Gov. Ex. 107). 40. The EEOC Guidelines, also require that cut-off scores or test standards must be related to “normal expectations of proficiency” in the work force and that they be reasonable, 29 C.F.R. 1607.6. Unless the relationship, or correlation, between test performance and criteria of job performance is very high, a reasonable cut-off score should eliminate only those applicants who are likely to be insufficiently qualified to perform the job satisfactorily (Tr. Vol. XXV, pp. 85-88). 41. None of the test batteries described in the preceding findings has been demonstrated both to be valid predictors of job performance, as measured by statistical comparison to criteria of job performance, and to be used with performance standards, or cut-off scores, reasonably designed to eliminate those applicants who are unlikely to perform satisfactorily in the jobs for which they are being considered and tested. 42. Differential validity, that is separate validity for blacks as a group apart from the general population of applicants and employees, has not been demonstrated for any of the batteries in issue here. Differential validation was attempted or evidence tending toward differential validation was presented, in only four of the studies described, the clerical and mechanical placement battery studies done by National Compliance Company (Gov. Ex. 102 pp. 115-139); the meter reader battery study and the assistant power plant operator studies done by Edison (Gov. Ex. 99, 101, Tr. Vol. XXII, pp. 22-23). These studies were insufficient to establish validity for whites or blacks, and therefore they are deficient in evidence of -differential validity (See Findings 99-105, 110, 113-114). 43. The customer serviceman battery, which is found to have been valid at the time of the study, apart from the lack of justification for its cut off scores, has not been demonstrated to be differentially valid for blacks as there is no evidence that there were blacks in the study group in 1965 (Tr. Vol. XXI, pp. 69-93). 44. Edison has made no'effort to validate the Henry Ford Community College entrance examination (Tr. Vol. XVIII, pp. 6-133, Vol. XXI, Vol. XXII, Vol. XXIII, pp. 5-47). 45. The only standards for selection of applicants for employment or transfer which are uniformly applied by the Company have been passing scores on batteries of mental ability tests administered by the Company. Because blacks generally score lower than do whites on many such tests, several of the test batteries used by Edison have screened out larger proportions of black applicants than of white applicants. With one exception, none of these test batteries are valid predictors of job performance; and without exception none of them are valid for blacks as a separate group. One of the batteries in fact may be “unfair” to blacks in that it under-predicts their performance relative to whites. Also without exception, all of these batteries are administered with cut-off scores which are unreasonably high, in that they screen out applicants whose scores are comparable to former and current employees who were not shown to be unable to perform in their jobs. F. Specific Indicia of Union Involvement 46. Evidence submitted in this case shows that seniority, as defined by the collective bargaining agreement between Detroit Edison Company and Local 17 IBEW, is occupational group seniority and is the measure of seniority to be considered in matters of layoffs, rehiring, promotions and transfer within and among the occupational groups covered by the agreement. Promotions within each bargaining unit are awarded to the senior bidding employee possessing the required skills, abilities and/or adaptability. In a small percentage of the cases, less than 10 percent of them, the junior employees successfully bid for the job. The posting provisions of the agreement between defendants Local 17 and Detroit Edison Company provide that all permanent vacancies in the bargaining unit will be posted in all divisions of the department in which the vacancy occurs except in the case of the journeymen linemen classification. The promotion and posting provisions establish a priority for employees who are within the bargaining unit and the department for filling bargaining unit vacancies. If the Company is unable to fill the vacancy through either employees in the bargaining unit or department, the vacancy is posted for company-wide bidding. No preference is given to an employee who is not in the bargaining unit in which a vacancy occurs. 47. The record further reflects that under both the Local 223 agreements, an employee bidding from outside the bargaining unit or the department, should he be successful, is unable to carry with him any of the seniority he might have accumulated in his former job for purposes of both future promotions and bidding on vacancies in which the occupational group bargaining unit. His competitive status is lower than that of employees who are junior to him in the Company’s service but who are nevertheless senior in the occupational group and/or bargaining unit or department seniority. Both Local 17 and Local 223 agreements with Detroit Edison Company do not protect the rate of an employee who is transferring to a high opportunity job in a new bargaining unit which has a rate lower than the job from which he is transferring. Accordingly, such an employee may suffer a reduction in economic benefits under this system, which provides for complete loss of seniority and pay reduction for black employees assigned to low opportunity jobs. Such blacks are being discouraged from applying for high opportunity jobs. Moreover, in many instances such black employees do not even have the opportunity to bid. 48. Seniority as defined in the collective bargaining agreement between Local 223 Utility Workers Union of America and Detroit Edison Company is once again occupational group seniority for the purpose of layoff, rehiring, promotions and transfers between bargaining units covered by the agreement. Promotions to vacancies within an occupational group within the bargaining unit are awarded on the basis of occupational group seniority. In less than 10 percent of the bidding situations a junior employee is chosen over a senior employee. Under the Local 17 agreement, the junior employee is successful in even fewer instances. The posting provisions of the collective bargaining agreements between Local 223 and Detroit Edison Company provide the vacancies within a bargaining unit which are not filled by an employee within the occupational group itself in which the vacancy occurs shall first be posted in the bárgaining unit where the vacancy exists. When a vacancy is not filled through employees in the bargaining unit it may be posted in other bargaining units in the same department and, at that point, the measure of seniority considered is Company service. If vacancies are not filled through this procedure the vacancy is posted eompanywide. This procedure makes it unlikely that blacks, who have been and are disproportionately assigned to lower opportunity jobs, will ever have the opportunity to bid for high opportunity jobs under either the Local 223 or Local 17 contract. 49. It was revealed at trial that under the Local 223 agreement those blacks in low opportunity jobs who are fortunate enough to have the opportunity to transfer must sacrifice seniority credits previously accumulated as well as their wage rate if the entry level in the high opportunity department pays less than the job which they hold. In most instances blacks in low opportunity jobs do not have the chance to transfer to high opportunity jobs because of the bidding and postings listed above. Seniority loss and wage reduction discourage transfers for those few blacks who obtain the chance to apply for transfers. Supervisors, more than 99 percent of whom are white, must sign a transfer bid before blacks can attempt to transfer from a low to a high opportunity job. 50. Defendant Detroit Edison Company claims that it follows a policy of promotion from within. Yet its collective bargaining agreements make unlikely or impossible promotion from within of blacks who continue to be disproportionately assigned to low opportunity jobs and who are either completely excluded from or have taken responsibility in, the high opportunity jobs described above. Rather than promote blacks from within the Company, Detroit Edison sometimes hires skilled tradesmen from Canada who cannot even speak English. Additionally, Detroit Edison deliberately recruits blacks wi