Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW GUIN, District Judge. This case involves individual and class action claims of racial discrimination in certain employment practices of Stock-ham Valves & Fittings, Inc. (“Stock-ham”) at its Birmingham manufacturing complex. In part the claims are asserted also against United Steelworkers of America, AFL-CIO and its Local Union 3036. Plaintiffs, Patrick James, Horace Harville, and Louis Winston, are black male citizens of the United States and the State of Alabama. Messrs. James and Winston are hourly-rated production and maintenance employees of Stockham; plaintiff Harville retired from his position as a production employee in 1972. The defendant Stock-ham is a Delaware corporation which is engaged in business in Alabama, and, in the Southern Division of the Northern District of Alabama. The defendant unions are each labor organizations which, at all times material to this lawsuit, have represented the hourly production and maintenance employees of Stockham. Plaintiffs bring this action individually and on behalf of a class of persons similarly situated. Jurisdiction is predicated upon Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and upon 42 U.S.C. § 1981. Claims of plaintiffs against defendant Unions are also predicated upon 29 U.S.C. § 151 et seq. Plaintiffs contend in this ease that Stockham, during the relevant period encompassed by this lawsuit has (1) maintained racially segregated employee facilities ; (2) assigned black employees to “low paying menial jobs”; (3) has denied promotional, training, and transfer opportunities to black employees; and (4) has used, and is now using, testing, age, and educational requirements which discriminate against blacks. Plaintiffs further contend that the defendant unions have failed, in violation of law, to fairly represent the black employees in the employ of Stockham. Plaintiffs do not claim racial discrimination with regard to initial hire, apparently because during the relevant period a substantial majority of the production and maintenance employees employed by Stockham and represented by the unions, was black. For the violations of law alleged by plaintiffs, as set out above, plaintiffs seek injunctive relief and back pay, individually, and on behalf of the class, from all defendants. The trial of this case commenced on February 4, 1974, and, with few interruptions, continued until February 22nd. The record is voluminous. The transcript of the testimony alone constituted nearly 3000 pages. In addition there were numerous depositions, statistical presentations and other exhibits, which were extremely helpful to the Court in the consideration of this case. Each of the parties submitted comprehensive briefs and proposed findings, and conclusions of law. Thereafter, at the Court’s request each of the parties was heard in oral argument on the issues involved in the case. The Court, having fully considered the pleadings, all of the testimony, exhibits and other evidence adduced in the course of the trial, and having carefully reviewed the briefs, proposed findings of fact and conclusions of law submitted by each of the parties, and the oral arguments of counsel, and having further considered the demeanor of the witnesses who testified in this ease, and having resolved the credibility issues presented by conflicts in the testimony, and having been otherwise fully advised in the premises, now makes and finds the following Findings of Fact and Conclusions of Law, pursuant to Rule 52(a) of the Federal Rules of Civil Procedure: FINDINGS OF FACT I. PRELIMINARY FINDINGS OF FACT A. General Matters 1. This action has been instituted and maintained under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”), and the Civil Rights Act of 1866, 42 U.S.C. § 1981 (“§ 1981”). Title VII, among other things, prohibits discrimination in employment based on race. § 1981, in relevant part, provides that all persons, shall have the same right to make and enforce contracts as is enjoyed by white citizens. This action also has been instituted and maintained with respect to the union defendants under the National Labor Relations Act, 29 U.S.C. § 151 et seq., which, in relevant part, imposes a duty on a union to fairly represent its members. 2. The individual plaintiffs, Patrick James, Sr., Howard Harville and Louis Winston are black male citizens of Jefferson County, Alabama. James and Winston are presently employed by Stockham as hourly production and maintenance employees at its Birmingham, Alabama manufacturing complex and are members and officers of defendant Local 3036 of the United Steelworkers of America (“Local 3036”). Until 1972 when he retired on a medical pension, Harville was employed by Stock-ham as an hourly production and maintenance employee at its Birmingham, Alabama manufacturing complex and was a member and officer of Local 3036. 3. The defendant Stockham is a Delaware corporation doing business in the State of Alabama and in the Southern Division of the Northern District of Alabama, and is an “employer” within the meaning of 42 U.S.C. § 2000e(b). 4. The hourly production and maintenance employees at Stockham have been represented for collective bargaining purposes by Local 3036 at all times material to this action. The defendant Local 3036 is an unincorporated labor organization and is a local union or subdivision of defendant United Steelworkers of America. Both of these defendants are “labor organizations” within the meaning of 42 U.S.C. § 2000e(d). 5. This action has been brought as a class action under F.R.Civ.P. Rule 23. 6. The number of persons, which plaintiffs define as within their proposed class is so numerous that joinder is impractical. Further, it appears that the claims of the representative plaintiffs are typical of the claims of the purported class and there appear to be common questions of law and fact. Finally, it appears to the Court that plaintiffs James and Winston are adequate representatives of the class. 7. The evidence reflects that plaintiffs have met the requirements of F.R.Civ.P. Rule 23(a) and their allegation is that the defendants jointly have acted on grounds generally applicable to a class of black employees. The facts support a finding that this action may be maintained as a class action under F.R.Civ.P. Rule 23(b)(1) for the purposes of resolving the allegations in the plaintiffs’ complaint for the following class: 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. 8. Each of the named plaintiffs filed charges with the Equal Employment Opportunity Commission (“EEOC”) on October 5, 1966, which contained specific allegations of racial discrimination against Stockham. On June 8, 1970, an amended charge of discrimination was filed by plaintiff James with the EEOC which included Local 3036 and the defendant United Steelworkers of America as parties to the previously-filed charges. Plaintiffs received notices of their right to bring suit on or about February 16, 1970, and duly filed the complaint in this action within thirty days thereof, the proper statutory period. B. Background Matters (i) Stockham’s History 1. The Stockham Pipe and Fittings Company was founded in Birmingham in 1903 and originally manufactured only simple castings and cast iron pipe fittings. The Company moved to its present location in 1918. Stockham has provided free medical and dental services to all its employees since that time, and in 1919, established a branch of the YMCA at Company expense to serve as a center of recreational, social, and religious activities of its employees and their families. In the early 1920’s, 'Stockham became one of the first employers in the Birmingham area to provide hospital insurance plans for its employees (and it continues to do so today). (Stockham Ex. 42) 2. Stockham began manufacturing malleable iron pipe fittings in 1923. The manufacture of bronze valves was commenced in 1935. By 1941, engineering had been completed for the manufacture of iron valves, but production was delayed by World War II until 1946. Also in 1946, a building which had been erected for the production of artillery shells during World War II was converted into a valve machining and assembly building. 3. In 1948, the name of the Company was changed to Stockham Valves and Fittings, Inc. In 1952, Stockham acquired the Wedgeplug Valve Company of New Orleans. This company was operated in New Orleans by Stockham until 1956, when the New Orleans operation was shut down and moved to the Birmingham plant. 4. Production of steel valves began in 1953. Manufacture of ductile iron valves and fittings began in 1959. Stockham began the manufacture of butterfly valves at the Birmingham plant in 1973. 5. Historically, approximately two-thirds of Stockham’s employees have been black. (Stockham Ex. 42 and 51). (ii) Stockham’s Manufacturing Processes and Product Lines 1.. Although Stockham has many competitors, no single competitor manufactures all six of Stockham’s major product lines at one manufacturing complex. 2. Stockham has a multi-industry, multi-plant complex in Birmingham. It competes in both the pipe fittings industry and the valve industry (and in effect, is six plants in one). The Birmingham complex is, in effect, 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. Stockham manufactures over 19,000 different products over a broad range of product lines. (Plaintiffs’ Ex. 66) 3. The following is a list of the major domestic competitors of Stockham, the locations of their plants, and the major product lines produced at each plant: Grinnell Corp. Statesboro, Ga. cast iron flanges and flange fittings Grinnell Corp. Cranston, R. I. cast iron threaded fittings Grinnell Corp. Columbia, Pa. malleable iron fittings Kennedy (Grinnell Corp.) Elmira, N. Y. Iron valves Clow Corp. Tarrant, Ala. cast iron flange fittings Eddy Iowa Rich (Clow) Oskaloosa, Iowa iron valves ACIPCO Birmingham, Ala. cast iron flange fittings American Darling (ACIPCO) Beaumont, Tex. iron valves Kuhn Bros. Co. Dayton, Ohio cast iron and ductile iron fittings Union Malleable Mfg. Corp. Ashland, Ohio malleable iron fittings Dart Union Co. Providence, R. I. malleable iron unions Stanley G. Flagg Co. Stowe, Pa. malleable iron and cast iron fittings J. P. Ward Blossburg, Pa. malleable iron and cast iron fittings Crane Co. Chicago, 111. bronze valves, steel valves, some large iron valves, butterfly valves Crane Co. Washington, Iowa iron valves, butterfly valves Crane Co. Indian Orchard, Mass. iron valves, steel valves Walworth Co. So. Braintree, Mass. bronze valves Walworth Co. Greensburg, Pa. iron valves, steel valves, plug valves Nibco Nacogdoches, Tex. bronze valves Nibco-Scott Blytheville, Ark. iron valves Hammond Co. Hammond, Ind. bronze valves Fairbanks Binghamton, N. Y. bronze valves, iron valves Lunkenheimer Cincinnati, Ohio bronze valves, iron valves, and steel valves Lunkenheimer (Hale Valve Corp.) Tulsa, Okla. butterfly valves Wm. Powell Co. Cincinnati, Ohio bronze valves, iron valves, steel valves, plug valves Jenkins Bros. Bridgeport, Conn. bronze valves, iron valves, steel valves M & H Valves (Dresser Industries) Anniston, Ala. iron valves Milwaukee Valve Co. Milwaukee, Wis. bronze valves, aluminum valves, iron valves Mueller Co. Decatur, 111. iron valves Pacific States (Me Wane) Provo, Utah iron valves U. S. Pipe & Foundry Chattanooga, Tenn. iron valves Darling Valve Co. Williamsport, Pa. steel valves Dimco Oklahoma City, Okla. butterfly valves Dover Corp. Tulsa, Okla. butterfly valves James Berry Corp. Cambridge, Mass. butterfly valves Keystone Valve Corp. Houston, Tex. butterfly valves Worchester Valve Co. Worchester, Mass. butterfly valves Rockwell Mfg. Co. Akron, Ohio butterfly valves Henry Pratt Co. Aurora, 111. butterfly valves 4. The following product lines are manufactured at Stockham’s Birmingham plant: a. Cast iron threaded fittings are manufactured in sizes Yé" to 8", with accurately designed chamfered threads which provide for tight joints and straight lines. These threaded fittings are primarily used in commercial construction and heating and air conditioning systems. b. Cast iron sprinkler fittings with working water pressures of 175 pounds per square inch (psi) are manufactured in sizes from 2%" to 8". These fittings are primarily used in the commercial sprinkler industry. c. Cast iron drainage fittings are manufactured in sizes from 1 YY' to 12". These drainage fittings are designed to give an unobstructed flow by making the inside of the fittings approximately the same diameter as the inside diameter of the wrought iron pipe which it joins. The drainage fittings are used primarily in plumbing and commercial construction. d. Cast iron flanges and flange fittings are manufactured in sizes 1%" through 24". These flanges and fittings can be used with any type flanged pipe. e. Malleable iron pipe fittings capable of withstanding temperatures from —20° to 550 °F. are manufactured. Malleable iron is a tough, highly ductile iron capable of withstanding pipeline stresses from expansion, contraction, and shock. Malleable iron pipe fittings are used primarily in commercial, institutional and industrial construction. f. Malleable iron threaded fittings are manufactured in sizes %" to 12". g. Malleable iron unions and union fittings are manufactured in both flanged and threaded types. The threaded types are made in sizes from to 4"; the flanged types are made in sizes 1" to 10". Unions are produced with brass seats, gasket seats, or with integral all-iron seats. Union fittings combine the functions of a fitting and union in one compact assembly. Brass seats are forced into their grooves under tremendous rolling pressure forming a leak-proof joint. All parts are machined and threaded. h. Malleable ball pattern railing fittings are manufactured in sizes from Yz" to 2". i. Ductile iron pipe fittings are manufactured in threaded and flanged types. The threaded types are produced in sizes from Yz" to 6"; the flanged types are produced in sizes from lYz" to 6". j. Bronze globe, angle, and check valves are made in 125, 150, 200, 300 and 350 psi ratings in sizes Ya" to 4". The primary markets for these valves are commercial and institutional construction, the chemical industry, and commercial ship building, as well as all general industry and utilities. Service recommendations are for steam, water, oil, gas, or other media up to 550 °F. Actual in-line pressures may range up to 1000 psi. k. Iron gate, globe, angle, and swing check valves are manufactured in sizes •%" to 36". Primary markets for these valves are commercial and institutional construction, the chemical industry, iron and steel industries, and gas distribution. Iron valves are recommended for media to maximum pressures of 500 psi and maximum temperatures of 450 °F. l. Steel gate, globe, angle, and swing check valves are manufactured in sizes 2" to 30". Primary markets for these valves are power generators, petroleum refining, and the petrochemical and chemical industries. Twelve east steel alloys are offered as basic valve materials for services to a maximum pressure of 1440 psi, and maximum temperatures of 1500 °F. These materials require magnetic particle testing and sometimes radiography. Careful welding of casting repairs requires stress relieving. Heat treatment of various raw materials is also required. m. Butterfly valves with iron or ductile iron bodies are manufactured in wafer or lug-wafer type, with wide choice of stem, disc, and liner material for pressures up to 150 psi in sizes 2" to 12". Primary markets for these valves are commercial, institutional, and industrial construction. n. Wedgeplug non-lubricated plug valves are manufactured in sizes %" to 20". These valves have a patented mechanical lifting device which lifts, rotates, and re-seats the plug. Primary markets for these valves are the petroleum refining and petro-chemical and chemical industries. These valves are used in catalytic cracking and coking operations, and in distribution service in various petroleum or chemical product lines. Service pressures range up to 2160 psi with temperatures up to 1500 °F. o. Slurry valves are manufactured in sizes 2" to 24". Special slurry valves are used by aluminum mines and refineries in handling coarse and fine slurries, red mud, and caustic aluminum liquor. These valves are built for rugged heavy-duty service with rigidity and strength to withstand severe corrosive, erosive, and scaling conditions. They are sometimes lined with special alloys such as nickel for corrosion resistance. They are used in services up to 1000°F. and pressures up to 1440 psi. p. Ductile iron gate, globe, angle, and check valves are manufactured in sizes 2" to 24". Primary markets for these valves are power generation, petroleum refining, and the petro-chemieal and chemical industries. Service pressures are up to 720 psi, with service temperatures up to 650 °F. 5. There are nationally recognized standards of product quality for the valves and fittings industries. 6. Each product in the product lines manufactured by Stockham meets or exceeds these nationally recognized standards of product quality. 7. Component parts for valve products in the valve products lines at Stock-ham are machined to extremely close tolerances and specifications so that such valve products may be safely and efficiently used for the purposes for which they are designed and manufactured. 8. Tapping operations upon pipe fittings in the pipe fittings product lines of Stockham are performed to extremely close tolerances and specifications so that such pipe fittings may be safely and efficiently used for the purpose for which they are designed and manufactured. 9. The following is a brief survey of the manufacturing processes involved in each of the product lines at Stockham: (a) Grey iron castings for fittings and valve bodies are made in the Grey Iron Foundry Department. Molds are prepared by forming the impression of the molding pattern in specially treated sand. Usually a core made of a specially treated sand in the Main Core Room Department is inserted in the center of the mold to form the center opening in the casting, whether it be a fitting or a valve body. Iron from the Yard is loaded into a cupola, melted and poured into the prepared mold. After cooling, the castings are taken from the mold, excess materials on the casting are cut off, and the castings are ground and cleaned, and then inspected by the Foundry Inspection and Galvanizing Inspection Department. Valve body castings go to the Valve Machining and Assembly Department ; fittings and unions castings go to the Tapping Room and Union Assembly Department, except those to be galvanized go first to the Galvanizing Department. (b) Malleable iron castings for fittings are made in the Malleable Foundry Department. A mold is made by using a pattern and specially treated sand; and usually a core, made in the Main Core Room Department, is inserted in the center of the mold. Molten metal is prepared in a cupola and poured into the finished molds. The castings are then heat treated to give them their malleable properties. The eastings are then ground, sheared, and inspected by the Foundry Inspection and Galvanizing Inspection Department. Fittings and unions castings are sent to the Tapping Room and Union Assembly Department, except those to be galvanized go first to the Galvanizing Department. (c) The Brass Foundry Department principally produces bronze body castings for bronze valves, but it also produces castings, such as brass seat rings, for the other departments. The castings are made by forming a sand mold around a pattern, with a sand core from the Brass Core Room Department inserted in the center. Brass of a specific alloy content is melted in a furnace and poured into the prepared mold. Brass valve body castings are cleaned and inspected by the Foundry Inspection and Galvanizing Inspection Department. Other bronze castings are inspected and sent to the departments where they will be used. (d) In the Galvanizing Department, fittings and unions are dipped in acid solutions for cleaning. They are then submerged in molten zinc and quenched in water, leaving a coating of rust-proof zinc on the fittings and unions. These fittings and unions then go to the Tapping Room and Union Assembly Department. (e) In the Tapping Room and Union Assembly Department, threaded fittings have precision chamfered threads machined into them. Flanged fittings are drilled and faced. Other finishing operations are carried out on both types of fittings. The three-piece unions have precision seat rings inserted, are otherwise finished, and are assembled by joining the head to the tail with the nut. (f) These fittings and unions then pass through the Final Inspection and Union Inspection Department. After inspection, they go to the Shipping Room Department, where they are warehoused. (g) The Valve Machining and Assembly Department produces an array of sizes and types of valves. Iron valve body castings from the Grey Iron Foundry Department, ductile iron body castings from the Grey Iron Foundry Department, and bronze valve body castings from the Bronze Foundry Department, along with the other valve parts, are precision machined and assembled. (h) The assembled valves go to the Valve Finishing Inspection Department for inspection and testing. After inspection, the finished valves go to the Shipping Room Department for storage. (i) The Shipping Room Department warehouses the finished products and fills and ships customer orders. (j) As the dispatchers decide that a particular item is to be made somewhere in the plant, the Dispatching Department employees take the proper unfinished items to the particular area of the plant for completion of the manufacturing process. For example, the Dispatching Department employees take rough castings to machine operators in the Valve Machining and Assembly Department for finishing and take patterns from the pattern storage area to the molders in the foundries as changes are made. (k) The Pattern Shop Department makes and repairs patterns which are used to make the impressions in the molds in the foundries. (l) The Electrical Shop Department does maintenance on all electrical equipment, building wiring, and does new electrical construction on both buildings and equipment. (m) The Valve Tool Room Department sharpens and maintains the tooling used in the machining of valve parts. (n) The Foundry Repairs Department is responsible for mechanical maintenance of all equipment in the foundries and for installation of new equipment in the foundries. (o) The Machine Shop Department maintains plant equipment and performs the types of work common to a machine shop. • (p) The Construction Department keeps the plant buildings in good repair and does construction work on new buildings. (iii) Working Conditions at Stockham 1. The foundry industry by nature is somewhat hot and dusty but the working conditions at Stockham’s foundries are superior to the working conditions of the average foundry in the southeastern part of the United States. 2. The skilled production jobs in foundries include the jobs of core making and molding machine operator. Although these jobs were historically “white jobs” in most places in .the southeastern United States, black employees have historically held these more desirable production jobs in Stockham’s foundries. 3. Black employees at Stockham are employed in jobs that historically have been held almost exclusively by white employees in the industry. (Stockham Ex. 74) 4. Since 1965, the Birmingham office of the Alabama State Employment Service has had approximately 10,000 job applications per year and has serviced approximately 20% of the unemployed persons in Birmingham (60% of that 20% were black). At no time since 1965 has there' been a substantial number (between 5 and 10) of black applicants for jobs as machinists, blacksmiths, electricians, carpenters or pattern makers. 5. Stockham received the Birmingham Urban League’s Business Hiring Award for 1973 for hiring more minority referrals from the Birmingham Urban League than any other employer. 6. The working conditions of plaintiffs or the class or classes they represent are not hotter, dustier, or dirtier than the working conditions of white employees at Stockham. 7. The jobs of plaintiffs or the class or classes they represent are generally no less desirable with reference to working conditions than the jobs of white employees at Stockham. (iv) Stockham’s Incentive Pay System 1. The incentive pay system provides . extra compensation for the good worker without regard to race and does not discriminate in its operation as a method of determining pay, against plaintiffs, or the class or classes they represent in this action. (Stockham Ex. 51A and B) 2. The incentive pay system divides incentive jobs into direct incentive compensation jobs and indirect incentive compensation jobs. (Stockham Ex. 51A and B) 3. The direct incentive pay system applies to those jobs which are directly concerned with production. (Stockham Ex. 51A and B) -" 4. The indirect incentive pay system applies to those jobs which support production. (Stockham Ex. 51A and B) 5. The incentive pay system operates solely with reference to jobs, not the race of the employees holding any partieular job. (Stockham Ex. 51A and B) 6. The incentive system at Stockham is based upon the Bedaux incentive system which is widely used throughout United States industry. 7. An incentive worker receives an allowance to compensate for: (1) scrapped goods beyond his control; (2) fatigue from heat and other environmental circumstances; (3) auxiliary work; and, (4) personal time. 8. The direct incentive worker is assured the equivalent of a 60 unit hour at his base pay rate. 9. Before an incentive value can be established for a direct incentive job, the method of the job must be standardized. For a job to be subject to standardization it must be repetitive and capable of being performed in a uniform manner or method. Once the method is established, the job is studied and incentive values established. 10. The indirect incentive worker is assured of not less than 65 unit hours, an assured rate equivalent to slightly higher than midway through his pay classification. 11. Some production jobs are not on the incentive system because they are so new the method has not.been standardized or because incentive applications are not practical for that particular job. All production jobs capable of being measured and standardized are placed on the incentive system as soon as possible. 12. Maintenance work is not repetitive or uniform and therefore maintenance jobs are not on the incentive system. 13. A direct incentive worker’s pay averages approximately 25% over his incentive base pay. 14. Plaintiffs’ statistics substantiate the testimony that direct incentive work.-, ers actual pay is approximately 25% over base rate. The unadjusted average hourly rate for white incentive workers is $3.15 and for black incentive workers is $2.98. The unadjusted average actual earnings per hour for white incentive workers is $4.09 and for black incentive workers is $3.91. (Plaintiffs’ Ex. 97) 15. As of September 1, 1973, there were 178 white and 869 black incentive employees at Stockham. (Plaintiffs’ Ex. 79) 16. The production jobs in the bargaining unit which are under the incentive system of pay are in job classes 2 through 9. (Stockham Ex. 51A and B) 17. The incentive pay system does not discriminate against plaintiffs or the class or classes they represent as a conceptual method of determining pay. (Stockham Ex. 51A and B) 18. The indirect and direct systems of incentive compensation do not discriminate against plaintiffs, or the class or classes they represent. 19. The method by which it is determined that a job qualifies for indirect or direct incentive compensation is not discriminatory against plaintiffs, or the class or classes they represent. (v) Stockham’s Merit Rating System 1. For each job classification at Stockham there are different levels or gradations of pay for non-incentive employees. (Stockham Ex. 51A and B) 2. A job’s classification is determined by evaluating the job and describing it on a point value basis. (Plaintiffs’ Ex. 85) 3. To advance from one gradation of pay to the next, beginning with the starting rate for his job class, a non-incentive employee must obtain a predetermined merit score under the merit rating system. (Stockham Ex. 51A and B) 4. The merit rating system as it presently operates at Stockham has been in existence since prior to 1950. 5. For non-incentive workers, a higher merit score is required for advancement to each successive gradation of pay within a job class. (Stockham Ex. 51A and B) 6. A new employee is rated at the end of his first three (3) months on the job, at the end of his first six (6) months on the job, and thereafter at the end of each six (6) month period of employment. (Stockham Ex. 51A and B) 7. The performance of all hourly rated employees, both incentive and non-incentive, is rated. (Stockham Ex. 51A and B) 8. The merit score received by a non-incentive employee is used to determine whether he will be given an increase in pay within his job classification. The merit score received by an incentive employee has no effect on his pay. (Stockham Ex. 51A and B) 9. The merit scores received by both incentive and non-incentive employees become part of their personnel records and constitute a record of their performance on the job for a given six (6) month period. (Stockham Ex. 51A and B) 10. The foreman under whose direct and immediate supervision an employee works is the individual who performs the merit rating. (Stockham Ex. 51A and B) 11. The rating is based on the firsthand observation by the foreman of the employee’s performance on the job for the prior six (6) months. (Stockham Ex. 51A and B) 12. The foreman performing the merit rating is required to complete form “PE-1” entitled “Personnel Rating” which entails evaluation of the seven (7) following factors: quantity, quality, job or trade knowledge, ability to learn, cooperation, dependability and industry, and attendance. (Stockham Ex. 51A and B) 13. For each of the seven factors listed above, the rater must place a check mark in the block on the merit rating form indicating whether the rated employee’s performance over the prior six (6) months has been unsatisfactory, poor, average, superior or exceptional. (Stockham Ex. 51A and B) 14. The terms “unsatisfactory,” “poor,” “average,” “superior” and “exceptional” are defined in written terms on the merit rating form. (Stockham Ex. 51A and B) 15. All merit ratings performed by a foreman are revised and approved by the foreman’s immediate superintendent. (Stockham Ex. 51A and B) 16. The completed and approved merit rating form is sent to the Industrial Relations Department where it is graded by Mr. Willard Bagwell, the wage and salary administrator, or someone under his direction. (Stockham Ex. 51A and B) The foreman who evaluated the employee and the superintendent approving the rating do not score the rating. (Plaintiffs’ Ex. 85) 17. The merit rating form is graded according to a predetermined numerical table which is applicable to all hourly employees without regard to race. The rating foreman is unaware of the point values assigned to each category. (Stockham Ex. 51A and B) 18. The merit rating system is not used to reduce an employee from one gradation of pay to another. (Stockham Ex. 51A and B) 19. Since June 10, 1970, each foreman is required to review the merit rating with each employee he rated at least once a year pursuant to the collective bargaining agreement. (Stockham Ex. 23 and 24) 20. Since June 10, 1970, an employee who did not receive a pay increase because of his merit rating could ask for a meeting with his foreman, superintendent and committeeman to discuss his failure to qualify for an increase. (Stockham Ex. 23 and 24) 21. Since June 10, 1964, employees have been urged to discuss their merit ratings with their foremen under the terms of the applicable' labor contract. (Stockham Ex. 51A and B) 22. An employee gets a merit increase if he has a sufficiently high score at least once a year whether his supervisor recommends him for an increase or not. (Plaintiffs’ Ex. 85) 23. Only infrequently has a supervis- or not recommended an employee for a merit increase if the employee scored high enough to receive an increase on his merit rating. (Plaintiffs’ Ex. 85) 24. Stoekham’s merit rating system does not discriminate against and has not been used to discriminate against plaintiffs or the class or classes plaintiffs represent. C. Stockham’s Departmental Seniority System 1. The preponderance of the evidence reflects that the objective of the Stock-ham seniority system is to place the best qualified individual on the job in the quickest, most efficient and safest manner possible. 2. Stoekham has operated on a departmental basis since at least 1940. The departmental operation was formalized into a seniority system by agreement with Local 3036 in 1949. The departmental operation was practiced by Stoekham both prior to and subsequent to unionization, and has continued to be accepted by the unions since that time. 3. The defendant United Steelworkers, through the defendant Local 3036, has been the bargaining representative for hourly workers since 1944, and has represented Stockham’s production and maintenance workers at all times material to this action. One of the functions of defendant Local 3036 is the representation of Stockham’s production and maintenance employees in furtherance of their contract demands. The departmental seniority system has been operated and maintained pursuant to the collective bargaining agreements between Stoekham and Local 3036, which have at all times material to this action provided for departmental seniority. 4. The defendant Local 3036 has participated in the collective bargaining negotiations, and the Local 3036 membership ratifies every labor contract between Stoekham and the Union by a majority vote before it becomes effective. Between 700 and 1,000 Local 3036 members voted at the two meetings in 1970 and 1973 held to ratify the labor contracts, and the percentage of members at each ratification meeting was between 65% and 70% black employees. 5. Since World War II, the majority of Stockham’s employees and the union’s members has been black. The majority of the members of the Local 3036 grievance committee and Local 3036’s officers have been black employees of Stoekham since at least 1967. Plaintiffs James and Winston have been officers in Local 3036 in recent years and they participated in labor contract negotiations. In addition, the defendant Steelworkers staff representative, who aids Local 3036 in contract negotiations is black. 6. While other forms of seniority may have been discussed from time to time, the basic (L e., written) bargaining proposals submitted to Stoekham by the Unions have never requested a change from the existing departmental seniority system and have instead reflected an intention on the part of the Unions to preserve the present seniority system. 7. Under the departmental seniority system employed by Stoekham and the Unions, an employee desiring to transfer to a job in his home department or in any other department may apply to do so by filing a timely application for that job. There is no job progression at Stoekham, so an employee may apply for any job for which he feels he is qualified (including clerical, supervisory, and apprentice jobs). When a job vacancy occurs, all pending timely applications for such job are reviewed. Consideration is given to the skill, knowledge, training, efficiency, and physical fitness of the timely applicants. Where two or more applicants have developed these qualities to the same degree, the applicant with the greatest seniority in the department where the vacancy has occurred is given preference. If an employee changes departments, he has eighteen months to decide whether he wishes to remain in his new department or return to his old department. If he elects to remain in his new department, for layoff protection the employee retains his seniority in his old department until he has achieved equal seniority in his new department. If, during this period of time, he is laid off in his new department, he may return to his old department with the accumulated seniority of both his old and new departments. If, after the eighteen-month trial period, he elects to return to his old department, he retains his seniority in his old department, with time spent in the new department added to that seniority. 8. The Stockham seniority system is predicated in substantial part upon the fact that Stockham’s Birmingham operation is a “multi-plant” facility, unique in the industries in which it competes, and in part upon considerations of safety and efficiency. 9. There is no evidence of any acceptable alternative to the departmental seniority system employed by Stockham. 10. Stockham’s departmental seniority system neither locks employees into the departments to which they were originally assigned nor deters inter-departmental transfers by employees. 11. Plaintiffs failed to show a single instance of a black employee who desired to move between departments but elected to remain in his present job for fear of losing his accumulated seniority. 12. Stockham employees, both black and white, transfer from department to department; the number of applications for such transfers indicates that employees are not inhibited from making such transfers by the operation of the seniority system or by any fear of losing seniority. 13. Since there is no job progression (or lines of progression) at Stockham, an employee can apply for any job for which he feels he is qualified. Furthermore, there are no entry-level jobs in the departments through which employees are required to move before obtaining other jobs. An employee at Stockham can transfer directly to any job vacancy within a seniority unit for which he is qualified. 14. At all relevant times black employees have accounted for the large majority of all inter-departmental transfers. Black employees accounted for a low of 59.4% in 1965 and a high of 89.-7% in 1968 of all inter-departmental transfers. 15. Where, among applicants for a job vacancy, each has about the same degree of skill, knowledge, training, efficiency, and physical fitness, as evaluated by his foreman, superintendent, and manager, then the applicant with the longest service in the department is given preference for the position. (Plaintiffs’ Ex. 24) In filling job vacancies, seniority is not the sole, or indeed primary determinant of which employee is selected. 16. The timely application procedure at Stockham allows an employee to apply for any job in the plant regardless of whether a vacancy currently exists and to be considered for the job when a vacancy occurs. (Stockham Ex. 51A and B) An employee may file applications for any number of.jobs and maintain any number of applications simultaneously. There is no need for the employee to continually check job postings. 17. From 1965 through 1973, 609 black employees and 590 white employees have filed timely applications. (DX.62) 26.6% of the timely applications filed by black employees and 31% of those filed by white employees have been granted. (Stockham Ex. 78) 18. Through the timely application procedure, black employees are not dependent on other employees for notice of job openings and are not dependent upon their supervisors for promotion and transfer consideration. 19. An employee moving to a new job may attain minimum competence to perform the job after some period of time, but he may not become a proficient worker in that job for a period of years. If such an employee were allowed to remain on the job in the event of a layoff while his fellow employee, who had many more years on that particular job but fewer total years with Stockham, was laid off, the efficiency of the manufacturing process would be substantially reduced. An inefficient seniority system could ultimately result in reduced employment at the Stockham facility. 20. A preponderance of the evidence reflects that if the seniority system at Stockham were expanded beyond a departmental concept, the resulting inefficiencies could affect Stockham’s competitive position and result in discontinuance of some product lines and consequently, a reduction in existing employment of Stockham employees. 21. Stockham employees who have worked in a given department are more familiar with the operations of the department and any safety hazards involved in working in that department. They are able to assume the duties of a job in that department quicker, with less expense, and with greater safety, than employees from outside the department who lack such familiarity. 22. In putting the best qualified man on the job, Stockham must consider not only the safety of the worker, his fellow workers and the protection and maintenance of expensive manufacturing equipment, but also the maintenance of high standards of product quality in order to insure the safety of the ultimate users of the products. 23. There are equal earnings opportunities in virtually all of the seniority units at Stockham with no department or departments monopolizing the higher paying jobs. For instance in the malleable seniority unit, six of the top 10 wage earners in 1972 were black with one black in a class 3 incentive job earning $10,129.84. Likewise, in the grey iron foundry unit, 9 of the top 10 wage earners in 1972 were black with one black, a class 6 incentive worker, earning $11,250.85. In the brass foundry seniority unit, all of the top ten wage earners in 1972 were black with one black earning $9,375.99. These departments should be compared with the (predominantly white) pattern shop seniority unit, where in 1972, the top 10 wage earners were all white class 13 workers but the highest white earned only $8,866.82. In the valve machining and assembly seniority unit in 1972, the top wage earner was white but earned only $10,217.24. In the valve tool room seniority unit, the top wage earner, in 1972, a white class 13 worker earned only $8,761.60. (Stockham Ex. 87) A thorough analysis of the top wage earners in each seniority unit shows that for the most part the economic opportunities in all seniority units are essentially equal. In ten of the twenty-two seniority units listed in plaintiffs’ exhibit 11, the unadjusted black gross earnings exceeded unadjusted white gross earnings and in 9 of the 22 seniority departments the unadjusted black hourly earnings exceeded unadjusted white hourly earnings. There is no reason to believe that four black workers such as Willie Rooks, Melvin Thomas, Simon Irby and Douglas McCoy, all of whom made more than $9,500 in 1972, would desire to move or transfer from the malleable foundry to the pattern shop, where the top white wage earner, a class 13 worker, made only $8,866.82 in 1972, or to the foundry repairs unit where the top earner made less than $9,500. (Stockham Ex. 87; Plaintiffs’ Ex. 16) The relatively high earning opportunities in the foundries (malleable, brass, and grey iron) suggest that the high number of blacks in these departments results from voluntary choices by these employees to work in those departments where the most money can be made. 24. The evidence introduced by plaintiffs failed to establish that there are demonstrably superior working conditions in certain departments, and this Court finds that the working conditions in various departments at Stockham are generally the same. 25. At no time has Stockham maintained a policy prohibiting transfers between seniority units and there have never been any restrictions on the number of interdepartmental transfers. 26. The record evidence does not support the conclusion that at any relevant time, Stoekham’s departmental seniority system has discriminated against plaintiffs or the class or classes they represent. 27. The record evidence does not support the conclusion that Stockham’s present modified departmental seniority system discriminates against plaintiffs or the class or classes they represent. 28. The record evidence does not support the conclusion that Stockham’s departmental seniority system locks black employees into particular jobs, pay categories, or departments. 29. The record evidence does not support the conclusion that black employees remain in certain departments because they fear losing seniority. D. Initial Assignment at Stockham 1. Approximately 68% of Stockham’s work force is black and the great majority of the membership in Local 3036 is black. 2. The representation of blacks among Stockham production and maintenance employees exceeds the representation of blacks among federal blue collar workers by 89.2% to 185.5% within educational cells. (Stockham Ex. 17) 3. The representation of blacks among blue collar employees of the federal government is 23.7% and among production and maintenance employees at Stockham is 68%. (Stockham Ex. 17) 4. Approximately 11% of the national work force is black and approximately 23.7% (or twice as many) of the federal blue collar workers are black. Approximately 68% (or almost 3 times the local labor market)' of Stockham’s employees are black. 5. The fact that Stockham’s representation of blacks to whites exceeds that of the Birmingham SMSA by 177.-6% indicates that job opportunities for blacks at Stockham are superior in relation to the Birmingham labor market as a whole. 6. As pointed out in the findings relative to the seniority system, the seniority units at Stockham were established no later than 1950 and were developed because of functional, nonracial reasons. Black employees work in each seniority department at Stockham. (Plaintiffs’ Ex. 9 and 10) 7. The departments at Stockham cannot be analyzed in abstract terms; it is necessary to consider the number of jobs in any department; the type of work performed therein; and, the skills and qualifications required for successful job performance. 8. Stoekham’s black employees work in jobs often filled by whites at other employers, and black employees have the most desirable production jobs in Stock-ham’s foundries. (Stockham Ex. 74) The more skilled production jobs in foundries in the South and throughout the nation are the core-making and molding machine operator jobs which historically were considered to be “white jobs” in the foundry industry. Blacks have historically held these jobs at Stockham, and this is one of the explanations for the large number of blacks in the foundry departments. Historically, blacks came to Stockham and requested jobs as core-makers and molding machine operators — jobs they knew to be available to them only at Stockham. Another factor is that the foundry departments offer some of the highest earnings opportunities at Stockham. 9. Since 1965, the Birmingham office of the Alabama State Employment Service has had approximately 10,000 job applications per year and has serviced approximately 20% of the unemployed persons in Birmingham (60% of that 20;% were black). At no time since 1965 has there been a substantial number (i. e. between 5 and 10) of black applicants for jobs as machinists, blacksmiths, electricians, carpenters or pattern makers. 10. Black employees fill 10 (5%) of approximately 200 craft jobs at Stock-ham. Five percent is not an underrepresentation of blacks in craft jobs compared to the local and national labor markets. 11. There is no black employee of Stockham who has completed an apprentice program at Stockham or elsewhere which qualifies him as a millwright, machinist, pattern maker, welder, carpenter, electrician, box floor molder, auto truck mechanic, blacksmith or heat treater who is not working in such capacity for Stockham. 12. 'There is no black employee holding a certificate of eligibility to work as a journeyman millwright, machinist, pattern maker, welder, carpenter, electrician, box floor molder, auto truck mechanic, blacksmith or heat treater who is not working in such capacity for Stock-ham. 13. Of the 626 employees (251 white and 375 black) employed as of January 1, 1974, who had sought a specific job when applying to Stockham for employment, 61% of the white employees and 53% of the black employees were placed in the job of their own selection. (Stockham Ex. 58) 14. Stockham has provided jobs for many black employees, who, but for their Stockham jobs, would be among the hard-core unemployed. (Stockham Ex. 74) 15. Stockham received the Birmingham Urban League’s Business Hiring Award for 1973, for hiring more minority referrals from the Birmingham Urban League than any other employer in the greater Birmingham area. 16. This Court finds 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. E. Promotions and Transfers at Stockham 1. The evidence shows that the objective of the transfer and promotion system at Stockham is to get the best qualified individual on the job in the quickest, safest manner possible. 2. The classification of jobs at Stockham into job classes 2 through 13 is a system for rating the complexity of a job or the skills required to perform the job. The complexity and required skills increase as the job class number increases. 3. The job classification system as established and maintained at Stockham does not discriminate against any person on the basis of his race. In the early 1950’s for the most part, each of the jobs in the plant was studied and evaluated in terms of job functions. The job classification assigned to any job indicated only the relative skills, abilities and prior training necessary for a worker to perform adequately the particular task. 4. The job classification assigned to any job does not provide any indication of the desirability of the job in terms of earnings potential or actual working conditions. A comparison which contrasts one employee in job class 4 with another in job class 10 is an abstract comparison; it offers no meaningful comparison of the terms and conditions of the two individuals’ employment.. 5. The evidence in this case clearly establishes that the job class held by a particular individual normally has very little to do with the amount of his actual earnings because of the incentive pay system at Stockham. Incentive workers typically make approximately 25% more than their base rate of pay, and of the 75 persons in the production and maintenance unit making more than $9,000 per year in 1972, 40 of those employees were in job classes 9 and below. 6. In connection with varying work conditions associated with different jobs at Stockham, plaintiffs failed to prove that there is any correlation between job classification and the quality of work conditions. Allegations of discrimination in work conditions are not susceptible to proof by statistics and plaintiffs had equal access to the type of information required to prove a variance in work conditions. The evidence showed, however, that many of the jobs carrying classifications 10 through 13 involve working conditions which were equal to or worse than some of the jobs which plaintiffs themselves labeled as “hot, dirty and dusty.” 7. Two jobs on which plaintiffs spent exhaustive time in an effort to prove them to be “white” jobs were box floor molder (large), a class 12 job, and crane operator, a class 11 job. Plaintiffs failed to establish that either of these jobs possessed more desirable attributes in terms of either compensation or working conditions. The following table, derived from plaintiffs’ exhibit 16 which shows the relative earnings of employees within the seniority units, demonstrates that the economic advantages of these jobs are no higher than those jobs held by many blacks. NAME RACE JOB TITLE SENIORITY UNIT 1972 EARNINGS A * B ** Ronald L. Parsons W Crane Operator Grey Iron $8387.12 8th 7 Ernest Kilpatrick W Box Floor Molder Grey Iron $8170.02 12th 10 Ernest Alverson W Crane Operator Grey Iron $7833.24 18th 15 Phillip Naylor W Crane Operator Grey Iron $6937.14 86th 81 William P. Williams W Crane Operator Malleable $8338.99 25th 20 Ralph D. Mowery W Crane Operator Malleable $8229.57 27th 21 A * —Rank Within Department B ** — Number of Blacks Within Department Earning More 8. Plaintiffs’ failure to prove any correlation between job class and desirable working conditions, coupled with the extensive evidence showing no correlation between job class and actual earnings, demonstrates that no conclusion of racial discrimination can be drawn from the mere fact that the “average” job class for blacks is lower than the “average” for whites. 9. Black production and maintenance employees accounted for a large majority of the inter-departmental transfers between 1965 and 1972. (Stockham Ex. 61) 10. There is no black employee of Stockham who has completed an apprentice program at Stockham or elsewhere which qualifies him as a millwright, machinist, pattern maker, welder, carpenter, electrician, box floor molder, auto truck mechanic, blacksmith or heat treat-er who is not working in such capacity for Stockham. 11. There is no black employee holding a certificate of eligibility to work as a journeymen millwright, machinist, pattern maker, welder, carpenter, electrician, box floor molder, auto truck mechanic, blacksmith or heat treater who is not working in such capacity for Stock-ham. 12. Blacks are employed in each seniority department at Stockham. (Plaintiffs’ Ex. 9 and 10) 13. Whenever a vacancy occurs, jobs are filled in accordance with the provisions of the labor contract. (Stockham Ex. 51A and B) 14. The factors . in determining whether an individual is qualified are set forth in paragraph 1 of Section XIII of the labor contract and consideration is given to the “skill, knowledge, training, efficiency, and physical fitness” of the employees being considered. (Stockham Ex. 51A and B; Plaintiffs’ Ex. 24) 15. Where among the employee's filing timely applications within the department, each has about the same degree of skill, knowledge, training, efficiency and physical fitness, the employee having the longest service in the department is given preference for job vacancies. (Stockham Ex. 51A and B) 16. A job need not be vacant before an interested employee can file a timely application for the job. (Stockham Ex. 51A and B) 17. The formalized timely application procedure was made a part of the 1970 collective bargaining agreement applicable to the production and maintenance employees of Stockham. (Stockham Ex. 51A and B) 18. The timely application procedure permits an employee to apply for transfer to another job in the plant before a vacancy in the job applied for actually occurs. (Stockham Ex. 51A and B) 19. The timely application procedure permits an employee to maintain simultaneously several current applications for transfer to other jobs. (Stockham Ex. 51A and B) 20. The timely application procedure permits an employee to apply for transfer to another job he desires without the necessity of his regularly checking current job postings to ascertain that there is a vacancy in the job he desires. (Stockham Ex. 51A and B) 21. A timely application is written up for an individual by his foreman at his request and the application is forwarded to the superintendent who retains a copy and sends a copy to the personnel department. A copy is also given to the employee’s union representative. 22. Any employee at Stockham can file a timely application for any job at Stockham, although the labor contract relates to hourly jobs only. 23. The timely application procedure was initially formalized in 1965 and became a part of the collective bargaining agreement in 1970. 24. From 1965 through 1973, a total of 1,199 timely applications were filed. (609 by blacks and 590 by whites.) (Stockham Ex. 62) 25. 25.62% of all timely applications filed by black employees and 31.02% of all timely applications filed by white employees since 1965 have been granted. 26. Stockham proposed in the 1973 labor negotiations that supervisors notify in writing the committeeman or in his absence the senior qualified man in a seniority group, of all new jobs or expected vacancies for which timely applications have been filed. (Stockham Ex. 80) 27. According to the current labor agreement, a worker transferring from one department to another at the direction of management has 18 months to decide whether he wants to remain in the new department. If he elects to remain in the new department he will retain his seniority in his home department until he has been in the new department as long as he was in the old department. (Stockham Ex. 80; Plaintiffs’ Ex. 24) 28. An employee moving to a new job may attain minimum competence after some period of time but may not become a proficient worker in that job for a period of years depending upon the complexity of the job. 29. Stoekham introduced extensive testimony regarding the qualifications needed by individuals to perform the critical jobs — the craft, highly skilled and skilled jobs — safely and efficiently, as reflected in the findings of fact, infra. The critical jobs are for the most part those jobs in class 10 and above. This evidence was in the form of objective criteria applied to all workers alike. The evidence stands uncontradicted by plaintiffs and when confronted directly, plaintiffs were unable to show a single instance of a qualified black who sought one of these jobs and was rejected while whites of equal or inferior qualifications obtained the job. 30. The relatively small number of blacks in certain high skilled and craft jobs at Stoekham is due not to the discriminatory practices of the defendant, but due instead to the absence of qualified black employees. F. Job Qualifications Essential For Certain Skilled, Highly Skilled and Craft Jobs — The Critical Jobs (1) Craft and Highly Skilled Maintenance Jobs 1. The jobs of Millwright First Class, Electrician First Class, Carpenter, Patternmaker, Blacksmith, Welder Specialist and Machinist First Class are critical jobs. They are highly skilled, journeyman trade maintenance jobs requiring the completion of an apprenticeship or equivalent job training. Each of these jobs requires the maintenance or operation of expensive equipment and affects the safety of the journeyman and other employees who work around him, or follow behind him, as well. 2. The jobs of Millwright, Repairman, Electrician Second Class, Machinist Second Class, Electric Acetylene Repair Welding and Auto-Truck Mechanic are critical jobs and are highly skilled maintenance jobs requiring considerable training involving the maintenance or operation of expensive equipment, and affecting the safety of the particular tradesman and other employees working with him, or following behind him, as well. 3. There is no formal or automatic line of progression from Repairman to Millwright to Millwright 1st Class, nor from Electrician 2nd Class to Electrician 1st Class, nor from Machinist 2nd Class to Machinist 1st Class. 4. The jobs of Machinist 2nd Class, Electrician 2nd Class, Repairman, and Millwright require significantly more supervision than a journeyman, or 1st Class tradesman, in those trades. They also require some degree of attention from