Full opinion text
OPINION WIDENER, Circuit Judge, Sitting by Designation. Thomas Younger instituted this action on behalf 'of himself and others similarly situated by filing a complaint in which he demanded relief on two counts. Count one of the complaint alleged, inter alia, that defendant Glamorgan Pipe and Foundry Company (hereinafter Glamorgan) (a) maintains a policy or practice of discriminating against plaintiff and other Negro persons similarly situated because of race or color with respect to compensation, terms, conditions and privileges of employment; (b) limiting, segregating and classifying the employees of defendant Glamorgan in ways which deprive plaintiff and other Negro persons similarly situated of employment opportunities and otherwise adversely affect their status as employees because of race or color, and (c) retaliating or discriminating against plaintiff and other Negro persons similarly situated because they have opposed practices made lawful under Title VII or because they have made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under Title VII. Count two of the complaint charged that defendants Steelworkers and Local 2864 have violated and continue to violate their duty of fair representation of plaintiff and all members of his class at the Company, in that they have acquiesced in the unlawful and discriminatory policies and practices complained of in count one and have failed to negotiate or attempt to negotiate the elimination of such policies. As with many cases, the issues in this case became more precisely defined as the lawsuit progressed. The issues raised by count two were conceded by the plaintiff. During opening statement the following colloquy took place. The Court: How have they failed to represent the plaintiff? Is that still in the case? Mr. Marsh: No, sir, your Honor, that is not still an issue. And later the following conversation transpired: The Court: Is there any claim of discrimination within the union? Don’t the black employees have just as much right to vote in the union as the white employees? Mr. Marsh: That is not an issue in the case. The Court: There isn’t any issue of that? Mr. Marsh: That is not an issue in the case. Prior to trial the parties agreed that the following included all of the issues to be tried in this case. a. Was plaintiff discharged on account of race? b. Was plaintiff discharged on account of asserting his rights under the Equal Employment Opportunity Act? c. Was plaintiff discharged for cause? d. ‘ Was plaintiff denied opportunity for promotion on account of his race? e. If the answer to question (d) is “yes,” were other blacks so discriminated against? f. If the answer to question (d) is “yes,” is such discrimination yet occurring? g. Was the plaintiff discriminated against in the matter of wages on account of his race? h. If the answer to question (g) is “yes,” were other black employees discriminated against in like manner? i. If the answer to question (g) is “yes,” is such discrimination yet occurring? j. Was the plaintiff discriminated against in job assignments on account of. his race? k. If the answer to question (j) is “yes,” were other black employees discriminated against in like manner? l. If the answer to question (j) is “yes,” is such discrimination yet occurring? m. The back pay, if any, due the plaintiff $.__ It is apparent from the above questions that the court was of opinion, and the parties agreed, at the time these issues were drawn, that success of the class action aspect of this case depended upon the plaintiff’s success in his individual causes of action, on the theory that if plaintiff has suffered none of the injuries of which he complains, he would not be a proper representative of the class which allegedly suffered similar injuries. The fourth circuit has rejected this reasoning in two cases similar to the instant case, Cox v. Babcock and Wilcox Co., 471 F.2d 13 (4th Cir. 1972) and Moss v. The Lane Co., 471 F.2d 853 (4th Cir. 1972). It is clear from Cox and Moss that the class action in this case may not be dismissed because the plaintiff Younger has failed to prove his claims. Cox and Moss do not change the substantive issues in this case and, since success of Younger’s claim could not be measured until the end of the trial, evidence relevant to the class action aspect of this case was admitted throughout. The Court will take up first the issues relating to the discharge of plaintiff Thomas Younger. Younger contends that he was not discharged for cause but instead was discharged on account of his race and on account of his having filed a complaint with the Equal Employment Opportunity Commission. On November 20, 1963, plaintiff Thomas Younger filed an application for employment with Glamorgan. On December 16, 1963, Younger was employed by Glamorgan and he entered the labor pool at pay rate of $1.64.5 per hour. Because it was necessary to Glamorgan’s operations to hire Younger immediately, he was employed on a probationary basis pending completion of the company’s investigations and Younger’s satisfactory performance on the job. His personnel file shows a report from a previous employer, B. G. Hesson Construction Co., which states that Younger left the job because of a dispute over whether or not he should do certain work. The report stated that the company would not rehire Younger because of his unwillingness to work; that Younger did not have the ability to get along with others or accept supervision willingly and that his job performance was poor. The company kept Younger as an employee in spite of this report. When Younger went to work in 1963 he started in the labor pool as do almost all employees. From the labor pool he went to the soil pipe finishing department where he was trained to be a pipe cutoff saw operator. His duties included sawing off ragged pipe ends and rolling the pipe to scales for weighing. Younger joined the Union as soon as his waiting period was up and before long, on July 29,1965 he was appointed grievance man, whose duty it was to attempt to iron out problems in his department. Younger testified that because of his activities as grievance man he was called an agitator by a certain John Wil-liaras who was superintendent of the plant. Younger filed a grievance on the matter which resulted in Williams denying that he had ever called Younger an agitator. The grievance report further shows that Younger asked for a transfer from his department. Younger testified that, following the grievance incident, company officials talked to him and encouraged him to quit his job because they thought he was unhappy and everybody would be better off if he found work elsewhere. Younger stayed on the job and was subsequently transferred. He denies that he asked for a transfer, but the more credible evidence is that he did ask for it. In any event, any issue as to his transfer is not in the case. Younger moved from the cutoff saw operator job to what he called a cupola job and then to silicon loader. His duties there were to load a prescribed amount of silicon into a bucket from which silicon would be dumped into a lorry and then into an electric furnace. Younger claims that he was given insufficient training for the job, though he also contends that he performed it satisfactorily. There were two lead men, Elder and Early, both white. Younger said that he followed their instructions including those pertaining to the amount of silicon to be put in the bucket. Younger testified that he began getting complaints that he was not properly loading the silicon bucket. Finally, Younger was fired, the stated reason being that he put no silicon in the bucket. On the day he was charged with putting no silicon in the bucket he was working with a man named Wesley who also was black. Another black employee, named Harvey, worked in close proximity with Younger. Wesley testified that Younger did put the silicon in the bucket on the day it was charged he did not. Harvey testified and first explained that he worked on the electric furnace charging block. The silicon would go up a ramp past him and be dumped into a lorry and then into the furnace. He testified that on the day Younger was fired, he observed that there was no silicon in the bucket. He also said that on previous occasions he would have to send the bucket back down to Younger to have silicon put in. The court notes that Harvey testified in spite of the fact that he had previously been warned not to testify and threatened if he did so. Such threat was by way of an anonymous phone call. The melting superintendent, Vest, testified and explained in more detail the nature of Younger’s job. The ingredients which go into the electric furnace are carried to the furnace by a coke lorry. Limestone is first placed in the lorry, then coke, and then the ferro-silicon. Younger’s job was to load the ferro-silicon into the lorry. At the beginning of the shift each day either the melting superintendent or the lead man would pick up a charge sheet from the laboratory. This sheet would prescribe the amounts of each ingredient to be added to the lorry. The silicon loader would be informed by the lead man how much ferro-silicon to place in the lorry. The silicon is weighed and added to a slide which has a lift gate. After the limestone and coke are added to the lorry, the silicon loader raises the gate and silicon slides into the coke lorry on top of the charge. The silicon loader then presses a button and the coke lorry goes up to the dumping position. Obviously Harvey was referring to the lorry when he said he sometimes had to send the “bucket” back down to Younger to have silicon put in. The silicon loader uses a bucket to weigh the silicon and dumps the contents of the bucket onto the slide referred to above. The ferro-silicon is always the top ingredient in the lorry and the charge operator (Harvey in this case) can see the charge. On January 24, 1967, Vest gave Younger an oral reprimand. Younger’s lead men had complained that he was not adding silicon to every charge. Also, the lab analyses of the samples taken from the furnace showed a consistent reading of under 2% silicon while Younger was working. 2% was the proper amount. It had been explained to Younger that salable pipe had to have proper silicon composition, otherwise it was scrap. Vest testified that on the day before Younger was fired he issued another reprimand to Younger because of further complaints from lead men, inventory reports which indicated silicon undercharging, further lab reports showing improper silicon loading and reports from the charge operator that insufficient silicon was being loaded. The next day, February 17, 1967, Vest was on the charging platform and he noticed that there was no silicon in the lorry. He directed Harvey, the charge operator, to hold the charge. Vest, Harvey and Early, a lead man, looked at the charge and there was no silicon. Vest confronted Younger with the situation and Younger denied failing to put the silicon in. Vest informed Younger that he was fired and directed him to report to the personnel office. The court is of opinion that it is clear that Younger was discharged for cause and not on account of his race. His job was not a difficult one, yet its proper performance was essential to production of salable pipe. This was explained to him and he consistently failed to load the proper amount of silicon into the lorry. While Younger denied the alleged malfeasance and such denial was corroborated by his helper, Wesley, they were both contradicted by more credible evidence. Harvey corroborated Vest’s version of the incident of Fébruary 17 and also testified that Younger frequently improperly loaded the ferro-silicon. The unsatisfactory lab reports and the inventory reports further indicated that Younger was not doing his job. The record is simply barren of evidence that Younger was discharged on account of his race. While his previous transfers are not at issue in this suit, the court notes that he was always replaced by a black man and there is no indication that such transfers were on account of his race. As to the allegation that he was discharged because he filed an EEOC complaint, there is a similar dearth of evidence. The record shows that on March 14, 1967, Younger filed an amended charge before the EEOC concerning his discharge. Apparently the first EEOC complaint concerned the August 1966 transfer of Younger into another department. Of course the March 14, 1967 EEOC complaint could not have influenced his discharge because it was filed after the discharge. Younger testified that he filed an EEOC complaint in August of 1966 concerning his transfer. Younger testified on cross examination that the company knew, before he was discharged, that he had filed an EEOC complaint. Younger admitted, though, that he could not recall having told any company official that charges had been filed. At this point, Younger’s deposition was read which indicated that he had not told the company about the EEOC complaint. Assuming that the company did know about the EEOC complaint when Younger was discharged (an assumption not warranted by the evidence) there is a further lack of evidence that knowledge of such complaint had anything to do with Younger’s discharge. On the evidence before the court the conclusion is inescapable that Younger was fired for cause and not on account of his race or his EEOC complaint. As far as issues d and g are concerned (was Younger denied promotion or opportunity for promotion because of race and was Younger discriminated against in the matter of wages) the evidence does not show any incidents of discrimination against Younger. Likewise, as to issue j (concerning job assignments), Younger failed to prove that during his job tenure he was discriminated against on account of his race in regard to job assignments. However, it will be discussed subsequently whether the defendant’s system of transfers and seniority affecting promotion, job assignments, and wages tends to discriminate against blacks generally. Turning to the issues of promotion, pay and job assignments with regard to the class, it is first necessary to describe defendant’s operation to the extent discernible on this record. Glamorgan is basically divided into 17 departments. All jobs paid on an hourly wage rate are classified into labor grades. Any department may contain any combination of labor grades. For example, the melting department contains eight different labor grades. The highest paid worker in the maintenance department is the lead man who is in labor grade 12 in which the base pay is $4,195 per hour. Labor grade 9 in maintenance is occupied by a millwright whose base pay is $3.61 per hour. Thus, regardless of department, the labor grades are paid the same base pay. Obviously, the departments which perform skilled labor have more high labor grades than departments which do unskilled labor. The company has, at least since 1965, recognized company and departmental seniority. The seniority system is and has been embodied in the collective bargaining agreements executed by the union and the company. Approximately one half of the union’s membership is black and the union supports the seniority system. Nearly all employees enter the plant in the labor pool, but regardless of which department they start in, company seniority accumulates beginning on the first day after the employee has worked continuously for three months. Company seniority continues as long as an employee is employed on a continuous basis. Departmental seniority, like company seniority, can not accrue until the employee has worked in the plant for three months. Department seniority does not accrue until an employee has worked in the department for 30 days. (Thus, if an employee commenced his employment with the company in the melting department and worked there continuously for three months, plant and department seniority would begin to accrue at the same time, that is the first day after the end of the three month probationary period. If an employee went into the melting department with say two years’ company seniority he would have to wait thirty days for department seniority to accrue.) The salient point about department seniority is that a permanent transfer to another department works a forfeiture of the employee’s departmental seniority in the old department. That is, he must enter the new department with no departmental seniority. A departmental transfer does not affect company seniority of any kind. The seniority system is basically a job security provision. A man in a low paying hard working job may be reluctant to transfer into an easier, higher paying job because, as the low man in his new department he would be the first to be bumped in the event that a job in the new department is eliminated. And he could not revert to his old department because his seniority was lost there when he transferred out. It was adduced at trial however that all is not lost when an employee is bumped from his new department. He would return to the labor pool with his plant wide seniority. There is no departmental seniority in the labor pool; such an employee would enter the labor pool and be in a better position there than anyone with less plant seniority. The court recognizes that a return to the labor pool might be a serious step down for an employee, but the court also notes that such an employee is substantially protected against loss of employment. The seniority system is basically what this suit is all about. The plaintiffs contend that blacks were historically placed into the lower paying, less desirable jobs and that they can not get out of those jobs because they do not want to risk losing seniority in their department. Of course, the loss of seniority is not peculiar to blacks. Any employee with any appreciable department seniority is faced with the same choice on the question of transfer — the risk is the same for all, black or white. But plaintiffs claim that the system while perhaps not discriminatory on its face, has the effect of freezing blacks into departments and jobs in which they were placed on account of their race. The plant maintains a job bidding system which also bears on this issue. Prior to 1965, when jobs opened up in the plant the department foreman would more or less go out and pick someone to move up. There was no job bidding or posting of job openings. Often a man in the department would be chosen to move up but the foreman might go outside the department. In 1965 a job bidding system started. The present operation of that system was as follows: When a vacancy occurs in any department, a bid is posted for a period of three days. The bid states the department, the department number, the date of the posting, the name and labor grade of the job, and the pay rate. Up until around 1969, the bids were restricted to the department in which the job opening existed. After that time, anyone from any department could sign the bid. The bid is taken down after three days and the persons who signed the bid are evaluated by the supervisor or the foreman, either or both. All bidders may be rejected and a more qualified person might be solicited. The 1965 collective bargaining agreement required posting of bids, and they have been posted since that time. When the bidding system started, most bids recited the fact that persons outside the department need not apply, although there was evidence that the practice was for anybody who wanted the job to sign the bid. In any event, bids are no longer restrictive and the open bidding practice started around 1969. With this system of seniority, transfers, and bidding in mind the court must consider the evidence, if any, of discrimination. At the outset, the court notes that the sum of the oral testimony failed to show that black employees were or are discriminated against at Glamorgan. In a factory employing over 450 wage earners, several incidents of a white worker referring to a black worker in disparaging terms does not amount to a Title VII case of discrimination. The difficult part of this lawsuit results from the exhibits which show that blacks predominated in the lower paying and less desirable jobs. Not even the exhibits show that any company action resulted in this situation. The court is aware that lack of intent to discriminate is no defense. As long as the company maintained a system which had or has a discriminatory effect, Title VII is violated. Quarles v. Philip Morris, Inc., 279 F.Supp. 505 (E.D. Va.1968); Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir. 1971). If it be shown that the accumulation of black employees in such jobs is not a result of racial discrimination, plaintiffs would be entitled to no relief. Plaintiffs called first Lewis C. Moorman, personnel director at Glamorgan since 1961. It was adduced from Moorman, inter alia, that the company has no black officials, or technicians. There is one black supervisor. One of the clerical personnel is black. There are two black foremen. Of the four employees who have received vocational training, none are black, but no black employee has ever asked for such training. No blacks have ever completed the apprentice training program, but no black has ever been turned down for such training. There are four black lead men out of a total of 28. Plaintiffs next called Milton Thomas Ferrell, a black employee who has been employed at Glamorgan since 1959. Ferrell started as a laborer in the melting department. Ferrell stated that a white man named Williams was promoted ahead of him even though Williams had less departmental seniority. Williams became a carbon injector in the melting department even though Ferrell had been in the department a longer time. Williams did, however, have greater plant seniority. Ferrell testified that a white man named Eubank was also advanced ahead of him. Eubank was given training to become a melting bridge crane operator and subsequently given the job, even though Ferrell had greater departmental seniority. Ferrell had less plant seniority. Two other white men, James Eubank and J. R. Campbell were given jobs as carbon injectors while Ferrell was still a slag man. Ferrell’s departmental seniority exceeded that of both of these men. The court notes that assuming plaintiff’s theory that plantwide seniority should be used, three of these four men should have been promoted ahead of Ferrell. Cross-examination revealed that in 1969 Ferrell was offered the job as lead man in the melting department. His foreman approached him, offered him the job and asked him to sign the bid for the job. Ferrell was not interested. Another black man, Brown, was likewise uninterested. Ferrell was also offered a lab technicians’s job and related training in 1969 which he turned down. He was later offered a job as control supervisor which he also turned down. Ferrell did not want any salaried job because it would mean he would have to give up union involvement. Ferrell’s testimony also showed that the union has favored the departmental seniority system and the union is 50% black. J. E. Williams testified and stated that he had been with Glamorgan for forty-one years, during which time he held many jobs, from laborer to supervisor. At the time of his testimony he was supervisor of Dela-vaud Casting, and Cleaning and Cement Lining. Williams testified that, to his knowledge, foremen did not play a very important role in selecting men for job assignments, and that basically it was the supervisor’s choice. He testified that the criteria was seniority, ability and attendance record. When Williams first became supervisor the black to white ratio in his department was around 50-50. Presently he has about 60 blacks and 20 whites under his jurisdiction. His lead man and foreman are white. As previously indicated, Younger himself testified as did his co-worker Wesley. Their testimony went primarily to Younger’s individual claim of discrimination, and their testimony did not touch on other relevant matters. William Callahan, a black employee, was called by plaintiff. The purport of his testimony is not clear. He had, prior to coming to Glamorgan, experience as a crane operator and he wanted to operate a crane at Glamorgan. He has been a crane operator in two departments at Glamorgan, and he' was, at the time of trial, a crane operator. Callahan wanted to fill an existing vacancy for crane operator, he signed a bid and got the job. About a year into this job, Callahan complained that he should be paid at a higher labor grade. The company agreed, the job was re-evaluated and he was given back pay. Callahan did say that after he got his back pay, they started letting another higher paid man come in and operate the crane on Saturdays. He testified that he was getting bad remarks from people and being called names he did not want to use on the witness stand. Callahan discussed that his job was going to be automated so he bid on another job as crane operator, which job he received. Callahan was later recalled, at which time he stated that he would not bid on another job regardless of the circumstances because he liked the job he had. Callahan and Ferrell both were better witnesses for the company than for the plaintiff. T. H. Farrow, a black employee, testified that he had never bid on any jobs because he was unwilling to run the risk associated with the loss of departmental seniority. Farrow also testified that Tripplet, the man who allegedly harassed Younger, often called black employees “boys.” Plaintiff’s attorneys attempted to offer the entire deposition of two Glamorgan officials with the officials present. The court rejected the depositions as offered only in their entirety. Plaintiffs had the opportunity to question these men as adverse witnesses or to read any statements they had made. Of course they could use the depositions to impeach if necessary. The attorneys were advised they could use any parts of the depositions as admissions against interest. But the court refused to allow the whole depositions to be dumped into the record. In all events, the depositions have been improperly filed. Plaintiffs also filed a considerable number of exhibits, as did defendants, and these have been considered along with the testimony. Defendant’s oral evidence went mainly to rebuttal of Younger’s individuál claim, which has heretofore been discussed. Defendant called Lewis Moorman who had previously testified for plaintiff. One significant point of Moorman’s testimony was that the job bids which were posted prior to 1969 purported to be limited to applicants within the department in which the opening existed. Moorman had already testified that the rule was more honored in the breach than in the observance so that it was ultimately abolished. Colloquy with counsel at this time revealed more clearly what this lawsuit is all about. Plaintiffs maintain that the job bidding system in conjunction, with the seniority system with the inner-departmental restrictions which did exist at some point, tended to discourage black employees from bidding into more desirable predominantly white departments. The court questioned counsel as to whether there was any evidence of discrimination in the actual process of awarding bids. Counsel for plaintiff replied that it might come out in later testimony. Plaintiff had at this time rested his case and it would seem that any evidence on discrimination in job bid awards would have been adduced during his case. Such later testimony was never forthcoming. Defendant called Thomas Howell Up-church who has held, among other positions, the job of Equal Employment Opportunity officer for the plant since 1969. His basic responsibility is insuring that the company has in effect an affirmative action program and adheres to fair employment practices with regard to race and sex. Upchurch was questioned, as were other witnesses, concerning the incentive system at which time plaintiff informed the court that they do not contend that race is in any way connected with incentive pay. The major thrust of Upchurch’s testimony was that he works closely with management to insure fairness with regard to race and employment. He stated that training, promotion and transfers are done without regard to race. Various documents filed as exhibits portray the total number of employees and the racial composition thereof. A review of these exhibits gives rise to the following approximation for 1971: total hourly paid employees in bargaining unit: 471; total black employees in bargaining unit: 234; percentage of black employees since 1965 is 45%. The more important figures are those of the various departments which are as follows: Department # black # white Total 1. foundry 29 30 59 2. melting 26 14 40 3. delavaud casting 17 11 28 4. shipping & misc. 24 12 36 5. maintenance 8 72 80 6. machine shop 0 21 21 7. delavaud finishing 46 4 50 8. shell core 5 9 14 9. soil pipe casting 8 9 17 10. soil pipe finishing 14 6 20 11. flange pipe 0 4 4 12. plastic pipe 5 17 22 13. labor pool 39 13 52 14. transportation 0 2 2 15. inspectors 7 13 20 16. storeroom 1 5 6 17. permanent mold 5 1 6 unknown 2 2 4 Totals 236 245 481 As of 12-31-70 Department # black # white Total 1. foundry 49 40 89 2. melting 24 13 37 3. delavaud casting 12 11 23 4. shipping & misc. 21 11 32 5. maintenance 7 69 76 6. machine shop 1 23 24 7. delavaud finishing 41 5 46 8. shell core 7 11 18 9. soil pipe casting 8 10 18 10. soil pipe finishing 14 6 20 11. flange pipe 0 4 4 12. plastic pipe 5 11 16 13. labor pool 34 9 43 14. transportation 0 2 2 15. inspectors 9 11 20 16. storeroom 0 4 4 17. permanent mold 3 i 4 unknown 2 2 4 Total 237 243 480 As of 8-11-65 Department # black # white Total 1. foundry 44 51 95 2. melting 24 13 37 3. delavaud casting 10 19 29 4. shipping & misc. 23 33 56 5. maintenance 3 65 68 6. machine shop 0 21 21 7. delavaud finishing 44 7 51 8. shell core 2 16 18 9. soil pipe casting 1 12 13 10. soil pipe finishing 9 9 18 11. flange pipe 0 4 4 12. plastic pipe 1 9 10 13. labor pool 17 12 29 lead men for 1965 figures foundry 0 6 6 melting 0 1 1 shipping & misc. 1 2 3 maintenance 0 2 2 delavaud finishing 0 3 3 shell core 0 1 1 soil pipe casting 0 2 2 soil pipe finishing 0 1 1 flange pipe 0 1 1 plastic pipe 1 1 2 Total 186 308 494 The above charts reveal that blacks have tended to predominate in melting, delavaud finishing, soil pipe finishing, and the labor pool. The labor pool, however, is not a typical department in that it is comprised mainly of new hires and there is no risk of loss of departmental seniority when transferring from the labor pool. Shipping and miscellaneous is not included because the pay of black employees in that department is greater than whites. Permanent mold is not included because four employees is an insufficient statistical sample, no other evidence of discrimination appearing. The company offered no evidence to show why blacks tended to predominate in the above departments. Plaintiff offered no evidence that the above figures were the result of any racial discrimination. Plaintiff called no witnesses who could say they wanted to get out of their department and could not. In fact, the witnesses actually called by plaintiff support the inference that black employees do not want to move into other departments and they like the jobs they have. That inference may be taken at somewhat less than full value in view of the fact that very few witnesses testified. But it would seem that if blacks wanted to transfer and felt they could not, plaintiff could have called at least one to so testify. The departments in which blacks tend to predominate are alleged to be undesirable departments. Undesirable is a vague term, but for the purposes of this law suit, the court considers it to mean primarily low pay and hard work. It was discussed earlier that all jobs are given a labor (or pay) grade and that each department .will have various grades within it. The following chart depicts the pay ranges for each grade: 1. 2.36-2.55 7. 3.21-3.51 2. 2.45-2.71 8. 3.37-3.81 3. 2.55-2.84 9. 3.51-3.99 4. 2.71-2.97 10. 3.81-4.09 5. 2.84-3.21 11. 3.99-4.22 6. 2.97-3.37 12. 4.09-4.34 It is necessary to compare the departments and determine the relative job grades in each. The following chart depicts this information. ( No. of jobs in each GRADE 123456789 10 11 12 grade in each dept.) Department 1. Foundry 1 6 7 9 3 4 3 2 1 2. Meltinq 1 1 3 3 5 4 1 1 3. Delavaud Casting 3 1 1 3 1 4. Shipping & Mise. 2 3 4 3 1 2 1 5. Maintenance 1 1 9 4 7 1 3 6. Machine shop 2 1 1 1 1 2 7. Delavaud Finishing 7 6 4 4 1 1 8. Shell core 1 1 2 1 9. Soil pipe casting 1 2 1 1 10. Soil pipe finishing 6 2 1 11. Flange pipe 2 2 1 12. Plastic pipe 1 1 1 1 1 1 1 13. Labor pool no fig' are 5 q Lvei a 14. Transportation no fig' are q Lvei 15. Inspectors 1 2 5 i 1 16. Storeroom 1 1 1 17. permanent mold 1 2 2 The above chart reveals that departments in which blacks tend to predominate generally contain jobs which carry a designated labor pay grade lower than other departments. But it also appears that only two of the predominantly white departments (maintenance and machine shop) contain significantly higher numbers of higher labor grades. Perhaps it would be relevant at this point to consider the racial compositions of the respective labor grades. That information is depicted in the following chart: Grade % Black 1 80 2 79 57.4 3 Grade % Black 4 61.8 5 37 6 34.9 7 6.5 8 5.3 9 0 10 0 11 0 12 0 The above figures taken as a whole indicate that there are certain departments in which blacks tend to predominate and that such departments contain generally lower designated labor grades and further that such labor grades are lower paying grades. The chart immediately above indicates the con-elusion from the other data that blacks predominate in the lower paying jobs at Glamorgan. Concerning the physical difficulty of the labor in the respective departments, the many job descriptions show that most all of the jobs at Glamorgan involve hard work. The only information which the court has to go on is the job description itself, which consists merely of a brief description of the work performed and the requirements necessary to fill the position. It is difficult to compare these descriptions and make a rational determination as to which jobs are the hardest. They describe different skills in different departments involving different materials. The court concludes that it would be fair to all parties to evaluate the abstract desirability of these jobs by using the labor grade supplied by the company; all involved hard work. Plaintiffs have made no attack on the labor grade classifications or the job descriptions. Defendants submitted charts which tend to show the relative job mobility of blacks and whites at Glamorgan. These figures reveal that from 1969 to 1971, 27.4% of the black employees who signed bids got the job bid for. Twenty-eight and three-tenths percent of whites who signed bids got the job bid for. Thus, blacks are almost exactly as successful as whites in securing jobs through bidding. But those facts may be of less than conclusive significance in the context of this suit. The exhibits do not show what percentage of blacks and whites were able to bid into a new department. The fact that blacks may and have successfully bid on jobs in an already predominantly black department does not necessarily rebut discrimination, even if it tends so to show. If defendants could show that blacks cross bid as successfully as whites, then the only conclusion possible would be that blacks simply do not bid to new departments as frequently as whites. Such a conclusion would certainly be consistent with the live evidence put on by plaintiff which, as before stated, favored the defendants’ position. Defendants’ exhibit x shows that well over two hundred transfers from one department to another occurred from 1965 to 1971. About a hundred and thirty involved black employees. It is not shown whether the transfer was because of a bid or because of demotion or being bumped or for other reason. Analysis of exhibit x shows that black movement, for whatever reason, was significantly lower than white movement only in the machine shop, flange pipe department, and the plastic pipe department. One black employee testified that whites were moved around more than blacks and thus had the opportunity to learn more jobs; this, of course, is refuted by the exhibit. Another black employee said he would rather have one job he could do well than be moved around a lot. All in all, the exhibit is instructive, but knowing the reasons for the transfers would have added weight to the exhibit. The sum of all the evidence in this case is that blacks predominate in certain departments; there are more lower paying jobs in these departments; and blacks fill a higher percentage of the lower paying jobs. Plaintiffs failed to show why the situation exists or that the Company intended for it to exist. Defendants, by the same token, failed to show why the situation exists or that it did not result from racially discriminatory practices, although unintentional. The court is of opinion that so long as job bids purported to be restrictive, such practice discouraged blacks from bidding out of departments which were predominantly black for whatever reason. There is no evidence that the Company intended for the departmentally restrictive bidding system to discriminate against blacks. Yet the impact of the system was to freeze blacks into certain departments in which they had predominated at the inception of open bidding. On this record, the court is not concerned with employees hired after the beginning of the posting of bids which were not departmentally restrictive. There is a total failure of proof, statistically or otherwise, of any discrimination by the Company after that date. Moreover, plaintiff has stipulated that they are not in the class. The court is concerned, however, with the black employees hired before jobs were posted at all, during the time when the management simply selected men for promotions, and also with those black employees who may have found themselves in one of the predominantly black departments prior to the inception of open bidding. Such employees hired during this period who fell into one of the predominantly black departments were discouraged from leaving until the restrictive bidding system ended. The only practical relief which comes to mind is to allow any black employee who was in any department which was predominantly black up until restrictive bidding ended to bid out of that department without the risk of losing any pay or seniority. This means that if a bid is posted in any department other than one of the predominantly black departments, a black employee in any of the predominantly black departments may bid on the job, and if he is given the job, he should enter the new department with the departmental seniority and base wage rate (if it is higher) he had in his old department. Incentive pay should play no part in this process. In determining whether the new job has a higher or lower wage rate, the incentive pay an employee may have been earning in his old department should not be considered. Of course, any incentive pay the employees might earn in his new department is likewise not to be considered in determining the base pay. The departments referred to herein as predominantly black departments are the following: melting, Delavaud finishing, and soil pipe finishing, as well as the labor pool. The date to be used as the date on which restrictive bidding ended and open bidding began should be January 1, 1969. Thus, to be eligible for the relief provided, an employee must have been hired prior to January 1, 1969. This is in accordance not only with the end of restrictive bidding on January 1, 1969, but also with an agreed upon order entered by this court on May 2, 1973. Plaintiffs have also demanded back pay. Title 42 U.S.C. § 2000e-5(g) provides in pertinent part as follows: “The court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include but is not limited to, reinstatement or hiring of employees, with or without back pay . . .” The statute on its face would seem to vest considerable discretion with the trial court and also may be said to authorize back pay only upon reinstatement or hiring of employees, neither of which is present in this case. Whatever discretion a literal reading of the Act may give, the construction of the Act by the circuit court leaves little remaining. The rule in this circuit seems to be that back pay must be awarded unless certain special circumstances exist. Moody v. Albemarle Paper Co., 474 F.2d 134 (4th Cir. 1973). The court did not list the special circumstances but instead cited cases for examples of the existence of such circumstances. An analysis of those cases reveals the following: Newman v. Piggie Park Enterprises, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 963 (1968). Newman involved attorneys’ fees and stated that, absent special circumstances, attorneys’ fees should be awarded. In a footnote, it appears that had the case been a borderline case on the merits, and had frivolous defenses not been raised, then perhaps the attorneys’ fees question would have been closer. Newman teaches that it is relevant to consider the merits of the claims asserted and the merits of the defenses raised. Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002 (9th Cir. 1972). Schaeffer was a sex discrimination case in which the defendant refused to allow women to drive cabs more than eight hours a day. Such actions were in accord with State law and no bad faith on the part of the employer was shown. LeBlanc v. Southern Bell Tel. & Tel. Co., 333 F.Supp. 602 (E.D.La.1971), affirmed per curiam, 460 F.2d 1228 (5th Cir. 1972). LeBlanc was a sex discrimination suit in which defendant refused to hire women for jobs requiring more than a forty-eight hour week. Such actions were in accord with State law and no bad faith on the part of the employer was shown. These cases must be read in light of the fact that Moody also teaches that good faith is no defense to the entry of a back pay award in light of the compensatory nature of such relief. Good faith must, however, be considered as relevant or else the Fourth Circuit’s citation of the above cases is meaningless. The above cases require that this court consider the relative merits of the claims and defenses, the good faith of the employer and the existence of some circumstances like State law which authorized the acts complained of. First, the court notes that plaintiff’s case was a weak one. Also, in view of the plaintiff’s live testimony, to wit: the virtually unfounded claim of Younger and the fact that blacks who testified were treated fairly, the case is yet a borderline one. The defenses raised in this case were not patently frivolous. See Newman, supra. There was no evidence of bad faith. The violation of Title VII was not a result of an intentionally discriminatory scheme but rather resulted from a collective bargaining agreement which was discriminatory in its effect to the limited extent that black employees may have been unintentionally inhibited from bidding out of lower end departments. There was no State law here which specifically required the maintenance of this particular job bidding or departmental seniority system. However, an analogous situation prevailed which was just as strong as State law from defendants’ point of view. The job bidding system and the seniority system were embodied in the collec-i tive bargaining agreement. The employees were duly represented by the Union which the Company was bound by law to recognize. The Company was likewise bound by law to act pursuant to that agreement. Indeed, the Company would have violated the collective bargaining agreement had it implemented the relief here ordered on its own accord. It is quite relevant that the Union is 50% black and the claim has been abandoned that blacks are not fairly represented within the Union. The court is of opinion that other factors must also be considered. As the record now stands, it would be sheer guesswork as to who should get back pay and how much, and whether anybody, for that matter, would be entitled to it. In short, the court sees the claim for back pay as rather doubtful. See Moody, p. 142; Lea v. Cone Mills, 438 F.2d 86 (4th Cir. 1971). The court is also of opinion that the real question with regard to back pay is the question which courts have historically asked when considering relief, and that is how to make the damaged man whole. Under the circumstances of this case, I am definitely of opinion that, if the award of damages is discretionary with the district judge, the facts would compel the exercise of discretion so that damages would not be awarded here. This is especially true when it is considered that the hiring practices of the Company are indeed a model so far as lack of racial discrimination is concerned. Also entitled to considerable weight is the fact that the discrimination found has been contracted for in a collective bargaining agreement between the Company and the Union, which is 50% black, and against which the claim of unfair representation has been abandoned. Other reasons just as compelling suggest themselves from the facts as recited in the opinion. But the court is convinced that Moody takes away the discretion of district judges in the award of damages in all cases (for nearly all practical purposes) in which relief may be other than prospective as here, compare Moody with Lea, unless special circumstances exist such as given as examples in footnote 5 of Moody. Although Moody and Rock v. N&W Ry. Co., 473 F.2d 1344 (4th Cir. 1973), do not address the point, I take it that it is not beyond inference that the facts of those cases would be to argue that a union contract is not a defense to back pay. Although the facts here may seem compelling, I can find no special circumstance such as mentioned in Moody. Accordingly, the court is of opinion that back pay should be awarded to those employees in the affected class who had desired to transfer out of their respective departments (to departments not within the class) and were inhibited from so doing by virtue of the provisions of the collective bargaining agreement which may have had the unintentional effect of freezing some black employees into low-end employment. Upon the request of the attorneys, the court will defer a final decision concerning back pay until the decision of the Supreme Court in Moody. At such time, the court will also determine whether back pay should be awarded against the Company or the Union, or both. See Rock, p. 1350; Bowe v. Colgate Palmolive Co., 416 F.2d 711, 719 (7th Cir. 1969). At that time the court will also enter its final appealable order. An interlocutory order is this day entered consistent with this opinion. SUPPLEMENTAL OPINION ON DAMAGES On February 26, 1975, this court granted relief to a certain class of persons described as: “All those black employees and former employees of the [Glamorgan Pipe and Foundry] Company who were employed prior to January 1, 1969, and whose only service to the Company was either in the labor pool, or melting, or Delavaud finishing, or soil pipe finishing departments, any or all of them.” The injunctive relief awarded essentially allowed class members to bid into jobs in non-covered departments on the basis of plantwide seniority for a period of two years, and guaranteed to those class members so bidding that they would be paid at least at the rate of the job from which they were bidding. Glamorgan agreed, without prejudice, to comply with this order and stated that it and the defendant Unions had previously entered into a collective bargaining agreement which provided bidding rights to some extent similar to those ordered by the court. In its memorandum decision of February 26, the court further indicated that backpay might be owing certain employees in the affected class who had been unable to transfer out of one of the covered departments described above or who were deterred from so doing because of the resulting loss in seniority. At the request of the parties, a final determination as to this issue was deferred pending the Supreme Court’s decision in Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). Following the decision in Moody, the court ordered a hearing to determine which, if any, of the employees of Glamorgan were entitled to backpay. Notice to all prospective claimants was required to be given, and all persons desiring to assert a claim were directed to file a Statement of Claim form with the clerk of this court no later than September 19, 1975. A hearing was thereafter held in Lynchburg, Virginia on October 14 through 17, 1975, at which time it was revealed that a total of 122 claims had been filed. Of these 122 claims, seventeen were found to have been filed after the September 19 deadline. During the morning and afternoon of October 14, each of these late claimants was afforded an opportunity to present evidence which might have excused their tardiness. Following this hearing, the following claimants were found not to have offered any evidence justifying their late claims, and, accordingly, their claims were dismissed as untimely: James E. Anderson John L. Thomasson Robert W. Anderson Eugene E. Turner Sylvester Anderson Moses E. Turpin William C. Callaham Warren C. Tweedy John W. Hicks, Jr. Lawrence W. West Rudolph Morse Samual A. White The claims of two additional persons Lloyd Evans and Lafayette Robinson, were denied subject to later evidence which would excuse their lateness. No such evidence was ever presented. Accordingly, the claims of both are hereby dismissed as untimely. The claims of the three remaining late claimants, Lawrence T. Leftwich, Walter L. Miller, and Raymond Poe, were allowed on the ground that there were extenuating circumstances excusing their tardiness. In the case of Leftwich, it was shown that he had retired from Glamorgan in 1974 and had not received any notice as to this action. Poe had changed his address and had not received his mail until after the September 19 deadline. Miller had ceased working for Glamorgan in 1968 and had not received any notice of this action. As to each of these claimants, the court was of opinion that their delay in filing the required claim forms was excusable. Of the remaining claims, the court is of opinion that the following must be denied because the claimants were never employed by Glamorgan during the class period: Aaron M. Hayden Riley M. Johnson William C. Hicks James A. Smith Robert Humbles John J. Turpin The court’s order of February 26 limited the class period to that period beginning July 2, 1965 and ending January 1, 1969. It is clear that persons who left the employ of Glamorgan prior to July 2, 1965 may not recover under Title VII since Title VII backpay liability exists only for practices occurring after the. effective date of the Act, July 2, 1965. Albemarle Paper Co. v. Moody, 422 U.S. 405, 410, n. 3, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). Similarly, persons employed by Glamorgan after January 1, 1969, the date when the Company’s restrictive bidding policy ended, are not entitled to backpay since they were in no way affected by the practices involved here. Of the six claimants set forth above, all but Riley M. Johnson were first employed by Glamorgan after January 1, 1969. In the case of Johnson, the evidence at the backpay hearing established that he had left Glamorgan on April 7, 1965, almost three months before Title VII became effective. Accordingly, each of these claims must be denied. Likewise, the claims of the following persons must also be denied since they were never employed in the labor pool, melting, Delavaud finishing, or soil pipe finishing departments, the covered departments set out in the order of February 26: Warren W. Anderson Stephen H. Farrow, Jr. William E. Brown Walter M. Fore, Jr. William T. Burns Sam W. Hicks Roosevelt F. Callaham Claude D. Hunter Giles Crews Marshall A. Seay James E. Elliott Robert Turner The evidence clearly indicates that while employed by Glamorgan, Warren W. Anderson, William E. Brown, Claude D. Hunter, and Walter M. Fore, Jr. worked exclusively in the Special Foundry during the class period. William T. Burns worked in Delavaud Casting during that time while Giles Crews worked in Shellcore. Sam W. Hicks worked in soil pipe casting; James E. Elliott in Maintenance; Roosevelt F. Calla-ham and Stephen H. Farrow, Jr. in Shipping; and Marshall A. Seay and Robert Turner in Shipping/Miscellaneous. None of these departments is a covered department. As such, these claimants are not members of the class entitled to backpay and their claims are denied. Similarly, the following claimants are not entitled to an award of backpay since they were not employed exclusively in the class departments od: during the class peri- William E. Barbour Anslem S. Payne James Bass Eugene H. Penick Milton E. Broady Henry L. Reid Charles E. Brown James W. Robertson Walter L. Brown Wesley Robinson, Jr. Lenard F. Calloway George L. Scott Stephen H. Farrow, Sr. Joseph Scruggs Earl Harvey, Jr. John J. Spinner Jesse A. Jackson Joseph E. Spinner Joe Louis Jackson Walter L. Thomas Linwood Turner W. L. Johnson Clifton W. Tweedy Herbert M. Jones Cleveland White By its order of February 26, the court limited the class of persons entitled to relief to those black employees of Glamorgan who were employed solely in one of the four covered departments during the class period. The only basis for this court’s finding of discrimination in this case was its determination that certain language which appeared on job bids prior to January 1, 1969, in full accordance with the collective bargaining agreement, was restrictive and may have deterred black employees from transferring out of lower paying departments which were found to be predominantly black. Any black employee who did transfer out of one of the class departments, however, was obviously not deterred by the bid language. As such, he was not discriminated against and cannot claim to have been discriminated against by the bidding practices agreed to by the Company and the Union. Four additional claimants, Henry L. Reid, James W. Robertson, Wesley Robinson, Jr., and George L. Scott, also worked in non-covered departments during the class period according to the Company. Counsel for the plaintiffs challenges this contention, however. Based upon the evidence adduced at trial, the court is of opinion that it is shown that each of these claimants is not within the class as defined by the court’s order of February 26, and that as such they are not entitled to recover in these proceedings. The evidence indicates that Henry L. Reid was hired by Glamorgan on February 12, 1968. According to the seniority list dated December 31, 1969, the Company’s official record of departmental assignments for that year, Reid was assigned to the Soil Pipe Casting department, a non-covered department, for purposes of accrued seniority on May 12, 1968. While there was some evidence presented indicating that Reid may not have in fact begun working in Soil Pipe Casting until February 12,1969, due to an extended training period, this does not diminish the fact, even taking the evidence most favorable to Reid, that he bid for and received a job in a non-covered department during the class period. So he was not subjected to any discrimination. Similarly, the evidence taken during the backpay proceedings indicates that both James W. Robertson and Wesley Robinson bid for and received job assignments in non-eovered departments during the class period, although, due to a period of training, they did not actually commence working in those departments until some time later. As such, for the reasons previously stated, they are not members of the class entitled to ah award of backpay. They were not subjected to discrimination. Finally, as to George L. Scott, the evidence indicates that he worked in one or more of the class departments until September 1, 1968. On that date, he transferred to the job of office janitor. Counsel for the plaintiffs contend that since janitors were assigned to the labor pool, Scott continued to be employed in one of the covered departments. The Company’s Personnel Director testified, however, that the job of office janitor differs from that of an ordinary janitor in that the former are members of the Shipping/Miscellaneous Department. Scott himself testified that it was his understanding that his job as an office janitor was in the Shipping/Miscellaneous Department and that he had bid for that position accordingly. Thus, the court is of opinion that Scott, having bid out of one of the covered departments during the class period, is not entitled to recover. He was not subjected to discrimination. In addition, the claims of the following persons must also be denied since they were employed by Glamorgan only as probationary employees: Andrew J. Cooper James E. Turpin Camden E. Jones John Waugh, Jr. Vester Jones Melvin B. Williams Allen Pollard Probationary employees had no contractual bidding rights under the labor agreement so that any discrimination in the contractual bidding process could not have affected them. While it does appear that on occasion some probationary employees did bid on jobs, the Company’s director of personnel explained, without contradiction, that such employees could not have challenged the Company’s refusal to honor their bid through the contractual grievance procedure. As such, these employees cannot be said to have suffered any injury by virtue of the restrictive language in the bids themselves. In addition to the foregoing employees, the court is of opinion that the following claimants, having worked exclusively in the labor pool during the class period, are not entitled to recover: James R. Holland Raymond L. Poe Walter L. Miller Charles E. Snead, Jr. William P. Morton According to the evidence, all employees of the Company began their employment in the labor pool except the very few hired into a specific department to fill an existing vacancy. Because of the nature of the department, there were no promotion opportunities within the labor pool itself, but any employee in the labor pool could advance by moving into other departments as vacancies occurred. Each employee was free to bid on any such job vacancy regardless of the department in which the opening arose. Since such employees accrued only plantwide seniority as opposed to departmental seniority, any such transfer out of the labor pool, unlike a transfer out of the other covered departments, did not entail a loss of any accumulated seniority rights. Given the fact that all employees in the labor pool advanced in the same manner and had the same bidding rights, regardless of race, as their departmental peers, the court is of opinion that any claimant who worked exclusively in the labor pool during the class period cannot be said to have been deterred by the contractual bidding procedures and was not locked into that department any more than his white contemporaries working in the labor pool. As such, the claims of these employees must be denied. As to the remaining claimants, it appears that each was employed during the class period in one or more of the covered departments (exclusive of the labor pool only). As' such, each falls within that class of workers which, according to this co