Full opinion text
ORDER NEWELL EDENFIELD, District Judge. This civil action, alleging racial discrimination in employment, is brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., Section 1 of the Civil Rights Act of 1866, 42 U.S.C. § 1981, and the Labor Management Relations Act, 29 U.S.C. §§ 151, et seq., with respect to the plaintiffs’ claim for alleged violations of the duty of fair representation by the defendant unions. The two individual plaintiffs, Henry Harris and Johnnie C. Hillman, are black hourly employees at defendant Anaconda Company’s (hereinafter “Anaconda”) facility in Fulton County, Georgia and members of defendant Shopmen’s Local Union No. 616 (hereinafter “Local Union”). They filed their original EEOC charges of racial discrimination against Anaconda and the Local Union on April 18,1969. On July 20,1970, plaintiffs filed substantially identical EEOC charges against defendant International Association of Bridge, Structural and Ornamental Iron Workers (hereinafter “International Union”). The Equal Employment Opportunity Commission (hereinafter “Commission”) rendered its reasonable cause determination on February 6,1973 and attempted to conciliate the matter until July 19, 1974. No conciliation agreement having been reached, plaintiffs received their notice of right to sue on November 11, 1974 and filed the instant action seeking declaratory and injunctive relief on February 19, 1975. They allege, on behalf of a class of similarly situated individuals, that Anaconda has discriminated against them because of their race in promotions and transfers, job assignments, training opportunities, and other terms and conditions of employment and that the unions have discriminated against Anaconda’s black employees by. limiting the employment and promotional opportunities of these persons and by breaching the duty fairly to represent those employees. The Commission was permitted to intervene in this action, pursuant to sections 705(g)(6) and 706(f)(1) of Title VII, 42 U.S.C. §§ 2000e-4(g)(6), -5(f)(1), on September 15, 1976. By order of March 31, 1978, the court granted motions by the private plaintiffs and the Commission for class certification, the class to include all past, present and future black employees at Anaconda’s Fulton County facilities after July 2, 1965. At this time, it designated the Commission as the class representative but amended this order on July 21, 1978, to permit both the individual plaintiffs and the Commission to represent the class. The March order also granted the Commission’s motion to separate the issues of liability and individual relief for purposes of trial. The liability portion of this case was tried to the court, sitting without a jury, from July 10, 1978 through July 27, 1978 and from August 21, 1978 through August 24, 1978, and all five parties presented witnesses and documentary .evidence in support of their positions. This order contains the court’s findings of fact and conclusions of law pursuant to Rule 52(a), Fed.R.Civ.P. Jurisdiction Anaconda is and has been a business corporation engaged in designing and manufacturing architectural aluminum products in Fulton County and in selling and shipping those products to customers in various other places both inside and outside the United States. It has continuously employed several hundred persons in those operations since prior to July 2, 1965, the effective date of Title VII, and is therefore an employer engaged in an industry affecting commerce within the meaning of section 701(b), (g) and (h) of Title VII, 42 U.S.C. § 2000e-1(b), (g) and (h). The Local Union has been an unincorporated association of participating employees which deals with employers concerning terms and conditions of employment continuously since July 2, 1965. It has had more than twenty-five members and has been the certified collective bargaining representative of several hundred of the Anaconda employees since before that date. The International Union chartered the Local Union, has had more than twenty-five members, and has been an unincorporated association of participating employees which deals with employers concerning terms and conditions of employment continuously since July 2, 1965. Both the Local and International Unions are labor organizations engaged in an industry affecting commerce within the meaning of section 701(d) and (e) of Title VII, 42 U.S.C. § 2000e-1(d) and (e). The court has jurisdiction of this action under section 706(f) of Title VII, 42 U.S.C. § 2000e-5(f), and under 28 U.S.C. §§ 1343, 1345, 2201 and 2202 and 29 U.S.C. §§ 151, et seq. Statute of Limitations In United Air Lines v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977), the Supreme Court held: A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute [Title VII] was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences. Plaintiff in Evans had been forced to resign in 1968 because of a marriage policy discriminating against female flight attendants. She did not file an EEOC charge within ninety days as required by Title VII prior to 1972. After reinstatement in 1972 plaintiff filed suit to receive seniority credit for the pre-1968 employment, contending that the seniority system perpetuated an act of past discrimination. In upholding the dismissal of this complaint as time-barred, the Court rejected plaintiff’s theory that the refusal to grant her seniority credit constituted a continuing violation having present effects, on two separate grounds. First, a post-1965 unlawful practice which is not made the basis of a timely EEOC charge is the legal equivalent of a pre-1965 act and has no present legal effects. Second, under section 703(h) a neutral seniority system may not be attacked under Title VII because of “the mere fact that a past event which has no present legal significance has affected the calculation of seniority credit, even if the past event might at one time have justified a valid claim against the employer.” 431 U.S. at 560, 97 S.Ct. at 1890. Evans was an individual action, while the present case is a class action. “In a class action, the named plaintiffs can represent all persons who could have filed charges with the Equal Employment Opportunity Commission . . . as of the effective date of a class representative’s filing.” Dickerson v. United States Steel Corp., 439 F.Supp. 55, 68 (E.D.Pa.1977), rev’d on other grounds, 582 F.2d 827 (3d Cir. 1978), citing Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 246 (3d Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975). Thus, the class can only assert liability against defendants by showing violations with respect to which EEOC charges could have been filed at the same time the named plaintiffs filed their EEOC charges. Croker v. Boeing Co., 437 F.Supp. 1138 (E.D.Pa.1977). The effect of Evans is that liability under Title VII cannot be predicated upon either pre-Act discrimination or post-Act discrimination which has not been made the subject of a timely EEOC charge. See Swint v. Pullman-Standard, 15 F.E.P. 144 (N.D.Ala.1977). Such post-Act discrimination is, of course, admissible background evidence which may be circumstantially relevant to establishing current unlawful practices, but, standing alone, it cannot support a finding of liability. In the present case, the cut-off date under Evans is January 18, 1969, which is ninety days prior to the filing of the original EEOC charges against Anaconda and the Local Union. Thus, any evidence of alleged unlawful acts prior to that date cannot be evidence of a pattern or practice upon which a finding of liability against these two parties may be predicated. Since the charges against the International Union were not filed until July 20, 1970, its Title VII liability must be based upon discriminatory acts occurring after April 21, 1970. Plaintiffs and the Commission argue that the statute of limitations delineated in Evans does not apply in cases alleging “a broad systematic pattern of racial discrimination in promotions” since such cases involve, by definition, continuing violations of Title VII in that black employees continue to feel the effects of the alleged discrimination in terms of wages or benefits. They assert that in these cases no limitation period other than the effective date of the statute should be applied. It appears to the court that Evans itself spoke to this question and made no such distinction. The Court stated, “Respondent emphasizes the fact that she has alleged a continuing violation. United’s seniority system does indeed have a continuing impact on her pay and fringe benefits. But the emphasis should not be placed on mere continuity; the critical question is whether any present violation exists.” 431 U.S. at 558, 97 S.Ct. at 1889. In DuPree v. E. J. Brach & Sons, 77 F.R.D. 3, 6 (N.D.Ill.1977), a case involving allegedly discriminatory promotions, the court relied upon this language and rejected a continuing violation theory. It reasoned, “[T]he alleged denials of promotions here have a constant and present effect. The violations occurred, if at all, when the defendant allegedly promoted white, less qualified individuals over blacks.” The court concludes that this is the proper approach after Evans. Clark v. OlinKraft, Inc., 556 F.2d 1219 (5th Cir. 1977), is cited by plaintiffs in support of their continuing violation theory. It does not appear to assist them, however. There, a female worker, who had been employed by defendant from March, 1964 until October, 1974 without being promoted, alleged that her employer had an established policy or practice of promoting men with less seniority to better-paying jobs over qualified women and of paying women lower salaries than men performing the same job. The district court granted defendant’s motion to dismiss the complaint, treated as one for summary judgment, on the basis that all of the events alleged in the complaint had occurred more than 180 days prior to plaintiff’s March 5, 1975 filing of. her EEOC charge. The Fifth Circuit reversed and set forth two theories in support of its action: (i) a continuing violation theory relying on Evans v. United Airlines, 534 F.2d 1247 (7th Cir. 1976), as it existed prior to its reversal by the Supreme Court and (ii) the existence of a factual dispute concerning the active discrimination that occurred within 180 days prior to the filing of the EEOC charge, which dispute rendered a grant of summary judgment improper. The court explicitly based its opinion on the second ground, however. Footnote 7 provides: While this opinion was being circulated, the Supreme Court reached a decision in Evans . . . reversing the Court of Appeals. As already noted, our decision in the instant case does not depend on the validity of the theory asserted in Evans. And further, in footnote 9, the court stated: Our disagreement with the views expressed in the dissent is based on the fact that the allegations in the complaint and the deposition created an issue of fact relating to present discrimination. Summary judgment is an inappropriate vehicle for deciding factual questions, and it is on this basis that we reverse. The dissent points out that under Evans an employer may treat as lawful any allegedly discriminatory act committed more than 180 days prior to the filing of the [post-1972] charge, although such conduct may be relevant as background evidence in a proceeding in which the status of a current practice is an issue, and that the critical question in such cases is “whether any present violation exists,” 556 F.2d at 1224. It also argued that the record established there was no present violation. By making clear that its disagreement with the dissent was solely on the summary judgment issue, the court in effect rejected the continuing violation theory which it discussed in its opinion, as the Supreme Court opinion in Evans, of course, required it to do. Therefore, Clark is actually support for the proposition that events occurring prior to the relevant limitation period for filing an EEOC charge do not constitute conduct actionable under Title VII. The individual plaintiffs also contend that the limitations period for equitable relief under 42 U.S.C. § 1981 goes back to 1955, twenty years prior to the filing of the complaint. In United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973), and Franks v. Bowman Transportation Co., 495 F.2d 398 (5th Cir. 1974), rev’d on other grounds, 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976), the Fifth Circuit held that Ga.Code Ann. § 3-704 is the appropriate statute of limitations for section 1981 actions under the “borrowing” principles of Beard v. Stephens, 372 F.2d 685 (5th Cir. 1967). That section provides a limitation period of twenty years for causes of action seeking “the enforcement of rights [accruing to individuals] under statutes” except that awards of back pay are limited to two years. The application of this provision appears to have been somewhat inconsistent, however. In Ivey v. Western Electric Co., 11 E.P.D. ¶ 10,900 (N.D.Ga.1975) (Moye, J.), the court construed Georgia Power and Franks to apply a bifurcated statute of limitations for section 1981: two years for back pay, and twenty years for equitable relief. Other cases have held that only the two-year provision of section 3-704 was applicable. See, e. g., Foster v. Mead Packing Intl., 14 F.E.P. 348 (N.D.Ga.1976); Williams v. Burns Intl. Security Services, 13 F.E.P. 1505 (S.D.Ga.1976); Collier v. Hunt-Wesson Foods, Inc., 13 F.E.P. 88 (S.D.Ga.1976); Roberts v. H. W. Ivey Construction Co., 408 F.Supp. 622 (N.D.Ga.1975). Having carefully reviewed these decisions, the court concludes that the bifurcated approach of Ivey is most appropriate in the instant case in which back pay and other forms of equitable relief are sought. This does not end the matter, however. As stated in Franks: The § 1981 action, insofar as it corresponds to the Title VII action, must also be considered essentially equitable. In an equitable action, equitable defenses may be raised, and these include the doctrine of laches. In the proper case, laches might be applied to bar a claim entirely, or it might bar only part of the remedy sought, such as the back pay award for a portion of it. 495 F.2d at 406. In Ivey, the court specifically recognized that “laches may very well limit the 20-year limitations period for equitable relief.” 11 E.P.D. at 7787. Laches, a doctrine grounded upon the inequity of permitting enforcement of a claim where some change in circumstances has taken place which would make enforcement unjust, Davis v. Alabama Power Co., 383 F.Supp. 880, 894 (N.D.Ala.1974), aff’d, 535 F.2d 657 (5th Cir. 1976), aff’d, 431 U.S. 581, 97 S.Ct. 2002, 52 L.Ed.2d 595 (1977), is comprised of two elements: inexcusable delay by a plaintiff in asserting his rights and undue prejudice to defendant as a result. Akers v. State Marine Line, Inc., 344 F.2d 217 (5th Cir. 1965). The existence of the defense is addressed to the discretion of the trial court. Gardner v. Panama R.R., 342 U.S. 29, 30, 72 S.Ct. 12, 96 L.Ed. 31 (1951). Both of the elements of laches are present in the instant action. Although at trial witnesses for plaintiffs testified concerning events occurring as far back as 1955, Anaconda had not been made aware of race-based complaints by plaintiffs until they filed their EEOC charges in 1969. Moreover, even though the limitations period for section 1981 was not tolled by the filing of these charges, Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), plaintiffs waited for six years to file their claim under this section. The evidence at trial revealed that bid lists — critical documents in a “promotions” case — do not exist for dates prior to 1968, and there were many instances in which Anaconda’s supervisors could not recall incidents in question, a number of which occurred between fifteen and twenty years ago. Thus, concluding that plaintiffs have “slept on [their] Section 1981 rights,” Johnson, supra, at 466, 95 S.Ct. at 1723, and that defendants were prejudiced in attempting to defend against these old allegations, the court grants Anaconda’s laches defense in part. The limitations period for purposes of equitable relief under section 1981 shall be the same as that established for the Title VII claims — January 18, 1969. For back pay relief under this section, of course, the two-year limitation will control. As noted earlier, plaintiffs Harris, Hill-man, and the Commission represent a class which has been defined to include “all present, former, and future black employees of the defendant company who are, have been or will be employed at defendant’s facilities in Fulton County, Georgia after July 2, 1965. On the basis of the foregoing discussion on the applicable statutes of limitation, this description will be amended to read “after January 18, 1969.” Standard and Methods of Proof This case arises under section 706 of Title VII, 42 U.S.C. § 2000e-5. Both plaintiffs and the Commission have alleged broad systemwide patterns of discrimination against a class of black employees; they have offered individual testimony, documentary evidence and statistics in support of their claims. Plaintiffs bear “the initial burden of making out a prima facie case of discrimination,” International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 1855, 52 L.Ed.2d 396 (1977), and may accomplish this by demonstrating either disparate treatment or disparate impact. In Teamsters, supra, at 335, n. 15, 97 S.Ct. at 1854, n. 15, these terms were defined as follows: “Disparate treatment” ... is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. [Citation omitted.] Undoubtedly disparate treatment was the most obvious evil Congress had in mind when it enacted Title VII. Claims of disparate treatment may be distinguished from claims that stress “disparate impact.” The latter involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. . Proof of discriminatory motive, we have held, is not required under a disparate impact theory. If the plaintiffs meet their initial burden, the burden then shifts to the employer to defeat the inference which plaintiffs have raised by exposing plaintiffs’ proof as insignificant or inaccurate or by proving a business necessity. Plaintiffs are then permitted to put on rebuttal evidence to overcome defendant’s proof. The Teamsters court described plaintiffs’ ultimate burden of proof in this situation in the following terms: [The party alleging a systemwide pattern] ultimately had to prove more than the mere occurrence of isolated or “accidental” or sporadic discriminatory acts. [Such a party] had to establish by a preponderance of the evidence that racial discrimination was the company’s standard operating procedure — the regular rather than the unusual practice. 431 U.S. at 336, 97 S.Ct. at 1855. This court' must determine whether the plaintiffs and Commission have met their burden of proving a “pattern or practice” of racial discrimination, upon consideration of the plaintiffs’ and Commission’s evidence in chief, the re-' buttal and defensive evidence presented by the three defendants, and the rebuttal evidence presented by the plaintiffs. See, e. g., United States v. United States Steel Corp., 520 F.2d 1043, 1053 (5th Cir. 1975). The burden of proof under 42 U.S.C. § 1981 is somewhat different. In Williams v. DeKalb County, 577 F.2d 248 (5th Cir.), modified on rehearing, 582 F.2d 2 (5th Cir. 1978), the Fifth Circuit held that under the teaching of Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1978) . . ., the named plaintiff and the class must make a showing of purposeful discrimination before casting the burden on the defendant to rebut the charge; that a claim under § 1981 is, for this purpose, to be equated with a claim under the Fourteenth Amendment, dealt with by the Court in Washington, rather than under Title VII of the Equal Employment Opportunity Act. Washington v. Davis, supra, established that there was a distinction between claims of racial discrimination under the Constitution and under Title VII. Specifically, an action would not violate the Constitution “solely because it has a racially disproportionate impact.” 426 U.S. at 239, 96 S.Ct. at 2047 (emphasis in original). Plaintiffs therefore must prove a racially discriminatory purpose to prevail on their claims under 42 U.S.C. § 1981, as well as on any claims of “disparate treatment” under Title VII. General Background American Art Metals Company began over thirty-five years ago as a small aluminum products manufacturing concern operating facilities on Highland Avenue and Bishop Street in Atlanta, Georgia. In approximately 1959, the company moved to a new plant on Fulton Industrial Boulevard in Fulton County, Georgia. Defendant Anaconda acquired American Art Metals sometime during 1962 and retained its tradename, “Amarlite”. “Amarlite Anaconda” employs approximately 500 persons at its main plant on Fulton Industrial Boulevard, about thirty employees at the Atlanta Region Sales Office or Georgia District, located on Marietta Boulevard, and about 100 individuals in sales regions outside Georgia. The instant action deals with the allegedly discriminatory practices at the Georgia facilities only. Amarlite Anaconda manufactures architectural aluminum products including doors and storefronts for commercial establishments and windows and curtain walls (aluminum framework for glass walls) for large buildings. The production process begins with the extrusion of aluminum ingots through a large press into the desired shape by use of various dies. The extruded aluminum is subsequently cut, anodized, and fabricated into either standard or custom products. The product is then inspected, packed, and shipped. The overall operations of Amarlite Anaconda are managed by a “Vice President-General Manager”. The organizational structure which existed on November 1, 1976, was typical of the general organizational structure which has existed at all times relevant to this litigation. On that date Amarlite Anaconda was organized into six major organizational units, each headed by one of the following managers who reported directly to the Vice President-General Manager: (1) Director of Manufacturing, (2) Director of Marketing & Sales, (3) Accounting Manager, (4) Employee Relations Manager, (5) Credit Manager, and (6) Systems Program Supervisor. Several subordinate levels of management typically reported to the head of each of these six major organizational units. For example, the following managers reported to the Director of Manufacturing: (1) Production Manager, (2) Purchasing Manager, (3) Production Control Supervisor, (4) Custom Planning Manager, and (5) Engineering Manager. The vast majority of Amarlite Anaconda’s hourly employees have always worked in the operations which were managed by the Production Manager on November 1, 1976. The following managers reported to the Production Manager on that date: (1) Extrusion Superintendent, (2) Finishing Superintendent, (3) Fabrication Manager, and (4) Material Handling Manager. Each of these managers in turn managed one or more departments and one or more area foremen and foremen. Each area foreman had foremen reporting to him. Anaconda assigned each hourly employee to a department and a foreman. The organizational structure under the Engineering Manager was similar to that under the Production Manager, although it was smaller. All of the hourly employees there were in either the Maintenance Department or the Tooling Department. Maintenance Foremen reported to the Area Maintenance Foreman, who reported to the Maintenance Superintendent, who reported to the Engineering Manager. In 1956, American Art Metals entered into a collective bargaining agreement with the Local Union, covering all production and maintenance workers. These workers, who are in a single collective bargaining unit, are still represented by the Local Union which also has members in four smaller companies in this area. All of the represented employees are paid on an hourly basis. Substantially all other Anaconda employees working at the two facilities are paid on a salaried basis, and none of these employees is represented by the union. Until 1977, the applicable collective bargaining agreements provided for separate seniority divisions related to the different production and maintenance functions. For example, under the collective bargaining agreement in force between 1974 and 1977, there were five divisions: Fabrication, Mill (finishing), Material Handling, Inspection, and Maintenance and Tooling. Each of these divisions contained various job classifications. Under the applicable collective bargaining agreements before 1977, all hourly job vacancies were awarded by a hybrid divisional/plantwide seniority system in conjunction with a twenty-four clock hour (three-day) on-the-job tryout, and it is these practices which are primarily under attack in this case. In 1977, straight plant-wide seniority was substituted for the hybrid system. Salaried vacancies, which are not covered by the collective bargaining agreements, are awarded on the basis of recommendations and interviews by supervisory personnel. Promotions and Transfers within the Bargaining Unit The individual plaintiffs and the Commission have sought through statistics and through proof of specific employment practices to prove that black employees were discriminated against in promotions and transfers within the bargaining unit as a whole and the Maintenance and Tooling Division in particular. Specifically, plaintiffs contend that the use of a divisional preference in filling job vacancies, a facially neutral practice, violates Title VII and section 1981 inasmuch as it “perpetuate[s] the exclusion of black employees from the desirable jobs in Anaconda’s traditionally white seniority divisions.” In addition, they charge that the system of on-the-job tryouts is subjective and inconsistent and is applied in a racially discriminatory manner with the result that black employees have been excluded from the more desirable jobs. These two practices will be discussed below. 1. The Statistical Proof To support their claims that these practices have barred black workers from the higher-paying, more desirable jobs, plaintiffs have presented statistical evidence. Initially, they note that in March, 1965, prior to the effective date of Title VII, only white employees occupied the sixty positions in the fifteen highest-paid job classifications held by represented employees, although at that time black workers constituted at least 22% of the bargaining unit. In addition, only white employees occupied at least ten other job classifications. By September 1, 1970, black employees occupied only three of the seventeen highest-paid job classifications while comprising 41% of the bargaining unit. From January 18, 1969 — the beginning of the relevant time period in this action — -until September, 1970, there were no vacancies filled by bidding in eight of these top jobs, however. Of the remaining nine job categories, one had only one employee, one had two employees, and one had five employees; these statistics are therefore not probative because of the small numbers involved. Two of the remaining six classifications contained black employees, and the other four were in the Maintenance and Tooling Division. These latter positions are covered in other statistics and will be discussed later. Plaintiffs also note that in September, 1970 the seven “training” positions, all in the Maintenance and Tooling Division, were filled by whites. In February, 1975, black employees constituted 38% of the bargaining unit. At that time, no black workers but twenty-four white employees held positions in the top seven job classifications. All seven of these jobs were in the Maintenance and Tooling Division. It also appears that in February, 1975 the average wage of the 113 black represented employees at Anaconda was $4.10 per hour, excluding leadman increases, shift differentials and overtime wages, while the average wage of the 186 white bargaining unit employees was $4.25 per hour, excluding the same items. The court is uncertain what use can be made of this information, however, since the average year of hire of the white employees was one year earlier than the average year of hire of the black workers. At all times since July 2, 1965, with few limited exceptions, Anaconda has compensated its craft workers at higher rates of pay than the rates at which it has compensated its operatives and laborers and at the highest rates of pay available to represented employees at the company. The following EEO-1 figures demonstrate the bargaining unit profile by general job category and race. _June 1,1969_Apr. 1,1975 Mar. 31,1977 April 1,1978 All Black All Black All Black All Black Job Class Employees Employees Employees Employees Employees Employees Employees Employees No. No. % No. No. % No. No. % No. No. % Craftsmen 106_24 22.6 100_22 22.0 90 19 21.1 94 25 26.6 Operatives_149_89 59.7 114_47 41.0 64 34 53.1 103 43 41.7 Laborers_70_40 57.1 116_48 41.0 104 39 37.5 142 66 46.5 TOTALS 825 153 47.1 330 117 35.4 258 92 35.6 339 134 39.6 As will be discussed infra, expert testimony established that the weighted average of the black population of the bargaining unit for the years' 1966 through 1977 was 36.9%. Most of Anaconda’s craft jobs are located in the Maintenance and Tooling seniority division. Between January 1,1966 and January 1, 1970, at least thirty-eight openings occurred and were filled in bargaining unit jobs in that division; none of these was filled by a black employee. It was not until 1973 that Anaconda promoted a black employee into one of the craft training programs in the Maintenance Division. As of February 27, 1975, black employees occupied six, or 15% of the forty positions in that division although the percentage of black represented employees in the plant on that date was 37.7%. Finally, the court finds that between July 2,1965 and April 1, 1977, no black employee was promoted into the following craft job classifications: Tool and Die Maker, Electrician, Master Electrician, Die Corrector A, and Machinist AA. These statistics, taken together, make clear that the only area in which plaintiffs may be able to demonstrate discrimination in promotions or transfers is in the Maintenance and Tooling Division. In June, 1969, at which time the Maintenance Division had no black employees and at least thirty-four white craft workers, the EEO-1 statistics, see text at 17, supra, demonstrate that 22.6% of the 106 craftsmen were black. Simple mathematics reveals that after subtracting the Maintenance and Tooling jobs from this number, 33.3% of the craft employees were black. A comparison of this figure to the average percentage of black workers in the bargaining unit provides no evidence of a long-lasting and gross disparity and gives rise to no inference of discrimination in “craft” jobs outside of the Maintenance Division. Moreover, the number of black employees in the higher-paying job classifications in 1970 and 1975 indicates that, except as to maintenance and tooling jobs or jobs with a very few employees, no inference of discrimination can be drawn. Further, the racial breakdown by seniority divisions, included in Appendix 1 attached hereto, demonstrates that the seniority divisions, with the exception of the Maintenance and Tooling Division, have, at all times relevant to this action, been racially mixed. Anaconda does not dispute the validity of any of these figures; in fact, it admits that numerically the statistics could raise an inference of discrimination in the Maintenance and Tooling jobs. It asserts, however, that the statistics are faulty because they include data from at least three years prior to the relevant time period in this action. More importantly, however, Anaconda contends that in presenting these, numbers, plaintiffs and the Commission have completely ignored the effects of the bona fide seniority system in allocating job tryouts. It argues that the workings of this system are protected by section 703(h) of Title VII, 42 U.S.C. § 2000e-2(h), as interpreted in International Brotherhood of Teamsters v. United States, supra. 2. The Teamsters Issue Section 703(h) of Title VII provides in part: Notwithstanding any other provisions of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority system, . . . provided that such differences are not the result of an intention to discriminate because of race, color, or national origin The United States had brought the action in Teamsters on behalf of black and Spanish-surnamed employees of the defendant trucking company who had been hired into departments other than the line driver department, which contained the company’s highest-paying jobs, and who allegedly were in effect prohibited from transferring to line driver because of the company’s seniority system. Teamsters involved a strict departmental seniority system under which an employee transferring between departments forfeited all accumulated seniority. The Court in Teamsters noted initially that the Government had proved a prima facie case of systematic and purposeful employment discrimination in hiring and otherwise continuing well beyond the effective date of Title VII. However, it then held that “the routine application of a bona fide seniority system would not be unlawful under Title VII,” 431 U.S. at 352, 97 S.Ct. at 1863, and “that an otherwise neutral, legitimate seniority system does not become unlawful under Title VII simply because it may perpetuate pre-Act discrimination.” Id. at 353-54, 97 S.Ct. at 1864. The Court also held that the perpetuation of post-Act discrimination does not make a bona fide seniority system unlawful. Id. at 347-48 and n.30, 97 S.Ct. 1843. This holding unquestionably worked a change in the law. Many circuits including the Fifth, had held that seniority systems which “locked” protected minorities into certain jobs or departments were violative of Title VII as perpetuations of past discrimination. After Teamsters, this theory is no longer valid as to the operation of “bona fide” seniority systems. A. Evolution and Nature of the Seniority System Vacancies for jobs in the bargaining unit at Anaconda are filled under a bidding and job tryout system set forth in section 17(B) of the collective bargaining agreements entered into between Anaconda (or its predecessor) and the Local Union. Each collective bargaining agreement has divided the plant into several seniority divisions. Under the initial 1956-57 contract, seniority was accumulated on a strict divisional basis, and an employee who changed divisions lost the seniority accumulated in his old division after transfer. This loss of seniority upon transfer was removed in the 1957-58 contract. From 1957 until 1961, employees in each division accumulated separate divisional seniority in that division. In 1961, this “divisional” seniority was replaced by modified “company” or plantwide seniority. Section 17(B)(2) of the 1961-63 contract provided that a transferring employee would take “his total seniority with the company” to his new division. This provision was not changed until the current (1977-79) contract, which abolished seniority divisions entirely, establishing pure plantwide seniority for all purposes. Thus, there was a progression from divisional to plantwide seniority through the collective bargaining process. Bargaining unit vacancies are awarded based on applicable seniority subject to ability to perform the job. Since 1961, section 17(B)(3) of the collective bargaining agreements had provided that: In all cases of promotions (except to supervisory positions not covered by this agreement) when new jobs are created, when jobs are re-established, or when other vacancies occur, employees in the division in which such vacancies occur shall be given preference in accordance with their length of continuous service in the company, subject to their ability to perform the work in question after a break-in period of twenty-four (24) clock hours. $ * * sje * * In the event that no. employee(s) is qualified in the division in which such vacancy exists, or in the event that a new seniority division is established, the Company shall post on its bulletin boards lists showing vacancies available to be filled and employees in other divisions desiring such jobs shall be given the said trial period in order to qualify for such jobs in accordance with their seniority status, before new employees are hired. Although this section did not require that the opening be posted on all company bulletin boards unless no employee within the division where the vacancy occurred qualified for the vacancy, the testimony of several credible witnesses was that the company voluntarily began posting all such vacancies plantwide in the 1960s. This testimony is supported by various bid sheets entered in evidence which contain names of employees inside and outside of the division with the vacancy. Section 17(B)(2) of the 1977-79 contract provides for posting of all bargaining unit vacancies for plantwide bidding. The procedure from 1961 to 1977 may thus be summarized: each bargaining-unit vacancy is posted on company bulletin boards. All employees may bid, based on their total company seniority. However, until 1977, the employees within the division having the vacancy had priority over other employees in obtaining a three-day tryout, based on their plantwide seniority. If no one within the division bid or qualified, bidders from other divisions were awarded tryouts based on total plantwide seniority. Once in the division, an employee could utilize full plantwide seniority on all future openings within that division. There was no forfeiture of seniority upon transfer. As a practical matter, most promotions would be made within a division, if someone bid and passed the tryout. A vacaney often had a ripple effect by which an entry-level position at the bottom of the division would be vacated by a promoted employee. This entry-level position would be filled from outside the division, based on plantwide seniority. Thus, an employee seeking to change divisions would likely have to start at the bottom of the new division. However, the transferee retained his plantwide seniority, which he could use on all future openings to outbid employees in his new division who had less plantwide seniority. Plaintiffs assert that this “divisional preference” is not protected by Teamsters because it is separate and distinct from Anaconda’s seniority system and because, even if it is a seniority provision, the seniority system in question is not bona fide. With regard to the first point, plaintiffs apparently claim that the preference is not based on “seniority”. This contention is best illustrated by a hypothetical situation advanced by the Commission involving two employees. Employee A was hired into Division I forty-five days ago. Employee B was hired into Division II twenty years ago. Because of the divisional “preference,” Employee A will obtain a tryout on a Division I opening prior to Employee B if both bid. This, it is contended, ignores the greater seniority of Employee B and cannot be a part of a “seniority” system. Precisely the same effect was present in the Teamsters seniority system, however. Under that system, as made clear by the lower and Supreme Court opinions, an employee with one day in a division would be given priority over an employee from outside of that division with twenty years seniority with the company. The major operative difference between the systems in Teamsters and this action is that under the Anaconda system an employee transferring to another division would be able to transfer his full company seniority for purposes of subsequent job bids, while the transferring employee under the seniority system involved in Teamsters would start from day one after his transfer. Moreover, the divisional aspects of the Teamsters seniority system which could operate to protect less senior plantwide employees over more senior plantwide employees, as is the case with Anaconda’s system, were the specific aspects of the seniority system which the Court deemed protected by section 703(h). The Court agreed that the Teamsters system operated to “lock” minority workers into city driver jobs. 431 U.S. at 344, 97 S.Ct. 1843. Nevertheless, the Court held that these “advantages of the seniority system” which “flow disproportionately” to white employees, id. at 350, 97 S.Ct. 1843, were immunized by section 703(h). In short, the Commission’s argument concerning the “preference” for divisional incumbents was effectively rejected in Teamsters. The Court stated its reasons, in part, as follows: In addition, there is no reason to suppose that Congress intended in 1964 to extend less protection to legitimate departmental seniority systems than to plant-wide seniority systems. Then, as now, seniority was measured in a number of ways, including length of time with the employer, in a particular plant, in a department, in a job, or in a line of progression. . The legislative history contains no suggestion that any one system was preferred. 431 U.S. at 355, note 41, 97 S.Ct. at 1864-65, note 41. The plaintiffs and Commission also contend that two Fifth Circuit decisions support their position. While Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 240 (5th Cir. 1974), contains relevant language favorable to the Commission, this decision was handed down before Teamsters changed the law, and must be read in that context. James v. Stockham Valves & Fittings Co., 559 F.2d 310, 338 (5th Cir. 1977), quoted the above language from Pettway in a context completely removed from seniority. James held that a dual scoring system which preferred job bidders within departments was unlawful. This had nothing to do with the seniority system,, which was treated separately. James therefore makes no attempt to lay down the rule which plaintiffs and the Commission urge, to-wit: that any sort of preference is, as a-matter of law, not part of a seniority system. Accordingly, the court finds that the divisional preference in the instant action is a protected part of Anaconda’s seniority system. See also Alexander v. Aero Lodge No. 735, I.A.M., 565 F.2d 1364, 1378 (6th Cir. 1977). B. Factors in determining the Bona Fides of a Seniority System The court must next consider whether the seniority system in question was bona fide and thus entitled to the protection afforded by section 703(h). Under the system involved in Teamsters, competitive seniority was accumulated only within separate bargaining units existing for line (over-the-road) drivers and city drivers. A city driver wishing to become a line driver had to forfeit all his seniority. As noted, the Court recognized that this system operated to “freeze” black and Spanish-surnamed employees into city driving jobs, but held that it was nonetheless a “bona fide” system protected by section 703(h), reasoning as follows: It [the seniority system] applies equally to all races and ethnic groups. To the extent that it “locks” employees into non-line-driver jobs, it does so for all. The city drivers and servicemen who are discouraged from transferring to line-driver jobs are not all Negroes or Spanish-surnamed Americans; to the contrary, the overwhelming majority are white. The placing of line drivers in a separate bargaining unit from other employees is rational in accord with the industry practice, and consistent with [National Labor Relations Board] precedents. It is conceded that the seniority system did not have its genesis in racial discrimination, and that it was negotiated and has been maintained free from any illegal purpose. In these circumstances, the single fact that the system extends no retroactive seniority to pre-Act discriminatees does not make it unlawful. 431 U.S. at 355-56, 97 S.Ct. at 1865. The Fifth Circuit interpreted this language in James v. Stockham Valves & Fittings Co., supra, at 351, to mean that “the issue of whether there has been purposeful discrimination in connection with the establishment or continuation of a seniority system is integral to a determination that the system is or is not bona fide.” It further noted that “the totality of the circumstances in the development and maintenance of the system is relevant to examining the issue.” Id. The Court then extracted the following four factors from Teamsters to be used to determine whether a system is bona fide: (1) whether the seniority system operates to discourage all employees equally from transferring between seniority units; (2) whether the seniority units are in the same or separate bargaining units (if the latter, whether that structure is rational and in conformance with industry practice); (3) whether the seniority system had its genesis in racial discrimination; and (4) whether the system was negotiated and has been maintained free from any illegal purpose. Id. at 352. These guidelines will now be applied to the present facts. (1) Equal Discouragement. Anaconda’s seniority system is facially neutral, applying to all bargaining unit employees. While the plaintiffs attacked the administration of job tryouts, their major complaint regarding the seniority system, apart from their contention that it perpetuated past discrimination, was that it discouraged black employees from bidding on jobs outside the seniority division in which they worked, particularly jobs in the Maintenance and Tooling Division. Because there have always been more whites than blacks outside this division, any discouragement clearly lacked racial effect or motivation. (2) Rationality of Seniority Units Vis-a-Vis Bargaining Units. Unlike Teamsters, the separate seniority divisions in this case are contained in a single bargaining unit. The court finds that the seniority divisions served the business purpose established by the company: to encourage and maintain a skilled pool of employees performing the major production, as well as maintenance and tooling, functions. This was in accordance with industry practice nationally, as shown by the evidence. (3) , (4) “Genesis” of System; Negotiation and Maintenance of System. Although James initially listed these as two separate factors, the court later analyzed them together, see 559 F.2d at 352-53, and this approach will be adopted here. Section 703(h) protects the operations of seniority systems unless they are “the result of an intention to discriminate . . . .” Thus, the ultimate issue is intentional discrimination in the creation or maintenance of a seniority system. The seniority system in the present case was originally negotiated in 1956, contemporaneous with the establishment of the Local Union as bargaining representative. The testimony of union and company negotiators who took part in these and subsequent negotiations established that two of the four union members on the initial union bargaining committee were black. These two employees,“Shorty” Slaton and Howard Clifton, had participated in the successful effort to organize the Local Union at American Art Metals as a racially integrated local. Evidence also established that the union negotiating committee of four or five contained at least one, and generally more, black members in all negotiations. The testimony was that at the original negotiations the union proposed plantwide seniority while the company proposed departmental seniority. The company was concerned about the diversity of the work done in the various production and maintenance functions. It also feared that plant-wide seniority would produce chaotic results as bidders with no prior experience in a particular job would have the right to try out on that job, increasing greatly the time and expense involved filling vacancies. This position was consistent with industry practice. Anaconda established that many of its higher-rated hourly jobs require special skills, and the company therefore sought to develop a group of skilled employees in each division and to avoid a long and costly series of qualifying tryouts on every job vacancy. The union proposed plantwide seniority as the system allowing the maximum potential mobility for every employee. In the second contract negotiated one year later, the forfeiture of divisional seniority on transfer was eliminated. In 1961, plant-wide seniority was established as the determinant in bidding, except that divisional incumbents could exercise their plant seniority before nonincumbents. Several other changes were made with regard to layoffs and “bumping”. Finally, in 1977, plantwide seniority for all purposes was negotiated when it appeared that there would be no contract without it. There was a six-week strike in 1965 which involved the seniority issue. Two class members testified that the whites in the union always voted down plant seniority, while the blacks always supported it. This testimony was overcome by numerous other witnesses who testified that union members did not divide on racial lines over this issue. The votes to strike and to end the strike (without full-fledged plant seniority) make this conclusion virtually inescapable. Based on the approximately even racial breakdown of the union, the large number of members voting, and the overwhelming final tallies, it is clear that the vast majority of union members of both races voted to strike for plantwide seniority and to end the strike without it. In 1974 through 1977, petitions were circulated by the union to discover members’ feelings on plantwide seniority. The only petition returned was that circulated in the Maintenance and Tooling Division. Five of the six black employees in the division at that time voted against plantwide seniority. This strongly suggests that the real split in the bargaining unit was craft versus noncraft, rather than white versus black. Several witnesses who participated in contract negotiations denied any racial motivation concerning the seniority system. There was no direct evidence to the contrary. The court is aware of the general practice of racial segregation in Atlanta, Georgia in 1956. However, this fact does not lead to the inference that the seniority system itself was “the result of an intention to discriminate” in the language of section 703(h). As the district court noted in Swint v. Pullman-Standard, 17 F.E.P. 730, 737 (N.D.Ala.1978), “[B]ased on the very extent of such other forms of discrimination, it may well be that racial considerations were not involved — being ‘unnecessary’ — in the development of a particular practice.” The conclusion that the seniority system was created and maintained without a racially discriminatory motive is buttressed by certain exhibits indicating the widespread utilization of departmental seniority systems in manufacturing plants all over the United States about the time that this system was adopted at Anaconda. One of these was a United States Department of Labor publication dated 1949 which stated that employers generally favored departmental seniority and unions generally favored plantwide, for economic reasons having nothing to do with race. Two other exhibits contain examples of actual collective bargaining agreements executed before and after 1965 which contained divisional or departmental seniority provisions. These involve companies and unions all over the United States, indicating the typicality of this practice in various industries. Plaintiffs have argued that the system has not been maintained free from any illegal purpose because Anaconda has circumvented the system in order to perpetuate discrimination. In short, they contend that the company has transferred job classifications among the divisions to keep black employees from obtaining the high-paying, more desirable jobs. The history of the specific changes complained of negates any racially discriminatory purpose, however. The new union contract, effective August 30,1968, made some major overhauls in the seniority divisions and job classifications for purposes of efficiency and economy. One of these changes was to transfer the job of Maintenance Porter, which had existed in the Maintenance Division only from 1965 to 1968, to a separate Labor Division. The testimony established that this was essentially a custodial or janitorial job consisting of sweeping and cleaning up all over the plant. It was not a training position for jobs in the Maintenance Division — although, of course, employees in that job could use the divisional preference in bidding for higher maintenance jobs — and therefore its inclusion in this division was less logical than its placement into a separate division, based on the type of work performed. Further, under the divisional seniority system, employees with seniority in other divisions generally had to bid down into the low-level maintenance jobs to enter the Maintenance Division. The company sought to remedy this situation by instituting a maintenance training program and removing the unattractive Maintenance Porter job. This testimony was confirmed by union witness W. W. Hudson, who testified that the porter job was unattractive and was replaced by maintenance trainee positions. Thus, the company’s legitimate business purpose in eliminating the Maintenance Porter position is clear. Plaintiffs also complain of the transfer of the Die Corrector A classification from an integrated division to the Maintenance and Tooling seniority division, which upon the transfer of the Maintenance Porters no longer had any black employees. The testimony established the company’s business purpose in making this change: to collect all “craft” positions into one seniority division. A new man was apparently in charge of the extrusion press in 1968 and felt it necessary to improve the supervision and product of the Die Correctors. By placing them in the Tooling department, they were given a separate work area with good tools and proper supervision. The result was a better product and more training for the Die Correctors; the purpose of this move was economic. As to the alleged racial effect of these changes, plaintiffs suggest that the transfer of the four Die Corrector A positions to the Maintenance Division harmed the black workers in the Die Correctors’ old division by removing their preference in bidding. However, another result of the changes begun in 1968 was the initiation of craft training programs, including that of Die Corrector B as the entry-level position prior to Die Corrector A. Die Corrector B, although in the Maintenance Division, was open to bidding plantwide, as were all trainee craft positions in that division. Thus, there was no adverse effect, since no one within the division would want to bid down to an entry-level trainee position. Moreover, the evidence reveals that as of June 1, 1968, there were twenty-one whites and six blacks in positions other than Die Corrector A in the old division. The adverse impact, if any, was therefore greater upon whites than blacks. Thus, there was neither a discriminatory purpose nor effect in the transfer of the Die Correctors.' Plaintiffs have also argued that the transfer of the porter jobs was improper and discriminatory, at least in part, because white maintenance porters were permitted to remain in Maintenance but black porters were not. The evidence reveals that sometime prior to the contract changes made in 1968 certain of the white porters bid into Maintenance Repairman positions. The bid lists and testimony demonstrate that none of the black porters bid on higher maintenance jobs, although several porters of both races bid out of the Maintenance Division. Further, when the porters’ job classification was changed and placed in a separate division, both white and black former maintenance porters became laborers in the new division. It therefore appears that Anaconda transferred the Maintenance Porter job classification, which included employees of both races, in good faith to a more appropriate location, as was its prerogative. Plaintiffs also questioned the creation of the new classification of Maintenance Helper in 1968, apparently because the four positions were filled by whites only. This position was created under the 1968 contract as an entry-level maintenance position to be posted plantwide. The exhibits demonstrated that the four employees who took these jobs took pay cuts in order to become Maintenance Helpers. Moreover, the bid lists for these jobs show that the senior bidder was F. Webb, a black employee; he turned down the job. Mr. Webb did not testify at the trial, and the court declines to infer, as plaintiffs would have it do, that there was anything coerced in his rejection of the job. The lists further demonstrate that these jobs went to the senior bidders— based on strict plantwide seniority — except one, and that the individual who was rejected on that occasion was white. Plaintiffs further contend that the elimination of positions in the Maintenance and Tooling Division in 1977 supports their argument that the seniority system was not bona fide. The evidence is to the contrary. To implement the recommendations of an outside efficiency consulting firm, the John Charles Company, six maintenance positions, including two Maintenance Repairmen A and four Maintenance Repairmen B, were eliminated in 1977. Three black and three white employees were cut based on seniority within these two job classifications. Since then, as the most recent seniority roster reflects, seven employees have been added back to Maintenance, including three blacks. The court concludes that none of the incidents cited by plaintiffs can support a finding that the senibrity system was maintained with an illegal purpose. It therefore holds, based on the individual factors, as well as the “totality of the circumstances”, that the divisional priority was an integral part of Anaconda’s seniority system and that the seniority system is bona fide and therefore protected under section 703(h) of Title VII. This decision, of course, answers plaintiffs’ claim that the divisional preference is an improper and discriminatory employment practice as well. 3. Anaconda’s Statistics Having reached this result, the court must now determine whether the disparity between the number of black and white employees in the Maintenance and Tooling Division, demonstrated by plaintiffs’ statistics, is attributable to the workings of the bona fide seniority system or to other causes. Anaconda proffered expert testimony through Dr. Donald Jewell concerning the filling of vacancies within the Maintenance and Tooling Division from October, 1968 to July, 1977. Dr. Jewell conducted an “opportunities” analysis of all ava