Full opinion text
ORDER BLATT, District Judge. This action was filed in the United States District Court for the District of South Carolina on June 15, 1972, by plaintiffs, Willis L. Gantlin, Alphonse Gailliard, George Chatman, Clifford Graham, Charles Jenkins, and Christopher Jenkins alleging racial discrimination in employment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981. With the exception of Christopher Jenkins, each of the plaintiffs at the time the complaint was filed was an active employee of Westvaco’s North Charleston Mill and a member of Local 508 of the United Papermakers International Union. Christopher Jenkins is a former employee of the Mill and former member of Local 508. Plaintiffs’ complaint charged Westvaco and each of the Unions having bargaining rights at the Mill with racial discrimination. The Union defendants are the International Association of Machinists and Aerospace Workers, AFL-CIO, and its Lodge No. 183 (IAM); the International Brotherhood of Electrical Workers, AFL-CIO, and its Local No. 1753 (IBEW); and the United Paper-makers International Union and its Locals No. 435 and 508 (UPIU). The complaint also alleged that each of the Unions had violated their duty of fair representation required by 29 U.S.C. § 185. On March 14, 1973, the court entered an order allowing this action to proceed as a class action under Rule 23 of the Federal Rules of Civil Procedure, and defining the class as: All black persons employed in bargaining unit jobs at Westvaco’s North Charleston Paper Mill between July 2, 1965, and March 14, 1973. In permitting the action to proceed as a class action as defined above, the court determined that plaintiffs were not proper representatives of black applicants for employment, or of black persons employed, in non-bargaining unit or salaried positions. This action, therefore, relates solely to conditions allegedly affecting black employees who subsequent to July 2, 1965, the effective date of Title VII, held hourly rated production and maintenance positions in the collective bargaining units at the Mill. Plaintiffs have alleged that black employees were discriminated against in job assignment and in transfer and promotional rights with respect to production and maintenance positions at the Mill until May 1968, and that union negotiated seniority practices have operated to unlawfully perpetuate such discrimination. Plaintiffs further alleged that discrimination continued after May, 1968, with-respect to maintenance apprentice positions. On June 11,1974, the court ruled that the trial of this action would proceed in a bifurcated two-stage fashion. On plaintiffs’ motion, the first-stage trial, which commenced on July 17, 1974, and was concluded on August 15, 1974, was limited to issues of class discrimination. All issues of individual liability and monetary relief were specifically deferred for second-stage proceedings, if necessary. Additional hearings were held on July 14 and December 19, 1978, at the request of counsel for the respective parties to determine the scope of the issues in controversy and for the purpose of supplementing the record with additional evidence relevant to the outstanding factual and legal issues. On February 9, 1979, plaintiffs filed their post-trial brief containing proposed findings of fact and conclusions of law. The defendants filed their briefs with their proposed findings at various dates between August 31 and October 10, 1979. Thereafter, plaintiffs filed a reply brief on November 27, 1979. Oral argument on all issues was heard by the court on July 17, 1980. The court has carefully considered the briefs of the parties, the joint stipulation of facts, and the voluminous trial record, including the supplemental evidence entered on December 19, 1978. The court, at the request of the parties, has also personally viewed the various mill operations. Based on the foregoing, the court now renders its findings of fact and conclusions of law in this matter. FINDINGS OF FACT History and Organization of the Mill: Westvaco’s North Charleston Paper Mill commenced operations in 1937. The Mill is similar in its organizational and operational structure to other paper mills in the pulp and paper industry throughout the United States and Canada. Westvaco’s Mill is engaged in the production of kraft paper and pulp and chemical by-products. The Mill is organized into the following functionally related areas of operation: Woodyard-Operating Reception center for wood supply in various forms. Converts roundwood into chips and mixes with purchased chips to supply pulp mill. Conveys bark and reject wood particles to supply the power boiler. Woodyard-Service Mill-wide clean-up, maintenance of grounds, and general service. Pulp Mill Takes wood chips from woodyard and processes into chemical pulp. Washes spent chemicals from pulp for recovery, and processes pulp for use in paper mill. Recovery Reclaims chemicals from spent pulping liquor and makes new cooking chemicals. Produces steam from burning organic waste. Paper Mill Receives virgin kraft pulp and self-generated waste and converts these into finished unbleached kraft liner-board and paper grades in roll form. Technical Services Specification testing of paper and liner-board. Water Treating Produces treated water for power and recovery boiler. Tests and regulates boiler water and treated liquid effluent of the entire mill. Finishing and Shipping Prepares for shipment, loads and ships finished products, and maintains customer inventory. Converting The Baler is the only portion of the converting progression in use. Its function is the mechanical baling of fluff-dried pulp. Power Produces electricity and is responsible for water supply to support all production facilities. Tall Oil Refines crude tall oil and converts to useful products for various industries. Polychemicals Extracts lignin from black liquor and converts to useful products for various industries. Receiving and Stores Receives, stores, and disburses parts and materials. Maintenance Maintains, repairs, and modifies plant and equipment as required. Each production department consists of one or more lines of progression (sequences), or series of functionally related jobs in order of wage rate for promotion, demotion due to reduction in force, and progression purposes. In addition to the production departments and progressions, there are various maintenance departments and jobs. As of July 15, 1974, there were 1049 hourly employees who held production or maintenance positions — (hereinafter referred to as “bargaining unit jobs”) — -at the Mill. Of these 1049 employees, 222 were black and 827 were white. Collective Bargaining History The collective bargaining history at the Mill dates back to 1937 when the International Brotherhood of Electrical Workers— (IBEW and its Local B0776, later 1753)— was recognized as the bargaining representative for electricians. The other Union defendants gained representational rights in 1944. In that year, the United Papermakers and Paperworkers — (UPP)—and the International Brotherhood of Pulp Sulphite and Paper Mill Workers — (IBPS)—were jointly certified to represent employees in the paper mill and the Machinists — (IAM Lodge 183) — commenced representation for a bargaining unit of outside shop machinists. The IBEW and IAM unions have historically bargained separately for employees within their respective areas of jurisdiction and have historically negotiated separate labor agreements. However, the UPP and the IBPS, pursuant to their joint NLRB certification, always bargained as a single entity and were parties to a common labor agreement covering a common bargaining unit of employees. At the initial stages of representation following their certification in 1944, the UPP chartered Local 435 and the IBPS chartered Local 508 to represent employees at the Mill. Later in the same year the IBPS, in response to a request from their black members, chartered Local 508A to represent black employees who at that time held only unskilled labor-type positions in the Mill. Local 508A’s name was later changed to Local 620. The pattern of three separate bargaining units for the IBEW, IAM and UPP/IBPS and three separate labor agreements has continued to the present time. The UPP/IBPS agreement was the product of collective bargaining proposals jointly drafted and bargained by a Union negotiating committee composed of representatives from Locals'435, 508 and 620. These proposals were embodied in a single collective bargaining agreement which established one seniority system covering a single bargaining unit' and referred to the three locals as “the Union” throughout its various provisions. While the three locals had separate jurisdiction over various jobs within this bargaining unit, they negotiated as a single entity and the employees whom they represented were governed by the same contract terms under the same seniority system. Pursuant to this system, bargaining unit employees accumulated three types of seniority reflecting length of time in their job, in their department, and in the mill. Commencing in 1964, Westvaco began the process of integrating the jobs and lines of progression at the Mill. Black employees who were thereafter assigned to jobs under the jurisdiction of Locals 508, or 435, or one of the other locals, were represented by those locals, and, conversely, white employees who were assigned to the 620 jobs were thereafter represented by Local 620. Local 620 continued in existence until May of 1968, when the jobs under its jurisdiction were merged into sequences represented by Locals 508 and 435. The negotiations between representatives of Locals 620, 508, and 435 and Westvaco concerning merger of the sequences took place in the spring of 1968. Following a vote of their memberships, each of the Locals, including 620, agreed to the terms of the merger and authorized their respective representatives to sign a formal merger agreement entitled “Memorandum of Agreement, Merger of Lines of Progression,” dated May 8, 1968, and hereinafter referred to as the “Merger Agreement.” Willis L. Gantlin, then President of Local 620, signed the Merger Agreement on behalf of the members of Local 620. At approximately the same time as the merger of sequences the Charter of Local 620 was revoked by the International Union (IBPS) and the membership rights and privileges of Local 508 and 435 were extended to the former members of Local 620 who fell within their respective jurisdictions. The jurisdiction of Local 620 prior to May 8, 1968, is set forth in Appendix A, along with the jurisdictions of Locals 508 and 435 for the same period. There is no evidence that racial considerations influenced the actual structure of the lines of progression or the arrangement of jobs within the departments in the pre-merger period. Jobs were placed in lines of progression to accomplish the necessary business objective of training employees to perform various related mill procedures which are learned by advancement through functionally related positions. Unskilled jobs were not placed in the operating lines of progression because they were functionally unrelated to such positions. The jurisdictions of Locals 508 and 435 — (later 1435) — After May 8, 1968, are set forth in Appendix B. Both Appendix A and Appendix B are copied from the joint stipulation which counsel for the respective parties executed and filed prior to trial. The jurisdictions of Locals 1753 — (IBEW) —and 183 — (IAM)—were not affected by the May 8, 1968, Merger Agreement with the single exception that the Power Plant labor position, formerly represented by Local 620, was brought within the jurisdiction of Local 1753 and made the entry job as Poolman in the Power Plant sequence. Local 1753 was not a signatory to the Merger Agreement, nor was Lodge 183 — (IAM). The Production Departments directly affected by the Merger Agreement of May 8, 1968, were: Woodyard, Recovery, Tall Oil, Polychemicals, and Finishing and Shipping. No other department had a line of progression represented by Local 620. In the Finishing and Shipping Department, jobs formerly represented by Local 620 were merged into the sequence represented by Local 435. In the Woodyard, Recovery, Tall Oil, and Polychemicals Departments, former 620 jobs were merged with 508 sequences. Local 508 also assumed jurisdiction over the Woodyard Service Pool, including Custodial Service, formerly a part of Local 620’s jurisdiction. The actual arrangement of jobs in the merged sequences was negotiated between Westvaco and all of the affected unions for at least six months prior to the signing of the Agreement. The criteria followed in establishing and structuring the lines of progression has been the nature and functional relationship of the jobs to one another. This has been true both before and after the merger. Since most of the jobs formerly represented by Local 620 were unskilled jobs, it was not generally possible to slot them into the newly merged sequences at other than the entry level positions. To have done otherwise would have destroyed the functional relationship of the jobs in the operating lines, and this relationship was essential for continuity of operations. Hiring, Transfer, and Promotion Practices in the Pre-Merger Period: It is stipulated that at all times since May 8, 1968, — (the date of the Merger) — initial job placement into production jobs and lines of progression has occurred on a racially nondiscriminatory basis. It has also been stipulated that prior to 1964 black employees at the Mill were hired and assigned only to the unskilled positions over which Local 620 had jurisdiction. The parties are in dispute with respect to the hiring, transfer, and promotion practices during the period from 1964 to May 8, 1968. Plaintiffs contend that discriminatory placement of black employees continued until May 8,1968. It is defendants’ contention that there was no discrimination in the initial placement or subsequent assignment of blacks at any time after 1964. In the Stipulation, which all counsel executed prior to trial, plaintiffs conceded that between 1964 and May 8, 1968, a large number of black employees, through initial employment or transfer, were assigned to production and maintenance jobs which prior to 1964 had been held only by white employees. The names of such blacks, whom defendants .were able to identify from records and memory, are listed in the Stipulation which the parties filed prior to trial. This list identifies 40 black employees, 12 of whom were assigned to non-620 jobs prior to July 2, 1965. Plaintiffs also stipulated that between January 1, 1965, and May 8, 1968, a large number of white employees were assigned to jobs represented by Local 620. More than 50 such white employees are identified in the Stipulation. The parties have further stipulated that “notwithstanding Westvaco’s placement of whites in 620 jobs and blacks in non-620 jobs during the period stated above,’’ the sequences — (lines of progression) — represented by 620, with the exception of the Long Log sequence in the Woodyard, continued to be composed predominantly of black employees, and the sequences represented by the other Unions, with the exception of the Woodscaler sequence in the Woodyard, continued to be composed predominantly of white employees during the pre-merger period. While new employees were required to satisfy certain education and test criteria to be eligible for employment during this period, Westvaco never required the passage of any test, or satisfaction of age or education requirements, for transfer to, or promotion within, the production sequences at the Mill. During all relevant times, until March, 1973, applicants for entrance into the respective apprenticeship programs took vocational aptitude tests administered by the South Carolina Employment Security Commission — (SCESC)—under the auspices of the United States Department of Labor. It is stipulated between the parties that no issue as to the .unlawfulness of tests administered by the SCESC is presented in this case. The parties have stipulated that at all times during the relevant period it was the policy of Westvaco, as set forth in Article IIB(3) of the labor agreement between Westvaco and Local Unions 435, 508 and 620, that “transfers between departments could occur either at the Company’s request or at the request of an employee.” It is further stipulated that at all relevant times persons desiring to transfer job sequences or departments, “regardless of their race,” could complete transfer request cards, and that an employee who elected to transfer between sequences within a department retained both his departmental seniority and his mill seniority for all purposes. An example of a'black employee who transferred from a 620 sequence to a 508 sequence within the same department prior to the merger is Willis L. Gantlin. Gantlin retained his departmental and mill seniority when he transferred to the position of. extra man in the Tall Oil Department in April, 1967. The record further discloses that, under the transfer request system, incumbent employees are given preference for vacancies over applicants from the street. In order to be eligible for transfer, an employee must have had a satisfactory disciplinary and attendance record. The only seniority consideration governing transfers between departments has always been the comparative mill seniority of the competing employees. The court’s analysis of the statistical evidence offered by plaintiff and Westvaco does not support plaintiffs’ contention that discrimination in job assignments, promotion, and transfer continued until May 8, 1968, the date of the Merger. Plaintiffs’ contention is based on speculation that 500 production employees were hired between 1963 and May, 1968. The source for this contention is deposition testimony of Westvaco’s personnel representatives who were asked to speculate how many people on the average might have been hired over a ten year period. These witnesses testified that the average could be ten employees per month, but they further explained that there were several temporary large group hirings of people for major mill clean-ups and housekeeping efforts, and that the peculiarity of these temporary buildups distorted the true employment picture. Westvaco’s personnel representatives also testified that they were guessing at these figures and they stated that during this period the Mill curtailed some operations, and automated others, and these factors had the effect of reducing the numbers of permanent employees needed. Plaintiffs’ statistical charts regarding employment and earnings are misleading because they omit employees of both races who the parties stipulated were hired during the period but who left the Company’s payroll through normal attrition prior to August 30, 1972. The omission of such employees distorts the employment picture. There was significant attrition in the workforce between July 2, 1965, and August 30, 1972, the date used by plaintiffs for their analysis. Indeed, plaintiffs’ statistics show only 15 black employees hired between July 2, 1965, and May 8, 1968, 12 of whom were hired prior to 1967. These figures which plaintiffs have used as the source of their statistical charts and printouts confuse and are unrepresentative of the actual hiring pattern. An analysis of the evidence concerning employees actually hired and assigned between January 1,1966, and May 8, 1968, reflects the following: Hires in 620 Jobs Hires in Non-620 Jobs 1966 7 Blacks 23 Whites 11 Blacks 41 Whites 1967 2 Blacks 24 Whites 9 Blacks 28 Whites 1968 0 Blacks 0 Whites 4 Blacks 5 Whites The evidence shows that 17 of the white employees employed during the period were experienced craftsmen, who were hired as first class journeymen in mechanical trades, namely, as pipefitters, outside machinists, metal workers, electricians, instrumentmen, and welders. Of these 17 employees, 10 were hired in 1966 and 7 in 1967. Of the black employees hired during the same period, only one, Johnny Snipes, was an experienced craftsmen in a mechanical trade. Snipes was hired in 1966 as a welder, 1st class. In the same period an offer of employment was extended to the only other black journeyman who applied, but he rejected the offer and moved out of the area. Plaintiffs offered no evidence that any black journeyman sought and was denied employment during this period. If the 17 white craftsmen and 1 black craftsman are excluded from consideration, the record evidence as to employees hired in entry level bargaining unit positions during this period is even more demonstrative of non-discrimination: Hires in 620 Jobs Hires in Non-620 Jobs 1966 7 Blacks 23 Whites 10 Blacks 31 Whites 1967 2 Blacks 24 Whites 9 Blacks 21 Whites 1968 0 Blacks 0 Whites 4 Blacks 4 Whites The evidence before the court also reveals that in the January 1, 1964, to May 8, 1968 period, a number of black employees who had been hired in earlier periods exercised opportunities to transfer from 620 jobs to jobs and sequences represented by one of the other Unions, or to a salaried position. Such employees included S. M. Brown, E. Cusack, Silas Knight, Lawton McClendon, William Sease, H. N. Smith, Louis Brown, George Brown, Willis' Gantlin, J. B. Edwards and A. D. Wright. At the same time, several white employees transferred from non-620 jobs to jobs and sequences represented by Local 620. Included in this group of white employees were F. A. Aimers, M. D. Anderson, S. R. Weaver, and R. L. Ringley. Much of plaintiffs’ evidence at trial concentrated on three production departments, namely, Woodyard, Recovery, and Tall Oil. Hundreds of pages of the trial transcript contains repetitive versions of alleged preferential hiring in these departments. However, when this testimony is closely studied, it is clear that there were, in fact, relatively few hires of white employees in these departments during the relevant period. Listed below, by department, are the names of those white employees in each of the three departments who were hired in non-620 jobs between July 2, 1965, the effective date of Title VII, and May 8, 1968, the stipulated date of non-discrimination: WOODYARD BADGE NO. NAME HIRE DATE RACE INITIAL JOB 5314 H. R. Davis 8/24/65 W Crane Hlpr. 5398 H. O. Ackerman 12/6/65 W Crane Hlpr. 5487 G. K. Tolle 3/22/66 W Crane Hlpr. 5558 M. D. Anderson 7/19/66 W Crane Hlpr. RECOVERY 5329 R. W. Smith 9/14/65 W Util. Man 4509 J. R. Keefer 12/17/65 W Util. Man 5914 J. A. Slotterback 12/12/67 W Util. Man TALL OIL BADGE NO. NAME HIRE DATE RACE INITIAL JOB 5334 L. D. Knupp 9/21/65 W Extra Man 5743 R. E. Dales 1/10/67 W Extra Man With respect to the Woodyard, the record shows that M. D. Anderson was reassigned to a 620 job within three months of his employment and that he was discharged two months later. On November 27, 1967, Anderson was rehired as a laborer — (620)— in the Woodyard. He was discharged again on February 9, 1968. The other white employees whom plaintiffs cite as having received preferential treatment — (Coker, Reeves, Tucker, Williams, Ferraro and Horn) — were all initially hired in 620 jobs during this period. The evidence does not establish that any black employee sought and was denied transfer to the crane helper vacancies mentioned above. Several black employees, however, did elect to transfer to other 508 jobs in the Woodyard during the pre-merger period. No white employees, other than the four crane helpers identified above, were hired into a 508 job in the Woodyard between July 2,1965, and May 8, 1968. As noted previously, there were approximately 50 white employees hired into 620 jobs during this period. With regard to the Recovery Department, there is no evidence that any black employee sought and was denied transfer to the Utility Man position between July 2, 1965, and May 8, 1968. The evidence does show, however, that F. L. Green, a black employee, was hired in that position on June 2, 1967. Mr. Green and J. A. Slotterback, a white employee, were the only persons assigned to the Utility Man position between January 1, 1966, and May 8, 1968. There is no evidence that any black employee sought and was denied transfer to the extra man job in the Tall Oil Department between July 2, 1965, and May 8, 1968. The record discloses that Willis Gantlin was offered the job which Dales received in 1967, but he refused such employment because he was not interested in transferring at that time. Mr. Gantlin, who was then president of Local 620, later elected to transfer to the extra man position in April, 1968, as did J. B. Edwards, another black employee, when it was clear that the merger of the sequences was imminent and Local 620 would soon cease to exist. Other evidence which refutes plaintiffs’ contention that discrimination in job assignments continued until the merger is contained in documents indicating Westvaco’s efforts during the period to attract qualified black applicants for some of the more responsible positions at the Mill. The record establishes that Westvaco initiated a series of affirmative action measures beginning in 1963, and continuing thereafter, which were designed to aid in the recruitment of qualified black employees. In February, 1963, Westvaco contacted Dr. T. C. McFall, a recognized black leader in the Charleston area and a representative of the NAACP, and requested his assistance in locating qualified minority candidates. Julius H. W. Guerard, who at that time was Westvaco’s Employment and Benefits Coordinator, testified as to various recruitment efforts initiated by the Mill during 1963. A list of minority referral sources was established in March,-1963. In December, 1963, Westvaco publicly announced its policy of equal employment opportunity and sought and obtained from each of the unions, including Local 620, written commitments to non-discrimination. In an effort to recruit minority applicants with craft-maintenance skills, Westvaco contacted the H. A. DeCosta Company in 1965. The DeCosta Company was a local construction company owned and operated by a black business leader. Westvaco requested Mr. DeCosta to refer to it black journeymen, carpenters and painters who might be interested in employment at the Mill. Similar contacts were established with the Charleston Naval Base and with the State Employment Agency. Westvaco’s efforts to recruit minority journeymen met with little success, however, because there were so few black craftsmen in the labor market at that time. The evidence reveals that in those instances where recruiting sources did produce qualified minority candidates, Westvaco responded affirmatively and offered these candidates employment in non-620 jobs. An example is James Sessions, who was hired in 1964 as a brickmason. Other blacks hired in the same period of time included Leon Forrest who was hired on March 10, 1964, as a laboratory assistant, and Otis Robinson and Richard Parson, who were hired as painters. These employees were all hired prior to the effective date of Title VII. Furthermore, offers were extended to other black candidates during this period, but such offers were refused. A black machinist who had been in the Navy was offered employment as an Inside Machinist Journeyman in 1965, but he did not accept the offer. The names of other black employees hired into non-620 jobs in the pre-merger period are listed in the Stipulation which all counsel signed prior to trial. The jobs in which these black employees were hired covered a variety of maintenance and production departments in the Mill. J. Hamilton was hired as brokeman on the Paper Machine on July 15, 1966; C. Pinckney was hired as a poolman in Converting on November 29, 1966; H. Green, W. E. Kennedy, and Bobby L. Lucas were hired as poolmen in Finishing and Shipping on May 16, 1967, November 13, 1967, and July 5, 1966, respectively; F. L. Green was hired as a utilityman in Recovery on June 2,1967; J. Snipes was hired as a welder in Maintenance on April 5, 1966; C. Singleton was hired as an oiler— (lubrication serviceman) — in Maintenance on June 3, 1966; and a number of other blacks were hired as machine girls or utilitymen, which were 508 positions in the Bag Plant. The evidence further reflects that Westvaco took steps to encourage incumbent black employees during the pre-merger period to transfer from 620 jobs to positions which, prior to 1964, had been held only by white employees. Willis Gantlin was offered, but did not accept, the job of extra-man in Tall Oil in 1967. As noted previously, Mr. Gantlin later changed his mind and, along with J. B. Edwards, transferred to the extraman position approximately a month before the merger. The names of nine other black employees who exercised their rights to transfer from 620 jobs to non-620 jobs between 1963 and May 8, 1968, are identified in the Stipulation. As apprenticeship positions became available during the pre-merger period, notices of such openings were given to plaintiff Gantlin and other 620 leaders, and they were encouraged to refer interested members from their union. Westvaco’s staffing of the Woodscaler positions in 1964, and the Long Log positions in 1966, in the Woodyard provides additional evidence of its affirmative efforts in the pre-merger period to place employees in a non-discriminatory fashion. Woodscaler, a 508 position, was staffed with equal numbers of white and blacks, as was Long Log Operator, a 620 position. The Transfer Bequest System: At the trial of this case, plaintiffs contended that Westvaco’s transfer request system was administered in a discriminatory manner in both the pre-merger and post-merger periods. In support of this contention, plaintiffs introduced an exhibit which purported to list various requests for transfer by black employees, which requests were allegedly unfairly denied by Westvaco. The list contained requests for transfer to both production and maintenance positions. Westvaco responded to this allegation by introducing various exhibits revealing successful transfers by blacks, and unsuccessful transfer requests by many white employees. Testimony was also presented by Westvaco’s personnel representatives indicating the non-discriminatory reasons for its selection decisions. An analysis of this evidence supports Westvaco’s contention that the transfer request system did not operate to discriminate against blacks. As pointed out by Westvaco, in a few instances persons listed in plaintiffs’ exhibit were actually white, not black. As to persons not erroneously listed, Westvaco produced evidence which clearly demonstrated non-discriminatory reasons why such individuals did not receive the specific job requested. In many instances, such individual had filed multiple requests for transfer, and one or more of these requests had been granted, which removed him from consideration for the position listed by plaintiffs. In certain instances the request was mooted by the merger of sequences, and in other instances the individual filing the request left the Company’s employment before there was a vacancy. In many other cases, the person who was awarded the position was another black employee. In still other cases, the request was not favorably considered because the employee had a poor attendance or disciplinary history. The Apprenticeship Programs: An additional contention of plaintiffs at the time of trial was that Westvaco and the Unions, both before and after May 8, 1968, discriminated against blacks in the administration of various craft apprenticeship programs. There were craft apprenticeship programs at the Mill for the following six trades: Electrician — (represented by IBEW Local 1753), Instrument Man — (represented by IBEW Local 1753), Outside Machinist — (represented by IAM Lodge 183), Inside Machinist — (represented by IAM Lodge 183), Pipefitter — (represented by UPIU Local 508), Metal Worker — (represented by UPIU Local 508). Each of these programs is a four-year program requiring substantial class room and on-the-job instruction. Specifically, plaintiffs have contended that blacks who requested transfer to the apprenticeship programs were not selected on an equal basis with whites, that the test and educational criteria for selection had a discriminatory impact on blacks, and that the age standards unlawfully excluded older blacks from consideration. Westvaco and the Unions denied each of these allegations and, in support of their positions, introduced substantial evidence concerning the selection rates for blacks and whites, the content of each apprenticeship program, and the reasons individuals were or were not selected. An analysis of all the evidence regarding selection of apprentices reveals the following. Each of the apprenticeship programs, including the published standards for apprenticeship contained therein, were approved by, and registered with, the United States Department of Labor, Bureau of Apprenticeship and Training. Westvaco’s apprenticeship programs were instituted on the following dates: Outside Machinists — (1956), Inside Machinists and Pipefitter — (1957), Electrician — (1960), and Instrument Man and Metal Workers— (1963). The published standards in the respective programs required apprenticeship applicants to be at least 18 years of age, to be a high school graduate, or to demonstrate evidence of having obtained equivalency, and to pass a vocational aptitude test. The upper age limitation for the electrician, metal worker, pipefitter and instrument man programs was set at 30 years. The age limitation for inside and outside machinists was set at 25 years. At all relevant times until March, 1973, applicants for entrance to the apprenticeship programs took vocational aptitude tests administered by the South Carolina Employment Security Commission— (SCESC) — under the auspices of the United States Department of Labor. Plaintiffs stipulated that they did not contend that such tests were discriminatory; they raised no issue as to the legality of tests administered by the SCESC; and they did not contend that the admittedly rigorous classroom training, which apprentices must successfully master, was other than job related. Between 1961 and sometime in December, 1969, incumbent employees who desired to transfer to the apprenticeship programs from other departments were required to take the Bennett Mechanical Aptitude Test administered by Westvaco’s personnel department. In December, 1969, the Bennett test was discontinued for all applicants and the educational requirement waived for blacks hired prior to May 8, 1968. The record indicates that in January, 1974, Westvaco and the defendant Unions agreed to waive the age standards for affected class employees who at the time of their employment were not already beyond the published age levels. The age standards in the programs were suggested by the United States Department of Labor at the time the programs were established. The first requests for transfer to each of the apprenticeship programs by a black employee occurred on the following dates: Paul Green 5/02/68 Outside Machinist Apprentice Malachi Simmons 5/08/68 Instrument Man Apprentice K. O. Moore 5/15/68 Electrician Apprentice Earl Brown 5/17/68 Metal Worker Apprentice E. J. Cook 6/18/68 Pipefitter Apprentice Odell Grant 8/ /71 Inside Machinist Apprentice The record reveals that two employees were selected for the Outside Machinist Apprentice program in 1968. One of those selected, Malachi Simmons, was a black employee. Although Paul Green was not selected, the evidence indicates that he made other requests for transfer which were granted. He had also requested transfer to the Technical Service Department, which request was granted on August 26, 1968. Thereafter, Mr. Green transferred to Engineering Aide, a salaried position, on July 2, 1973. As noted above, in 1968, Malachi Simmons requested transfer to both Outside Machinist Apprentice and Instrument Man Apprentice. The next Instrument Man Apprentice selection was not made until 1970. By that time, Mr. Simmons was no longer a candidate for the Instrument program since his request to enter the Outside Machinist program had been granted on May 29, 1968. Similarly, K. O. Moore filed more than one request for transfer in 1968. He also sought transfer to the Pulp Mill which was granted on July 15, 1968. The record discloses that electrician apprentices were not selected following Mr. Moore’s application until 1970. At that time, two persons were selected for entrance to the Electrician program, and one of these two was William Frederick, a black employee. The first Metal Worker apprenticeship opening subsequent to Earl Brown’s application did not occur until 1974. In the interim, Mr. Brown filed a request for transfer to the Finishing and Shipping Department which was granted on July 15, 1968. Two employees were selected for the Metal Worker apprenticeship program on February 18, 1974. Elijah Youngblood, a black employee, was one of the two selected. The first Pipefitter apprenticeship opening following E. J. Cook’s application occurred in October, 1968. One white and one black employee were selected at that time. The black employee was Wilson Melvin. The record establishes that E. J. Cook had a record of excessive absenteeism during this period, which record made him a questionable candidate. Mr. Cook’s absentee record failed to improve, notwithstanding progressive discipline, and on February 22,1973, he was discharged for unexcused absenteeism. The Company’s decision to terminate Mr. Cook was upheld by Arbitrator Francis Flannagan on November 20, 1973. The record establishes that only one person was selected for Inside Machinist Apprentice subsequent to Odell Grant’s application. This person, J. C. Cotheran, was selected on March 1, 1974. Westvaco introduced evidence that there were 16 white employees, who, like Mr. Grant, also applied for transfer to this program, but who were not selected. As in the case of E. J. Cook, Mr. Grant had a poor absentee record. At the time of trial, there were 1049 persons employed in bargaining unit jobs. Of this number, there were 222 blacks (21.2%) and 827 whites (78.8%). Westvaco introduced exhibits reflecting the names and race of persons selected for each of the apprenticeship programs subsequent to the initial application by a black employee. Throughout such period, there were 21 whites and 12 blacks selected. At the time of trial, there were 22 employees who held positions in the apprenticeship programs at the Mill. Of this number, 9 — (40.9%)—were black and 13 — (59.1%)—were white. Evidence was also introduced by Westvaco as to the number of white and black applicants who had competed for selection to the various apprenticeship programs. The following table summarizes this evidence and portrays the applicant and selection rate of blacks for each program, and for the programs as a whole: Outside Machinist Black Applicants 20 (21%) White Applicants 77 Blacks Selected 4 (36%) Whites Selected 7 Instrument Man Black Applicants 1* (The black candidate was Otis Washington who was disqualified because of absenteeism.) White Applicants 20 Blacks Selected 0 Whites Selected 2 Electrician Black Applicants 22 (27%) White Applicants 58 Blacks Selected 3 (50%) Whites Selected 3 Metal Worker Black Applicants 5 (28%) White Applicants 13 Blacks Selected 1 (50%) Whites Selected 1 Pipefitter Black Applicants 29 (25%) White Applicants 85 Blacks Selected 4 (36%) Whites Selected 7 Inside Machinist Black Applicants 3 White Applicants 17 Blacks Selected 0 Whites Selected 1* (The only apprentice selected for this program during the period was J. C. Cotheran, a white employee, who was selected on March 1,1974. There were only 2 black employees who, in addition to Odell Grant, filed requests for this program. One of these black employees, H. Wigfall, withdrew his request, and the other, H. Mack, also applied for the Outside Machinist Program and was selected for that program on June 2, 1972. Mr. Grant, as already noted, had a poor absentee and disciplinary record.) The record discloses that there have been in the aggregate 270 whites and 80 blacks who applied for an apprenticeship position in at least one of the programs. Thirty-three persons were selected during the period in question of whom 12 were black employees. Thus, while only 23% of the applicants were blacks, 36% of those selected were black. The evidence as to the success of black and white apprentice applicants on the Bennett Mechanical Test reveals that during the time the test was in use — (prior to December, 1969) — only 1 black and 13 white employees failed to achieve satisfactory scores on the test. No evidence was offered by plaintiffs which suggested that the Bennett test, as used by Westvaco, ever had a disparate impact on black applicants. The foregoing evidence concerning the selection of black and white candidates shows no discrimination in the choice of apprentices. Moreover, a case by case analysis of the individuals cited by plaintiffs as being discriminatorily denied admission to apprentice positions does not support plaintiffs’ contention. Many of the blacks listed made requests for transfer to more than one apprenticeship program, and were selected for one of the programs, which selection removed them from consideration for the specific program listed by plaintiffs. This is true of Malachi Simmons, George Lee, Elijah Youngblood, Thomas Smalls, Jerome Thompson, Joseph Brown, and Henry Mack. There are several people listed by plaintiffs who left the employment of the Company or transferred to salaried non-bargaining unit positions prior to the time there was an opening in the requested apprenticeship program. Included in this group are Kenneth Moore, Earl Brown, Earl Cook, Leon Mayes, Richard Scott, and John Utsey. Finally, there are others listed who also requested transfer to production departments and these transfers were granted. Such employees included Robert Campbell, Paul Green and Frederick Jenkins. In summary, the evidence shows no discrimination in the selection of apprentice candidates for the various apprenticeship programs. Plaintiffs, in apparent recognition of the weakness of their contention concerning apprentice selection, concede in their post-trial brief that the evidence “does not suggest an across-the-board pattern of under representation of blacks among apprentices” and that “the record is inconclusive with respect to the overall hiring pattern.” Plaintiffs argue, however, that certain individual blacks were unlawfully denied admission to the apprenticeship programs after May, 1968, because of the age standards. Plaintiffs contend that the age standards, which were waived for affected class employees in January, 1974, perpetuated discrimination against blacks who in prior years could not be assigned to the jobs because of their race. Plaintiffs’ theory regarding illegal perpetration of race discrimination through age standards has been judicially accepted by the Fifth Circuit. James v. Stockham Valve Fittings Co., 559 F.2d 310 (5th Cir. 1977); Stevenson v. International Paper Co., 516 F.2d 103 (5th Cir. 1975); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974). There are only four black employees cited by plaintiffs as being affected by this practice. They are Devonne Fladger, Clement Singleton, Robert Campbell and Franklin Carter. Plaintiffs contend that Mr. Fladger and Mr. Campbell were discriminatorily denied admittance to the Electrician apprenticeship program, that Mr. Fladger was also denied admission to the Instrument Man program, that Mr. Singleton and Mr. Carter were denied admission to the Outside Machinist program, and that Mr. Carter also was denied the position of Oiler. Fladger and Campbell were hired in 1970, two years after the stipulated date of nondiscrimination. The evidence does not establish that either was ever denied a job because of his race. To the extent the age standard affected them, it did so in a nondiscriminatory fashion. The employment record card for Clement Singleton shows that he was hired as a temporary janitor in January, 1966, and on June 3, 1966, was rehired on a permanent basis as an Oiler, a non-620 position. Singleton never applied for the apprenticeship programs and he testified that he did not become “interested” in the Machinist program until 1972, at which time he was beyond the age standard. This evidence does not indicate that he was discriminated against because of his race; hence, the age standard could, not have perpetuated any discrimination in his case. Franklin Carter was hired in 1962 as a laborer at the age of 24. Mr. Carter testified that he tried unsuccessfully to be assigned to the Oiler position and to the Millwright Shop — (Outside Machinist). The evidence reveals that the Oiler job which Mr. Carter sought was awarded to another black employee and there has never been an age standard applicable to Oilers. Regarding his request for an Outside Machinist position, Mr. Carter testified that he first requested this assignment in 1973. There was no record of Carter’s request in the Company’s files; moreover, the evidence indicates that no apprentices were selected for the Outside Machinist program in 1973. In fact, no apprentices were selected for that program until February, 1974, after the age standard had been waived. It follows, therefore, that Mr. Carter was also unaffected by the age standard. Structure of the Lines of Progression under the Merger Agreement of May 8, 1968: Although it is stipulated that there was no discrimination in assignments to line of progression jobs in the production departments after May 8, 1968, plaintiffs asserted at trial that the terms of the merger agreement operated to favor white employees at the expense of blacks, and plaintiffs suggested that the lines of progression could have been restructured to'have hastened the advancement of blacks to the top jobs in the sequences. The court finds no merit to these contentions. The record establishes that the basic considerations which controlled the restructuring of the UPP/IBPS lines of progression were that jobs be arranged to ensure continuity of operation and to functionally relate in the best possible manner. The rates of pay are indicative of the skill and complexity levels of the jobs. There is no question but that the 620 jobs were essentially unskilled positions, whereas the jobs in the 508 and 435 lines of progression required substantially greater skills and responsibility. When it was possible to do so, the 620 jobs were slotted above the entry level position in the new line of progression. In the Woodyard Operating Department, the crane helper job, which was formerly the entry level 508 position, was eliminated and replaced with a dual route of promotion through either the longwood operator position or the woodscaler position. In the Finishing and Shipping Department, the position of car bracer, which was formerly a 620 job, was slotted ahead of the pre-merger 435 jobs of roll finisher and senior roll finisher. In other instances, the merger resulted in a direct promotional route from the former 620 job to the initial job in the sequence represented by one of the other defendant Unions. As a result of the merger, the 620 job of laborer was generally eliminated and replaced with an upgraded classification of poolman, which became the entry level position in the majority of the lines of progression. The effect of the merger was to give persons in the 620 jobs an immediate avenue to higher positions without the necessity of transferring sequences. As a practical matter, there was no other way that the sequences could have been restructured which would have preserved the necessary functional relationship in the higher jobs and still offered protection to the 620 members already in the affected departments. By placing the 620 jobs in the promotional sequence, the defendants gave promotional preference to those employees who held 620 jobs, in the affected departments, prior to the merger, since employees who desired to transfer to those departments thereafter could not bypass those employees. Plaintiffs’ post-trial brief concedes that, at least since the merger, black employees have automatically promoted up the lines of progression according to seniority and qualifications and have not been bypassed by junior whites unless black employees waived promotion. The court finds that the lines of progression are properly structured. Jobs within each line are functionally arranged in a manner which recognizes the skill and complexity of the positions and which provides the essential on-the-job training needed for successful performance. There is no evidence that racial bias played any part in the restructuring of the lines. On the contrary, the restructuring of the lines was rational and served to enhance the promotional opportunities of black employees. The court has also considered plaintiffs’ contention that a special “run around” provision was negotiated as part of the merger agreement to protect white employees who had pushed up to higher jobs in the Finishing and Shipping Department. The so-called “run around” provision to which plaintiffs refer pertained to an agreement reached by the parties concerning the contract rights of persons in the poolman, car loader and senior roll finisher classifications who, prior to the merger, had regularly “pushed up” to a higher job in the sequence. As noted in the Stipulation, it has always been the practice in all lines of progression for employees to push up to jobs above their own for training purposes and to cover temporary vacancies. Pushing up occurs for vacation and absentee relief, and as an explicit training technique. The “regular” push up man is one who routinely fills in as the relief man and by doing so gains contract rights for permanent promotion to the position. In the merger negotiations, it was agreed that these contract rights would be honored and that employees in these three classifications who had already pushed up and qualified on the next higher job would continue to fill the next vacancy in that position, notwithstanding the fact that the sequence had been restructured. Thus, certain senior roll finishers who were white were permitted to promote directly to the position of truck driver, and black employees in the poolman and car loader positions, who had previously pushed up to the car bracer position, were permitted to bypass white employees in the roll finisher category when the next car bracer vacancy arose. The evidence does not establish that this provision operated to discriminate against blacks or unfairly benefited white employees. It merely preserved vested contract rights. Seniority Practices: At the trial in this case, plaintiffs also contended that the job seniority system at Westvaco was unlawful because it operated to perpetuate pre-Act discrimination. Subsequent to the trial, however, the Supreme Court rejected the logic of the line of cases which had adopted that legal principle and ruled that an otherwise legitimate seniority system does not violate the law simply because it may perpetuate discrimination from an earlier period. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 353-354, 97 S.Ct. 1843, 1863-64, 52 L.Ed.2d 396 (1977); United Airlines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977). The contention now raised by plaintiffs is that the seniority system at Westvaco was not “otherwise legitimate” within the meaning of Teamsters because it allegedly had its genesis in racial discrimination. This contention requires a thorough review of the seniority practices at the Mill. In making its analysis, the court, in keeping with the suggestion of the Fourth Circuit in Patterson v. American Tobacco Company, 634 F.2d 744 (4th Cir. 1980), has considered, among other factors, the areas of inquiry cited by the Fifth Circuit in James v. Stockham Valves & Fitting Co., 559 F.2d 310, 350-353 (5th Cir. 1977), and in United States v. Georgia Power Co., 634 F.2d 929 (5th Cir. 1981). These areas of inquiry include: (1) whether the seniority system operates to discourage all employees equally from transferring between seniority units; (2) whether seniority units are in the same or separate bargaining units — (if the latter, whether the 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. Reviewing the second of these factors, the record in this case establishes that at all pertinent times there have been three bargaining units and three separate labor contracts at the Mill covering employees represented by the IAM, the IBEW, and the UPP/IBPS. The establishment of separate bargaining units for machinists — (IAM)— electrician/power production personnel— (IBEW) — and other production and maintenance employees — (UPP/IBPS)—is rational and in conformance with National Labor Relations Board precedent. There is no evidence that the creation of separate bargaining units in this manner was in any way the product of racial considerations. It is incorrect to suggest, as plaintiffs do, that a separate seniority system existed at the Mill for blacks and whites. The record shows to the contrary that during the premerger period, the UPP/IBPS local unions —(Local 620, Local 508, and Local 435)— jointly bargained for their respective members as a single entity in a single bargaining unit. The contract rights of bargaining unit employees that resulted from these negotiations were set forth in a single collective bargaining agreement which established one seniority system and referred to the three unions as the “ Union” throughout its various provisions. Thus, while the three local unions had separate jurisdiction over various jobs for grievance handling purposes, they negotiated as one union, and their members were all governed by the same contract terms under a common seniority system. Pursuant to this system, bargaining unit employees accumulated three types of seniority reflecting their time in their job, their department, and the mill. Under this system of seniority, commonly known in industrial relations parlance as a job seniority system, job seniority applied to promotions and to demotions within lines of progression; departmental seniority was utilized as a tie-breaker between employees in the same line of progression who had identical job seniority, and applied to layoffs from the department; and mill seniority applied to transfers between departments and to mill layoffs. The record establishes that a virtually identical system of job, departmental and mill seniority was separately negotiated by the IBEW and the IAM for employees in the bargaining units under their jurisdiction. This type of seniority system is common throughout many industries in the United States and is by no means unique or peculiar to Westvaco’s North Charleston Mill or to the Southern paper industry. While the three labor agreements for the IBEW, IAM and UPP/IBPS bargaining units naturally differed in certain respects, each possessed the same type of job seniority system in essentially the same terms. With respect to the first of the aforesaid factors cited in Stockham Valves, supra, the record establishes that the seniority system at Westvaco operates exactly in the same manner with respect to black and white employees. The seniority consequences of transferring from one line of progression or department to another are the same for all employees within the bargaining units. The seniority rules themselves are color blind and apply in precisely the same way irrespective of the race of the person making the transfer. Turning attention to the third and fourth factors cited in Stockham Valves, supra, while it is true that the seniority system at the Mill originated at a time when racial discrimination was the custom, there is absolutely no evidence that the seniority system was adopted for the purpose, in whole or in part, of discriminating against any employee because of his race. Similarly, the evidence does not prove that it has ever been maintained for such purpose. The evidence establishes, to the contrary, that the impediment which black employees faced prior to 1964 was overt discrimination in job assignments pursuant to a practice, then common in this country, but nonetheless deplorable, of relegating blacks to unskilled jobs. The fact that the seniority system was established at a time when such a custom or practice existed does not of itself render that system non-bona fide, or compel a finding that such system had its genesis in racial discrimination. Once the job assignment impediment was lifted, the evidence indicates that blacks moved freely between and within the lines of progression and utilized their seniority rights on the same terms as whites. It is noteworthy that plaintiffs do not contend that the seniority system under the UPP/IBPS agreement operated to discriminate against black employees hired into non-620 jobs; nor have they contended that this system discriminated against white employees hired into, or assigned to, 620 jobs before the merger. Yet this system affected these white employees in the same manner as blacks. It is also noteworthy that plaintiffs have not contended that the IAM and IBEW seniority systems had their genesis in racial discrimination, even though they are virtually indistinguishable from the UPP/IBPS system, and these systems were established at or about the same time. In any event, the evidence does not, in this court’s opinion, support such a contention had plaintiffs attempted to advance it. The evidence establishes that black employees who were assigned to non-620 jobs and lines of progression in the pre-merger period had the same seniority rights and privileges, pursuant to the same seniority system, as white employees who were similarly assigned to such jobs. This was also true as to white and black employees who held 620 jobs prior to the merger. The record reveals that when a black employee, or, for that matter, a white employee, transferred from a 620 job to a job represented by Local 508 or Local 435 in the same department, he retained both his departmental and mill seniority. When the merger of sequences took place in May, 1968, the seniority provisions of the merger agreement specifically preserved this practice by specifying that “where existing progressions of jobs are merged into a new progression, employees will carry with them their current job, department and Mill seniority.” For example, when the 620 car bracers were inserted above the roll finishers in Finishing and Shipping, there was no loss of any previously acquired seniority. This was because the same seniority system existed before and after the merger. The fact that plaintiffs have never contended that the seniority system was not “bona fide” with respect to blacks hired in non-620 jobs before the merger, and the fact that they concede that this system had no discriminatory impact on persons hired after the merger, seems to the court to be a telling admission that the system is facially and operationally neutral. The system itself is color blind and affects all persons in the same manner, irrespective of their race. The Teamsters decision was handed down by the Supreme Court in May, 1977, approximately one year and seven months before the December 19, 1978, post trial hear