Appeals from the United States District Court for the Southern District of Indiana, New Albany Division. Nos. 77 C 141 & 78 C 7 -- Cale J. Holder, Judge.
Before PELL and CUDAHY, Circuit Judges, and CAMPBELL, Senior District Judge.*fn*
CUDAHY, Circuit Judge. These appeals call upon us to review the judgment of the district court that appellee Jeffboat, Incorporated ("Jeffboat"), did not discriminate against the appellant employees and the class they represent. The case was tried to the court below for almost four months and after the trial the district court ruled that the plaintiffs had failed to establish by a preponderance of the evidence that they were discriminated against. Regrettably, we find the findings of fact made after trial by the district court insufficient to permit meaningful appellate review. Therefore, we vacate the judgment of the district court and remand the case for a new trial.
Jeffboat is engaged in the manufacture and construction of barges, towboats and other marine-related equipment. Its facilities are located in Jeffersonville, Indiana, which is close to Louisville, Kentucky. From 1968 to 1980, the number of hourly employees at Jeffboat varied between 700 and 2000 with an average of 1500 such employees. During the same period, the number of salaried employees increased from 140 to 280.
At all relevant times a fairly large percentage of the hourly employees at Jeffboat were black. From 1967 to 1971, the hourly employees were represented by the Industrial Union of Marine and Shipbuilding Workers of America Local 65. In 1971, Local 65 was decertified and replaced by General Driver, Warehousemen and Helpers, Local Union No. 89.
In 1977, the appellant employees filed a class action complaint charging Jeffboat with racial discrimination against its black employees in promotion, compensation, discipline, seniority, training and other practices. The complaint alleged that Jeffboat, practices violated both Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), and 42 U.S.C. § 1981.*fn1 The classes were made up of all present black Jeffboat bargaining unit (hourly) employees and all such employees who are no longer employed by Jeffboat but who were employed within the relevant limitations period.*fn2
The claim of discrimination in discipline and discharge requires examination of union collective bargaining agreements which regulated the imposition of discipline by Jeffboat. Violations of disciplinary rules were classified as minor, major or intolerable. Further, the collective bargaining agreements specified the maximum allowable penalty for each type of offense. For example, the first minor offense could draw, at most, a written reprimand. A second minor offense was punishable by a written reprimand and a three day suspension.*fn3 Some minor changes in the severity of the penalties were made during the relevant years but, with one exception, the structure of the discipline system remained generally the same.
The one exceptional change noted above was that, after 1974, discipline for tardiness and absenteeism was deleted from the list of minor offenses and was provided for separately from other offenses. At that time also, the maximum penalties for attendance infractions were increased. Apparently, Jeffboat intended to "get tough" on matters of absenteeism and tardiness by imposing maximum penalties for such infractions. However, plaintiffs have alleged, and Jeffboat has not denied, that Jeffboat officials retained substantial discretion in these matters. Evidence was presented at trial that white employees often were not given the maximum penalties for attendance violations. See Brief for Appellants at 16 n.20.
The plaintiffs conducted a statistical analysis designed to measure the disparity in the discharge rates of black and white hourly employees. The data for the analysis were drawn from information supplied by Jeffboat during discovery. The analysis revealed that black hourly employees were discharged at a significantly higher rate in relation to their numbers than were their white counterparts.*fn4 The results were the same when the analysis was conducted for different time periods and when the study was confined to terminations for specific rule infractions.
With respect to allegations of discrimination in promotions, we must examine the seniority provisions of the collective bargaining agreement. The contract provided for sixteen separate seniority units and also employed the concept of plant wide seniority. Further, the agreement provided that promotions were to be made from within a seniority unit when possible and, if two equally qualified employees applied for a job, seniority would govern.
One of the class claims was that Jeffboat discriminated in the selection of "leadmen." A leadman is an hourly employee who directs other hourly employees apparently as a surrogate for, or an assistant to, a foreman. The collective bargaining agreements provided that leadmen could be selected without regard to seniority and that such selections were not subject to the grievance procedure. Experience as a leadman apparently was a proving ground for ultimate promotion to foreman. Jeffboat's vice president of production estimated at trial that only 25 percent of foremen had not been leadmen. The plaintiffs' statistical analysis of promotions to leadman showed a relatively low statistical disparity between the rates of black and of white promotion. Plaintiffs in their brief allege, however, that no blacks were among the 96 persons promoted to leadman status between 1971 and 1978. Jeffboat, in its brief, has not disputed this allegation.
The complaint also alleges that Jeffboat discriminated in its selection of foremen. Between 1971 and 1978, 99 people were promoted to foreman, of whom only three were black. The district court declined to consider this allegation on the ground that the position of foreman, to which promotion was made, was outside the class. However, as is elaborated below, discrimination against class members in promotion to positions outside the class is a proper class claim -- and thus on retrial the discrimination claims relating to promotions to foreman must be considered.
Plaintiffs also allege that Jeffboat discriminated against black employees by punishing them in retaliation for their participation in protests against Jeffboat's treatment of black workers. The protests -- called "Black Days" -- were held on work days, requiring that participants be absent from work. The plaintiffs claim that the discipline imposed for these ...