United Steelworkers vs. Weber: Affirmative Action on TrialBy Laughlin McDonald
Vol. 1, No. 9, 1979, pp. 14-17
United Steelworkers of America v. Brian F. Weber, known familiarly asWeber because of the enormous interest the case has generated, was argued in the Supreme Court on March 29, 1979, before a standing-room-only crowd of spectators. Weber will decide whether a quota for Blacks in on-the-job training for skilled craft jobs adopted by Kaiser Aluminum and Chemical Corporation and the United Steelworkers of America, AFL-CIO unlawfully discriminates against Whites. Both the district court in Louisiana and a majority of a panel of the Court of Appeals for the Fifth Circuit have held that it does. If the Supreme Court agrees, the case could scuttle all voluntary affirmative action for racial minorities in the nation's work force.
Weber involves Kaiser's hiring practices in its plant at Gramercy, Louisiana, a small town of approximately 2,000 people, 25 miles up the Mississippi River from New Orleans. Kaiser opened the Gramercy plant in 1958. At that time racial discrimination in employment was commonplace in southern Louisiana, and indeed, throughout the country. Given the employment practices of the times, it is not surprising that for the first ten years of its operation, the Gramercy plant employed less than 10 percent of Blacks. Had race not been a factor in hiring, one would have expected to see nearly four times that many Blacks on the plant's payroll, for St. James Parish, in which Gramercy is located, and the adjacent parish of St. John the Baptist, contain a labor force that is approximately 39 percent Black.
In 1969, yielding to pressure from the federal government, Kaiser adopted a policy of hiring "at the gate" on a one-to-one Black to White ratio. This new policy increased the number of Blacks on the payroll, but only to 14.8 percent, still substantially below the number of Blacks in the labor force of the surrounding community.
The employment of Blacks in skilled craft positions was even more disproportionately low. Prior to 1974, only five of approximately 290 skilled craftsmen at the Gramercy plant were Black. One of the reasons for this poor showing was because Kaiser hired only experienced craft workers from outside the plant, and required all applicants for its limited in-house crafts training program to have prior craft experience. Because of the history of exclusion of Blacks from craft positions and the lack of opportunity for unskilled workers to gain craft experience or training on the job the inevitable consequence of Kaiser's hiring policy was to insure that its skilled craft work force was almost exclusively White.
In 1974 Kaiser and the United Steelworkers, whose function is to champion the rights of union members and influence management during labor negotiations, entered into a voluntary pact known as the 1974 Labor Agreement. The purpose of the agreement was to correct racial imbalance in the work force and insure that a proportionate number of Blacks entered skilled craft jobs in the Gramercy plant. The agreement not only specified wages, hours of work, employment conditions, etc., but contained a provision that "[a]s apprentice and craft jobs are to be filled ... at a minimum, not less than one minority employee will enter for every non-minority employee entering until the goal [of 39 percent minority representation in each craft family] is reached unless at a particular time there are insufficient available qualified minority candidates." The goal of 39 percent was established because it was the percent of Blacks in the surrounding labor force from which the great majority of Gramercy's employees were hired.
Shortly after the 1974 Labor Agreement was implemented, Kaiser opened bids for on-the-job training in the craft families of instrument repairman, electrician and general repairman. The terms of the agreement were faithfully followed and for each craft family at least half of those chosen as trainees were Black. But inevitably, in
Page 15each instance, White applicants who had more seniority than the Blacks selected were passed over. One of those who missed out was Brian Weber.
Weber, a White man in his early thirties, went to work at the Gramercy plant in 1969. His present job is that of an unskilled laboratory technician. Like many others at the Gramercy plant, Black and White, he would like to improve his job and income by participating in one of the company's on-the-job training programs for skilled craftsmen. When his application was rejected, he and other excluded Whites filed a lawsuit against Kaiser and the Steelworkers. They contend that the 1974 Labor Agreement establishes an unlawful racial quota and discriminates against Whites.
Weber's specific charge is that the minority quota contained in the 1974 agreement violates the nondiscrimination provisions of the Civil Rights Act of 1964. Title VII of the Act prohibits in broad and general terms all employment discrimination based on race, color, religion, sex or national origin in industries affecting interstate commerce. More particularly, the Act prohibits discrimination on the basis of race against any person in any apprentice or training program.
It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.
The company and the union argue that affirmative action is not unlawful discrimination and that federal laws, including Title VII and Executive Order No. 11246, either require or permit employers to take voluntary measures to insure that Blacks are adequately utilized in the work force. The 1974 Labor Agreement, they say, is nothing more than an attempt to live up to their obligations under the law.
Kaiser had every reason to believe it had not been living up to the law in the past. Its underemployment of Blacks as skilled workers - 5 of 290 - coupled with the fact that the total work force at Gramercy prior to 1974 was only 14.8 percent minority, was enough standing alone to establish a prima facie case of discrimination. In addition, the hiring procedure in effect at Gramercy with its prior experience requirement was the same one in effect at the company's nearby plant at Chalmette. The Chalmette procedure was challenged by Blacks in 1966 and was eventually held by the Fifth Circuit to be racially discriminatory in effect. Under the circumstances, Kaiser was well aware that it was sitting on an employment discrimination suit just waiting to be brought.
Kaiser was also aware of how expensive an employment discrimination case could be, especially if it was lost. A third Kaiser plant in Baton Rouge was sued by minority workers in 1967. The suit was eventually settled by a consent decree, but it cost Kaiser more than a quarter of a million dollars in back pay to various class members.
Aside from suits from its own employees, Kaiser feared reprisals from the federal governinent, with whom it was doing business. Executive Order No. 11246 requires all applicants for federal contracts to refrain from employment discrimination and to "take affirmative action to insure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin." The order empowers the Office of Federal Contract Compliance (OFCC) to cancel or suspend all of a non-conforming company's government contracts, and to require all federal agencies to refrain from entering into future contracts with any company found to be "nonresponsible."
Termination of federal contracts was not a vague, unfounded fear of Kaiser's. In 1971 OFCC undertook a full scale review of the company and made general findings of discrimination in the hiring of craft workers at the Gramercy plant. OFCC at that time recommended that Kaiser establish a training program in which half of the trainees would be minority workers. These findings were confirmed two years later in a subsequent report by OFCC in which it found that Kaiser had engaged in discrimination by waiving its prior craft experience requirement for Whites, but not for minorities.
Kaiser knew too that the federal government was investigating claims of racial discrimination by nine major steel producers in the United States. Following intensive negotiations, the government eventually filed suit against the Steelworkers union and the producers. At the same
Page 16time, two consent decrees were filed which provided for one-to-one hiring basically similar to the plan adopted at the Gramercy plant. The consent decrees did not come cheaply. The price tag to the nine steel companies was a back fund for minority employees of more than $30 million. From Kaiser's perspective, doing everything it could to head off employment discrimination charges and the loss of lucrative government contracts was more than good business. It was economic survival.
The lower federal courts ruled against Kaiser and the Steelworkers because they found, incredibly enough, that no discrimination had been practiced at the Gramercy plant. As a consequence, the "racial quota," said the Court of Appeals, "loses its character as an equitable remedy and must be banned as an unlawful racial preference prohibited by Title VII.- The Court also found it beyond the power of the company and the union to use affirmative action to correct discrimination practiced by society at large. "it is appropriate to draw the line for application of restorative justice at the Gramercy plant, rather than at the larger universe of all Kaiser operations or indeed about society at large."
How could the courts have found no discrimination by Kaiser at the Gramercy plant in view of the OFCC investigations and reports, the statistical disparities between Kaiser's work force and the community labor pool, and the adverse impact of the company's procedures for hiring skilled craftsmen? Quite simply, because most of that evidence was based on the testimony of two of Kaiser's own personnel officers. They said the company did not discriminate.
One of the ironies of Weber, given its potential impact upon racial minorities, is that it is essentially a collusive suit between Whites. The suit is collusive, not because it was fraudulently brought, but because none of the parties to it adequately represented minority interests.
Weber, of course, has never wanted to prove discrimination by Kaiser, since to do so would. undercut his very argument that the preferential hiring system is arbitrary and unnecessary. The company, in view of its liability under Title VII and its concern over loss of federal contracts, had no reason at all to admit that it discriminated on the basis of race at the Gramercy plant.
The union, which has the duty of representing all workers, including of course minority workers, had no interest in proving racial discrimination for fear of exposing itself to liability for breach of its duty of fair representation.
Thus, each of the parties to the lawsuit had good reasons not only not to prove racial discrimination, but to deny that it ever existed at all. Predictably, the courts found "no discrimination" and no justification for the affirmative action plan.
The kind of non-adversary fact finding on the question of racial discrimination that took place in Weber, regardless of the motives of the parties in that case, is an open invitation to manipulation of anti-discrimination laws. Employers facing employment discrimination difficulties might be tempted to promulgate voluntary plans with the hope that they would be challenged by White workers. In such a challenge, since no party would be motivated to offer proof of discrimination which occurred, the court would, as happened in Weber, enter a finding of "no discrimination." It would be difficult, if not impossible, for any minority worker thereafter successfully to challenge the employer's discriminatory policies. To allow employers, unions, and White workers thus to adjudicate the interests of Blacks totally in the tatter's absence raises serious questions about the integrity and reliability of the judicial process.
If the Supreme Court nonetheless affirms in Weber, and concludes that affirmative action depends upon an express finding of past discrimination, as opposed to the reasonable apprehension of an emplover that it is vulnerable to charges of discrimination, then it will have dealt a crippling blow to voluntary compliance with employment discrimination laws. If the remedial plan is less than it should be, employers will still be liable to minorities in private lawsuits and to the federal government in pattern and practice suits and enforcement proceedings brought by OFCC. If, however, the remedy provides too much, then the employer will be liable in Weber-type suits to White employees who contend that the remedial action is in reality an unlawful preference. Unless the employer hits precisely upon a plan which would be approved by a federal court, it proceeds with affirmative action at its peril. Under the circumstances, most employers will do nothing but sit back and wait to be sued. The result will be less, much less, elimination of discrimination in employment.
The Supreme Court has never ruled directly on the lawfulness of racial quotas in employment, but it has generally approved of color conscious relief, either taken voluntarily or pursuant to a judicial finding of discrimination. It has routinely used Black-White student "ratios" in formulating remedies for school segregation; has allowed states and their political subdivisions voluntarily to take race into account in drawing district voting lines to insure minority participation in politics and to remedy the continuing effect of past discrimination; and in 1976, ruled that granting fictional seniority to minority victims of employment discrimination did not discriminate against White workers.
In the latter case, the court held that even though the economic expectations of arguably innocent Whites might be diminished by the grant of seniority, to allow that fact to defeat relief would undermine the central purposes of employment discrimination legislation to
Page 17eliminate the continuing effects of discrimination. As for the lower federal courts, they have widely approved quota remedies for employment discrimination, including those voluntarily adopted pursuant to Executive Order No. 11246.
The most recent case from the Supreme Court involving racially conscious remedial action is that of Allan Bakke, a White male whose application to the medical school of the University of California at Davis had been rejected. Bakke claimed that the medical school's voluntary, special admissions program, which set aside 16 of 100 entering seats for "disadvantaged," non-White students was reverse discrimination against him on the basis of race and was unconstitutional and in violation of Title VI of the Civil Rights Act of 1964.
The Court announced its opinion on June 28, 1978, the last day of the term. The decision was both complex and narrow, and left unanswered as much as it decided. A major problem in interpreting Bakke is that there were six separate opinions.
The justices fell generally into two camps. Brennan, Marshall, White and Blackmun voted to uphold the special admissions program under both the Constitution and Title VI on the grounds that race may be taken into account, not to demean or insult a racial group, but to remedy disadvantages caused by past racial prejudice.
Four other justices - Burger, Stewart, Rehnquist, and Stephens - voted to strike down the California plan. They believed that race could never be the basis of excluding anyone from participating in a federally funded program under Title VI, but refused to consider whether or not the Constitution ever permitted affirmative action.
The deadlock on the Court was broken by Justice Powell. He agreed with the Brennan wing that race could properly be taken into account under the Constitution and Title VI in remedying past discrimination. But he also agreed with the Burger wing that the California plan was unlawful because it imposed a rigid quota system that excluded applicants solely because of race. As a consequence of the various opinions, the special admissions program was invalidated, Bakke was ordered admitted to medical school and the University of California was allowed to devise a new admissions program "properly ... involving the competitive consideration of race and ethnic origin."
How Bakke will affect Weber remains to be seen. One thing, however, is clear. Weber will not be decided by the full Court. Only seven of the nine justices participated in oral argument and based upon the practice of the Court, only that seven will participate in the decision making.Justice Powell, the balance of of power in Bakke, was recovering from surgery. Justice Stevens, who voted with the Burger wing, absented himself because he had represented Kaiser when he was in private practice. Regardless of the outcome in Weber, because it will be a decision of only seven members of the Court, its value as precedent for future cases will be open to serious challenge.
Judge John Minor Wisdom, the author of many seminal civil rights opinions of the Fifth Circuit and one of that court's most highly respected members, dissented in Weber. His dissent may well become the basis for the Supreme Court's decision.
Judge Wisdom argued that the 1974 Labor Agreement should be analyzed, not on the basis of a judicial or other "finding" of actual discrimination, but whether it was a reasonable response of the company and the union to their employment problems. Applying that test, the affirmative action plan would surely be lawful. It was negotiated through the union, which has the obligation in good faith to represent the interests of all workers. Thus, Whites and Blacks were both considered in the bargaining process. As importantly, the agreement had a minimum adverse impact upon Whites. It did not deprive any White worker of a job. Instead, it created entirely new job opportunities for minorities as well as White incumbents. As Judge Wisdom concluded:
Voluntary compliance is essential to removing discrimination on the job. Neither the government nor private parties have the resources to cure the problem. The court which approved the settlement between the Steelworkers Union and the nine major steel companies, involving some 250 individual plants, estimated that it would have required ten years alone simply to try the liability issue in that case, and that resolution of the remedial issues would have involved over 28 years of trial time.
[T]he 1974 Agreement was a reasonable response to the situation. The defendants were faced with arguable violations of Title VII, federal government pressure, and the impending steel industry settlement. They created an affirmative action plan which aided all Kaiser employees while particularly assisting minority group members. We should not upset their efforts.
The Supreme Court has often said that voluntary compliance is the preferred means for achieving nondiscrimination in employment. And indeed it is. Voluntary compliance will eliminate the need for everexpanding state and federal enforcement agencies and reduce demands on the limited resources of the judiciary. It will allow employers and unions to examine and evaluate their own employment practices and take responsible, timely action to correct what remains one of the worst vestiges of our racial past.
Laughlin McDonald is the Southern director of the American Civil Liberties Union Foundation.