Race and the Steelworkers Union:
White Privilege and Black Struggles

Judith Stein's Running Steel, Running America¹ is, in effect, two separate books: one on federal economic policy as it affected the steel industry, the other, on which this review focuses, on racial discrimination and the litigation initiated by black workers against employers and the United Steelworkers of America (USWA) under Title VII, the employment section of the Civil Rights Act of 1964. Stein's attempt at a synthesis fails as the book lacks a substantive, coherent integration of the two themes.

Despite Stein's errors of interpretation, omission of relevant data, and distortion of the historical record, her book received lavish endorsements and praise in reviews from labor historians and union officials. "One of the most sophisticated treatments of race and the modern American economy to come along in years,"² gushed University of Illinois professor Eric Arnesen. "Stein's book is a triumph of heroic research . . . essential reading for anyone who cares about this country's festering race problems,"³ enthused David Brody, the doyen of labor historians; and Lynn Williams, the former president of the United Steelworkers of America called Stein's work "the most complete and balanced account," written about the steelworkers union "particularly in race relations."⁴ Nelson Lichtenstein, a professor at the University of Virginia, wrote that ". . . Judith Stein's remarkable book is . . . important . . . and heroically ambitious. . . . Stein offers up a portrait of the United Steelworkers as a racially progressive institution, not only in Pittsburgh but in Birmingham as well."⁵

It is understandable that Stein's account would win support from union officials and their academic supporters. Ever since its emergence in the late sixties, turning out sympathetic portraits of the former CIO unions, has been a staple industry of the New Labor History. And union leaders rarely reject glowing portrayals of their fair- mindedness and wisdom.

Stein's thesis is that the steel industry's decline can be explained almost entirely in external terms. It is not that the corporations failed to invest profits back into research and new technology early in the development of the global economy. Or that the union favoring white workers over black, tried to retain the segregated world of the pre-1964 Civil Rights Act. It was, according to Stein, government policy that wrecked the steel industry: on the one hand, the government's free trade policy allowed cheap steel to flood the domestic market, on the other, in tandem with carpet-bagging organizations like the NAACP and CORE, the Equal Employment Opportunity Commission harassed the industry with unfair law suits that actually made conditions worse for everybody.

Stein doesn't think there was a race problem in the steel industry. Black workers, she insists, were not aware of one. They were mostly stirred up by black nationalists and outside agitators. Furthermore, she denies the union's responsibility for maintaining the system of job segregation, and she ignores the extensive documentation in both the judicial record and in the history of black workers' protest against the racial division of labor in the steel industry. Stein denies the record of union racism in order to sanitize labor history. For her, as with many other labor historians, they find it necessary to minimize or deny racism in the labor movement because its existence conflicts with the useable past that they are constructing as labor history.

Stein's extensive discussion of some of the important cases involving discrimination in employment in the steel industry concentrates on three cases initiated by black workers who charged that, because of their race, they were denied equal job opportunity in Bethlehem Steel operations in Lackawanna, New York, and Sparrows Point, Maryland, and at plants of the U.S. Steel Corporation in Birmingham, Alabama. Named as defendants in each of these cases were the corporation and the Steelworkers Union. Stein contends that the charges of race discrimination were unjustified and that the black plaintiffs were persuaded to bring these lawsuits by misguided civil rights organizations and government bureaucrats. Of one civil rights group, CORE (Congress of Racial Equality), she says it consists of "Elite whites, possessing a potent brew of concern, guilt, and a desire to retain control of the social order. . . ."⁶ It is hard to provide evidence for such sweeping subjective descriptions as this and she does not attempt it. Stein fails to consider, however, that black steelworkers must have been fully aware of the racial division of labor in the steel mills, that many had a strong motivation of their own to advance beyond segregated dead-end jobs, and that, as a group they had long struggled against the pattern of company and union racism before seeking outside assistance. Indeed, the extensive record of litigation demonstrates that the Steelworkers Union repeatedly resisted the efforts of black workers to eliminate the discriminatory pattern, Stein notwithstanding.

In Stein's book the black voice is silent, replaced by the sound of celebration of the white male bureaucracy that has controlled the union since its founding in 1942. (From 1937 until 1942 it was the Steel Workers Organizing Committee.) Yet independent black organization within the Steelworkers Union has a long history, dating back to a black caucus at the founding convention of the union in 1942. There were also local groups such as the Sentinel League, and the Eureka Club in Gary, Indiana, in the late 1940s.⁷ In 1957, the Fair Share Group in Homestead, Pennsylvania, was formed,^a and in 1964 a nationwide caucus was organized, the National Ad Hoc Committee of Black Steelworkers. Although, by 1964, black workers constituted approximately 30 percent of the membership of the Steelworkers Union they had been consistently excluded from its national leadership.⁸ The organizing of separate groups within the Steelworkers Union was black workers' protest against the collaboration of employers and the union in a system in which their race determined low-level job status. Job assignments and promotions in the steel industry were traditionally decided by race, with blacks locked into segregated labor classifications established in union contracts. These issues were a major source of conflict between black workers and the leadership of the Steelworkers Union over a period of several decades.

At the 1959 annual convention of the NAACP, A. Philip Randolph, president of the Brotherhood of Sleeping Car Porters, called for formation of the Negro American Labor Council (NALC). Randolph insisted that black workers must now speak for themselves within organized labor. "We ourselves must seek the cure," he said; the new Council would, "make it possible for Negro workers to take positions completely independent of white unionists. . . . History has placed upon the Negro and the Negro alone this basic responsibility."⁹ Black steelworkers heeding such counsel were actively involved in the formation of the NALC, but as with the Trade Union Leadership Council, the independent black group within the United Auto Workers (UAW), black members of the USWA established their own organization within the union while simultaneously forging ties with the NALC.

The leaders of the National Ad Hoc Steelworkers Committee of Black Steelworkers, in their demands for a black presence in the leadership of the union, understood the direct connection between the exclusion from leadership positions and the discriminatory pattern within the industry. Nonetheless, the International Union failed to respond to their repeated demands for black participation in the leadership of the union and, consequently, at the 1968 convention of the union in Chicago, the Ad Hoc Committee organized picket lines around the convention auditorium. The extensive nationwide publicity embarrassed union officials. One leaflet handed out at the hall's convention doors demanded, "Change This Segregated System" and a leaflet entitled "An Open Letter to President I.W. Abel From a Negro Steelworker" stated, "The time has come for black workers to speak and act for ourselves. We make no apologies for the fact that we as black workers and loyal trade unionists now act on our own behalf. Furthermore we are fully prepared to do so. . . . Blacks were in the forefront during the formation of this union 25 years ago. Through the acceptance of crumbs down through the years instead of our just desserts, we now find ourselves hindmost. . . ."¹⁰ Rayfield Mooty, a black steelworker in Chicago and a founder of the Ad Hoc Committee, called it "a black revolt in the unions."¹¹

Stein dismisses expressions of black worker sentiment such as these in the face of discriminatory treatment. But sentiment publicly expressed can play a crucial role in the shaping of public opinion and in the making of policy. It has thus long been the practice of civil rights organizations to urge black people to attend court proceedings where civil rights cases are being heard. Over the years the NAACP suggested this to its own members, especially in the South, and as Labor Secretary of the Association, I myself often did. Inevitably the public denial or distortion in testimony of what really happened on the factory floor provoked spontaneous expressions of dismay from black workers sitting in the courtroom. Stein's sense of propriety seems offended by such responses. She reports that, in one case in Alabama, a federal judge "frequently rebuked Grover Smith, currently working for Herbert Hill at the NAACP, for audible sneers."¹² Smith, a black rank-and-file leader, had worked in Birmingham steel mills for many years until 1967 when he was invited to join the NAACP's staff as Southern Labor Field Director.

Although for many years at conventions of the Steelworkers Union civil rights resolutions were routinely adopted and stirring speeches given, such symbolic rituals were not translated into action on the factory floor and therefore, union practices that confined black workers to segregated job classifications routinely continued. Black workers came to see such civil rights rituals as an exercise meant to deflect criticism of the union's own racial practices. By the mid-1950s, in response to such union practices, black workers in steel, auto and other industries were organizing their own independent black caucuses within unions and seeking the assistance of the NAACP. A 1953 report by the NAACP Labor Department regarding unions in Birmingham, Alabama, concluded: "Many rank and file Negro workers felt a deep sense of frustration that CIO unions in the Birmingham area have not fulfilled the national commitment of the CIO on race. . . . Many Negro workers indicated a sense of despair and futility because the one important institution operating in the South that they hoped would provide the bridge across the divide of color was not doing so."¹³ Many reached much the same conclusion about the Steelworkers Union in the North.

After Title VII went into effect on July 2, 1965, the NAACP gave high priority to using the new law to eliminate discriminatory employment patterns, and close collaboration between black caucus groups within the Steelworkers Union and the NAACP made possible the Association's litigation against the steel industry. The 1966 NAACP Annual Report described its efforts in Birmingham, Pittsburgh, Columbus, and other cities, to make Title VII an effective legal instrument in the attack upon job segregation in the steel industry. According to that report:

The NAACP documented the pattern of discriminatory seniority provisions in the basic steel industry and charged both the companies and the Steelworkers Union with violating Title VII. . . . The Equal Employment Opportunity Commission found "reasonable cause" to sustain the charges. As the Commission was unable to eliminate discriminatory practices by conciliation procedures, litigation on behalf of Negro workers was initiated against both the United States Steel Corporation and the United Steelworkers of America.¹⁴

And the 1968 annual report said of steel industry employment practices,

The United Steelworkers of America and major steel companies persist in defending the discriminatory seniority provisions in collective bargaining agreements . . . companies together with the Steelworkers Union are vigorously defending these practices in a series of lawsuits pending in Federal district courts. . . .¹⁵

For the next decade, as Title VII law continued to develop, the NAACP intensified its attack upon the system of segregated seniority and job assignment based upon race. Black protest within the Steelworkers Union itself, especially of the Ad Hoc Committee, was significant in pressing for change on the exclusion of black workers from the leadership of the union and on the discriminatory job pattern in steel plants. If Stein makes any comment regarding such black protest activity, it is to dismiss it as misguided and of no consequence.

Stanley Greenberg's valuable 1980 study, Race and State in Capitalist Development, explains that "Though most of the industrial unions inherited their 'nigger jobs,' they later helped forge a labor framework that entrenched them. Rules for the work place--separate lines of promotion, black and white seniority lists, and departmental seniority--gave white workers security and control over the best jobs; they gave black workers security in the 'dead-end' jobs. These work rules became conventional practice in rubber, steel, and paper and were used extensively in coal mining, aircraft, retail trade, shipbuilding, dry docks, garments, and textiles."¹⁶ Greenberg describes how the United Rubber Workers, in Gadsden, Alabama:

negotiated an agreement with the Goodyear Tire Company that took cognizance of local custom and locked blacks in the reclaim department in perpetuity. Though black workers might accumulate seniority, like white workers, it did not entitle them to bid on white jobs in the manufacturing sector. . . . when black workers attempted to contest the discriminatory seniority procedures, the union maintained that "no contract violation exists."^17b

In discussing other contexts in which unions enforced systems of racial domination, Greenberg wrote that

The industrial unions took their chances with plant-wide seniority only where there were very few black workers. The Communications Workers won 'seniority across the bargaining unit' at Southern Bell Telephone. Blacks were confined to positions as janitors and maids before the passage of the Civil Rights Act of 1964 and were somehow left out of the seniority system. A union officer observed . . . You hire in as janitor, you work for fifty years; you retire as janitor.¹⁸

Greenberg also wrote that "[I]n a variation of the pattern of union racial practices, the International Brotherhood of Pulp, Sulphite and Paper Mill Workers, an old AFL union, maintained segregated locals, one for white workers in the pulp mill, recovery operation, and yard, and one for blacks in all sections of the plant. The structure of the union largely reinforced traditional segregation in the factory and white control of the industrial union."¹⁹ Timothy J. Minchen, in his later study of racial job segregation in the paper industry wrote that "Efforts to integrate the industry were hampered by . . . white resistance to blacks gaining access to white jobs. The color of work was the central theme in the struggle for civil rights in the paper industry between World War II through the 1980s."²⁰ Much the same can be said about the steel industry.

The Congress of Industrial Organizations (CIO), at its inception in the 1930s, accepted black workers into membership in order to organize industries like steel, auto, rubber, and packinghouse which had a significant concentration of black workers. Control over black workers was essential to conduct effective collective bargaining. Had blacks been forced to remain outside of organized labor or been limited to separate all-black unions they would have been a serious threat to the emerging industrial labor organizations. Therefore, admission into union ranks was the most effective means to control the black labor force. It is often forgotten that black activists played a crucial role in the early organizing campaigns of the industrial unions. But once control was established, many unions imposed a structure of racial inequality, denying blacks equal promotion and seniority rights and limiting them to unskilled jobs in segregated labor classifications.

The Steelworkers Union, with its substantial black membership, was willing to improve conditions for black workers within segregated job structures but not willing to eliminate the segregated structure itself. As a consequence, the union functioned primarily by and for whites, for decades using its power to preserve and expand racist job patterns. In so doing it guaranteed that the higher-paying, cleaner, and healthier jobs, offering opportunities for advancement into skilled classifications, were reserved exclusively for whites. Provisions in many union contracts stipulated that black workers' seniority would apply only in the segregated classifications, thus preventing competition with whites for better jobs. The union's major task was responding to white job expectations. The extensive body of litigation against the Steelworkers Union and other industrial unions on racial practices is evidence that the primary obligation of the industrial unions was to its white membership.

A 1986 study by Robert J. Norrell of the role of the Steelworkers Union in developing discriminatory employment patterns in Birmingham noted, for example, that the union "agreed to a system of segregated lines of promotion that preserved white supremacy and expanded seniority rights of white workers. . . . Black laborers were put on occupational ladders that led nowhere. . . . Therein lay a harsh irony: the organization made possible by interracial solidarity now yielded greater restrictions on black opportunity than existed before the 1930s."²¹ A black steelworker at the Atlantic Steel Company in Atlanta, where the United Steelworkers of America had repeatedly negotiated agreements that limited black workers to segregated labor units with a dual raced- based system of seniority and job classification, explained that

When the union first came, most of the whites were afraid, but we Negroes, we wore the CIO button. We were the first to come out for the union. We helped get it started here. . . . But now they--the whites--get all the benefits and we are left behind again. Turned out CIO meant one thing for whites and another thing for us. The union don't handle our grievances, we are stuck with Jim Crow seniority, backbreaking jobs and we get less pay than they do. We can't get promoted to the good white jobs. White boys just hired off the street get treated better than we do after twenty years. That's what we got for bringing in the union here.²²

Close examination of this history, especially the litigation record, reveals that what racial exclusion was to the craft unions, segregated lines of job assignment and seniority were to the industrial unions, and that casual informal discrimination in employment became more rigid and enforceable, as it was codified in labor- management contracts. Indeed, the disparity in wages between white and black workers often increased after unionization by CIO affiliates.²³

The relationship between unionization and the expansion of segregated job structures was demonstrated in a lawsuit by black workers against Pullman-Standard's Railroad Car Manufacturing Division and the Steelworkers Union. Litigation documents revealed that with the 1941 signing of a collective bargaining agreement, the number of one-race departments increased. According to briefs submitted by attorneys for the black workers,

After the unionization of the plant, another critical period in the development of the seniority system occurred in the mid-1950s. At that time the importance of seniority increased substantially within the Steelworkers' Union. . . . Just before the important switch in 1954 to departmental seniority, the Steelworkers and the company created seven new one-race departments. . . . All of the departments were carved out of departments which contained both white and black employees. The seniority system which was 'fixed' by the mid-1950s had essentially developed . . . during two periods, the unionization process in 1941 and the major changes in the application of seniority within the Steelworkers Union in the 1950s. During both these periods the number of one-race departments was substantially increased.²⁴

By 1964, it was reported that "just before the effective date of Title VII, 96 percent of the employees in the Pullman-Standard plant were located in racially identifiable departments."²⁵

A confidential 1964 survey by the Steelworkers Union on the status of blacks in unionized steel plants in Youngstown, Ohio, describing the disparity in the job status of white and black steelworkers, concluded that

. . . given the same seniority and education, the white employee's chances for advancement are substantially greater than are the Negro's and this is true at all levels of seniority, at all levels of education, and at all job levels. Furthermore, each of the tables reveals that a white employee with little or no formal education has a better opportunity for advancement than a Negro high school graduate.²⁶

A study of black employment in the basic steel industry of Pittsburgh, prepared for the Equal Employment Opportunity Commission and released in April 1968, showed that "Negroes comprise 12.27 percent of the laborers, 12.93 percent of the service workers, and 10.86 of the semiskilled operatives, but only 3.21 percent of the craftsmen. They are, therefore, almost twofold over-represented in the lowest classification and equally disproportionately under represented in the most skilled blue- collar work."²⁷ Nor was this pattern the result of random racial prejudice, but rather the direct consequence of discriminatory seniority and job promotion systems in collective bargaining agreements negotiated by the Steelworkers Union with employers.

In the decade between the merger of the AFL and the CIO in 1955 and 1965 when Title VII of the Civil Rights Act went into effect, the Federation and its affiliated unions could have taken seriously the complaints filed by black workers and the reports of civil rights agencies and could have initiated a vigorous program of internal reform on racial practices and moved against recalcitrant international and local unions. But instead they treated the issue as a mere public relations problem. As a result, when Title VII went into effect, labor unions were inundated with lawsuits and repeatedly, over a period of many years, they joined with employers against their own black union members in efforts to perpetuate discriminatory job practices, even though the federal courts declared such practices unlawful. In case after case, not only did AFL-CIO affiliates defend traditional forms of union discrimination that the federal courts had found to be in violation of the law, but the unions also tried to narrow the interpretation of Title VII and prevent its application to discriminatory seniority systems. These issues were to be the subject of extensive litigation in the federal courts for years to come. No one could learn this from Stein's, Running Steel, Running America.

The application of Title VII, the employment section of the Civil Rights Act of 1964 to union seniority practices was a major development in labor and anti-discrimination law, and was to become the basis for much litigation, especially in the steel industry. William B. Gould, professor of law at Stanford University, has written that "no industrial union has faced more Title VII trouble than the United Steelworkers of America. Thousands of complaints have been filed against the union and employers with whom they bargain in basic steel, charging racial discrimination at plants in both the North and South."²⁸ Yet Judith Stein tells us that when Title VII went into effect the Steelworkers Union was making great progress on behalf of blacks, and that "Some

blacks did not take advantage of the changes because they did not understand the seniority system."²⁹ Equally unfounded is her claim that the EEOC (Equal Employment Opportunity Commission) "became a subcommittee of the NAACP."³⁰

An extensive judicial record refutes Stein's assertions regarding progress on racial practices by the Steelworkers Union after Title VII became law. Two examples, both from northern steel plants, point to the discrepancy between her appraisal and the reality. In the 1970 federal court decision that found the union and the Bethlehem Steel Corporation in Lackawanna, New York, in violation of the law, the court observed that discriminatory contract provisions were embodied in nationwide master agreements negotiated by the union in 1962, 1965, and 1968. The court noted that "The Lackawanna plant was a microcosm of classic job discrimination in the North, making clear why Congress enacted Title VII of the Civil Rights Acts of 1964."³¹

So, too, the brief amicus curiae of the EEOC in a 1969 case against the Steelworkers Union and the Timken Roller Bearing Company in Columbus, Ohio, stated:

The seniority provisions of the current collective bargaining agreement are indicative of the long standing rules, jointly formulated by the Defendants, which effectively freeze Negroes into the low paying, dead-end jobs. Defendants have jointly adopted a "departmental" seniority system whereby an employee's seniority for purposes of promotion, transfer, etc., is based on his length of employment in a given department. If a Negro who was hired in 1952 as a janitor wishes to transfer to an all-white production department, he would lose all of his accumulated seniority and be treated as a new hire in the all-white department. Thus, under pain of losing their 'departmental seniority,' Negroes are effectively prevented from transferring from their menial jobs to more desirable departments.³²

Stein's reprise of the history of events is replete with misrepresentation and omissions. A reader would not realize that, by the end of the 1960s, when judicial enforcement of Title VII had become evident, organized labor was a vigorous opponent of the law.³³ The leadership of the AFL-CIO believed that Title VII as enacted would protect the racial status quo of seniority systems for at least a generation. But the EEOC, in its Second Annual Report, declared that:

A seniority system which has the intent or effect of perpetuating past discrimination is not a bona fide seniority system. . . . The fact that a seniority system is the product of collective bargaining does not compel the conclusion that it is a bona fide system. Seniority systems adopted prior to July 2, 1965 [the effective date of the act] may be found to be discriminatory where the evidence shows that such systems are rooted in practices of discrimination and have the present effect of denying classes of persons protected by the statute equal employment opportunities.³⁴

During the first year of EEOC operation, the AFL-CIO sought an agreement from the commission that the EEOC would not assert jurisdiction over complaints involving union seniority issues. On May 5, 1966, William Schnitzler, secretary-treasurer of the AFL-CIO, and Thomas E. Harris, its general counsel, together with the representatives of several major unions, met with the EEOC to insist that the commission refrain from acting on complaints of discriminatory job assignment and promotion procedures based on seniority provisions in union contracts. In response, the EEOC asked William B. Gould to conduct a study and report on its authority and responsibility on this issue. Gould concluded that "most seniority arrangements locked blacks into segregated job departments and were, therefore, unlawful under the statute," and that, "The AFL-CIO policy of not agreeing to implement Title VII serves to postpone the effectuation of the statute's principles. Assertion of the leadership's innocence is simply the first in an arsenal of arguments that the AFL-CIO and its friends put forward to justify union misbehavior."³⁵ Gould, who had participated in the EEOC meetings with union leaders, wrote later that the Steelworkers Union "played a leading role in the 1966 meeting . . . and in the AFL-CIO's rigid stance against any modification of seniority systems which would improve the lot of black employees."³⁶

In 1968, in Quarles v. Philip Morris, Inc.,³⁷ the first case on seniority issues decided by a federal court under Title VII, one involving the Tobacco Workers International Union, the EEOC brief recommended a strong enforcement posture and rejected organized labor's interpretation of the statute. In Quarles, the court found that union-negotiated contracts had established racially segregated departments limiting black workers to the lowest paying, unskilled jobs, and that through the bargaining agreement, had sought to perpetuate the discriminatory pattern after the effective date of Title VII. The union contract also established that black workers who tried to transfer into departments from which they had been previously excluded would lose their accumulated seniority if they did so, and be required to start over again as new employees subordinate to whites with less seniority. In Quarles, the district court stated that "the legislative history indicates that a discriminatory seniority system established before the act cannot be held lawful under the act," and that "a departmental seniority system that has its genesis in racial discrimination is not a bona fide seniority system." "Congress," it said flatly, "did not intend to freeze an entire generation of Negro employees into discriminatory patterns that existed before the act."³⁸

In 1969, a year after Quarles, in the landmark decision of Local 189, United Papermakers v. United States,³⁹ the Fifth Circuit Court of Appeals, further advanced the position taken in Quarles. It was the beginning of a line of cases on union seniority under Title VII, each invoking the decisions in Quarles and Local 189, United Papermakers, until the regressive decision of the U.S. Supreme Court in U.S. v. Teamsters of 1977. (See below.)

The litigation under Title VII led to recognition that seniority rights are not vested and immutable interests but rather expectations of future employment status which exist subject to law. For example, in United States v. Jacksonville Terminal Co.⁴⁰ the Fifth Circuit court ruled that a railroad seniority system that evolved over fifty years of collective bargaining agreements was not immune from remedial measures intended to provide relief to black workers. It held that work rules and other provisions in union contracts in the railroad industry were susceptible to court ordered remedies and relief under Title VII.

Stein devotes a large part of her book to Title VII litigation. She portrays the Steelworkers Union as a racially progressive organization, but the actual and extensive legal record, contradicts her portrayal. In a 1959 case, Whitfield v. United Steelworkers,⁴¹ a circuit court of appeals rejected the argument made by black workers in behalf of plant-wide seniority and sustained the union's insistence that a black worker permitted to transfer out of the all-black seniority line into a better job in the white line must lose his accrued seniority. Of this decision Stein writes, on page 110, "[T]he Supreme Court seems to agree, refusing to hear an appeal." But on page 119 she refers to the 1968 Crown- Zellerbach case,⁴² in which the same circuit court ruled that mill-wide seniority should apply to black workers employed before January 6, 1966, a case decided after Title VII went into effect. This time the court recognized that plant-wide seniority was necessary for black workers to be able to move out of the all-black job classifications. As in Whitfield, the U.S. Supreme Court did, however, refuse to review the decision of the appellate court, and of this Stein writes: "The whites at Crown appealed the Fifth Circuit decision to the Supreme Court, but it refused to hear the case and did not say why other courts had come to different conclusions."⁴³

The Supreme Court's refusal to review in Whitfield meant, according to Stein, that it agreed with the court of appeals' decision to reject plant-wide seniority as the black workers had asked, but, nine pages later she says that the Supreme Court's refusal to review in Crown-Zellerbach does not mean that the Court agreed with the decision to allow plant-wide seniority. However, when the U.S. Supreme Court refuses to review, it simply means that they will not hear an appeal, period; it does not mean that they agree or disagree with a lower court ruling. The court does not indicate one way or the other or for what reason it has refused. If the Court wishes to review a case, it can, of course, do so and then decide the issue, but when it refuses the petition for review that is the end of the matter. To assume otherwise is contrary to the most elementary rules of the legal system. Stein seems to suggest that the refusal to review means one thing when it supports the white workers' position and the opposite when it rules for the black workers' position.

In her discussion of the Bethlehem, Lackawanna case,⁴⁴ Stein writes that the judge "found the flaw to be in the company hiring, not in the seniority system."⁴⁵ But what Judge John O. Henderson actually said in his ruling of April 13, 1970 was the opposite, that because the company and the union admittedly discriminated against blacks before the effective date of Title VII, the seniority system then in operation reinforced and continued those discriminatory practices.⁴⁶ "This means that the longer a Negro has worked in the hot and dirty department to which he was admittedly discriminatorily assigned, the more he has to lose by transfer."⁴⁷ Henderson ordered that the seniority system be changed to allow plant-wide seniority, so as to avoid further penalizing of black workers. His opinion explained in detail how flawed the system really was.

Stein maintains that the company's problems with the government and civil rights organizations on its employment practices had begun over a rather trivial matter, "when a worker in the personnel office complained that summer replacements were monopolized by 'superintendents' kids, all the general managers' kids and all the foremen's kids. . . . The Justice Department transformed a class question into a civil rights investigation."⁴⁸ She quotes, apparently sympathetically, a Bethlehem Corporation executive who complains that "the Justice Department came in like a herd of turtles, and the next thing we know this thing has expanded way beyond the summer bit to all our employment practices and suddenly we have the first major civil rights case."⁴⁹

But the basis for the government's litigation against Bethlehem and the Steelworkers Union was quite different from Stein's account of employment practices at the Lackawanna plant. In 1967, the U.S. Department of Justice began to investigate charges by employees of the Bethlehem Steel mill in Lackawanna, New York, referred to it by the U. S. Equal Employment Opportunity Commission. The EEOC had received many complaints against Bethlehem and the union and had found a pattern of employment discrimination in violation of Title VII, hence had certified the case to the Justice Department for litigation.⁵⁰

In U.S. v. Bethlehem Steel Corp., the court stated: "In short, all the defendants knew of the racially discriminating assignment policies."⁵¹ The union, however, refused to accept the proposed change in the seniority system that would establish plant-wide seniority, permitting black workers in traditional black job classifications to retain their seniority if they were allowed to transfer to a more desirable job in the white line. The reader of Running Steel, Running America will not learn that the union refused the court's proposal. Stein writes that "Bethlehem refused, however, to institute the government demand for plant seniority."⁵² Not a word about the union's refusal. She writes that "Bethlehem took the position that seniority rights were protected, that remedies under Title VII were prospective."⁵³ But the union took the same position and argued further that the proposal for plant wide seniority "would lead to unmitigated chaos within the plant."⁵⁴ Stein says the union's position "was more nuanced,"⁵⁵ a deceptive interpretation of what really happened.

Stein argues that white ethnics were also discriminated against, and that blacks' hourly earnings, despite their segregated status, "in the eleven departments were 96.8 percent of the average of all employees throughout the plant."⁵⁶ Stein does not give a source for this figure, there is no reference note, just her assertion. Furthermore, she omits the comparison that is significant; the average wage of blacks relative to the average wage of whites in the plant. It is a glaring omission.

The reader of Running Steel, Running America will also not know that a federal district court found Bethlehem Steel Corporation and the United Steelworkers of America in violation of Title VII of the Civil Rights Act. That court's opinion stated:

The pervasiveness and longevity of the overt discriminatory hiring and job assignment practices, admitted to by Bethlehem and the union, compel the conclusion that the present seniority and transfer provisions were based on past discriminatory classifications. . . . Job assignment practices were reprehensive.

Over 80 percent of black workers were placed in eleven departments, which contained the hotter and dirtier jobs in the plant. Blacks were excluded from higher- paying and cleaner jobs.⁵⁷

While the decision of that court and that of the Second Circuit Court of Appeals in U.S. v. Bethlehem Steel Corp.⁵⁸ established the existence of a clear pattern of job discrimination, the relief the government obtained was clearly inadequate. The relief was termed "moderate" by the Court of Appeals in view of the government's refusal to seek back pay, adjustment of the recall and layoff system or of provisions for black promotions during general period of layoffs, similar to the relief obtained by the NAACP in the litigation against U.S. Steel and the Steelworkers Union in Birmingham (see below). Sorely dissatisfied with the results of the Justice Department's effort, the black workers at Bethlehem sought NAACP assistance and a new lawsuit was initiated against the corporation and the union known as Williamson v. Bethlehem Steel Corp.⁵⁹

In 1972 the Steelworkers Union obtained an injunction against the U.S. Department of Justice to prevent it from distributing a list of 1,600 names of black workers who could benefit from certain provisions of the court-ordered decree in the original case. The list had been requested by the Employment Information Center, a federally-funded agency operating under the Model Cities Program and the Third World Workers Organization for the purpose of informing the affected workers of their rights. The action of the Steelworkers Union against their own black members in denying them access to legal information to which they were entitled, caused a storm of protest in the black community and stimulated much new support for the NAACP lawsuit and for the Third World Workers Organization, at the same time intensifying black discontent within the Steelworkers Union itself.^c

An analysis of the history of litigation involving the racial practices of the steel industry reveals that the employers and the union spent enormous amounts of money to perpetuate the racial division of labor in steel plants and that the resources of both were used repeatedly to appeal decisions favoring black workers. A consequence of their interminable action in appellate courts were the long delays of any relief granted to black plaintiffs. The disparity in the resources available to black workers in Title VII litigation and that of corporations and unions was immense and often affected the final outcome of cases.

Stein makes no reference to the union's action in blocking information to workers of their rights under the court decree but simply states that "the Third World Workers Organizing Committee, a community organization, asked for lists of eligible workers. It assumed that it, not the workers knew their own interests. James Forman, the former head of SNCC, came to Lackawanna. . . ."⁶⁰ What comes next in her discussion is all about James Forman, who, in February 1972, came to Buffalo to speak at a monthly meeting of the Third World Workers Organization. Stein reminds the reader that Forman was involved with the Black Panthers and that "he embraced the League of Revolutionary Black Workers."⁶¹ She quotes from some of his statements, declares him to be among those who "were tourists among the working class," and denounces the "new black left," although without identifying who or what they might be.⁶² But all this is a red-herring, leaving aside the matter of the accuracy or fairness of her comments. Forman had nothing whatever to do with the Bethlehem cases, let alone was he responsible for the union's action in denying black workers information that belonged to them.

Stein's discussion of the case of the Sparrows Point, Maryland, plant of Bethlehem Steel is similarly troublesome. She denies the role of the Steelworkers Union in the establishment and enforcement of the pattern of employment segregation and challenges the government's argument that black workers were singled out for relegation to the less desirable jobs. "Blacks were not," Stein writes, "the only groups assigned to what the government and court decided were 'undesirable' departments. And, desirability is in the eye of the beholder, particularly, in a climate of economic and technological change."⁶³ To Stein as beholder it was all subjective, but in steel manufacturing, in the building trades, on the railroads, and in virtually every other industry, a clear distinction exists between desirable jobs and those that are not. An extensive body of law based on many court cases supports this. Federal courts have analyzed in great detail and described in various industries the jobs that have higher pay, that involve less dangerous and cleaner work, and that provide opportunity for advancement, comparing them with jobs that are more dangerous, that provide lower pay, and little or no opportunity for advancement.⁶⁴ In the racialized steel industry labor force there was no ambiguity between "white men's jobs" and "nigger jobs." In his opinion in the Bethlehem, Lackawanna case, Judge Henderson made a clear distinction between desirable and not desirable jobs.⁶⁵

Stein's account of the Sparrows Point case does not tell the reader that the Labor Department order said that Bethlehem must "correct a seniority system that has been found to perpetuate the effects of past discrimination in the assignment of blacks to jobs and departments with limited advancement opportunities."⁶⁶ Wage patterns, the order stated, evinced "a marked disparity which strongly favored white blue-collar workers."⁶⁷ The union seniority system forced a worker who transferred to another unit for a better job to give up seniority and pay status and start all over again at the bottom rung of his new unit. With 32 pay grades in the Bethlehem master agreement with the Steelworkers Union, it was thus impossible for blacks to transfer to better jobs and retain seniority. As a result of the order of January 15, 1973, issued by the U.S. Department of Labor, workers in the predominantly black departments would now have a chance to transfer when permanent vacancies occurred on the basis of plant rather than departmental seniority. Plant service tenure would become the primary consideration in all future job promotions. This is what the NAACP and the Legal Defense Fund had argued in the proceedings with the U.S. Labor Department and later in the court cases.⁶⁸

Stein's book reports on none of these developments, nor on the union's rejection of these proposed changes in the seniority agreements with Bethlehem. In fact, the head of Steelworkers Local Union 2610 called the order "discrimination in reverse" and other white workers protested that blacks were being "pushed ahead" of them and one stated "You give a colored person a finger and they want the whole hand."⁶⁹ The Steelworkers Union insisted on the continuation of the discriminatory system, whereupon the NAACP Legal Defense Fund pressed forward with the lawsuit against the company and the union,^d arguing that "discrimination in a job assignment can literally be a death sentence, that, as recent findings have demonstrated, a person who works on top of the coke ovens for more than five years is ten times more likely to get lung cancer than are other steelworkers. Coke-oven workers are almost all black."⁷⁰ So much for "desirability" in the matter of jobs being "in the eye of the beholder."⁷¹

The U.S. Steel case involving the Fairfield Works in Birmingham, Alabama is the most important of the three cases discussed by Stein. The 1973 decision in this Birmingham case, followed by the 1975 decision of the Fifth Circuit Court of Appeals, went beyond the holding in Bethlehem, Lackawanna and the Labor Department's Order in Bethlehem, Sparrows Point. Taken together, all three cases established a clear legal basis for, indeed the necessity of, plant-wide seniority for black workers transferring to jobs in hitherto all-white departments.

Stein's treatment of this history omits any account of the long years of protest by black workers in the steel mills of Birmingham. The history of the Fairfield case, as black steelworkers tell it, provides a perspective missing from Running Steel, Running America.

The extensive pattern of discrimination that existed at the Fairfield mill prior to the adoption of Title VII of the Civil Rights Act of 1964, continued long after the effective date of that law. In 1963, Clarence Duncan, a black employee of U.S. Steel's

Fairfield Works and a member of Local 2122 of the United Steelworks of America, filed charges of discrimination against the local with the National Labor Relations Board, alleging that a pattern of discrimination had been rigidly enforced by the company and the union.⁷² Duncan explained that all Negro employees were employed only in Job Classifications No. 2 to No. 5, and that these classifications effectively formed a closed line of progression for Negro employees. Whites, on the other hand, were hired into Classifications No. 5 to No. 28 with a line of progression allowing them to advance from the lowest to the highest job. Negroes were effectively confined to the positions of janitor, laborer, "sweeper," helper, and similar other unskilled jobs. Even when a Negro assisted a white worker in the performance of his job there was no natural line of promotion from one job to the other.⁷³

Duncan himself had been employed since 1947 as a "coil trimmer" in the Cold Reduction Department. Among a crew of four workers, he had a job classification that was the only one traditionally designated as a "Negro job." In September 1962, the mill was rebuilt to handle a larger capacity of steel coils, and although the function of his position was substantially the same, his job was reclassified and filled by a junior white employee. This reclassification occurred at each of the Department's six mills as they were rebuilt, thereby "rolling" all of the department's Negro employees from their jobs.

The September 1962 agreement between the company and the union made substantial changes in the large "labor pool," in which workers were all Negroes, performing a variety of menial jobs about the mills and accruing no seniority for purposes of permanent assignment. Duncan's affidavit stated that "This is to say that if he has pushed a wheel barrow for 10 years he has no seniority as a wheel barrow pusher but may be assigned to a job requiring the use of broom or a shovel."⁷⁴ The 1962 agreement provided for the entrance of white workers into the labor pool when they had been "bumped" from their former job higher up in the white line of progression. Such white workers retained the right to return to their former classification when it became vacant, using their former job seniority and the seniority they accrued in the labor pool. Thus, white workers had direct access out of the labor pool and Negroes did not.

As early as 1957 Negro workers at the Fairfield mills had protested the separate, all-black, lines of job progression and the attrition of their jobs.⁷⁵

The black workers at the Fairfield Works unsuccessfully attempted to file grievances with the union, and, in 1961, began appealing for assistance from outside sources. They proceeded methodically up the United Steelworkers organizational hierarchy seeking help in initiating a grievance with their local union. Writing to the United Steelworkers Sub-District Office in Birmingham, Duncan and other Negro workers expressed their frustration in dealing with Local 2122 and appealed for assistance in filing a grievance.⁷⁶ After an unsympathetic response from their Sub- District Director, the Negro employees wrote to the Steelworkers District Director seeking aid.⁷⁷ Obtaining no satisfactory response from the Sub-District Director or the District Director, the Negro workers wrote to United Steelworkers President David J. McDonald, but McDonald referred their complaint back down to their District Director's office.

Finally, Duncan and other black steelworkers began to seek aid outside of the union. In a letter to Congressman Adam Clayton Powell, they explained that since they had lost their jobs they now had "nothing to lose" by seeking outside assistance.⁷⁸

Representative Powell referred them to the U.S. Department of Labor, which replied that "it is doubtful that this office can be of service to you but I am sending you a copy of the Labor-Management Reporting and Disclosure Act of 1959."⁷⁹

On March 23, 1962, in a letter to Vice-President Lyndon Johnson in his capacity as Chairman of the President's Committee on Equal Employment Opportunity, the Negro employees of U.S. Steel sought to file a formal complaint against the Steelworkers Union. Their letter stated in part that "Throughout this entire plant you will find Negroes working as laborers and as miscellaneous crews, not because we do not have the ability to perform other duties, but because of discrimination."⁸⁰ Five months passed without any action and the black workers once again sought the assistance of the union leadership, this time in a letter to the executive director of the Committee on Civil Rights of the International Union. "We feel that we have exhausted all immediate remedies here. There should be no doubt as to our patience, understanding and cooperation concerning this issue, therefore, before we ask for help outside of this organization. We again submit our complaint to you for relief and whatever action you may deem advisable."⁸¹ They received a formal acknowledgement of receipt of their letter, nothing more.

The pattern of segregated jobs jointly maintained by U.S. Steel and the union came under attack again in 1964, when, at the request of black workers, many of them members of the Birmingham NAACP Branch, the Association's Labor Department investigated the racial employment practices of companies in the Birmingham area, and found that the status of the black worker in the Birmingham steel industry was deteriorating rapidly as a result of the limitation to bottom-rung jobs and attrition of those jobs. At U.S. Steel's Ensley Blast Furnace, for example, local supplementary agreements to the national agreement between the company and the Steelworkers Union limited black workers to Job Classification Numbers 1 to 9, while classifications filled entirely by white workers included Numbers 9 to 18.⁸² The separate line of job progression to which blacks were confined embraced only menial positions like janitor, porter, cleaner, laborer, and utility helper.⁸³

At the Tin Mill of the Fairfield Works, the mill which was the subject of Duncan's complaints from 1957-1963, the NAACP's investigation showed that the displacement of Negro workers was continuing at an accelerated rate. During the period from 1964 to 1965, 16 Negro workers were assigned to the occupation of "coil dresser," Job Classification No. 3. When new equipment made the job simpler and easier, the job was reclassified into the white Job Classification No. 10, with a new hourly rate of $2.69. The Negroes had earned $2.17 per hour when the job was more difficult and in the Negro line. All of the 16 Negro "coil dressers" were replaced by white workers with less seniority. The displaced Negro workers were sent to the Negro labor pool. When they filed grievances with the union, the union refused even to process them.

The limitation of black workers to menial jobs, combined with technological innovation, resulted in the displacement of black workers in increasingly large numbers. The 1965 NAACP report concluded:

Given the rapid introduction of new steel making processes based upon automated equipment, Negro workers with many years of seniority who have risen to the top of the all-Negro seniority line will be forced back into the lowest job categories as a result of the reclassification of jobs and eventually forced out of employment entirely. This development represents a potentially grave danger for Negro steelworkers throughout the entire southern steel industry. Negro workers have been limited to menial and unskilled job classifications and because these classifications are now being eliminated and Negro workers, as a result of collusion between the company and the union, are denied the opportunity to advance into production and skilled jobs, Negro workers may soon find themselves without any employment unless this traditional pattern is immediately reversed.⁸⁴

In conjunction with the Ad Hoc Committee, the NAACP organized demonstrations at the Pittsburgh headquarters of the U.S. Steel Corporation, as well as at its offices in Birmingham,⁸⁵ and filed more than two hundred complaints against the company and the union with the EEOC.⁸⁶ The Office of Federal Contract Compliance was requested to withhold government contracts from U.S. Steel until the company complied with federal executive orders requiring non-discrimination in employment.⁸⁷

Under public attack from the NAACP, the company protested that it had made "substantial progress" in advancing its black workers. A U.S. Steel press release answered that "there is no line of promotion that is not open to persons of any race, color, creed, sex and national origin."⁸⁸ John Barnett, a labor reporter for the Wall Street Journal, wrote that the "carefully worded press release" failed to provide "details on precisely what sort of jobs the Negroes have been promoted to or any breakdown of the numbers of whites and Negroes in various further classifications. . . . [R]epeated requests for further information are rejected by a company spokesman, who explains: 'All this information is made available to appropriate agencies of the government.'"⁸⁹ The NAACP countered the U.S. Steel claim; it had made only a "very limited, symbolic adjustment to the law," and had merely substituted euphemisms for the traditional racial designation of jobs.⁹⁰

A complaint filed with the EEOC by a black worker against U.S. Steel and the union soon after the company's press release refuted its claim of "substantial progress." Roland Smith, an employee of the company's Fairfield Works and a union member, filed charges against both the company and the union, alleging that because of his race, his job had been placed in an inappropriate line of promotion, limiting his opportunities for advancement.⁹¹ Smith's job at the mill was that of "Anode Conditioner" in the mill's Tinning Operation. All of the employees in the Tinning Operations were white and belonged to line of progression Unit 404, with the sole exception of the "Anode Conditioners," who were all Negroes and belonged to line of progression Unit 408. The latter line of progression embraced principally those employees in the Stock Department who worked over one quarter of a mile from the mill's Tinning Operation. But the Negro "Anode Conditioners" belonging to that line of progression did not work in the Stock Department. The lines of jurisdiction between 404 and 408 were thus so structured that the Negro "Anode Conditioner" could not be promoted within the Tinning Operation where they worked nor within the Stock Department where they were classified but did not work. The company and the union defended the structure of the lines of progression on the grounds that labor negotiations in 1963 had resolved that the occupation of "Anode Conditioner" was functionally related to the Stock Department, although geographically in the Tinning Operation facilities. In an unusually thorough investigation, the EEOC determined that the Negroes' jobs were not functionally related to the department of their classification at all, and that the false classification was racially motivated to prevent Negro advancement into the white line of progression.

After an exhaustive examination of both the Tinning Operation and the Stock Department, the Commission stated that the Negro "Anode Conditioner performs work which is directly connected to the tinning process. . . . Examination of the Anode Conditioners' job description reveals that the Anode Conditioner performs virtually all of his work directly in conjunction with the employees in Unit 404. He is supervised only by supervisors and other personnel in Unit 404."⁹²

It is clear from the foregoing that the Anode Conditioner has been excluded from the Line of Promotion to which his work is plainly technologically related, and placed in a Line of Promotion to which his work bears only a tangential technological relationship. Since Unit 404 is and always has been exclusively white, these facts compel the conclusion that Respondents' agreement to exclude the Anode Conditioner from Unit 404, a job performed solely by Negroes, was for the purpose of maintaining the all-white character of Unit 404.⁹³

The Commission also determined, in its "reasonable cause" finding, that the case was further evidence of a pattern of discrimination maintained by U.S. Steel and the union in violation of Title VII.

This conclusion is buttressed by our previous decisions concerning the activities of these Respondents at the Fairfield Works. These prior decisions do show that Respondents apply no consistent criteria such as common supervision, geographic proximity, or technological relationship, when formulating Lines of Promotion that may involve the integration of white and Negro jobs.⁹⁴

Thus, in numerous "reasonable cause" decisions, a pervasive policy of discrimination had been documented at the company's Alabama mills by the EEOC. Despite protestations of "progress" from the company's public relations office, plant operations continued in violation of Title VII and federal executive orders.

Soon after the effective date of Title VII, several lawsuits were filed against the company and the union by black steelworkers. After these suits had been pending in Federal District Court for more than a year without trial, the black workers petitioned Attorney General Nicholas Katzenbach to expedite the cases.⁹⁵

Luther McKinstry and Robert Hubbard, two Negro employees of U.S. Steel's Fairfield Works, sued the company and the union, seeking an injunction to prevent further discrimination. McKinstry and Hubbard filed their complaint as a class action, calling their situation typical of the pattern of discrimination. They were "hookers" at the

Fairfield mill, and it was their function to direct the movement of cranes operated by "Cranemen." The company had never employed Negroes as Cranemen and when McKinstry and Hubbard applied for training for the position they were denied. Their complaint said:

Specifically, the defendants have structured the lines of progression so that "hookers" (a job classification occupied mainly by Negroes) cannot transfer to the job of "cranemen" (a job classification occupied by white persons) without a loss of seniority. The defendants have refused to merge these two lines of progression. The effect of defendants' conduct in this regard is to classify Negro employees in such a way as to discriminate against them, based upon race or color, in violation of Title VII of the Civil Rights Act of 1964.⁹⁶

They also said that Steelworkers Local 1013, "As the statutory representatives of the employees of the company . . . have failed to perform their duty to fairly represent the plaintiffs and members of their class in order to secure fair treatment in their employment."⁹⁷

William Hardy, joined by nine co-workers, filed suit against the company and the union charging that because of separate racial lines of seniority in the labor- management agreement, they had been deprived of promotions to functionally related jobs. Hardy and the others worked in the Stock House Department of U.S. Steel's Fairfield Works, where all Negro employees were classified in grade numbers 4 through 9 in an all-Negro line of progression. Whites in the same department were classified in grade numbers 9 through 14.

Jobs in the Stock House Department are given grade numbers which determine the rate of pay an employee receives. The rate of pay increases with the job class number. Jobs in the Negro seniority Line of Progression are given grade numbers between four (4) and nine (9). Jobs in the Negro Line of Progression involves the more menial and lower paying jobs. Employment in the White line of Progression involves the more desirable and higher paying jobs. Both the Negro and White Lines of Progression include jobs with grade nine (9). Job grade nine in the Negro Line of Progression is a top classification in the Negro line. Job grade numbers nine in the White Line of Progression is the bottom job classification in the White Line.⁹⁸

There was a functional relationship between grade 9 positions filled by whites and Negroes but no provision for progression between the white and Negro lines of seniority. The complaint went on:

As a result of the separate seniority lines based on race, Negro employees are in effect limited to the more menial and lower paying job classifications, whereas, white employees with less seniority than some or all of the plaintiffs can progress to the more desirable and better paying jobs in the segregated White Line of Progression. In the event there is a slow down or a shut down in the work performed in the Stock House Department employees in the White Line of Progression enjoy a more liberal lay-off policy than do the employees in the Negro Line of Progression.⁹⁹

Three days after the effective date of Title VII, the Negro employees in the Stock House Department filed a grievance with Steelworkers Local 189. After the union failed to process their grievance beyond the second step, they made the union co-defendant in their lawsuit. Their briefs said that through the collective bargaining process, "defendants have established a promotional and seniority system, the design, intent and purpose for which is to continue and preserve . . . the defendants' long standing policy, practice, custom and usage of limiting the employment and promotional opportunity of Negro employees of the company because of race or color."¹⁰⁰ In another Title VII action, Negro employees of U.S. Steel's Rail Transportation Department at its Fairfield Works charged that the company and the union jointly conspired to maintain the traditional pattern of discrimination.¹⁰¹ The Rail Transportation Department was a small railroad company owned and operated by the U.S. Steel Corporation, consisting of three subdivisions: Road Operations, Maintenance of Way, and Car Shops. Seven Negro employees in the Car Shops subdivision charged the company and the union with negotiating a continuation of the segregated job structure traditionally in operation in that department.

Until 1963, the company had maintained segregated seniority lines of promotion based on race. The Negro Line of Promotion was limited to Job Classifications No. 1 through No. 6, the White Line of Promotion to Job Classifications No. 5 through No. 14. In August 1963, the company and the union, in response to pressure from the Office of Federal Contract Compliance, agreed to merge these segregated lines of promotion. Black employees were to be allowed to bid for positions in the former all-white line, using the seniority they had accumulated in the all-Negro line of promotion. But less than one year later, the company and the union revoked the agreement, and substituted a tripartite line of progression for the single, merged line that had never become operational. The new agreement established as lines of promotions: 1A, 1B and 1C. The 1A line included most of the former all-white job categories, line 1B, two all-white job classifications, and a line 1C, the job classifications that had always been limited to Negro employees. Although Negro workers were supposed to be given the opportunity to enter the 1A and 1B lines, they could have only entered the bottommost job in the lines and their seniority standing would have dated only from the time of initial entry into the 1A or 1B lines.¹⁰²

The company and the union enforced the segregated pattern using the threatened loss of seniority to dissuade Negroes from seeking to enter white job classifications.

Subsequent acts of discrimination imposed upon the railroad's black employees also confirm the racial intent of the 1964 revised agreement. Soon after its negotiation a committee of Negro workers seeking a copy of the agreement was told both by the company and by the union that no such agreement existed. "It was not until months later," said the Negro workers' complaint, "when a copy of the June 3, 1964 agreement was printed and distributed that the plaintiffs learned, as a matter of fact, that the August 3, 1963 agreement had been abrogated."¹⁰³ In 1965, when a group of black employees filed a complaint about the union's grievance procedure, the grievance was returned by union officials who said that processing the grievance would violate the terms of the 1964, labor agreement. The workers' complaint says that "The failure of the Steelworkers Local 1733 to actively press the grievance was intended to deny . . . Negro employees fair representation as members of the unions on the basis of race.¹⁰⁴

When, in 1965, the company posted bids for job classifications in the 1A line of promotion, several Negro employees in the 1C line who had submitted bids were told by the company that they would have to take and pass a test before they could be considered for the job vacancies. The Negro plaintiffs' complaint said:

Heretofore, no test had been administered for promotion purposes in any of the jobs currently listed in the 1A, 1B or 1C lines of promotion. . . . Plaintiffs believe and allege that the test is not professionally developed . . . and that the test, its administration and action upon the results, is intended to discriminate against Negro employees because of race and color.¹⁰⁵

It is clear that the U.S. Steel Corporation, acting in collaboration with the Steelworkers Union, had no intention of complying with Title VII.

In a 1969 case before the National Labor Relations Board, Ned Crawford, a Negro employee of U.S. Steel's Fairfield Works and a member of Steelworkers Local 1131, charged that the union violated its duty of fair representation by participating in destruction of Negro workers' seniority rights and by failing to process related grievances.¹⁰⁶ Before 1962, all Negro workers were placed in Job Classes 2, 3 and 4, with workers able to accumulate seniority within those classifications for use in transfer, rollback and layoff, although they could not enter the white job classifications. In 1962, the company and the union agreed to abolish Job Classes 2, 3 and 4, and persons holding those positions were placed into a "job pool," where seniority rights could not be accumulated. White workers, working in Job Classes 5 through 32, were not affected, but Negro workers were not only prevented from entering jobs held by whites, but could no longer accumulate seniority rights within their separate job classifications. Ned Crawford's seniority rights based on 22 years in Job Class 4, were destroyed by union and management collusion. When he filed a grievance with Local 1131, the union did not even process his grievance.¹⁰⁷

On December 30, 1970, the EEOC made another of its many "reasonable cause" findings based upon charges filed against U.S. Steel and the Steelworkers Union at the Fairfield Works in Birmingham.¹⁰⁸ At the time three private lawsuits were already pending in the federal courts against the company and the union from Negro employees who claimed that they had been recently promoted to formerly all-white jobs but on transfer had been forced to forfeit their years of accumulated seniority. As a consequence, they were laid off in advance of whites with less plant-wide seniority.

Three workers, Esaw Cook, Add Jackson, and Marion Bean, had been employed at the plant as driver's helpers for between 21 and 32 years. In 1966 they transferred to the formerly all-white job of truck driver but, in 1968, were laid off from their jobs while white drivers with far less plant-wide seniority but more seniority in that particular position retained theirs. The EEOC found both the company and the union in violation of Title VII.¹⁰⁹

This significant EEOC decision was one of a long line of decisions growing out of complaints against the union seniority system in Birmingham. Although a seniority system allowing blacks traditionally confined to all-black lines of progression to enter former all-white lines only upon forfeiture of their years of seniority is inherently unfair, this was the first case where such a forfeiture was actually imposed. The seniority system acted as a strong deterrent upon those seeking to improve their jobs, but until that time the mill had not actually experienced a workforce reduction. This was the first case under Title VII where blacks transferring to a white job had been penalized for their ambition.

Sixteen days before the EEOC decision, the U.S. Department of Justice, acting on charges filed by the NAACP, initiated legal action against the company and the union, charging the company, the United Steelworkers of America, and 12 locals of the union with maintaining a variety of practices that violated Title VII.¹¹⁰ The government's complaint stated that:

United States Steel has had a policy of hiring and assigning its employees on the basis of race, with Negroes being hired for and assigned to the less desirable and lower-paying jobs with the least opportunity for advancement. . . . This policy was followed on a formal basis at least until 1963, and in substance has continued to be followed to the present.¹¹¹

When the Justice Department insisted that the black workers retain seniority credit for the time already spent in the black jobs as they transferred to the white line, the company and the union refused, and the case, consolidated with the five pending private lawsuits, went to trial in late 1971. In 1973, a federal court found that the seniority system, the product of collective bargaining between the company and the union, locked blacks into lower-paying and less desirable jobs, and the court ordered the elimination of the separate racial seniority system that had long prevailed at the Fairfield Works. Although in previous rulings the white seniority lines were opened to permit the entry of blacks, dual seniority systems had not been abolished. But in the 1973 case the dual seniority system itself was abolished and black workers could now cross departmental lines and without penalty apply for jobs as they became available. The decree ordered that "Plant Continuous Service at all plants of the Fairfield Works replaces Occupational or Line of Promotion Seniority with the result that an employee's Plant Continuous Service will be utilized as the measure of continuous service for promotion, demotion, lay-off and recall from lay-off."¹¹²

Reading Stein's discussion of the Fairfield cases, the reader would not know of the years of black rank and file protest activity and of the dedication of the black workers who became the plaintiffs in these lawsuits. She offers instead as the hero of the Fairfield case the white union lawyer, who over many years repeatedly defended the discriminatory practices of the Steelworkers' Union. He is a "liberal" with a "sharp mind," Stein writes. Her book even provides a photograph of the lawyer receiving an award and embracing a black judge.¹¹³ Stein quotes a white union representative testifying at trial as saying that "We did the best job that we could do under the circumstances . . ."¹¹⁴ and the white company lawyer as telling the court, "If blacks were still concentrated more in low-paying jobs, it was because they refused to bid on jobs open to them and because many were poorly educated."¹¹⁵

There was, however, one black worker whom Stein does introduce to the reader: "Willie Phillips, a black in the wire mill . . . found a white in another part of the mill willing to teach him, although he was never comfortable operating cranes and eventually obtained other work."¹¹⁶ In the Birmingham steel plants, as elsewhere, the job of overhead crane operator was a white job. Arranging the materials to be moved and attaching the hook, the work of the "hooker," was a black job. This segregated pattern had been under attack from black workers in many steel plants for decades. Among the very first complaints filed with EEOC were those from black steelworkers who had worked for years as "hookers," but because of their race could not become crane operators, and this issue was the subject of early Title VII litigation. Stein reports that a black worker in the rolling mill became a crane operator,¹¹⁷ but she found one black worker, Willie Phillips, who allegedly didn't want to operate a crane. The book provides no quotation from or further identification of Phillips, no supporting citation, no source, no reference, no context for Phillips' discomfort. The following paragraph, quoted in full, is all that appears in her source notes on this matter.

The Phillips incident reveals concretely that the behavior of white steelworkers cannot be explained by the concept of "whiteness." Whatever their ideological beliefs about race, steelworkers possessed other ideas and interests that explain their behavior. The sheer diversity of response demonstrates that the ideological approach to studying white workers begun by David Roediger in his Wages of Whiteness: Race and the Making of American Working Class (London: Verso, 1991) cannot account for the behavior revealed here, much less for the history of the American working class.¹¹⁸

So much for the quality of Stein's "scholarship" in Running Steel, Running America.

Two years later, in an appeal carried forward by the NAACP and the Legal Defense Fund, the Fifth Circuit Court of Appeals extended the relief granted in the Fairfield case to include back pay to the class of black steelworkers. Stein does demonstrate, inadvertently or not, how the Steelworkers Union, in conjunction with management, acted to maintain systems of job segregation in the steel industry. But she does not mention that black workers actively struggled against their racial oppression and it was they who forced the changes.

Stein's discussion of the cases also offers a picture at odds with the extensive judicial record: "The USWA had never challenged the principles underlying seniority changes or the interpretation of Title VII," Stein writes. "Initially, it did not believe that the law required changes, but after court rulings, it did not contest the judgment."¹¹⁹ In fact, from McKinstry and Hubbard v. U.S. Steel in 1966,¹²⁰ to Goodman v. Lukens Steel in 1987,¹²¹ the Steelworkers Union, in case after case, resisted compliance with Title VII, and fought to preserve the advantages of white workers against the interests of blacks. Scrupulous accuracy as to facts and evidence is all the more obligatory when an author is a partisan. Stein has not met that obligation in Running Steel, Running America.

After having lost many cases and paying out millions of dollars in court-ordered back pay, in 1974 the steel companies and the Steelworkers Union developed a new approach. They could resist future conciliation attempts and watch their discriminatory seniority systems be reshaped by federal courts, or they could participate in the revision of their racial practices and free themselves from further troublesome litigation and back-pay liability. There were 408 complaints against steel companies and the Steelworkers Union pending with the EEOC when the negotiations were begun that culminated in the consent decree of 1974,¹²² agreed to by nine major steel corporations and the United Steelworkers of America and representatives of the Department of Justice, the Labor Department and the Equal Employment Opportunity Commission but with no participation whatever in the negotiations by the affected black workers or their representatives. The black workers were not asked to consent to the agreement that directly affected their lives.^e

Stein discusses the Steel Industry Consent Decree from the perspective of the employers and the union. That the American Civil Liberties Union, the National Organization of Women, the NAACP, and the Legal Defense Fund all went to court in opposition to the consent decree she dismisses as "a typical expression of the new public advocacy culture."¹²³ Stein terms the Ad Hoc Committee, which opposed the decree, "the radicalized remnant of the black dissidents of the 1960s."¹²⁴ This is the language of a partisan defender of the union and its racial practices.

The NAACP itself comes in for bashing, especially the author of this review. Thus, Stein writes, "Hill had the field to himself to attack the decrees. The union succeeded, however, in preventing a formal condemnation." In Philip Shabecoff's front page report in the New York Times for April 15, 1974, the official position of the NAACP on the decree was put in this context: "the National Association for the Advancement of Colored People has been seeking for 20 years to end racial discrimination in the steel industry." The Association's critical position was reaffirmed by Roy Wilkins, its Executive Director, in a letter to Ben Fischer, assistant to the president of the Steelworkers Union, September 2, 1975. (For complete text, see Appendix "A.")

The steel industry consent decree was the second major agreement entered into by the Equal Employment Opportunity Commission. The context of the negotiations in the steel agreement and the role of EEOC were significantly different from the earlier AT&T case which was initiated by racial minorities and women.¹²⁵ In contrast, it was the steel companies and the union that had initiated the proceedings with the government in order to prevent further judicial intervention on racial employment practices in the steel industry. Affected racial minorities and women were prevented from participating in the steel industry negotiations, as they were not in the AT&T case, and denied the right to protect their own interests and question the agreement by the government's signing.

According to Roy Wilkins, ". . . many months before the negotiations were concluded, requests had been made to the EEOC, asking for an opportunity to participate or simply observe the conduct of the negotiations. These requests were refused and there is no denying the fact that black rank and file steelworkers were denied the right to participate in the negotiations. Even Judge Pointer discounted the effectiveness of the union representatives in protecting the vital interests of affected class members."¹²⁶ Early in the discussions that led to the negotiations that resulted in the consent decrees, lawyers for both the U.S. Steel Corporation and the United Steelworkers of America refused to meet with NAACP lawyers representing black plaintiffs at a joint session called by EEOC. Union and employer representatives explained that "the NAACP was a disturbing influence," and repeatedly objected to NAACP participation.¹²⁷

EEOC entered into an industry-wide agreement providing that all charges pending with the EEOC against the nine companies and the union were considered settled if such claims were decree-related. The Commission nullified the legal rights of workers seeking additional relief or if it found that a suit was inconsistent with the decree, EEOC would intervene with the court on behalf of the employer and union to advise that the relief requested should be denied. The U.S. Commission on Civil Rights commented at the time: ". . . the requirement that the government appear on behalf of the industry in private actions is unusual, the inclusion of this provision in future agreements could result in an unfortunate alliance between government agencies responsible for enforcing anti-discrimination laws and corporate interests which violate them."¹²⁸

This agreement also provided that compliance with the decree was compliance not only with Title VII but with the Executive Order 11246 prohibiting employment discrimination by government contractors. By entering into the decree, the nine companies and the union settled all pending claims against them with the Office of Federal Contract Compliance as well as with the EEOC. The EEOC had not, in effect, functioned as an enforcer of the law in this case, but rather as a negotiator making concessions and bargaining away the legal rights of charging parties without representation by the victims.^f

As a result of the government's order in the earlier Bethlehem Sparrows Point case, workers in predominantly black departments were given an opportunity to transfer, on the basis of plant, rather than departmental, service. Plant service tenure was established as the priority consideration in all future jobs competition at a plant where, in 1973, almost one-third of the labor force was black. Although the steel industry consent decrees provided for departmental seniority, rather than plant seniority, "the change to plant service shall be accomplished without that change in and of itself affecting the relative position of any employee within a seniority unit or line of progression."¹²⁹ This meant that black workers could only transfer when "permanent vacancies" occurred in all- white departments at every level. There was no procedure for transferring to any but the lowest level of each department, a limitation that deterred older workers from even attempting a transfer. Previous judicial decisions had provided far greater change in seniority systems:¹³⁰ most effective were those decisions that allowed black workers to compete with whites on an equal basis for higher paying skilled jobs by intermeshing functionally related departments. Under this approach, racially segregated lines of job progression were combined and each worker's position in the newly formed unit was determined by plant seniority.

The decrees called for some attempts at affirmative action with goals and timetables to be established by Implementation Committees in each plant or facility with broad powers; they could preserve existing seniority systems where they thought this necessary and they were responsible for informing employees about their rights under the decree and for processing grievances arising out of application of the decrees. The government's position, however, was weakened by the fact that a company's or a union's failure to meet goals and timetables would not be cause for revoking or suspending government contracts. A declaration that a "good-faith" effort had been made was sufficient to establish compliance, and, even if the Labor Department found a company failing to comply, the only remedy permitted was referral to the Audit and Review Committee of five steel company representatives, five union representatives, and one government representative. This committee was responsible for reviewing all implementation of the decrees and all unresolved matters. The government representative on this committee was from the Office of Federal Contract Compliance, historically a very inadequate and incompetent element in federal civil rights enforcement.^g Unanimity was required for all decisions.

The decrees provided for division of $30.9 million among some 55 thousand minority employees working at the 249 plants affected by the decrees. In order to receive this back pay an employee was required to sign a release that terminated all pending charges or suits brought by the employee against the defendants and barred any future charges or lawsuits. A signed release meant relinquishing virtually every means of legal redress for future as well as past discrimination. A worker was barred from recovery of any damages for continuing effects of any discriminatory acts occurring before the date of the decree. Thus the companies could eliminate all claims against them by offering an employee a mere $250. Workers had to accept the back pay within 30 days of the offer or lose all claim to it.

Civil rights groups immediately prepared to file petitions on behalf of black and female steelworkers who opposed the decrees. On April 15, 1974, the National Organization of Women (NOW) filed a motion to intervene; on April 23, the NAACP, representing a group of black steelworkers employed by U.S. Steel at its Homestead plant near Pittsburgh, and the national Ad Hoc Committee intervened to set aside or modify the consent decrees.¹³¹ The NAACP asserted that the government was not adequately protecting the rights of minority steelworkers and that the decrees contain several illegal provisions, including the perpetuation of the recall and layoff structure. Also challenged were the inadequate notice given employees when releases were sent out, and the attempt to discourage workers from filing future charges with the EEOC and OFCC. Also that the decrees usurped the functions of the courts that may in the future be required to decide Title VII lawsuits, and that the exclusion of the workers affected from the committees to implement the decrees was a denial of the rights of victims of discrimination to assert and protect their own claims. And finally, that the back-pay provisions were extremely inadequate.

On April 24, 1974 the NAACP Legal Defense Fund in several courts intervened on behalf of plaintiffs in steel industry cases, and on May 20, Judge Pointer ruled on the four motions, holding that only individual workers could intervene, organizations not representing specific persons could not. The NAACP's motions to set aside the decrees themselves were denied. However, Judge Pointer said he was

concerned that some of the wording of the consent decrees may unnecessarily impair or impede the maintenance of private action. . . . I am concerned lest this decree be utilized improperly to prevent and preclude other private litigation. I think this may require a clarification order. It may be that even some modification may be sought as necessary by the Court to assure this result. . . . I'm not saying that I would propose utilizing this decree so as to bring into this Court in a single hearing a way of correcting all the problems in all these plants. I do not propose it. I buy and accept the concept that there must be rights and rights of action in local forums where the plants are located and that this decree should compliment and not frustrate any such efforts.¹³²

Thus, the Court indicated that it did not intend to serve as the sole forum for all future actions against companies and the union, as defendant companies and union had insistently requested. Judge Pointer gave the defendants ten days to decide if they wanted to continue with the decrees or voluntarily abandon them. On June 3, in a letter to Judge Pointer, the nine companies and the Steelworkers Union stated that: 1) they would not abandon the decrees, 2) they conceded the Court's authority to alter or amend portions of the decrees, 3) the Court would be informed of any and all communications with the class (they had initially excluded the Court from approving notices and releases to workers), and 4) any relief other than that provided by the decrees would be "unwarranted." It urged the transfer of all cases to the District Court in Alabama.

On June 7, Judge Pointer issued his formal order, allowing intervention, denying relief but saying "it must be kept in mind that resolution in this form of issues between the government and the defendants does not preclude additional--or even inconsistent--relief in favor of private parties in other litigation."¹³³ The Court reserved for future consideration the modification of the notice and release objections of the groups that had sought to intervene on the waiver of claims in return for payment.

The NAACP and others petitioned for a stay of Judge Pointer's order pending an appeal to the Fifth Circuit. Judge Pointer denied a stay but again noted that "the Memorandum of Opinion of June 7, 1974, makes it clear that this Court does not consider that the consent decrees entered herein in any way bind either the private plaintiffs involved in other pending litigation or the Courts in which such litigation is pending. . . . Additionally, while some class members may choose to execute a back- pay release in exchange for a tender of immediate back pay, such would not prevent continued litigation by the existing class representatives.¹³⁴ On July 3, the NAACP and the Legal Defense Fund filed notices of appeal, but the Fifth Circuit sustained the decrees.

While civil rights organizations representing individual workers failed in intervention, their efforts resulted in significant modifications of the agreement. The Fifth Court of Appeals accepted their arguments to permit the filing of new charges with the EEOC against the nine steel companies and the union. The original decree had relegated new complaints to the implementation committees,^h but this was changed and it was established quite clearly that the federal courts would have proper jurisdiction in future charges of discrimination.

As a result, black workers, women, and members of other non-white groups were free to initiate new litigation. Minority workers would have been prevented from doing so by the original decree requiring that complaints be filed with the Audit and Review Committee, and denying access to the EEOC and the federal courts. The modified decrees are not the sole source of future relief from all discrimination in the steel industry, nor will one court in Alabama be the sole judicial forum for hearing all claims of unlawful discrimination. The Government was also forced to modify its original position that court ordered relief was unnecessary in future litigation. Finally it was made clear that the decree per se did not mean compliance with Title VII and the Executive Order--a condition the original decrees had established.

The conversion of the industry to a plant-wide seniority system expanded job opportunities for minority workers, but the decline of the industry resulted in massive unemployment with the result that the lay-off and recall system had a discriminatory impact on black workers that was unchanged by the consent decrees. A quarter of a century later it is evident that the agreement with its inherent limitations denied full justice to an earlier generation of black steelworkers while holding out the promise of equal treatment to future generations.

Stein's account of the much publicized Weber case,¹³⁵ in which the U.S. Supreme Court in 1979 validated a voluntary affirmative action plan negotiated by the Kaiser Aluminum Company and the Steelworkers Union, takes up the argument for the union in a case where, she writes "The stakes were high because a majority of the court, like the nation's elite wanted to encourage affirmative action programs which in one way or another involved black preferences."¹³⁶ The next paragraph criticizes "liberal and academic elites" who support affirmative action and "black preferences" that are far more destructive apparently than racial discrimination itself. A remedy is thus transformed into the evil, which the evidence of American history demonstrates is white preferences. But the effort to redress the balance even in a minimum way is to Stein alarming.

Stein is dismayed that after the Supreme Court decision in Weber "liberals celebrated this as a victory over 'racists'; Weber was no racist."¹³⁷ She describes Brian Weber, the white worker who tried to block the affirmative action plan, as "an active unionist" with a "good record on civil rights."¹³⁸ She charges that Justice Brennan's decision supporting the affirmative action plan "required a certain amount of historical distortion which Rehnquist's dissent duly noted, calling it Orwellian."¹³⁹ Yet in her next sentence, she complains that Brennan was "Practically plagiarizing the USWA brief," for which she has high praise. Stein does not mention that Brennan's majority opinion emphasized that the affirmative action plan was necessary to eliminate the pattern of racial discrimination at the Kaiser plant. "Affirmative action," Justice Brennan said, was "designed to eliminate conspicuous racial imbalances in Kaiser's then almost exclusively white craft-work forces. . . . Judicial findings of exclusion from crafts on racial grounds," Brennan continued, "are so numerous as to make such exclusion a proper subject for judicial notice."¹⁴⁰

Stein does acknowledge that "The trigger for the USWA-Kaiser plan was government pressure"¹⁴¹ but she does not report the record of the many complaints from black workers filed with the Office of Federal Contract compliance against both the company and the union. In response to such complaints, the U.S. Department of Labor had issued critical reviews of discriminatory practices that jeopardized the company's government contracts. Both the company and the union were concerned that the pattern of civil rights violations would lead to litigation by the EEOC. Furthermore, the local branch of the NAACP in Gramercy, Louisiana, had announced that it would file a lawsuit. The affirmative action plan had been negotiated with the company to ward off further judicial intervention and to protect the union's treasury against compensatory damages.

Since Stein discusses directly my own role as Labor Secretary of the NAACP, active in the struggles against the racial practices of the steel industry, a brief response is in order here. Stein writes: "Although Hill's charges, often undocumented, caused Roy Wilkins some anguish and embarrassment, the championing of black workers served the interests of the NAACP. . . ."¹⁴² No example is provided of "often undocumented" charges, though she is certainly right that the NAACP purposes included "the championing of black workers." A source Stein cites regarding Wilkins' alleged "anguish" is a reference to Wilkins' concern with publicity issues not substantive matters of policy or "undocumented" charges.

When the Jewish Labor Committee, in 1962, made somewhat similar accusations in an attempt to defend the International Ladies Garment Workers Union against NAACP criticism of its discriminatory practices, Wilkins responded that Hill was "not for trade unions first and Negro workers second." My sole job, he said, was "to serve the interests of the Negro worker through the NAACP."¹⁴³ (The full text of Wilkins' statement appears in Appendix "B.") When Ben Fischer of the Steelworkers Union wrote to Roy Wilkins in 1975 taking strong issue with my role,¹⁴⁴ Wilkins responded in a detailed defense of our efforts on behalf of black steelworkers. Wilkins concluded:

You should know that for more than 20 years the NAACP has been engaged in efforts to eliminate the discriminatory practices of the steel industry. As far back as 1957, the Association's Labor Department submitted extensive memoranda to the Steelworkers Union on this matter and many conferences were held with the leadership of the union which gave us nothing but kind words and broken promises.¹⁴⁵

Stein does not refer to either of Wilkins' statements or to his response to a 1962 letter from David Feller, general counsel of the Steelworkers Union, who had complained of my action with the National Labor Relations Board seeking de- certification of the union at the Atlantic Steel Company in Atlanta. Wilkins wrote:

The conditions existed long before they were brought formally to our attention. . . . Every possible method (short of NLRB proceedings) has been employed to try to redress the grievances. . . . Piles of correspondence with the USWA have accumulated. Numerous conferences have been held, high-level, low-level and in- between. . . . Nothing has produced a meaningful change.¹⁴⁶

It should be noted that for more than thirty years I had a close personal, as well as a productive and satisfying professional, relationship with Roy Wilkins and when he retired in 1977, I resigned as Labor Secretary of the NAACP and accepted a position as professor at the University of Wisconsin, Madison.

In the 1976 case of Franks v. Bowman Transportation Co.,¹⁴⁷ the U.S. Supreme Court took a major step forward in providing relief to black workers in holding that retroactive seniority could be awarded to identifiable victims of illegal racial discrimination. While the Court recognized that awarding retroactive seniority could have a negative effect on the status of some incumbent white employees, it ruled that failure to provide such appropriate relief would frustrate the objectives of Title VII. The Court ruled that nothing in the history of Title VII prohibited the award of retroactive seniority; thus courts could no longer deny such relief on grounds of a potential adverse impact on other employees. Apart from the legal history, there is the moral justification of redressing the consequences of generations of unfair advantages for whites who solely because of their race have been the beneficiaries of a pro-white affirmative action system.

The dissents of Justices Powell and Rehnquist, on the contrary, emphasized the interests of white employees over the rights of the victims of discrimination. Their stance became the dominant approach as the composition of the U.S. Supreme Court changed in an anti-civil rights direction. One year after Franks, these dissenting opinions became the majority view in International Brotherhood of Teamsters v. U.S.,¹⁴⁸ which reversed the extensive body of case law beginning with Quarles, in 1968,¹⁴⁹ and Local 189, Papermakers, in 1969,¹⁵⁰ interpreting the law to mean that even a seniority system that perpetuated pre-act discrimination was legal under Title VII. This new decision set high evidentiary burdens of original intent to discriminate and other matters before courts could find a seniority system in violation of Title VII. To the NAACP Legal Defense Fund the decision in Teamsters was a "devastating setback,"¹⁵¹ and Justice Thurgood Marshall's vehement dissent pointed out that the Court was not only overturning the decisions in Quarles and Local 189, Papermakers, but also in more than 30 cases on Title VII from six courts of appeals.¹⁵² Organized labor, especially the United Steelworkers of America, after years of resistance to change, had succeeded in narrowing the interpretation of Title VII so that it could be used only seldom and with difficulty in efforts to overturn discriminatory seniority systems.

In commenting on the Court's decision in Teamsters, and the role of the Steelworkers Union in this history, Stein writes, as already noted above, "The USWA had never challenged the principles underlying seniority changes or the interpretation of Title VII. Initially, it did not believe that the law required changes, but after the court rulings, it did not contest the judgment."¹⁵³ This blatantly misleading sentence is contradicted by the extensive record of litigation involving the Steelworkers Union. In case after case, for more than two decades, the Steelworkers Union was found to be in violation of the law, after its defense of discriminatory practices and its arguments for a restricted interpretation of Title VII were rejected by the courts.

Among the many cases that refute Stein's assertions on the response of the Steelworkers Union is a case late in the history of the statute, Goodman v. Lukens Steel¹⁵⁴ in Pennsylvania. In 1987, Robert M. Weinberg, an attorney representing the United Steelworkers of America, in oral argument before the U.S. Supreme Court, defended the union's refusal to process the seniority grievances of black workers.¹⁵⁵ The Court, in a 6 to 3 decision, rejected the union's defense and held that the Steelworkers, despite the Teamsters decision, violated federal law. Justice White, in the Court's ruling, held the union in violation of Title VII because of its refusal to press black workers' grievance claims against the company. The United Steelworkers, according to the decision, "in effect categorized racial grievances as unworthy of pursuit."¹⁵⁶ Stein does not mention this case, or the 1977 case of James v. Stockham Valves and Fittings Co.,¹⁵⁷ in which the Steelworkers were again held in violation of Title VII.

Much of the focus of Running Steel, Running America is an assault upon governmental anti-discrimination agencies such as the EEOC, and on private organizations, especially the NAACP and the NAACP Legal Defense Fund, the agencies that brought the complaints of black steelworkers into federal court. Stein writes that enforcement of Title VII by the federal courts, "through adversarial combat and incremental court review, had worsened race relations and added to the insecurity of all workers."¹⁵⁸ Again, no evidence is given for this broad and dubious conclusion. Of course, cases don't get into court without combat, and all combat is, by definition, adversarial. It is the nature of a system of justice. The cases got to court because, in not a single instance, did the Steelworkers Union act voluntarily to dismantle its longstanding system of racial job segregation. When compelled, the union made minimal adjustments but over decades continued to reject demands of its black members for equal job opportunity. After 1965, the effective date of Title VII, the courts became a center of battle for black steelworkers. Litigation had become a form of struggle joined to picket lines and demonstrations at corporate offices and union headquarters.

Segregated job structures greatly benefited white workers, who were the power base of the union. With blacks a minority within the Steelworkers Union, change in the racial distribution of jobs could not come from within. Legal intervention was, therefore, necessary and, with the enactment of Title VII, black workers turned to the NAACP and the federal courts to do what the leadership of their union would not do on its own. The NAACP had come to the conclusion after exhausting all other approaches over a period of many years that the compulsion of law was necessary to eliminate the discriminatory employment pattern in the steel industry.

Because the union leadership regarded Title VII as a federal version of the weak and ineffectual state fair employment practice laws, it believed union seniority systems were, therefore, insulated from attack. It was assumed that Title VII was limited to future acts of discrimination only, and would not disturb the racial status quo.¹⁵⁹ When the federal courts rejected these interpretations and began to enforce the new law and to issue broad innovative remedies, the Steelworkers Union, like many other labor organizations, resisted compliance and defended existing discriminatory practices, joining with employers in efforts to cripple Title VII. In U.S. Postal Service v. Aikens, for example, a case before the U.S. Supreme Court in 1983,¹⁶⁰ the AFL-CIO went out of its way in a case not involving unions, to join with the U.S. Chamber of Commerce and the Reagan Administration Department of Justice in attacking the rights of minority workers under Title VII.

Stein is convinced that the civil rights movement was in error in conducting struggles for equal employment opportunity for black workers, and especially for its criticisms of the Steelworkers Union. The real issue, she argues, was not racial discrimination but federal economic policy. But the economic policy Stein supports, a form of protectionism by whatever name, is an obsolete policy in a global economy. And even if permanent full employment existed, as it cannot in a capitalist economy, the traditional pattern of racial discrimination in steel and other industries would not disappear. White workers derive substantial financial and psychological benefits from not being black and cannot be expected to surrender the "wages of whiteness" voluntarily, while employers want a black labor force available for jobs whites reject and for work involving dangerous and extreme exploitation.

A principal purpose of Stein's book is to eliminate race as a controlling factor in the history of the events she discusses, especially in the history of the Steelworkers Union. But race has been the central issue in this history. Stein has constructed a version of events to fit her defense of the Steelworkers Union, and as a consequence, her interpretations are often factually inaccurate and her arguments misleading and do not bear close examination.

Whatever other functions it performed, the Steelworkers Union also functioned to preserve white privileges that were increasingly in conflict with the demands of black workers and an emerging body of civil rights law. Stein repeatedly frames the issues in a way that the whites, who have long enjoyed an unfair advantage, are about to be victimized, and the legitimate rights of black workers disappear. On the one hand, she is too "understanding" of the problems of the Steelworkers Union in fulfilling the expectations of their white members; on the other, she is always ready to justify the continued denial of equal rights for black workers. In Running Steel, Running America, Judith Stein has egregiously distorted history, misinterpreted the litigation record, and omitted much relevant material that contradicts her arguments. It is also a mean-spirited attack on the civil rights movement and black rank and file workers who struggled for racial justice in the workplace against powerful corporate and union opposition.

1. Judith Stein, Running Steel, Running America (Chapel Hill: University of North Carolina Press, 1998). return

2. Eric Arnesen quoted from his endorsement on the back cover of the paperback edition of Stein's, Running Steel, Running America. return

3. David Brody, "Praise for Running Steel, Running America," December 4, 1998, (September 16, 2001). return

4. Lynn Williams, "More Praise for Running Steel, Running America," December 4, 1998, (September 16, 2001). return

5. Nelson Lichtenstein, "Vanishing Jobs in a Racialized America," Radical History Review, Fall 2000, pp. 184-187. return

6. Supra note 1, p. 138. return

7. Ruth Needleman, "Union Coalition Building and the Role of Black Organizations: A Study in Steel," Labor Studies Journal, Vol. 25, No. 1, Spring 2000, p. 87. return

8. William B. Gould, Black Workers in White Unions (Ithaca: Cornell University Press, 1977), p. 397. return

9. A. Philip Randolph, "The Civil Rights Revolution and Labor," address to the NAACP Annual Convention, New York, July 15, 1959. Copy in author's files. return

10. An Open Letter to President I.W. Abel From a Negro Steelworker, Signed by Jonathan Comer for the Ad Hoc Committee, July 15, 1968. Copy in author's files. return

11. Rayfield Mooty, quoted in "White Supremacy in Steel Unions," Mohammed Speaks, June 27, 1969, p. 13. return

12. Stein, supra note 1, p. 161. return

13. Confidential Memorandum to Walter White from Herbert Hill, Re: Birmingham, Bessemer, Alabama, CIO-NAACP Relations, May 3-17, 1953, p. 4. Copy in author's files. return

14. NAACP Annual Report for 1966, pp. 56-57. Copy in author's files. return

15. NAACP Annual Report for 1968, pp. 112-113. Copy in author's files. return

16. Stanley B. Greenberg, Race and State in Capitalist Development (New Haven: Yale University Press, 1980), pp. 349-350. return

17. Ibid., p. 350. return

18. Ibid., p. 351. return

19. Ibid., p. 346. return

20. Timothy J. Minchin, The Color of Work, The Struggle for Civil Rights in the Southern Paper Industry, 1945-1980 (Chapel Hill: University of North Carolina Press, 2001) p. 5. return

21. Robert J. Norrell, "Caste in Steel: Jim Crow Careers in Birmingham, Alabama," Journal of American History, Vol. 73, No. 3, December 1986, pp. 670, 677, 679, 691. return

22. Nathaniel Brown, interview by the author, Atlanta, Oct. 21, 1962. Copy in author's files. For a detailed discussion of the efforts of black workers to eliminate racist practices at the Atlantic Steel Company, see Bruce Nelson, Divided We Stand, American Workers and the Struggle for Black Equality (Princeton: Princeton University Press, 2001), pp. 235-242. return

23. Michael K. Honey, Southern Labor and Black Civil Rights (Urbana: University of Illinois Press, 1993), p. 280. return

24. "In the Supreme Court of the United States, October Term, 1981, Pullman- Standard, a Division of Pullman, Incorporated, Petitioner, no. 80-1190, United Steelworkers of America, AFL-CIO and Local 1466, United Steelworkers of America, AFL-CIO, Petitioners no. 80-1193, v. Louis Swint and Willie Johnson, et al, . . . Brief for Respondents," 1981, p. 103. Copy in author's files. return

25. Id., pp. 113-114. return

26. Memorandum, From Richard M. Moss, To: Union Training Subcommittee, Human Relations Committee, August 28, 1964, "A Few Observations With Regard to the Youngstown Survey," p. 3. Copy in Author's files. return

27. Donald T. Barnum, "A Statistical Analysis of Negro Employment Data in the Pittsburgh Area Basic Steel Industry, 1965," A report prepared for the City of Pittsburgh, Human Relations Commission under a Grant from the United States Equal Employment Opportunity Commission, April 1968, p. 1. Copy in author's files. return

28. Gould, supra note 8, p. 395. return

29. Stein, supra note 1, p. 100. return

30. Id., p. 101. For a discussion of the EEOC in the initial period of Title VII litigation and the role of the NAACP, see Herbert Hill, "On the Use of the amicus curiae brief by the EEOC," an unpublished paper given at the Annual Meeting of the Law and Society Association, University of Minnesota, May 20, 1978. Copy in the State Historical Society of Wisconsin, Madison. For a discussion of early Title VII litigation, see Herbert Hill, "The New Judicial Perception of Employment Discrimination: Litigation Under Title VII of the Civil Rights Act of 1964," Colorado Law Review, Vol 43, No 3, March 1972, pp. 243-268. return

31. U.S. v. Bethlehem Steel Corp., 446 F.2nd 652 (2nd Cir. 1971) at 655- 659. return

32. Head et al. v. Timken Roller Bearing Co. et al, U.S. District Court for the Southern District of Ohio, Eastern Division, (A 68-278, filed 1968. Brief amicus curiae of EEOC, Statement of the Case, filed August 15, 1969). return

33. For a discussion of organized labor's response to the 1972 amendments to Title VII see Herbert Hill, "The Equal Employment Opportunity Acts of 1964 and 1972: A Critical Analysis of the Legislative History and Administration of the Law," Industrial Relations Law Journal, Vol. 2, No. 1, Spring 1977, pp. 33-65. Also Hill, Black Labor and the American Legal System (Madison: University of Wisconsin Press, 1985), Chapter 3, pp. 93-169. return

34. EEOC, Second Annual Report, 1968, pp. 43-44. return

35. Gould, supra note 8, p. 21. return

36. Id., p. 397. return

37. Quarles v. Philip Morris, 279 F. Supp. 505 (E.D. VA. 1968). return

38. Ibid. It should be noted that as Labor Secretary of the NAACP, I filed the black workers' complaints in Quarles with the EEOC and NAACP Legal Defense Fund lawyers represented them in the litigation against the employer and the union. return

39. Local 189, United Papermakers v. United States, 416 F.2d 980 (5th Cir.), cert. denied, 397 U.S. 1919 (1970). return

40. United States v. Jacksonville Terminal Co., 316 F. Supp. 567 (M.D. Fla. 1970), 451 F.2d 418 (5th Cir. 1971), cert. denied, 406 U.S. 906 (1972). return

41. Whitfield v. United Steelworkers, 262 F.2d 546 (5th Cir.) cert. denied, 360 U.S. 902 (1959). return

42. Oatis v. Crown Zellerback Corp., 398 F.2d 496 (5th Cir. 1968). return

43. Stein, supra note 1, p. 119. return

44. U.S. v. Bethlehem Steel, 312 F. Supp. 977 (W.D.N.Y. 1970). return

45. Stein, supra note 1, p. 131. return

46. Supra note 44, at 980. return

47. Ibid. return

48. Stein, supra note 1, p. 128. return

49. Ibid. return

50. See NAACP Annual Report for 1967, p. 97. Copy in author's files. return

51. Supra note 44, at 980. return

52. Stein, supra note 1, p. 129. return

53. Ibid. return

54. Ibid. return

55. Ibid. return

56. Ibid. return

57. Supra note 44, at 985. return

58. U.S. v. Bethlehem Steel Corp., 446 F.2nd 652-659 (2nd Cir. 1971). return

59. Williamson v. Bethlehem Steel Corp., 468 F.2d 1201 (2d Cir. 1972), cert. denied, 411 U.S. 931 (1973), 488 F. Supp. 827 (W.D.N.Y. 1980). return

60. Stein, supra note 1, p. 135. return

61. Ibid. return

62. Ibid. return

63. Id., p. 144. return

64. Supra note 44, at 985, see also among others EEOC v. Bethlehem Steel Corp., 765 F.2d 427 (4th Cir. 1985); Carroll v. United Steelworkers of America, 498 F. Supp. 976 (D. MD 1980) and Pullman-Standard v. Swint, 102. S. CT 1781 (1982). return

65. Supra note 44, at 985. return

66. In the Matter of Bethlehem Steel Corp., Decision of the Secretary of Labor, Docket No. 102-68, January 15, 1973, reported in CCH Employment Practices Guide, New Developments, p. 5128. return

67. Ibid. return

68. Memorandum: To Herbert Hill, National Labor Director NAACP, From Grover Smith, Jr., Southern Field Labor Director NAACP, Re: Bethlehem Steel Corporation - Docket Number 102-68, January 29, 1973, and Memorandum: To Herbert Hill, National Labor Director, From William D. Wells, Staff Attorney, Re: Bethlehem Steel (Sparrows Point), January 29, 1973. Copies in author's files. return

69. Quoted in Philip S. Foner, Organized Labor and the Black Worker, 1619- 1973 (New York: Praeger Publishers, 1974), p. 429. return

70. Quoted in Id, p. 430. return

71. Stein, supra note 1, p. 144. return

72. In his affidavit he said: ". . . I have been discriminated against in connection with my job opportunities for the sole reason that I am a Negro and that my union, United Steelworkers of America, Local 2122 has failed and refused to adequately and properly represent me in my efforts to file grievances regarding this. This is true not only with respect to my employment but with respect to the employment of all Negro employees employed in the Tin Mill of United States Steel Corporation, Tennesee Coal & Iron Division, Fairfield, Alabama." Affidavit of Clarence Duncan, filed in NLRB Case No. 10- CB-1408, May 22, 1963. Copy in author's files. return

73. Giving the example of a "truck driver helper," Duncan's affidavit states: "The apparent reason for this failure to show a line of promotion was because the truck driver classification and the labor leader classification were filled by White men, whereas the truck driver helper and the laborer classifications were filled by Negroes. When the truck driver helper attempted to claim the right to work as a truck driver when the regular truck driver was out due to illness, vacation or other reasons, the job of truck driver was taken out of the job classifications for outside services and was placed in another grouping which includes the boilermakers. The job classification of labor leader was also taken out of the outside services grouping and placed elsewhere but I do not know the specific grouping. This . . . demonstrates how the company and the union have manipulated jobs so as to place them beyond the reach of Negro employees when they have bid on them or attempted to claim the right to bid on them." Ibid. return

74. Ibid. return

75. Duncan's affidavit to the NLRB concludes: "Beginning with August 28, 1957, I, along with the other employees, similarly situated have attempted to get our local union to file and process a grievance through which we hoped to establish the right of coil trimmers to be considered a part of the operating crew of the Temper Mills to the extent that we would be permitted to participate in incentive payments enjoyed by members of such crew and to be eligible for promotion to higher jobs in this crew. Added to this news is our claim to our jobs which have been taken over by White men." Ibid. return

76. Writing to the United Steelworkers Sub-District Office in Birmingham, Duncan and other Negro workers expressed their frustration in dealing with Local 2122 and appealed for assistance in filing a grievance: "We resort to you for consideration of our grievance, having exhausted all immediate remedies. We have tried to settle this dispute through our Local Officers since 1959, but such request fell on deaf ears. Our complaint shows on its face a redressable grievance, yet it has been impossible to get it filed. It is imperative that consideration be given at once, since the nature of our grievance is a systematic taking of positions that rightly belongs to us. One position has already been taken, and others are being set up to follow. Therefore we submit to you, the Sub-District Director, our complaint. We will accept a meeting at any time, day or night, including Saturdays or Sundays." Letter from Clarence Duncan to Howard Strevel, USW Sub-District Office for Birmingham, August 15, 1961. Copy in author's files. return

77. After an unsympathetic response from their Sub-District Director, the Negro employees wrote to the Steelworkers District Director seeking aid: "We are requesting a meeting to discuss and receive consideration upon a grievance that has confronted us for some time. In our effort to receive redress . . . we discussed our problem with . . . the Sub-District Director. In this meeting no satisfactory disposition of grievance was given, not even a promise to explore the charges presented by us. We can't see how this is possible without a direct answer from the company. We are certainly being deprived of benefits under the agreement, so why can't we have recourse of the grievance procedure and arbitration. Therefore, we submit to you our District Director, our complaint before seeking redress outside of our District. We will accept a meeting at anytime including Saturdays and Sundays." Letter from Clarence Duncan to R.E. Farr, USW District Director, September 16, 1961. Copy in author's files. return

78. In a letter to Congressman Adam Clayton Powell, they explained that since they had lost their jobs they now had "nothing to lose" by seeking outside assistance: "We are members of Local No. 2122 U.S.W.A. District No. 36, Fairfield, Alabama. Since 1959, we have been trying to file a grievance on jobs that are being taken away from us because of white and colored lines of promotion. Only in the colored line we are not allowed to advance any higher than job class No. 5 and in this department, we have only one job in class No. 5. These jobs are being improved by added machinery, and, therefore, these added factors are raising the job class beyond Class 5 and are being taken away from us. We are not given the chance to exercise our plant or job seniority because they changed the name of the job and put it in the white line of promotion, but the men are still performing the same duties as we are on the unchanged jobs." Letter from Clarence Duncan to the Hon. Adam C. Powell, U.S. House of Representatives November 9, 1961. Copy in author's files. return

79. Letter from Homer Knog, Area Director, Bureau of Labor Management Reports, U.S. Department of Labor to Clarence Duncan, January 22, 1962. Copy in author's files. return

80. Letter from Clarence Duncan to Hon. Lyndon B. Johnson, Vice-President of the U.S. and Chairman of President's Committee on Equal Employment Opportunities, March 23, 1962. Copy in author's files. return

81. Letter from Virgil Pearson to Francis Shane, Executive Director of USW's Committee on Civil Rights, January 16, 1963. Copy in author's files. return

82. Memorandum to Roy Wilkins from Herbert Hill, Re: U.S. Steel Corp., and United Steelworkers of America, AFL-CIO, Birmingham, Alabama, September 13, 1965. Copy in author's files. return

83. The NAACP report stated that, "As a result of the operation of separate racial seniority lines which are codified by the local supplementary agreement between the union and the company, Negro workers are permanently locked in menial and unskilled job classifications. White workers with less seniority are promoted into more desirable jobs and there are, of course, significant differentials in the average earnings between Negro and white workers. Negro workers have repeatedly filed grievances against these discriminatory practices but local union officials have refused to process the grievances of Negro workers beyond the second step of the grievance procedure established in the contractual agreement between the company and the union. There is reason to believe that the refusal of local union officials to process the grievances of Negro workers beyond the second step is evidently a matter of tacit policy that operates with the implicit knowledge and agreement of the Steelworkers Union District Office in Birmingham." Ibid. return

84. Ibid. return

85. Pittsburgh Post-Gazette, June 6, 1966, p. 1, "U.S. Steel Jim Crow NAACP Target," CRISIS, June-July 1966, p. 321. return

86. CRISIS, Ibid. return

87. CRISIS, Ibid. return

88. Wall Street Journal, June 23, 1966, p. 1. return

89. Ibid. return

90. Ibid. return

91. EEOC Case No. 6-11-9060, November 25, 1966. EEOC files. return

92. Ibid. return

93. Ibid. return

94. Ibid. return

95. Their letter to the Attorney General, signed by 150 Negro steelworkers, said, in part: "We, the undersigned employees of United States Steel in Birmingham, Alabama are asking your help for our struggle for equal job opportunity by asking you and your assistants to intervene in all law suits that we have in Federal Court against United States Steel. We feel that if the Justice Department does not intervene that our cases will never get into Court. . . . They still are using two lines of promotion, the white and the Negro. Negro jobs are not classified like white jobs and have less responsibility, and it is fixed so that Negroes are unable to move out of the pool system that they have existing at United States Steel in this area, regardless as to how much seniority they may have with the company. Letter from 150 black steelworkers to Attorney General Nicholas Katzenbach, August 22, 1966. Copy in author's files. return

96. McKinstry and Hubbard v. U.S. Steel et al, U.S. District Court for the Northern District of Alabama, Southern Division, C.A. No. 66-343, Amended Complaint filed September 8, 1966. return

97. Ibid. return

98. Hardy, et al v. U.S. Steel, et al, U.S. District Court for the Northern District of Alabama, Southern Division, C.A. No. 66-423, Complaint filed July 7, 1966. return

99. Ibid. return

100. Ibid. return

101. Ford, et al v. U.S. Steel, et al, U. S. District Court for the Northern District of Alabama, Southern Division, C.A. No. 66-625, Complaint filed October 7, 1966. return

102. According to the complaint of the seven Negro employees: "The effect, purpose and intent of the agreement executed by the company and Local 1733 on June 3, 1964, was to continue and render permanent the advantage that white employees had over Negro workers, which existed prior to August 5, 1963, because of the overt and public discriminatory policy of the defendants. . . . Plaintiffs believe and allege that the company and Local 1733 agreed, conspired and acted in unison, and continue to conspire and act in unison, to violate Local 1733's duty under federal law to represent the interest of its Negro members fairly and honestly." Ibid. return

103. Ibid. return

104. Ibid. return

105. Ibid. return

106. United Steelworkers of America, Local No. 1131, NLRB Case No. 10-CB-1809, appealed July 8, 1969. return

107. Ibid. return

108. EEOC Case No. YB10-157, decided December 30, 1970. return

109. "Respondent Employer's seniority system results in the 'telescoping' of the effects of Respondent Employer's past policy of discrimination to the continuing disadvantage of its Negro employees. It is now well settled that such a system is not a bona fide seniority system. . . . With respect to the merits of the Charging Parties' allegations that Respondent Union acquiesces in Respondent Employer's alleged discriminatory practices, the seniority system has been and continues to be a subject of collective bargaining between Respondents. It is well settled that, when a labor organization assumes to act as a statutory representative of employees in a unit, it cannot refuse fairly to perform this duty for all members of the unit. Accordingly, Respondent Union's acquiescence in terms and conditions of employment which discriminate against Negro employees because of their race violates the Act." Ibid. return

110. United States v. U.S. Steel Corp., 371 F. Supp. 1045 (N.D. Ala. 1973) modified, 520 F.2d 1043) (5th Cir. 1975), cert. denied, 429 U.S. 817 (1976). return

111. Ibid. return

112. Ibid. return

113. Stein, supra note 1, pp. 159-160. return

114. Id., p. 160. return

115. Id., p. 157. return

116. Id., p. 100. return

117. Ibid. return

118. Id., p. 346, note 36. return

119. Id., p. 181. return

120. Supra note 96. return

121. Goodman v. Lukens Steel Co., 777 F.2d 113 (3d Cir. 1985) (U.S. Sup CT. 1987). return

122. Source: EEOC records. return

123. Stein, supra note 1, p. 175. return

124. Id., p. 180. return

125. EEOC v. American Telephone and Telegraph Co., 556 F.2d 167 (3d Cir. 1977), cert. denied, sub nom. Alliance of Independent Telephone Unions v. EEOC, 438 U.S. 915 (1978). return

126. Roy Wilkins, Executive Director, NAACP, to Ben Fischer, Assistant to the President, U.S.W.A., September 2, 1975. Copy in author's files. return

127. Confidential information from EEOC staff. return

128. Federal Civil Rights Enforcement Effort: 1974, Vol. V, To Eliminate Employment Discrimination, U.S. Commission on Civil Rights, July 1975, pp. 559- 560. return

129. United States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826 (5th Cir. 1975), cert. denied, 425 U.S. 944 (1976). return

130. Ibid. return

131. Ibid. return

132. Ibid. return

133. Ibid. return

134. Ibid. return

135. United Steelworkers of America v. Weber, 443 U.S. 193 (1979). return

136. Stein, supra note 1, pp. 188-189. return

137. Id., p. 191. return

138. Id., p. 187. return

139. Id., p. 190. return

140. Justice Brennan for the Court, United Steelworkers of America v. Weber, supra note 135, at 198. return

141. Stein, supra note 1, p. 190. return

142. Id., p. 106. return

143. Roy Wilkins to Emanuel Muravchik, October 31, 1962. Copy in author's files. return

144. Roy Wilkins to Ben Fischer, September 2, 1975. return

145. Supra note 126. return

146. Roy Wilkins to David Feller, December 13, 1962. Copy in author's files. See also Memorandum to Mr. Wilkins from Herbert Hill, Re: The Atlantic Steel Company, Atlanta, Georgia, May 27, 1958. Copy in author's files. return

147. Franks v. Bowman Transportation Co., Inc. 424 U.S. 747 (1976). return

148. International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977). return

149. Quarles v. Philip Morris, supra note 37. return

150. Local 189, Papermakers, supra note 39. return

151. Quoted in Stephen L. Wasby, "The Supreme Court's Impact on Litigation," Akron Law Review, Winter/Spring 1993, p. 433. return

152. Teamsters v. United States, supra note 148, Marshall dissent. return

153. Stein, supra note 1, p. 181. return

154. Goodman v. Lukens Steel, supra note 121. return

155. Daily Labor Report, Bureau of National Affairs, No. 62, April 2, 1987, p. 3. return

156. Ibid. return

157. James v. Stockham Valves and Fittings Co., 394 F. Supp. 434 (N.D. Ala. 1975), 559 F.2d 310, 827 (5th Cir. 1977). cert. denied, 434 U.S. 1034 (1978). return

158. Stein, supra note 1, p. 170. return

159. A "Legislative Alert" issued by the Industrial Union Department of the AFL-CIO stated that Title VII "has nothing to do with the day-to-day operation of business firms or unions with seniority systems." AFL-CIO Industrial Union Department, "Legislative Alert," May 1964, Washington, D.C. According to officials of the labor federation, Title VII would not be retroactive and would not require unions and employers to make changes in "established" seniority systems. See "Civil Rights" Fact vs. Fiction," AFL- CIO, Washington, D.C., 1964. See also testimony of Thomas E. Harris, AFL-CIO general counsel. Hearings on H.R. 405 and Similar Bills before the general Subcommittee on Labor of the House Committee on Education and Labor, 88th Cong., 1st Sess., 1963, p. 83. return

160. United States Postal Service v. Aikens, 460 U.S. 711 (1983). Brief amicus curiae of the AFL-CIO. return

1. On page one of the January 19, 1957, issue of the Pittsburgh Courier, a leading black newspaper with editions in several cities, there appeared a resolution adopted by black workers employed in the Homestead Works of the U.S. Steel Corporation. They charged: "Whereas white workers have moved from labor gangs into electrical and machine shop departments with as little as one years service, Negroes have been forced to remain in the labor gang with as much as 14 and 16 years seniority." The news account reported that black members of the United Steelworkers of America had formed an organization called the Fair Share Group of Steelworkers. The Courier explained that the group's intention was "to get their fair share of jobs and benefits." Members of the union had written to David J. McDonald, president of the Steelworkers Union, and to George Meany, president of the AFL-CIO, to complain of "the neglect of the Negro's problems and conditions throughout the industry. All we ask is a fair share." It was reported that the group was establishing similar organizations in other locals of the Steelworkers Union with large black memberships. return

2. Intervention by the National Labor Relations Board and the U.S. Court of Appeals for the Fifth Circuit was required to eliminate the discriminatory practices. Local 12, United Rubber Workers was the first case in which a federal court sustained the National Labor Relations Board's power to act against racial discrimination in employment as an unfair labor practice. See Local No. 12, United Rubber Workers v. N.L.R.B., 368 F.2d 12 (5th Cir. 1966). For a discussion of this case, the context in which it was decided and its significance in labor law, see Herbert Hill, Black Labor and the American Legal System, (Madison: University of Wisconsin Press, 1985), pp. 133-151. return

3. The Third World Workers Organization was organized late in 1971 as a consequence of the dissatisfaction with the Steelworkers Union and with the results of the Justice Department's lawsuit against Bethlehem Steel and the union. The president of TWW was George Williamson, the lead plaintiff in the private litigation. The action of the Steelworkers Union in preventing the distribution of the names of workers entitled to benefits from the decree caused widespread support for both the NAACP and TWW. During the week of February 10, 1972, I visited Buffalo where most of the black workers lived and was amazed at the high level of interest. More than 600 workers signed retainer statements with the NAACP. Since the filing of the Williamson suit, the class members organized themselves for purposes of fund raising to pay legal expenses and to coordinate information with the lawyers. On my later trips to Buffalo it became necessary to schedule two or three presentations during each visit in order to meet with the hundreds of workers who came to the NAACP meetings. return

4. Employment discrimination cases were litigated by both the NAACP and the NAACP Legal Defense Fund. The NAACP Labor Department began developing employment discrimination cases well in advance of the effective date of Title VII and was soon confronted with a very large number of Title VII complaints from NAACP branches and organizations of black workers. Because the NAACP did not have resources to conduct a large-scale effective litigation program on its own, it shared cases with the Legal Defense Fund. At this time the major concentration of the Association's legal department was school desegregation. The "NAACP funneled many of the employment discrimination cases it initiated to LDF . . . while there were things the NAACP did that the LDF did not do." For a discussion of this history see Stephen L. Wasby, Race Relations Litigation in An Age of Complexity (Charlottesville: University Press of Virginia, 1995), pp. 180-182. return

5. The steel agreement is contained in two consent decrees (Decree I and II), that were filed on April 15, 1974 in the U.S. District Court in Birmingham, Alabama, and approved by Judge Sam C. Pointer, Jr. Signers of the consent decrees were Allegheny- Ludlum Industries, Inc., Armco Steel Corp., Bethlehem Steel Corp., Jones and Laughlin Steel Corp., National Steel Corp., Republic Steel Corp., United States Steel Corp., Wheeling Pittsburgh Steel Corp., and Youngstown Sheet and Tube Co. (A tenth employer, Inland Steel Co., decided at the last moment not to sign the agreement.) In addition to the companies the agreement was also signed by the United Steelworkers of America. The consent decrees covered 249 plants, in every part of the country (three-quarters of the steel industry), and 347,679 workers. (United States v. Allegheny-Ludlum Industries, Inc.; 517 F.2d 826, (5th Cir. 1975), cert. denied, 425 U.S. 944, 1976). return

6. An examination of government files reveals that the Department of Justice and the Labor Department were amenable to negotiating a weak and inadequate agreement with the steel industry. The EEOC under its chairman, William H. Brown III, refused to join in this approach and insisted upon a stronger settlement. A November 30, 1973, EEOC internal memorandum suggests apprehension about the approach of the other government agencies and discusses the ". . . steel industry's refusal to consider back pay." The memorandum reveals concern for protecting the Commission's right to sue and also considers the initiation of new litigation based upon ". . . the number of existing charges and the possibility of a Commissioner's charge." The memorandum reported that ". . . EEOC Chairman Brown told K. Wm. O'Conner of the Justice Department . . . that EEOC could not participate if there were not a substantial amount of back pay. Brown told Cody to move steel up as a target Track I industry. Brown said he would not sign even if EEOC's right to sue was preserved; that it was better to get what we want or not sign at all. . . . Brown said that EEOC would not participate absent back pay and would go into court to attack the agreement if the government tried to go ahead without EEOC; we could also try to get all civil rights groups to join in" (Memorandum to Files, Katherine S. McGovern, Steel Negotiations, Number 16, December 3, 1973). It is of some interest to note that President Richard M. Nixon replaced Brown during the negotiations which had come to a halt because of Brown's insistence upon certain minimal standards of relief. On January 3, 1973, John H. Powell, Jr. became chairman. It has been suggested that the final decrees were in large part the result of political pressures from the Nixon administration which wanted a "soft" settlement. According to one reporter, "Shortly after John Powell's nomination, feelers went out from the steel industry and the United Steelworkers to the Justice Department and last September nine steel companies submitted what was in their view a fair offer. . . . Perhaps the most unusual part of the steel agreement was the one obligating the government to defend the industry by informing district courts that further relief from discrimination in the steel industry is unwarranted. Under this requirement, anyone who sues to obtain more relief from discrimination than is provided in the consent decrees will not only have to face the financial resources of the corporations, but the unlimited legal resources and shrewdness of the government as well. The next few years will see government attorneys sitting at the defendants' tables." (Jonathan Evan Maslow, "Is Title VII Sinking?", Juris Doctor, September 1974, pp. 35-36). Negotiations were resumed after Powell became EEOC Chairman and it was he who approved the decrees although they provided weaker remedy than EEOC had previously required in a similar case. The decrees excluded EEOC from the enforcement procedure and provided that the Office of Federal Contract Compliance (Labor Department) and the Department of Justice be responsible for monitoring compliance. return

7. In 1975 the General Accounting Office, the agency that audits and oversees the performance of the executive branch on behalf of Congress, investigated and found that the Office of Federal Contract Compliance was so lax in enforcing its orders requiring government contractors to comply with nondiscriminatory employment practices that it did not even have a list of all the contractors. The GAO found that "Compliance agencies are reluctant to initiate enforcement action when contractors are not in compliance with the Executive Order; instead they rely on extended conciliation and negotiations with contractors. . . . compliance agencies should take enforcement action against contractors found in noncompliance . . . and rely less on conciliation and negotiation. The almost nonexistence of enforcement actions taken could imply to contractors that the compliance agencies do not intend to enforce the program." (The Equal Employment Opportunity Program For Federal Nonconstruction Contractors Can Be Improved, A Report For The Joint Economic Committee, Congress of the United States, By the General Accounting Office, May 5, 1975, pp. 27- 30. See also Herbert Hill, "Whose Law-Whose Order: The Failure of Federal Contract Compliance," in The Black Experience In American Politics, edited by Charles V. Hamilton (G.P. Putnam's Sons: New York, 1973), pp. 325-338. return

8. The NAACP later charged that the local implementation committees were ". . . . in utter chaos and confusion. . . . Representatives of the NAACP have held frequent meetings with minority steelworkers in many parts of the country, and the evidence is most clear on this point. . . . Complaints to the Committee have been lost, complaining workers are not notified of the progress of their complaints, complaints are filed and nothing further is heard from the Committee--not so much as an acknowledgement of receipt, and complaining employees are barred from being represented by private attorneys in presenting their claims to the Committee." Roy Wilkins to Ben Fischer, Assistant to the President, United Steelworkers of America, September 2, 1975. Complete text appears as Appendix "A." return

Contents of No. 32

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