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LARKIN v. USW

March 22, 1976

William LARKIN, Individually and on behalf of others similarly situated, Plaintiffs,
v.
UNITED STEELWORKERS OF AMERICA et al., Defendants



The opinion of the court was delivered by: GOURLEY

 This is a civil non jury proceeding filed by the plaintiff, William Larkin, pursuant to the provisions of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. § 2000e et seq. The plaintiff, William Larkin, a black man, brought this civil rights action in behalf of himself and others similarly situated against the defendants, United Steelworkers of America, United Steelworkers of America, AFL-CIO, Local No. 1557, and United States Steel Corporation. The Court has afforded the parties a full and complete trial and has considered the briefs and arguments of counsel. Based thereon, it is the considered judgment of the Court, that the defendants committed no discriminatory employment practices against the plaintiff and accordingly, plaintiff is entitled to no relief.

 This suit was originally filed by the plaintiff as a class action on behalf of himself and other minority group members of defendant, Local Union, who have the right to file meritorious grievances and to have said complaints processed through arbitration in accordance with the provisions of the Agreement between the United Steelworkers of America and the United States Steel Corporation. The Court is compelled to deny this request since plaintiff never made a showing of the specific claims of a sufficient number of those purported to be class members, as required by the Federal Rule of Civil Procedure 23(a) 1, 2, and 3.

 The facts may be briefly stated. The plaintiff, William Larkin, a black man, is an employee of the defendant, United States Steel Corporation, and is a member of United Steelworkers of America and a member of the United Steelworkers of America, AFL-CIO, Local No. 1557. The plaintiff began his employment with the defendant, United States Steel Corporation, on September 19, 1951, where he worked in Seniority Unit 22-22" Mill Shearing and Straightening in the Rolling Department until August 25, 1962. On November 5, 1963, following a year layoff, plaintiff was transferred to his present position in Seniority Unit 16-18" Mill Shearing and Straightening in the Rolling Department.

 In 1966, John Hyjurick, a white man, who is also employed by the defendant company and a member of defendant, United Steelworkers of America, and a member of defendant, United Steelworkers of America, AFL-CIO, Local No. 1557, was transferred into Seniority Unit 16-18" Mill Shearing and Straightening. John Hyjurick began his employment with the defendant company on July 25, 1941, in the Rolling Department in Seniority Unit 9-40-28" Mill Rolling and Shearing. However, in 1960, when the defendant company decided to cease operations in that particular unit, Hyjurick was placed on layoff. Later, when the company decided to permanently shut down the unit in 1962, Hyjurick was offered the option of continuing layoff or being terminated and receiving severance allowance under the terms of Section 16 of the Basic Labor Agreement. *fn1" Hyjurick elected to stay on layoff status and remained on such until his transfer in 1966 to Seniority Unit 16-18" Mill Shearing and Straightening.

 On December 12, 1969, the plaintiff, William Larkin, filed a grievance with the defendant company as a result of a dispute concerning overtime work which was awarded to John Hyjurick instead of the plaintiff. Plaintiff signed and filed a written grievance in step 2 of the grievance-arbitration procedure set forth in the Basic Labor Agreement between defendant company and defendant union. *fn2" This grievance was processed in the plaintiff's behalf by the defendant local union up to and including the fourth step of the grievance-arbitration procedure (the step immediately prior to arbitration). When the defendant company denied plaintiff's grievance at the fourth step, the defendant local union, after reevaluating plaintiff's claim, decided to accept the company's decision instead of taking his grievance to arbitration.

 The law is well settled that a plaintiff, charging that his rights have been violated under Title VII, must prove by the preponderance of the substantive evidence that the defendants have engaged in unlawful employment practices in violation of Title VII, U.S.A. v. Jacksonville Terminal Company, 451 F.2d 418 (5th Cir. 1971). In the instant proceeding the plaintiff's complaint centers upon overtime scheduling during a two week period starting December 14, 1969, and ending December 28, 1969, which resulted in a single eight hour overtime turn being assigned to John Hyjurick, a white man instead of to plaintiff, a black man.

 The dispositive issue before this Court is whether or not the defendant company's decision in maintaining Hyjurick's Rolling Department continuous service date, which resulted in giving Hyjurick, a white man, more seniority than the plaintiff, a black man, was based on race and, therefore, in violation of Title VII?

 Plaintiff does not dispute the fact that he retained his initial Rolling Department service date of September 10, 1951, after an intra-departmental transfer following a one year layoff. Nor is it in dispute that John Hyjurick was one of twenty-one employees from shut down Unit No. 9 who rejected severance allowance and who were later transferred to different seniority units in the Rolling Department. All these men retained their initial Rolling Department service dates upon their intra-departmental moves. *fn3"

 The plaintiff presented no evidence nor did he establish any basis from which the Court could conclude that the defendant company acted arbitrarily or discriminatorily in violation of Title VII by permitting Hyjurick to maintain his continuous service date of July 25, 1941. The record reflects that even during the processing of the plaintiff's grievance it was never asserted that the awarding of greater seniority to Hyjurick rather than the plaintiff was based on race. Moreover, plaintiff's own testimony during the trial of this proceeding was that he would have filed his grievance claim even if Hyjurick had been black.

 It is quite apparent from the testimony presented, that neither the defendant company's policy pertaining to intra-departmental transfers or the granting of greater seniority to Hyjurick rather than the plaintiff was founded or based upon any discriminatory practice in violation of Title VII. The record reveals that the defendant company at the Clairton Works had abandoned "Unit Seniority" in favor of departmental seniority since 1962. Accordingly, every person who made an intra-departmental transfer retained his initial continuous service date.

 A most careful review of all the evidence fails to reveal any disparative effect upon plaintiff as a result of the company's policy on intra-departmental transfers since the policy in question affected all employees in plaintiff's department with less continuous service whether they were white or black. Moreover, the plaintiff presented no evidence nor can the Court conclude that the defendant company's policy with respect to intra-departmental transfers was artificial, arbitrary, or discriminatory.

 Plaintiff's final contention is that because he was a black man, the defendants, United Steelworkers of America and United Steelworkers of America, AFL-CIO, Local No. 1557, failed to process his claim through arbitration and that numerous questions regarding the ...


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