CM-616 Seniority Systems

Contents  

616.1   Introduction

(a) General

(b) Employers and Unions as Respondents

616.2   Collective Bargaining

616.3   Definition of Seniority System

(a) Length of Employment

(b) Types of Rights and Benefits Covered

(c) Seniority Roster

(d) Terminology for Charge Processing

(1) Company-wide Seniority

(2) Plant-wide Seniority

(3) Departmental Seniority

(4) Line of Progression Seniority

(5) Job or Craft Seniority

616.4   Interaction of Seniority With Other Factors

616.5   Creation of a Seniority System

616.6   Unwritten Seniority Systems

616.7   Employees Covered by a Seniority System

616.8   Types of Seniority Systems

(a) One Company-wide Seniority System

(b) One Bargaining Unit, One or More Seniority Systems

                                 (1)One Unit, One System

                                 (2)One Unit, Two or More Systems

(c) Separate Units, Different Unions, Separate Seniority Systems

(d) Separate Units, Different Unions, One Seniority System

(e) Separate Units, Same Union, Separate Seniority Systems

(f) Separate Units, Same Union, Same Seniority System

(g) One Unit, One Multi-Employer Seniority System

616.9   Ancillary Rules

(a) Definition

(b) Protection Under Title VII

(c) Other Ancillary Rules

(1) Length of Employment

(2) Examples of Unprotected Standards

616.10  Lines of Progression

(a) Definition

(b) Relation to Seniority

616.11  Locking In

616.12  Discriminatory Consequences of Locking In

616.13  Adverse Impact and Perpetuation of Past Discrimination

616.14  Effect of § 703(h)

(a) Adverse Impact

(b) Perpetuation of Past Discrimination

(1) General

(2) As Opposed to Continuing Violation

(c) Disparate Treatment

616.15  Seniority Systems Imposed Unilaterally by an Employer

616.16  Merit Systems

616.17  CDP    

(a) Adverse Impact

(1) Merit System

(2) Seniority System

(b) Perpetuation of Past Discrimination

(1) Pre-Act Discrimination, System Is Bona Fide

(2) Pre-Act Discrimination, System Not bona Fide

(3) Post-Act Discrimination, System Is Bona Fide

(4) Post-Act Discrimination, System Not Bona Fide

(5) Pre- or Post-Act Discrimination, Employment System Other Than Seniority System

(c) Voluntary or Court-Ordered Seniority Modification or Override

616.18  Non-CDP

(a) Adverse Impact

(1) Lines of Progression Not Part of Seniority System

(2) Layoff vs. Worksharing

(3) Unilaterally Imposed Seniority System

(b) Perpetuation of Past Discrimination

(1) Lines of Progression Not Part of Seniority System

(2) Layoff vs. Worksharing

(3) Unilaterally Imposed Seniority System

616.19  Investigation of Charges: Determining Whether Seniority System Is Bona Fide

(a) When Determination Must Be Made

(b) Factors Relevant to Determination

(1) Intentional Discrimination

(i) Equal Operation

(ii) Same or Separate Bargaining Units

(iii) Genesis

(iv) Negotiation and Maintenance

(2) Types of Evidence

(3) Totality of Circumstances

(c) When System Is Not Bona Fide

616.20  Equal Operation

(a) Unequal Operation Due to Relative Job Desirability

(b) Exceptions: Disparate Treatment

616.21  Same or Separate Bargaining Units

(a) Racial, Sexual, or Ethnic Composition of Seniority Tracks

(b) Racial, Sexual, or Ethnic Segregation

(c) How Same or Separate Bargaining Units Affect Whether System Is Bona Fide

(d) Seniority System Must Be Rational

(1) Similar Relation to Production Process

(2) Similarity of Pay Scale

(3) Similar Terms and Conditions of Employment

(4) Other

(5) Resource Materials

(e) Whether Seniority System Conforms With Industry Practice

(1) Regional Differences

(2) Resource Materials

616.22  Genesis and Negotiation

(a) Context of First Bargaining Agreement

(b) Rational and in Conformance With Industry Practice

(c) Segregated Unions

(d) Segregated Bargaining Units

(e) Segregated Jobs, Crafts, Lines of Progression, or Departments

(f) Acquiescence

(1) General

(2) To Discrimination by Another Union

(3) Effect of Agreement Under Protest

(g) Resource Materials

616.23  Maintenance of the System

(a) Rational and In Conformance with Industry Practice

(b) Segregated Unions

(1) Discriminatory Membership Policies

(2) Changes in Seniority System or Bargaining Arrangement to Maintain Segregation

(c) Segregated Bargaining Units

(d) Segregated Jobs, Crafts, Lines of Progression, or Departments

(e) Awareness of System's Effect When System Is Renegotiated

(f) Resource Materials

616.24  Liability

616.25  Maternity Leave

(a) Rule Still in Effect

(b) Rule No Longer in Effect: Perpetuation of Past Discrimination

(1) Rule Ended Pre-Pregnancy Discrimination Act

(2) Rule Ended Post-Pregnancy Discrimination Act

(c) Pregnancy and Maternity Policies Not Related to Seniority

616.26  Layoff and Recall

(a) Definition

(b) Seniority System Is Bona Fide

(1) General

(2) Exception

(c) Disparate Treatment

(d) Seniority System Is Not Bona Fide

(e) Unilateral Seniority System

616.27  Seniority Modification or Override

(a) Voluntary Affirmative Action

(b) Court or Agency Action

Appendix A: NLRB Offices

Appendix B: BLS Offices

Appendix C: Unilateral Seniority Systems (Relates to § 616.15) RESCINDED 11/2019

 

SECTION 616
SENIORITY SYSTEMS

616.1   Introduction

(a)  General -

When a respondent's neutral employment policy or practice has an adverse impact or perpetuates the effect of prior discrimination, the policy or practice will usually be found to be in violation of Title VII.  (See § 604, Theories of Discrimination.)  However, § 703(h) of Title VII provides that an employer can apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system.  This means that when a bona fide seniority system has an adverse impact there will be no finding of a Title VII violation.  Similarly, when the effect of past discriminatory acts is perpetuated by the present operation of a bona fide system there will also be no finding of a Title VII violation.

The first part of this Manual Section, §§ 616.2 through 616.9, is intended to provide the EOS with background on seniority systems generally, defining them and describing a number of frequently seen types of systems.  The next few subsections describe how a seniority system can have an adverse impact or perpetuate past discrimination, discuss the effect of § 703(h), and list CDP and non-CDP issues.  As will be explained in § 616.19, most seniority systems will be presumed to be bona fide.  Sections 616.20 through 616.24, explaining how to determine if a system is bona fide, will therefore only be relevant in those few cases where the District Director decides that there is reason to suspect that a particular system is not bona fide.  Finally, the last three subsections of the Manual discuss a few other issues related to seniority, maternity leave, layoff and recall, and seniority overrides.

(b)  Employers and Unions as Respondents -

A person challenging the legality of a seniority system in this context can charge both the employer and the union that created the system through collective bargaining (see §§ 616.2 and 616.8) as respondents.  Two factors are relevant to determining liability.  First, while § 703(h) of Title VII only mentions employers, if the seniority system is found to be bona fide then both the employer and the union will be protected from liability under Title VII.  There may also be a situation in which either the employer or the union was aware that the seniority system would have an adverse impact and/or perpetuate past discrimination.  If, despite the one party's objections, the other party insisted on the creation or continuation of the system, this objection might protect the objecting party from liability even if the system is not bona fide.  This will be discussed in more detail later in this Manual Section.  Further discussion can also be found in § 630, Unions.

616.2   Collective Bargaining -

Most seniority systems are created as a result of negotiation between one or more unions acting as representatives of the employees, and one or more employers.  These negotiations will usually produce a collective bargaining agreement or contract between the union(s) and employer(s).  The seniority system will be set out in the agreement.  The number of unions involved, the number of employers involved, variations in employers' organizational structures, and the types of jobs covered are among the factors which lead to an almost bewildering variety of collective bargaining agreements and, consequently, of seniority systems.  In order for the EOS to be able to apply Title VII to seniority issues (s)he will have to be able to identify and understand the type of collective bargaining arrangement at a particular company or plant.  The EOS should see § 630, Unions, for an explanation of the collective bargaining process and the types of collective bargaining agreements.  Section 616.8 will explain how the type of seniority system can differ depending upon the type of collective bargaining arrangement involved.

616.3   Definition of Seniority System

(a)  Length of Employment -

A "seniority system" is an employment system that allots to employees rights and benefits according to the length of their employment.  The principal feature of all seniority systems is time.  Employment benefits are assigned on the basis of some measure of length of time served in employment.  California Brewers Association v. Bryant, 444 U.S. 598, 22 EPD ¶ 30,615 (1980), reh'g den'd, 445 U.S. 973, 22 EPD ¶ 30,801 (1980).

Example 1 - In Company A, an employee receives two weeks of paid vacation after working for the company for one year.  After working there three years, the employee receives three weeks of paid vacation.

Example 2 - Company B has lost a major government contract and is forced to reduce the number of its employees.  It does so by laying off employees according to their length of employment with the company.  The company first lays off all temporary employees, beginning with those hired most recently.  If all the temporaries are laid off and the company must lay off more employees, those permanent employees hired most recently, i.e., those with the shortest length of service, are laid off.  Those employees who have worked for the company the longest, thereby having the greatest seniority, have the most protection against being laid off -- their right to a job relative to other employees with less seniority is stronger.

(b)  Types of Rights and Benefits Covered -

In addition to vacation leave and layoff protection, seniority can control promotion, transfer, recalls to work after a layoff, pension, rates of pay, hours of work, training, and any other term or benefit of employment.  Some employment rights and benefits are noncompetitive; every employee receives more vacation time or a greater pension as his/her length of employment increases, regardless of the length of his/her coworkers' employment.  Other rights and benefits, such as promotion, layoffs, and recall rights, are competitive.  The seniority system establishes a ranking or hierarchy among the employees based on relative length of employment, so that when two or more employees apply for one job the one with more seniority will get it.

(c)  Seniority Roster -

Within each seniority system there will be one or more seniority rosters, tracks, or lists.  A seniority roster is simply a list of employees ranked according to length of employment.  As will be discussed in § 616.8 below, an employer may have one or more seniority systems, with each system having one or more seniority rosters.

Example -- For purposes of calculating vacations, pensions, pay checks, and other benefits, the company has one seniority roster in which it calculates seniority and the level of benefit based on total service with the company.  An employee with six years of service in the Maintenance Department gets the same amount of vacation, pension, etc., as an employee with four years in the Construction Department and two years in the Maintenance Department; an employee with only two years, all in the Maintenance Department, gets less.

For most competitive purposes, such as layoff and recall, departmental seniority controls.  An employee with six years of service in Maintenance will be ranked higher on the Maintenance roster and therefore have priority for layoff protection and recall in the Department over an employee with four years in Construction and two years in Maintenance.  As long as an employee remains within a particular department, (s)he accumulates seniority in that roster or track.  However, for the purpose of bidding for a new job, job seniority controls.  The employee with six years in Maintenance has worked as a Janitor II for 14 months, while the employee with four years in Construction and two years in Maintenance has worked as a Janitor II for the entire two years he was in Maintenance.  When both employees bid to be promoted to a Janitor III position the second employee will be selected over the first.

(d)  Terminology for Charge Processing -

In most charges alleging that seniority systems have an adverse impact or perpetuate past discrimination, the charging parties will usually be most concerned about seniority for competitive purposes.

(1)  Company-Wide Seniority - When seniority for competitive purposes is based on length of employment within the company in all plants, departments, and crafts, the type of seniority is referred to as company-wide seniority.  The seniority roster or track will include the names of all the non-management employees in the company, ranked in order of length of service with the company.

(2)  Plant-wide Seniority - Similarly, plant-wide seniority exists when competitive seniority is based on length of employment in all departments and crafts in a particular plant or installation; the seniority roster will include the names of everyone in the plant, ranked according to length of service in the plant.

(3)  Departmental Seniority - Departmental seniority exists when competitive seniority is based on length of employment within a particular department or division; the seniority roster will include everyone in the department or division.

(4)  Line of Progression Seniority - Line of progression (LOP) seniority exists when competitive seniority is based on length of employment in all jobs within a particular LOP; the seniority roster will include everyone in the same LOP.  (See § 616.10 for a discussion of LOPs.)

(5)  Job or Craft Seniority - Finally, job or craft seniority exists when competitive seniority is based on length of employment in a particular job or craft, regardless of department and perhaps plant; again, the roster will include everyone in the job or craft, ranked according to length of service in the job or craft.  However, there can be separate job or craft seniority for each plant.

616.4   Interaction of Seniority With Other Factors -

A collective bargaining agreement can provide that employment rights and benefits be controlled solely by length of employment or by that plus other factors such as education, experience with the same employer, experience with other employers, quality of performance, etc.

Example 1 - In Company A, promotions to supervisory positions within the Maintenance Department are made solely on the basis of length of employment.  When a supervisory position becomes vacant, the employee within the department who has the greatest seniority and is therefore highest on the seniority roster will be offered the position.  In Company B, however, such promotions are made on the basis of seniority and aptitude.  When a supervisory position becomes vacant, all employees in Company B's Maintenance Department are given a test involving knowledge of and ability to perform maintenance and supervisory duties.  The employee with a combination of the highest score and the highest position on the seniority roster will be offered the position.

Example 2 - In the second example in § 616.3(a) above, Company B is forced to lay off a number of its employees.  Rather than do it solely on the basis of company-wide seniority, however, the company realizes that it needs to keep employees with certain skills.  While it may lay off everyone in the Carpentry Department except for the three most senior employees, it will not lay off anyone in the Electrical Department -- even though some of the electricians are lower on the company-wide seniority roster, i.e., have less seniority, than some of the laid-off carpenters.  Further, in the Welding Department, a recently hired employee with considerable experience in weld-testing may be retained, while a more senior welder with no weld-testing experience may be laid off.

When a bargaining agreement provides that seniority will be considered with other factors in making an employment decision, it will be important for the EOS to determine how great a role, if any, seniority played in the decision being challenged by the charging party.  If seniority was actually given little or no consideration in this particular employment decision, then the seniority system was not involved in the decision and the charge should not be processed under this Section of the Manual.

Example 3 - A group of Black employees have filed a charge alleging discrimination in promotion. The respondent employer initially claims that all promotions are made on the basis of seniority. The collective bargaining agreement provides that promotions will be made on the basis of "merit, ability, capacity, and seniority."  Over the period examined, none of the 27 employees promoted were Black.  Investigation shows that, as a rule, seniority played a very small part in the promotions, with Whites often selected over more senior Blacks.  Because the seniority system in fact did not have much of an effect on the promotions, it is not relevant to resolving this charge.  The EOS should instead see if the standards of merit, ability, and capacity were applied to Whites and Blacks; if not, there may be unlawful disparate treatment.  If the three standards were applied equally, the EOS should determine which of them had adverse impact and whether the standard or standards with adverse impact are in fact job-related.  (The disparate treatment and adverse impact theories are explained in more detail in § 604, Theories of Discrimination.)

616.5   Creation of a Seniority System -

As explained in § 616.2, most seniority systems are created through collective bargaining between a union and an employer.  When there is no union (the non-union shop, as explained in § 630.3(b)) and no collective bargaining agreement, an employer might unilaterally impose a seniority system.

616.6   Unwritten Seniority Systems -

Most seniority systems are in writing and can be found in a collective bargaining agreement, personnel manual, or other handbook of personnel procedures.  The system does not have to be in writing, however, in order to be considered bona fide and therefore as excepted from Title VII based on § 703(h) of the Act.  A respondent's assertion that it has an unwritten, informal system should be accepted only if the employees covered by the system have been told both that they are covered by the system and of the system's terms and conditions.  The EOS should question a number of the employees covered by the claimed unwritten system to determine if and when they were told of the system's existence and rules.  The employees must have been so informed either when they were hired or, if the system was begun afterwards, at that time.

Further, an unwritten system must be administered systematically and objectively.  This means that the system must consistently follow established rules, with no exceptions made unless provided for by the rules.

Example 1 - Company C claims to have an unwritten seniority system by which it determines pay levels.  Each employee covered by the system was informed of it when (s)he was hired.  A seniority evaluation occurs annually.  The Personnel Manager passes out forms on all employees to the department heads.  This form is filled out by the respective department heads as to each employee's length of service in the department and with the company, present salary, last raise, and recommended raise.  The form also grades the employee on his/her knowledge of the job, ability in the job, and other general characteristics.  The Personnel Manager reviews the form and recommends a pay raise for each employee.  This recommendation is reviewed by the Operations Committee.  The Operations Committee, in consultation with the department heads, can adjust an individual's recommended raise up or down.  The recommendation then goes to the Management Committee for final approval.  Because the system applies to all covered employees without exception and follows established procedures, it may fall within the § 703(h) exception in Title VII provided, of course, that it is bona fide as explained in § 616.19 below.

Example 2 - Company D has the same unwritten system as Company C in the above example.  However, in investigating whether the system was administered systematically and objectively, the EOS discovers that a number of exceptions have been made over the last few years.  The sister and son-in-law of Company D's owner both work in what would otherwise be positions covered by the system, yet their pay levels are not determined by the system; their pay levels are higher than other employees in the same positions who have worked for the company longer and have had better performance evaluations.  Further, there were instances where men with the same length of service and performance appraisals as women were given larger salary increases because, in the Personnel Manager's words, "they had families to support"; the fact that the women also had families was not considered significant.  Because so many exceptions have been made to the so-called system, it cannot be considered as having been administered systematically and objectively.  The unwritten system should not be considered as falling within the § 703(h) exception in Title VII.

616.7   Employees Covered by a Seniority System -

A seniority system created by agreement between an employer and a union will cover those employees in the collective bargaining unit or units represented by the union.  A seniority system created and imposed by the employer alone may cover all of the employees or only a portion of them, such as management employees, nonsupervisory and other nonmanagement employees, or employees in specific departments or jobs.

616.8   Types of Seniority Systems -

A seniority system can be tailored to the needs of a particular employer.  It can be the result of a complicated and possibly confusing history of collective bargaining.  (See § 616.2.)  A seniority system can be almost anything a collective bargaining agreement says it is.  In § 630.3(b) the types of shops are described.  A seniority system in a union, agency, or open shop will usually apply to members of the union and nonmembers alike.  The following are descriptions of the most common types of systems.  They roughly follow the types of collective bargaining situations described in § 630.3(d).  As a rule, there will be one seniority system for each collective bargaining agreement with a particular employer; e.g., a company with two collective bargaining agreements will generally have two separate seniority systems (and possibly a third, unilateral system for any employees not covered by a collective bargaining agreement).  However, at a company with a number of collective bargaining agreements, two or more of the agreements might provide for a shared seniority system.  (See §§ 630.3(d)(5) and (6) and 616.8(d).)  Further, within each system there can be more than one seniority roster.

(a)  One Company-Wide Seniority System -

The simplest type of seniority system exists when there is one bargaining unit for the entire company.  (See § 630.3(d)(1).)  There will usually be one system for the entire company, including all its plants, departments, divisions, installations, jobs, and crafts.  There can be one roster for all covered employees.  Alternatively, there can be one roster for noncompetitive rights and benefits but separate rosters for each installation, department, division, job, or craft for competitive benefits.  (See § 616.3(c).)  Nevertheless, the same rules will apply to all the employees regarding coverage by the system, accumulation of seniority, rights and benefits controlled by the system, etc.

Example 1 - At Ace Photocopying Service, all the nonmanagement employees are in the same bargaining unit.  There is one seniority system for all these employees, controlling promotion and transfer (competitive rights) and leave and pension benefits (noncompetitive rights and benefits).  (See § 616.3(b).)  Because there is only one system, the same seniority rules apply to all the employees.  The longer an employee works for Ace the greater will be his/her seniority, resulting in ever greater rights over other employees for promotion and transfer and ever greater entitlement to leave and a pension.  All the nonsupervisory and other nonmanagement employees are on the same seniority roster, meaning that they are all ranked on the same list for these rights and benefits.

Example 2 - At Acme Photocopying Service, all the nonsupervisory and other nonmanagement employees are in the same bargaining unit.  There is one seniority system for all these employees, controlling the same rights and benefits as in the above example.  As in that example, the same seniority rules apply to all these employees.  However, Acme has three seniority rosters, one for its Duplication Department, another for its Delivery Department, and another for the whole company.  The first two rosters control departmental seniority:  the longer an Acme employee works in the Duplication Department, the higher (s)he will be on that roster and the greater will be his/her promotion and transfer rights over the other employees in the same department; the longer an Acme employee works in the Delivery Department, the more seniority (s)he will have for promotion and transfer over other employees in the same department.  If a Delivery employee attempts to transfer to the Duplication Department, (s)he will in effect have no competitive seniority for transfer purposes no matter how long (s)he had worked in the Delivery Department; (s)he will be considered as an outside applicant, and will lose all his/her seniority for competitive purposes should (s)he in fact transfer.  (See §§ 616.10 and 616.11 below).  The third roster, however, is for all the nonmanagement employees in both departments.  All the employees are treated the same for leave and pension purposes, regardless of which department they are in.  If someone does transfer from one department to another, service in both departments will count for leave and pension purposes.

Example 3 - Acme Home Development Co. has one seniority system for the whole company with one seniority roster.  Employee A has worked for Acme for seven years.  For the first three years she was a carpenter in the Maintenance Division, for the next three years she was a crane operator in the Construction Division, and for the last year she has been a sales representative in the Sales Division.  All three divisions are in the same bargaining unit and are represented by the same union.  Employee A's seniority for competitive and noncompetitive purposes is seven years.

Example 4 - Livermore Estates Home Development Co. also has a company-wide seniority system, but with three departmental rosters.  Employee B has worked for Livermore Estates for five years.  For the first two years he was a plumber in the Construction Department, for the next two years he was a carpenter in the Maintenance Department,  and for the last year he has been a sales agent in the Sales Department.  All the departments are in the same bargaining unit and are represented by the same union.  Employee B's competitive seniority in the Construction Department is two years, in the Maintenance Department it is two years, and in the Sales Department it is one year.  Under the rules of Livermore's seniority system, if Employee B were to transfer back to Construction or Maintenance he would regain his "lost" competitive seniority in the particular department.  Meanwhile, Employee B's noncompetitive seniority is five years, representing his total length of employment with the company.

(b)  One Bargaining Unit, One or More Seniority Systems

(1)  When the bargaining unit consists of only one group of nonmanagement employees and not the entire company, as described in § 630.3(d)(2), there will usually be one seniority system for the entire unit.  If the unit consists of all the nonmanagement employees in a particular plant or installation, department, division, or craft, the type of system will be referred to as plant seniority, departmental seniority, division seniority, or craft seniority, respectively.  As with a company-wide system, there can be just one roster for all the employees in the unit, or one roster for noncompetitive purposes and separate rosters for competitive purposes.  (See § 616.8(a).)  Employees not in the bargaining unit may be in another bargaining unit with another seniority system or may not be in a bargaining unit at all.  In the latter case the employees may not be covered by a seniority system or may be covered by a system created unilaterally by the employer.

Example 1 - At Apex Photocopying Service, the employees in the Duplication Department are in a bargaining unit represented by the United Replicators Union.  There is one seniority system for the unit with one roster for all the employees.  The employees in the Delivery Department are in a separate bargaining unit represented by the Messenger and Laborers Alliance, with a separate one-roster seniority system.  The office and clerical workers are not in a bargaining unit at all and are not covered by a seniority system.

(2)  Infrequently, there may be two or more separate seniority systems within the same bargaining unit, with separate rules for each system.  Each system would be based on an installation, department, division, job, or craft.  The arrangement would be similar to one where there are separate units represented by the same union with a separate system for each unit.  (See  § 616.8(e).)

Example 2 - The employees at Apex Home Improvement Company were originally in two bargaining units.  The first unit included all the construction crew and was originally represented by the Brotherhood of Builders and Bakers (BBB).  The second unit included all the sales staff and was originally represented by the Union of Siding Dealers (USD).  The seniority system for the construction bargaining unit had one set of rules regarding accumulation of leave, retirement eligibility, and competition for vacancies, while the system for the sales unit had a different set of rules.  For example, construction employees earned four hours of leave for every three weeks worked while sales workers earned four hours for every two weeks worked; construction employees could retire after 25 years on the job while sales workers could retire after 20 years; construction workers competed for vacant construction jobs entirely by seniority while sales workers competed for sales openings on a combination of seniority and job evaluations.  USD went bankrupt.  Apex's sales employees voted to join the BBB, and the quickest way to do so was for the construction bargaining unit and the sales bargaining unit to merge.  However, the company continued to have one seniority system for the construction employees and a separate one for the sales workers.  This was due in part to the differences in the jobs.  More importantly, the two systems had been in effect for so long that the employees had built up certain expectations regarding leave, retirement, and other rights and benefits.  To merge the two systems would have required changing some of the rules of one or both the systems, thereby affecting the employees' expectations; e.g., to decide that everyone had to work 25 years before retiring would have changed the plans of those sales workers who were planning on retiring after 20 years.  Rather than do this, the company and union agreed to keep the two systems separate even though everyone was in the same bargaining unit.

(c)  Separate Units, Different Unions, Separate Seniority Systems -

As explained in § 630.3(d)(3), a company may have a number of bargaining units, each represented by a different union and with a separate collective bargaining agreement.  In this situation there can be a separate seniority system for each unit.  If the units are craft or job units, these will be separate craft or job seniority systems; if the units are departments, these will be departmental seniority systems, and similarly for plant and division systems.  Each system will be controlled by a separate set of rules (see §§ 616.3(b), 616.4, and 616.9), although many or most of the rules may be identical.  Each system can have one or more rosters.  Those employees not in any bargaining unit will either not be covered by a seniority system or will be covered by a system imposed by the employer.

Example - The law firm of Dupre, Thornton and Cruz has two collective bargaining units.  The first unit consists of all secretaries and paralegals and is represented by the Federation of Law Office Support Staff (FLOSS).  The second unit consists of all the lawyers who are not partners in the firm and is represented by the Federation of Lawyers and Professionals (FLAP).  Each unit has a separate seniority system; the systems could be categorized as departmental or perhaps craft.  The system for the members of FLOSS has three rosters.  There is a master roster for all secretaries and paralegals for determining noncompetitive rights and benefits; length of employment with the firm determines an employee's position on the roster and the type and amount of rights and benefits (s)he will receive.  There is a separate roster for secretaries and another for paralegals for competitive purposes; length of employment within the particular job determines an employee's position on the appropriate roster.  The staff attorneys in FLAP are covered by a different seniority system altogether.  There is one roster for both noncompetitive and competitive benefits, based on a combination of length of employment with the firm, number of years employed as an attorney elsewhere, and the amount of business brought into the firm.  Law students working for the firm part-time are not in a bargaining unit and are not included in a seniority system.

(d)  Separate Units, Different Unions, One Seniority System -

As explained in § 630.3(d)(4), a company may have a number of bargaining units, each represented by a different union but with either the same bargaining agreement or separate agreements with shared provisions.  In either case the unions can agree to the same seniority system for the nonmanagement employees in all the participating units.  The same rules would apply to all the employees.  There can be one or more rosters.  Those employees not in any of the participating bargaining units will either be in other bargaining units with their own systems or not in any bargaining unit; in the latter case, they will either not be included in a seniority system or be included in one imposed by the employer.

Example 1 - The law firm of Dingle, Dangle, Smith and Jones has three collective bargaining units.  The first consists of secretaries and is represented by FLOSS.  The second unit consists of paralegals and is represented by the Federated League of Interns and Paralegals (FLIP).  The third unit consists of staff attorneys and is represented by FLAP.  The union for each unit has signed a separate bargaining agreement with the firm.  As part of their agreements, FLOSS and FLIP have agreed to be covered by the same seniority system.  The system has three rosters operating in the same way as in example § 616.8(c).  The lawyers in FLAP have a separate seniority system with its own rules.  The system also has three rosters:  a competitive roster for attorneys in the Tax Department, another competitive roster for attorneys in the General Law Department, and a master roster for all the attorneys for noncompetitive purposes.  While the system is separate from that of the other units, it has the same rules:  length of employment in each department is the sole controlling factor for competitive purposes, while length of employment with the firm is the sole controlling factor for noncompetitive purposes.

Example 2 - In the above example, the results would be the same if FLOSS and FLIP had signed the same bargaining agreement.

(e)  Separate Units, Same Union, Separate Seniority Systems -

As explained in § 630.3(d)(5), one union can represent a number of an employer's bargaining units, with a separate collective bargaining agreement for each unit.  In this situation there can be a separate seniority system for each unit, just as there can be when the units are each represented by a different union.  (See § 616.8(c).)  Each system will be controlled by a separate set of rules although many or most of the rules may be identical.  Each system can have one or more rosters.  Those employees not in any of the bargaining units represented by one union may be in a bargaining unit or units represented by another union and covered by yet another seniority system (see § 616.8(c)) or by a system shared with the first union (see § 616.8(d)).  Those employees not in any bargaining unit will either not be covered by a seniority system or will be covered by a system imposed by the employer.

Example - The law firm of Morrow, Walker and Suhre has three collective bargaining units.  The first unit consists of all secretaries and the second unit consists of all paralegals.  Both units are represented by the Union of Legal Support Staff, with a separate collective bargaining agreement and departmental or craft seniority system for each unit.  The third unit consists of all lawyers who are not managers.  It is represented by the Association of Legal Beagles and has its own collective bargaining agreement and departmental or craft seniority system.  Each system has one roster for both competitive and noncompetitive purposes.  The rules for each system are similar, except that paralegals earn their seniority rights and benefits more quickly than secretaries while lawyers earn theirs more quickly than paralegals. For example, secretaries can retire after 30 years with the firm with a pension equal to 65% of their highest salary; paralegals can retire after 25 years with a 65% pension; lawyers can retire after 25 years with a 70% pension.  The clerks in the mailroom are not in any bargaining unit, are not represented by a union, and are not covered by even an employer-imposed seniority system.  There is no retirement plan for clerks.

(f)  Separate Units, Same Union, Same Seniority System -

As explained in § 630.3(d)(6), one union can represent several of a company's bargaining units, and all or some of these units can have either the same collective bargaining agreement or separate agreements with certain shared provisions.  The result will be the same as in § 616.8(d), where unions representing different units agree to participate in the same seniority system.  The shared system can have one or more rosters.  Those nonmanagement employees not in the participating units can be in other units represented by the same union with different seniority systems.  Alternatively, they can be in bargaining units represented by different unions with their own systems.  A third possibility is that they may not be in any bargaining unit, in which case they will either not be included in a seniority system or be in one unilaterally imposed by the employer.

Example - All the nonsupervisory and other nonmanagement employees of Orange Groves of California (OGC) are represented by the Orange Laborers of California (OLC).  There are two bargaining units, one for the pickers, drivers, and laborers and the other for all the clerical and administrative employees.  OLC has signed one collective bargaining agreement with OGC on behalf of both units.  The agreement establishes one seniority system for the employees in both units, with one roster for both competitive and noncompetitive purposes.

(g)  One Unit, One Multi-Employer Seniority System -

When one union has a collective bargaining agreement with more than one employer (see § 630.(d)(7)), the seniority system will apply to all the members of the bargaining unit regardless of where they work. The system can have one or more rosters.

Example 1 - Operating engineers generally work for relatively short periods of time for a number of employers.  Local 12 of the International Association of Operating Engineers covers the northeastern region.  There are 30 large construction companies in the region.  On behalf of all the operating engineers working in that region, Local 12 has signed a collective bargaining agreement with the 30 companies.  There is one roster for both competitive and noncompetitive purposes.  An individual's seniority will follow him/her around from job to job, employer to employer.  For example, an engineer is likely to work for as many as 20 of the 30 companies in the region during his/her career; the engineer can retire with a pension after 20 years of total employment.  Further, total employment at all of the companies is considered in ranking engineers for layoff purposes.

Example 2 - The nonsupervisory and other nonmanagement employees of eight soft drink and beer bottlers in Georgia are in the same collective bargaining unit.  The employees are represented by the Brewers' Union and Recreational Program (BURP), while the employers have formed the Georgia Association of Soda Suppliers (GASS).  BURP and GASS have signed one bargaining agreement providing for a single seniority system with a number of rosters.  All bargaining unit members are on the first roster, which ranks employees for noncompetitive purposes; e.g., after a total of three years of employment with one or more of the companies, an employee gets an additional week of annual leave, after ten years, (s)he gets another week.  For competitive purposes, each company has its own roster.  While an individual going from one company to another will keep the seniority earned at the first company for noncompetitive purposes, (s)he will lose it for competitive purposes. However, the individual would regain the lost seniority if (s)he returned to the first company.

For example, Arnold worked for Company A for two years, Company B for six years, and has worked for Company C for the past one year; Marietta worked for Company C for 11 years and has worked for Company D for the past two years; Lemuel originally worked for Company D for three years, then worked for Company E for seven years, and returned to Company D six months ago.  Company D is now laying off some of its employees.  Pursuant to the collective bargaining agreement, layoffs are made on the basis of seniority with the particular company.  Lemuel worked for Company D for a total of three and one half years, while Marietta has only worked there for two years.  Even though Marietta has more service within the industry than Lemuel (13 years for Marietta as opposed to Lemuel's ten and one half years), Lemuel will be retained over Marietta. However, Marietta has "bumping rights" over those at other companies with less seniority at that company.  Even though no longer employed there, Marietta has 11 years of seniority at Company C while Arnold who still works there has only one year of seniority with the company; Marietta can therefore "bump" Arnold and take his job, Arnold in turn can bump anyone at Company A who has worked there for less than two years, anyone at Company B who has worked there less than six years, or anyone at Company C who has worked there for less than one year.

616.9   Ancillary Rules

(a)  Definition -

The principal feature of all seniority systems is time.  Length of employment is used to provide more employment benefits to some employees than to others.  For any seniority system to operate, however, there must be ancillary rules.  These are rules that may only be indirectly related to length of employment, but are nevertheless essential to the operation of a seniority system.

The simplest ancillary rule is one that controls when an individual begins to accrue seniority.  In a company-wide seniority system, an individual begins to accrue seniority once (s)he is hired.  A refinement on this might be that an employee will not accrue any seniority during his/her probationary period; however, on completion of the period (s)he will receive seniority retroactive to the date of hire.  Should layoff occur during the probationary period the employee would have no protection; if it occurred after the probationary period ends, there would be a greater amount of protection relative to those employees with less or no seniority.

Example 1 - A trucking company has two divisions, one employing long distance drivers and the other local drivers.  Each division has its own seniority track.  In order to begin accruing seniority in the long distance track an individual must first get a job as a long distance driver (Rule #1).  If a long distance driver transfers to the local division, (s)he will lose all long distance seniority (Rule #2). However, if the individual transfers back to the long distance division within two years, (s)he will regain the lost long distance seniority but will lose the local seniority (Rule #3).  These are all ancillary rules that "delineate how and when the seniority time clock begins ticking." California Brewers Ass'n. v. Bryant.

Example 2 - A multi-employer collective bargaining agreement provides for a seniority system with three employment categories: permanent, temporary, and new.  A permanent employee is one who has worked in one job classification in the industry for 45 weeks or more in one calendar year.  An employee who has worked more than 60 days but less than 45 weeks in one calendar year is considered temporary.  A new employee is one who has worked 60 days or less in one calendar year.  Each category has its own seniority track.  The employment benefits of permanent employees are far greater than those of temporary employees, and the benefits of temporary employees are somewhat better than those of new employees.  In a layoff, for instance, the last hired of the new employees would be laid off first until all new employees are laid off, then the last hired of the temporary employees, and so on.  Further, a permanent employee who is laid off at one plant can go to any other plant and force a temporary or new employee out of a job.  This is called "bumping."  The ancillary rule in this example is the 45 week and 60 day rule.  It delineates how and when employees will begin to earn seniority in each track.

(b)  Protection Under Title VII -

As can be seen in the above examples ancillary rules are often not directly related to length of employment but may establish an initial or threshold requirement for earning seniority.  In the first example the threshold requirement is obtaining a job in a particular department and in the second it is achieving permanent status.  The requirement in the second example does involve time, but not in the sense of having one's rights and benefits increase on the basis of increasing length of time worked; an individual may work 30 weeks in each of three calendar years for a total of 90 weeks, and yet have fewer rights and benefits than someone who worked a total of 46 weeks all in one year.  Nevertheless, all these rules accomplish a function necessary to the operation of the seniority system.  They are therefore part of the system and are included in the protection provided to bona fide systems by § 703(h), California Brewers Ass'n v. Bryant.

(c)  Other Ancillary Rules -

Other protected ancillary rules might deal with forfeiture of seniority (see Rule #2 in the first example in § 616.9(a) above); those that specify what time will "count" toward accrual of seniority (e.g., sick leave lasting more than two weeks will not count; only the first 6 months of a layoff will be included), those that specify what employment conditions will be affected by seniority (see § 616.3(b)); and, usually, lines of progression where progression is based on seniority within the same line (see § 616.10).

(1)  All of these rules focus in some manner on length of employment.  Other rules that do not will not be protected by § 703(h).  California Brewers Ass'n v. Bryant.

Example - In company W, the Engineering Department has its own seniority track.  Obtaining a job in the department is necessary to enter that track and is an ancillary rule protected by § 703(h).  However, in order to obtain a job in the department, an applicant must have a high school diploma and score 90 or better on an aptitude test.  These requirements do not focus in any way on length of employment and are not protected by § 703(h).

(2)  Educational standards and aptitude tests, then, as well as physical tests and subjective standards, cannot be part of a § 703(h) seniority system.  If, as explained in § 616.4, a standard or test of this type is solely or primarily responsible for the employment decision being challenged in a particular charge, then the EOS need not be concerned with the seniority system or § 616 of the Compliance Manual at all.  Instead, the EOS should determine whether the standard or test was applied differently and/or whether it had an adverse impact based on race, sex, etc.

616.10  Lines of Progression

(a)  Definition -

A line of progression (LOP) consists of a chain of jobs through which an employee can normally move progressively from the entry level job to the highest skilled job. A line of progression is usually based on order of seniority as listed on a seniority roster or track.  When progression up the line is based on seniority within the same line, then the LOP becomes part of the seniority system.  Miller v. Continental Can Co., 544 F. Supp. 210, 25 EPD ¶ 31,543 (S.D. Ga. 1981).

Example 1 - A company has four departments: Maintenance, Construction, Manufacturing and Sales.  The company has a collectively bargained departmental seniority roster or track for competitive purposes (bidding, layoff protection, recall, etc.).  Each department also has its own LOP.  The entry level position in the Manufacturing Department is Packer.  The line progresses from Packer to Sorter, then to Assembler, and peaks with Inspector.  The Sales Department's LOP begins with Salesclerk and progresses to Salesclerk I, Sales II, Regional Sales, and finally National Sales.  There are similar lines in the Construction and Maintenance Departments.  Progression up each line is based on length of employment in the line.  For example, a person who has worked as a Packer for three years is automatically promoted to Sorter.  Promotions after that are competitive, so that a person who has worked first as a Packer and then as a sorter for a total of five years will be selected for an Assembler vacancy over someone with a total of four years' Packer-Sorter experience.

__   Any time that progression up the line is based on some measure of seniority other than length of employment within the line, then the line of progression may not be part of the seniority system.  American Tobacco Co. v. Patterson, 456 U.S. 63, 77 fn. 18, 28 EPD ¶ 32,561 (1982), remanded on this and other issues,_______ F.2d ____, 30 EPD ¶ 33,033 (4th Cir. 1982).  The latter situation is quite unusual and is non-CDP.

Example 2 - In Example 1, the LOP would not so clearly be part of the seniority system if progression up each line is based on company-wide seniority.  For example, an employee with five years of company seniority transfers from the Manufacturing Department to a Salesclerk I job. She will be promoted to a Salesclerk II job before someone with four years of experience and seniority as a Salesclerk I but who has no other company seniority.

There can be more than one line of progression in a department.  There can also be LOPs within a company- or plant-wide system, with either one line for the whole company or plant or a different line for all the jobs covered by each of the different seniority tracks or rosters.  (See § 616.8(a).)  There can also be LOPs for each craft, possibly cutting across departmental lines.

(b)  Relation to Seniority -

The usual practice is to make progression within the line or chain of jobs dependent upon accumulation of seniority within the same line.  The seniority roster or track will then show the amount of seniority within the same line.  Further, a person transferring from one line of progression to another often must begin at the bottom of the new line and the new seniority roster or track, often with a reduction in pay, and regardless of his/her position in the prior line, in effect, the prior experience and seniority are eliminated.  This will at least be true for competitive purposes, though the prior seniority might still count towards vacation, pension payments, and other noncompetitive benefits.  A possible effect of such a system is described below as "locking in."

616.11  Locking In -

"Locking in" is a result of any seniority system using job craft, LOP, departmental, or plant seniority to determine all or some rights or benefits.  A job seniority system will have a greater locking in effect than a craft system, which in turn has a greater locking in effect than a LOP system, etc.  If an employee must give up seniority earned in a prior job, LOP, etc. in order to transfer, and/or must suffer a reduction in pay (even if temporary), the employee may be discouraged from transferring. Specifically, many seniority systems do not allow transfer of seniority from one seniority track to another.  (See § 616.10(b) and the example in § 616.9(a).)  An employee accumulates seniority in one seniority track based on length of service in his/her present job, craft, LOP, department, or plant (as in the example in § 616.10(a) involving LOPs).  When that employee obtains another job in another craft, LOP, department or plant, (s)he enters at the bottom of a new seniority track.  The employee loses all previously accumulated seniority and may even suffer a reduction in pay.  Should a layoff occur, the employee would have less seniority than if (s)he had stayed in the original job and might therefore be laid off.  Because of the frequent requirement that an individual transferring from one job, LOP, etc., to another must give up previously earned seniority, this loss of protection is often enough to discourage employees in one job, unit, etc., from transferring.  The discouragement is even stronger if the transferring employee must begin at the bottom of the new job's pay scale or at the bottom of the new LOP, regardless of his/her prior salary and/or position in the prior line.  The overall effect is to discourage transfers, even to better paying and otherwise more attractive jobs, LOPs, departments, or plants.  Upward mobility is effectively prevented or is limited to jobs within the same seniority track.  (See the first example in § 616.9(a), where this is described as an ancillary rule.)

Example 1 - Ace Trucking Company employs city drivers and long distance drivers.  City drivers start at a pay rate of $3.50 per hour, while long distance drivers start at $5.00 per hour.  There are no lines of progression for either of these departments, nor any jobs to advance to.  However, under Ace's collectively bargained seniority system, the longer an employee works as a city driver and is in that seniority track the more his/her pay will increase.  Similarly, the longer a line driver works the more his/her pay will be.  Thus, for example, a city driver will make $7.00 per hour after five years with Ace and a long distance driver will make $10.00.  Further, a city driver who transfers to the long distance department to become a long distance driver will lose all seniority accumulated as a city driver.  (S)he will in effect be treated like a new employee for pay purposes, receiving $5.00 an hour.  If the transferring city driver had worked for Ace for five years and had been receiving $7.00 per hour this would be a cut in pay, although it would increase his/her overall earnings opportunities.  Similarly, an employee who for some reason transfers from the better paying long distance driving to city driving will also lose all previously accumulated seniority.

Example 2 - In the example in § 616.10(a) involving lines of progression, the more advanced positions in the Sales Department generally pay better than the positions at a similar level in the Manufacturing Department: Inspector, the highest Manufacturing position, pays $6.00 an hour, whereas even a mid-level Sales II position can pay that much or more.  A woman employed as an Inspector in Manufacturing wishes to apply for a position in Sales.  However, as she is changing departments and therefore lines of progression, she would have to begin in Sales as a Clerk, with a Clerk's pay of $3.50 an hour.  She would also lose all the seniority she had accumulated while rising through the Manufacturing line of progression and would have to start at the bottom of the Sales seniority track.  The woman decides she cannot afford to transfer.

Example 3 - Acme Aviation Company has two aircraft assembly plants.  One plant is located in Detroit's inner city area and the other is in the suburbs.  According to its bargaining agreement with the United Plane Makers Union. Acme uses company-wide seniority for noncompetitive purposes and plant-wide seniority for competitive purposes.  The suburban plant is newer than the inner city plant.  It is a more pleasant place to work and has better paying jobs than the inner city plant.  An employee at the inner city plant can transfer to the suburban plant, but (s)he would lose all competitive seniority earned previously at the inner city plant.  If a layoff were to occur shortly after (s)he transferred, the employee would have very little seniority and would probably be one of the first to be laid off.  This tends to discourage such transfers.

616.12  Discriminatory Consequences of Locking In -

The locking in effect described above frequently has an adverse impact on minorities and women.  Members of these groups were often discriminated against in the past (perhaps prior to the effective date of Title VII), by only being hired into lesser paying or otherwise inferior jobs, LOPs, departments, or plants.  The initial discrimination could have been the result of disparate treatment or of policies and practices with adverse impact.  Similar concentrations may have occurred for other reasons, such as the type or level of education given minorities or women in a particular area or even residential patterns.  These employers subsequently accumulated seniority in the seniority tracks for these jobs, LOPs, departments, or plants.  Even as discrimination in hiring ceased and positions in the more attractive tracks came open those previously discriminated against were reluctant to transfer due to the loss of seniority and possibly pay, and their inability to catch up with coworkers who had not been discriminated against.  In the words of the Supreme Court;

While the disincentive applied to all workers, including whites, it was Negroes and Spanish-surnamed persons who...suffered the most because many of them had been denied the equal employment opportunity to...[obtain better positions] when they were initially hired, whereas whites either had not sought or were refused... [better] positions for reasons unrelated to their race or national origin.

International Brotherhood of Teamsters v. United States, 431 U.S. 324 at 344, 14 EPD ¶ 7,579 at p. 4856 (1977).

Locking in has created the same disincentives for women and members of other protected classes who have been the subject of discrimination.  The result is often perpetuation of the prior discrimination.  (See § 604, Theories of Discrimination, for further discussion of this theory.)

Example 1 - In the second example in § 616.11(b), the Sales Department has the best paying jobs with the greatest promotional potential.  The company originally hired only men for positions in the Sales Department, based on preferences of its customers.  (See § 618, Segregating, Limiting, and Classifying Employees, and § 625, BFOQ.)  After a charge of sex discrimination was filed against it, the company changed its policy to one of hiring only those applicants with college degrees in marketing; because few women in the area where the company is located had marketing degrees, this also resulted in the hiring of only men.  (See § 609, Underutilization, and § 610, Adverse Impact.)  After another charge was filed, the company finally changed its policy to one of hiring only those applicants with prior sales experience.  This opened the Sales Department to many women, including women already working in the company's other departments.  Many of these women had been working for the company long enough to have progressed to fairly high positions in the lines of progression in the other departments.  A female employee in another department could take advantage of the new, non-discriminatory policy and transfer to the Sales Department; she would receive a more attractive job with better earnings potential.  However, because of the company's departmental seniority system, this would mean that she would have to sacrifice all the seniority she had earned in her present department.  Further, because of the lines of progression that are part of the system, the woman would have to start as a Sales Clerk at a considerably lower salary than she had been earning in her present department.  While her promotion and salary potential would be much greater in Sales, the immediate effect on the woman would be a reduction in seniority and salary.  This serves to discourage transfers, thereby perpetuating the original discrimination that kept women out of Sales in the past.

Example 2 - In the third example in § 616.11(b), Acme Aviation's inner-city plant is predominantly Black while the suburban plant is predominantly White.  This was caused by Acme's past discriminatory assignment and hiring practices.  Acme stopped hiring and assigning employees on the basis of race a number of years ago, and now hires Blacks and Whites at both plants.  This has resulted in a very small increase in the number of Blacks working at the suburban plant mostly from new hires.  The plant-wide seniority systems, however, have discouraged employees at the inner city plant from transferring to the better paying suburban plant jobs, thereby perpetuating the prior discrimination.

616.13  Adverse Impact and Perpetuation of Past Discrimination -

In Griggs v. Duke Power Co., 401 U.S. 424, 3 EPD ¶ 8,137 (1971), the Supreme Court held that a neutral employment practice or procedure cannot be maintained if it has an adverse impact on a particular race, sex, or national origin group.  (See §§ 604.7 and 610 for discussion of adverse impact.)  Also in Griggs, the Court held that a neutral practice or procedure cannot be maintained if it operates to perpetuate the effects of prior discriminatory practices, even if the discrimination occurred prior to the effective date of Title VII.  (See § 604, Theories of Discrimination.)  A seniority system that has an adverse impact would appear to fall under this prohibition.  Similarly, a seniority system that perpetuates the effect of past discrimination would appear to fall under this prohibition.  Both situations, however, are treated differently because of § 703(h) of Title VII.

616.14  Effect of § 703(h) -

Section 703(h) of Title VII states that, regardless of the other provisions of Title VII:

...it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system... provided that such differences are not the result of an intention to discriminate....

(a)  Adverse Impact -

Actions taken pursuant to a bona fide seniority system that have an adverse impact on a particular race, sex, or national origin group will be protected by § 703(h).  This applies to systems created before Title VII took effect and to those first created or renegotiated after Title VII took effect. American Tobacco Co. v. Patterson; Teamsters v. U.S.

Example - Until 1978, respondent employer had very few Hispanic employees.  As a result of an affirmative action plan implemented in 1978, the employer hired a substantial number of Hispanics in 1978 and 1979.  In early 1980, the employer lost several government contracts and was forced to lay off a number of employees.  Respondent employer's seniority system was established in 1963 as a result of collective bargaining with respondent union.  The seniority system has always provided that layoffs would be made on the basis of seniority with those hired most recently laid off first.  Because of this provision, respondent employer laid off most of the Hispanic employees hired over the past two years while only laying off a few non-Hispanic employees. Application of the seniority system therefore had an adverse impact on the Hispanics.  This might normally indicate a violation of Title VII, unless the respondents could justify the order of layoff as a business necessity.  In this case, though, the respondents may not have to raise the business necessity defense.  Because the layoffs were done according to the rules of a seniority system, the respondents can raise § 703(h) of Title VII as a defense.  If the system is bona fide, there will be no violation of Title VII. (Sections 616.19 through 616.23 will provide instructions on how to determine if a system is bona fide; also, see § 616.26 for further discussion of layoff and recall.)

(b)  Perpetuation of Past Discrimination

(1)  While many charges involving seniority systems will contain allegations of adverse impact, a large number of seniority-related charges will allege perpetuation of past discrimination.  However, the Supreme Court has interpreted § 703(h) in Teamsters and Patterson as protecting a collectively bargained, bona fide seniority system, even if the seniority system perpetuates the effects of prior discrimination.  (Sections 616.19 through 616.23 will provide instructions on how to determine if a system is bona fide.)  A bona fide seniority system that perpetuates the effects of a discriminatory act or acts occurring before the effective date of Title VII cannot be challenged, and neither can the original discriminatory practice or procedure, since it occurred before Title VII went into effect.  A bona fide seniority system that perpetuates the effects of a discriminatory act or acts occurring after the effective date of Title VII also cannot be challenged.  California Brewers Association v. Bryant.  However, the original discriminatory practice or procedure can be challenged and processed as a regular discrimination charge if made the subject of a timely charge.  (See § 605.6 on timeliness.)  Once a finding of discrimination is made regarding the original practice or procedure, retroactive seniority may be appropriate relief for an individual charging party.  While the seniority system as a whole cannot be challenged an individual can be restored to his/her rightful place in the existing system by being given the amount of seniority (s)he would have had but for the discrimination. International Brotherhood of Teamsters v. United States; Franks v. Bowman Transportation Co., 424 U.S. 747, 11 EPD ¶ 10,777 (1976).

Example - Speedy Transportation Company (R) has had the same collectively bargained seniority system since 1961.  The system has three rosters:  one company-wide roster for noncompetitive purposes, one competitive roster for over-the-road (OTR) drivers, and another competitive roster for local drivers.  An employee transferring from one department to another loses his/her competitive seniority in his/her original department and begins at the bottom of the roster in the new department.  From 1965 to 1973, R refused to hire Blacks into the OTR department.  Outside Black applicants were either rejected outright or were hired for the less attractive, lesser paying jobs in the local driver department.  Blacks already employed by Speedy as local drivers who were willing to sacrifice their local driver seniority and had applied for OTR jobs were turned down.  R ended its discriminatory hiring and assignment practices in 1973.  Four months later, a charge of discrimination was filed by Blacks who had applied for OTR jobs during the period of discrimination, including outside applicants and employees seeking transfers.  The charging parties (CPs) alleged that R had engaged in discriminatory hiring and transfer practices and that this discrimination was perpetuated by the seniority system.  CPs wanted to be hired or reassigned as OTR drivers with full backpay to the dates of their original applications. Further, they wanted the use of departmental seniority for competitive purposes scrapped in favor of a system using company seniority for competitive purposes, with each newly hired CP given retroactive seniority to the date of his/her application and each local driver CP given retroactive seniority to when (s)he was originally hired.  While R has admitted to the discriminatory hiring and assignment practices, it claims that its seniority system, using departmental seniority for competitive purposes, is bona fide and therefore protected from challenge by § 703(h).  The Commission's investigation (see § 616.19) reveals that the system is in fact bona fide; R therefore cannot be required to modify or eliminate it.  However, each CP who had been discriminated against and who had filed a timely charge (see § 605.6) should be hired with backpay and retroactive departmental seniority within the existing system.  If a CP had applied for an OTR job, been rejected for discriminatory reasons and filed a timely charge, then the appropriate relief would be for R to hire him/her as an OTR driver with backpay and retroactive OTR seniority to the date of the application.

(2)  The perpetuation of past discrimination theory is not universally recognized as a basis for relief particularly after the Supreme Court's decision in United Airlines, Inc. v. Evans, 431 U.S. 553, 14 EPD ¶ 7,577 (1977).  It is the Commission's position that Evans does not affect the perpetuation theory.  See § 604.8 of the Theories section of the Compliance Manual Commission Decision No. 81-3, CCH Employment Practices Guide ¶ 6,761.

The Court issued Evans on the same day as Teamsters.  In Teamsters, the Court upheld the validity of the perpetuation theory.  Quoting from Griggs v. Duke Power Co., 404 U.S. 424, 3 EPD ¶ 8,137 (1971), the Court repeated that Congress intended Title VII to prohibit not only overt discrimination but also practices that are fair in form but discriminatory in operation.  The latter includes practices that perpetuate the effects of prior discrimination.  431 U.S. at 349, 14 EPD at p. 4858.  The perpetuation theory would even apply in the seniority context, if the system could be shown not to be bona fide.  431 U.S. at 349, 14 EPD at p. 4859.

Evans, on the other hand, primarily involved an allegation of a continuing violation.  The Court stated that;

United's seniority system does indeed have a continuing impact on [Evan's] pay and fringe benefits.  But the emphasis should not be placed on mere continuity; the critical question is whether any present violation exists.  She has not alleged that the system discriminates against former female employees or that it treats former employees who were discharged for a discriminatory reason any differently than former employees who resigned or were discharged for a non-discriminatory reason.  In short, the system is neutral in operation.

431 U.S. at 558, 14 EPD at p. 4841 [footnote omitted ].

The Court went on to find that no present violation existed, that the prior discriminatory discharge was a past event with no legal significance.  However, the Court did not foreclose an attempt by a similarly situated plaintiff to raise a claim under the perpetuation theory.  Rather, as suggested by fn. 10, Evans' error was in not attacking the seniority system itself. She made no charge that the system deterred her from asserting any right granted by Title VII; e.g., transfer, promotion, or retirement.  She made no charge that the system was not bona fide, that it was intentionally designed to discriminate.  Because she in effect accepted the system as bona fide, any claim she might have made that it perpetuated a prior discriminatory act would be barred by § 703(h).  If she had challenged the seniority system as not being bona fide and had been able to prove it, then her claim would have been timely under the perpetuation theory.

The distinction between a continuing violation claim and a perpetuation claim cannot be emphasized too strongly. For a continuing violation to exist, there must be a present violation.  The Court found that Evans had failed to show the existence of a present violation; the prior discriminatory discharge was a past event with no legal significance that simply affected the calculation of her seniority credit under a concededly neutral, bona fide system -- a system Evans was not arguing should be changed.  However, under the perpetuation theory the challenge is to the seniority system itself; because it is not bona fide and because it perpetuates prior discrimination, the system is itself a present violation of Title VII and must be changed.  Patterson v, American Tobacco Co., 634 F.2d 744 at 751, 24 EPD ¶ 31,361 at p. 18. 181 (4th Cir. 1980), vacated and remanded on other grounds, 456 U.S. 63, 28 EPD ¶ 32,561 (1982), remanded, ____ F.2d ____, 30 EPD ¶ 33,033 (4th Cir. 1982).

Because of this, the seniority system can be a present violation even if the system no longer has an adverse impact and even if minorities or women have worked their way into the job, LOP, etc., despite the seniority system.  The focus of Title VII is on individual rights and opportunities, Connecticut v. Teal, 457 U.S. 440, 29 EPD ¶ 32,820 (1982).  If an individual was discriminatorily assigned to a job, LOP, etc., in the past and is locked in by a non-bona fide seniority system, that individual is entitled to relief.

Example 1 - CP, a Black male, alleges that R's policy of prohibiting transfers between Department A and Department B perpetuates past discrimination.  R argues that the no transfer rule is part of R's seniority system (but see § 619.9 on ancillary rules).  Before 1965, R only hired Blacks into Department A and only hired Whites into Department B.  Since 1965, R has hired a number of Blacks into Department B from outside the company, enough so that the percentage of Blacks in Department B is equivalent to the percentage of Blacks in the Civilian Labor Force.  However, those Blacks hired into Department A before 1965 continue to be locked out of Department B by the seniority system -- they would have to quit in order to be able to apply for jobs in Department B.  If R's seniority system is not bona fide, then it will be a violation of Title VII because it perpetuates the pre-1965 discrimination.

Example 2 - In the above example, the result would be the same even if CP was the only pre-1965 Black employee remaining in Department A.  The remainder of the Black employees in Department A and Department B were all hired after 1965.  Even if the seniority system no longer has an adverse impact on Blacks -- if an equal number of Whites and Blacks in Department A are discouraged from transferring to Department B -- it will still be discriminatory as to CP under the perpetuation theory, if the system is otherwise not bona fide.

All of the court decisions cited throughout this Manual Section are post-Evans and post-Teamsters.  Where the challenged seniority systems were found to not be bona fide, the courts have found them to violate Title VII and have ordered them changed under the perpetuation theory, in addition to providing individual relief.

(c)  Disparate Treatment -

The only time § 703(h) will not apply to an otherwise bona fide system is when the actions taken under the system involve disparate treatment; e.g., the rules of the system are applied to Blacks but exceptions are made in favor of Whites.  Scarlett v. Seaboard Coast Line R. R., 676 F.2d 1043, 29 EPD ¶ 32,717 (5th Cir. 1982); Commission Decision No. 72-0510, CCH EEOC Decisions (1973) ¶ 6305.

616.15  Seniority Systems Imposed Unilaterally by an Employer -

The Teamsters case involved a collectively bargained seniority system. It is not clear whether the Supreme Court's decision in that case also applies to seniority systems imposed unilaterally by an employer, that is, when there is no signed agreement with a labor union or other employee representative.  Such systems may not fall within the protection of § 703(h) and may be subject to challenge as perpetuating the effects of pre- or post-Act discrimination. According to the Supreme Court in Teamsters, the major reason for the inclusion of § 703(h) in Title VII was Congress' desire to resolve an ambiguity regarding "...Title VII's impact on existing collectively bargained seniority rights..." (emphasis added).  431 U.S. 324 at 352, 14 EPD ¶ 7,579 at p. 4859.  According to the Supreme Court, "[s]eniority arises only out of contract or statute.  An employee has 'no inherent right to seniority in service...' (citations omitted)."  Trailmobile Co. v. Whirls, 331 U.S. 40, 53 fn.21 (1947).  "Barring legislation... seniority rights derive their scope and significance from union contracts, confined as they almost exclusively are to unionized industry."  Aeronautical Dist. Lodge 727 v. Campbell, 337 U.S. 521, 527 (1949); cited with approval in California Brewers Association v. Bryant.  In other words, seniority rights are collectively bargained and are therefore enforceable under state contract law or the National Labor Relations Act.  They are more than simple employee expectations based on privileges or benefits granted by an employer.  A unilaterally imposed seniority system may not create enforceable expectations, what the employer gives, the employer may just as easily be able to take away.  (A charge involving this kind of system is non-CDP, see §§ 616.18(a)(2) and (b)(2).)

616.16  Merit Systems -

Section 703(h) also protects bona fide merit systems from challenge under Title VII.  In most cases, a merit system is simply one or more tests or other selection procedures used by an employer in evaluating employees for promotion, pay increases, awards, etc.  Unlike a seniority system, a merit system can be imposed unilaterally by an employer and still be protected by § 703(h).

When a respondent claims that § 703(h) protects its merit system from a charge of discrimination, the EOS should determine if the challenged selection procedure or procedures are bona fide. Bona fide in this context simply means job-related.   Guardian's Association of the N.Y.C. Police Department v. Civil Service Commission of the City of New York, 633 F.2d 232, 23 EPD ¶ 31,153 (2nd Cir. 1980), rev'd in part, aff'd in part on other issues, 463 U.S. 582, 32 FEP Cases 250 (1983); Dickerson v. U.S. Steel Corp., 472 F. Supp. 1304, 17 EPD ¶ 8,528 (E.D. Pa. 1977).  (See § 610 on adverse impact for instructions on how to determine if a selection procedure is job-related.)

616.17  CDP -

The following situations are CDP and can be resolved without contacting the Guidance Division of the Office Legal Counsel.

(a)  Adverse Impact

(1)  Merit System - When a charge alleges that all or part of a merit system has an adverse impact, the charge may be CDP and should be processed under § 604.8 of the Theories Section of this Manual and § 610, Adverse Impact in the Selection Process.  This is true regardless of whether the system was created pre- or post-Act.

Example 1 - Respondent employer and respondent union have agreed that all promotion will be based on a merit system consisting of a written exam and performance ratings for the past two years. CP alleges that Native Americans as a class do not score well on the exam, i.e., that the exam has an adverse impact on Native Americans.  The exam and the performance ratings together are a total selection process as described in § 610 of Volume II of the Compliance Manual, dealing with employee selection procedures.  The EOS should follow the instructions in §§ 604.8 and 610 to determine if this selection process as a whole has an adverse impact on Native Americans, i.e., if Native Americans are promoted at the same rate as other race/ ethnic groups.  If there is adverse impact, the EOS should determine whether each of the two component selection procedures has adverse impact.  If either the test and/or the use of performance ratings has adverse impact, then the EOS should investigate whether that procedure is job-related and recommend a cause or no cause determination.  Section 610 provides more detailed discussion of how to investigate and resolve a charge involving an allegation of adverse impact and explains which types of charges are CDP.

Example 2 - The charge in the above example would be handled the same if the employer unilaterally imposed the merit system, without the agreement of the union or if there was no union at all.

(2)  Seniority System - When a charge alleges that all or part of a seniority system has an adverse impact, the EOS should generally follow the instructions in § 616.19.  (See § 616.14(a) for an example of a seniority system with adverse impact.)  If the system is bona fide it is protected by § 703(h) and the EOS should recommend a no cause LOD, regardless of any adverse impact it might have.  If the system has an adverse impact and is not bona fide, then it is not protected by § 703(h) and the EOS should recommend a cause LOD unless the charge is non-CDP for one of the reasons explained in § 610.  An exception to this may arise, however, when a charge alleges that a layoff has an adverse impact.  (See § 616.26 for more on layoffs.)

(b)  Perpetuation of Past Discrimination

(1)  Pre-Act Discrimination, System Is Bona Fide - When the discriminatory act occurred prior to July 2, 1965 (the effective date of Title VII), and was perpetuated by a seniority system, the issue is CDP if the EOS determines that the seniority system is bona fide as explained in §§ 616.19 through 616.23.  Commission Decision No. 81-3, CCH Employment Practice Guide ¶ 6,761. These situations are covered by the Supreme Court decisions in Teamsters v. U. S. and American Tobacco Co. v. Patterson and the seniority systems are protected by § 703(h).  The EOS should recommend a no cause LOD.  An exception may arise, however, when a charge alleges that a layoff perpetuates past discrimination.  (See § 616.26 for more on layoffs.)

Example 1 - From 1956 through 1964, Company R had a high school diploma requirement that resulted in hiring only Whites for the better paying bookkeeping positions and Blacks for the less desirable clerical positions.  Realizing that the diploma requirement was not valid, i.e., not necessary for the successful performance of bookkeeping duties, R eliminated the requirement in 1965 and began hiring Blacks and Whites for both jobs, thereby ending its discrimination.  CP, a Black clerk hired in 1961, filed a charge in 1981.  The pre-1965 discrimination in hiring and assignment cannot be challenged as it occurred before Title VII was in effect.  However, the charge alleges that the pre-Act discrimination has been perpetuated by R's seniority system.  R has a two-track seniority system, created by a collective bargaining agreement in 1965.  The system has one track for clericals and another for bookkeepers.  An employee transferring from one job category to the other would lose all seniority earned in the previous job category.  Further, all those employees hired before 1965 have a competitive advantage over those hired in 1965 or after because of the seniority they have already accumulated in their respective tracks.  This would perpetuate the pre-Act discrimination against Blacks.  If the system is in fact bona fide (see § 616.19 below), it would be protected by § 703(h).  Seniority by job category would continue and those hired prior to 1965 would keep their seniority.

Example 2 - Company L began business in 1966.  It had no seniority system until 1969, when Union C organized all of the company's nonsupervisory and other nonmanagement employees.  From 1966 to 1969, the company only hired Whites as mechanics; both Blacks and Whites were hired as janitors.  From 1970 on, the company hired both Whites and Blacks as mechanics.  In 1969, as part of the collective bargaining agreement, a seniority system was set up with one roster for mechanics and another for janitors.  An employee who transferred from one job to another would lose all seniority earned on the previous roster, thereby locking in all Blacks previously hired as janitors and discouraging them from transferring to jobs as mechanics.  A charge filed in 1972 by Black janitors hired before 1969, alleging that the seniority system perpetuated the post-Act discrimination, would be CDP.  If the system is bona fide (see § 616.19), it would be protected by § 703(h) even though it perpetuated the pre-1970 discrimination.

(2)  Pre-Act Discrimination, System Not Bona Fide - When the discriminatory act occurred before the effective date of Title VII and was perpetuated by a seniority system, the issue is CDP if the EOS determines that the seniority system is not bona fide as explained in §§ 616.19 through 616.23.  Such systems are not protected by § 703(h) and the EOS should recommend a cause LOD.

Example 1 - In each example in § 616.17(b)(1) above, if the system is not bona fide, e.g., in Example 1, if it had been intentionally designed to exclude Blacks from bookkeeping jobs, then the system would not be protected by § 703(h).  Modification of the entire seniority system and relief retroactive to the effective date of Title VII (Example 1) or when the discrimination began if after that date (Example 2) may be appropriate.  (See § 616.14.)

Example 2 - Company N began business in 1961.  Its employees immediately joined Union C, and the company and union signed a collective bargaining agreement on the company's second day of business.  The agreement provided for the same seniority system as that in the above example.  From 1961 to 1969 the company only hired Whites as mechanics, while both Whites and Blacks were hired as janitors; the company stopped this discrimination in 1969.  The seniority system had the same locking in effect as in the above examples.  The collective bargaining agreement expired in 1971.  The Black janitors informed both the company and the union of the effect that the seniority system was having, and asked that the system be modified in the new agreement. Despite this, and with full knowledge of why most of the mechanics were Whites, the company and union simply continued the prior system.  Black janitors hired between 1961 and 1969 filed a charge in 1971, alleging that the renegotiated seniority system perpetuated the pre- and post-Act discrimination.  The charge is CDP.  The EOS determined that the system was bona fide when first created (before 1965) and up to the time it was renegotiated.  However, in large part because of the Black janitors' protest in 1971, the EOS determined that the system was not maintained free of intentional discrimination (see § 616.23) and made a cause determination.  Note that relief would be appropriate only back to the date of the renegotiated agreement (unless the original system was also not bona fide, in which case relief may be appropriate as far back as the effective date of the Act).

(3)  Post-Act Discrimination, System Is Bona Fide - When the discriminatory act occurred on or after July 2, 1965 (post-Act discrimination) and was perpetuated by a seniority system, the issue is CDP if the EOS determines that the seniority system is bona fide as explained in §§ 616.19 through 616.23.  Such systems are protected by § 703(h), as interpreted by the Supreme Court in Teamsters, California Brewers Ass'n, and Patterson.  The EOS should recommend a no cause LOD.  An exception may arise, however, when a charge alleges that a layoff perpetuates past discrimination.  (See § 616.26 for more on layoffs.)

Example - Consider the same situation as in Example 1 in § 616.17(b)(1) above, except that the diploma requirement was not eliminated and the discrimination did not end until 1980.  An individual could not, in 1981, challenge the bona fide seniority system as perpetuating the effects of the post-Act discrimination.  However, the diploma requirement itself could have been challenged if made the subject of a timely charge, i.e., if the charge had been filed within 180 or 300 days after the discrimination ended.  Retroactive seniority could be awarded.

(4)  Post-Act Discrimination, System Not Bona Fide - When the discriminatory act occurred on or after the effective date of the act and was perpetuated by a seniority system, the issue is CDP if the EOS determines that the seniority system is not bona fide as explained in §§ 616.19 through 616.23.  Such systems are not protected by § 703(h) and the EOS should recommend a cause LOD.

Example - Consider the same situation in the example in § 616.17(b)(3) above, except that the system was not bona fide, e.g., the system was intentionally designed to exclude Blacks from bookkeeping jobs.  This system would not be protected by § 703(h).

(5)  Pre- or Post-Act Discrimination, Employment System Other Than Seniority System - When the discriminatory act occurred before or after the effective date of Title VII and was perpetuated by an employment system, policy, practice, or procedure other than a seniority system, the issue is CDP.  This includes merit systems as described in § 616.16, as well as the following type of situation.

Example - Company R has no seniority system. Prior to 1965, the company only hired men as plumbers.  After 1965, the company stopped this discrimination, instituted an apprenticeship program in plumbing, and would only offer plumbing positions to those who successfully completed its program.  This is a neutral policy. CP, a woman, applied for a plumbing job in 1964 and was turned down because of the discriminatory policy.  She accepted a job as a janitor instead but continues to be interested in a plumbing position.  She has not been able to obtain a plumbing position because of the neutral apprenticeship policy.  By continuing to keep CP out while men hired prior to 1965 who did not participate in the apprenticeship program remained in, the neutral policy has perpetuated the pre-Act discrimination.  CP may be able to prove a post-Act violation based on perpetuation. (See the discussion of timeliness in § 605, Jurisdiction.)  (Note: the neutral policy may also have an adverse impact on women, see §§ 610 and 616.17(a)(1).)

(i)  Further discussion can be found at § 604.8 of the Theories Section of this Manual.

(ii) If there is any question as to whether the challenged system, policy, etc., is part of a seniority system (see discussion of ancillary rules, § 616.9 above), the EOS should consult an attorney in the district office's legal division or in the Guidance Division of the Office of Legal Counsel.

(c)  Voluntary or Court-Ordered Seniority Modification or Override - Charges where the employer and union have voluntarily adopted a seniority override as one type of affirmative action are CDP.  This will occur when the employer and the union agree to bypass a bona fide seniority system or some of its provisions in certain situations such as layoff or recall.  Similarly, a court may order that a bona fide seniority system be bypassed in order to preserve the gains achieved under an earlier consent decree that did not involve the seniority system but that included an affirmative action plan for hiring, promotion, and the like. Bypassing seniority may affect the seniority expectations of those not benefitted by the bypass.  (See § 616.27 for further guidance.)

616.18  Non-CDP -

The following situations are non-CDP.  The EOS should contact the Guidance Division of the Office of Legal Counsel for guidance in how to investigate the charge.

(a)  Adverse Impact

(1)  Lines of Progression Not Part of Seniority System - When advancement within a LOP is based not on length of service in the line but on some broader measure such as plant seniority, then the respondent's LOPs may not be part of the seniority system. (See § 616.10(a).)  If the use of LOPs is nevertheless alleged to have an adverse impact, the protection of § 703(h) may not apply. Such charges are non-CDP.

Example - The Sales Department at Company C generally offers the highest paying jobs and the greatest opportunities for advancement.  There are very few women in the Sales Department, while most of the employees in the Clerical Department and other departments are women.  Transfers between departments are competitive and are based on company-wide seniority.  However, a person transferring from one department to another must begin at the bottom of the LOP in the new department, e.g., a woman in a position high up the clerical LOP who transfers to Sales would have to start at the bottom of the Sales LOP.  This will often result in a drop in pay.  Advancement within each LOP is also based on company-wide seniority, so a new Sales employee with a lot of seniority from the Clerical Department may well be able to move up the Sales LOP fairly quickly.  Nevertheless, the short term reduction in pay, even if only temporary, discourages women in the Clerical Department and other departments from transferring to Sales.  The use of LOPs, even though coupled with company-wide seniority, has an adverse impact on women.  The use of LOPs in this way may affect whether or not they are to be considered part of Company C's seniority system and protected by § 703(h).  This issue is non-CDP.

(2)  Layoff vs. Worksharing - As will be explained in § 616.26(b), a charge involving an employer's decision to reduce the number of work hours through a layoff may be non-CDP.  While a layoff that has an adverse impact might be protected by § 703(h) once it takes place, the decision to have a layoff might not be, even if the seniority system is bona fide.  The challenge will not be to the employer's decision to reduce the number of work hours, but to its decision to do so through a layoff rather than through worksharing or some other alternative.  When a layoff is planned or takes place and the bargaining agreement simply says that layoffs are to be made in order of reverse seniority, the issue is non-CDP. The issue is also non-CDP if the bargaining agreement also sets out the number of hours in a "normal work week" but without an explicit guarantee that employees will in fact work that much.

(3)  Unilaterally Imposed Seniority System - When the respondent employer's seniority system was created and imposed unilaterally by the employer, without agreement by a union or other employee representative, the charge is non-CDP.  This can occur when there is no union representing the employer's workers or, infrequently, when there is a union or other employee representative but the seniority system was created without the union's agreement and perhaps even over its objection.  It is not clear whether § 703(h) applies only to collectively bargained seniority systems or to other types of systems as well.  (See § 616.15.)

(b)  Perpetuation of Past Discrimination

(1)  Lines of Progression Not Part of Seniority System - When advancement within a LOP is based not on length of service in the line but on some broader measure such as plant seniority, the respondent's LOPs may not be part of the seniority system.  (See § 616.10(a).)  If the use of LOPs is nevertheless alleged to perpetuate prior discrimination, the protection of § 703(h) may not apply.  Such charges are non-CDP.

Example - In the example in § 616.18(a)(1), the reason that there are few women in the Sales Department is because, prior to 1965, Company C hired women only for jobs in the Clerical and other departments.  The use of LOPs, even though coupled with company-wide seniority, has perpetuated this prior discrimination.  This arrangement may affect whether or not the LOPS are to be considered part of Company C's seniority system and protected by § 703(h).  The issue is non-CDP.

(2)  Layoff vs. Worksharing - As with an employer's decision to reduce the number of work hours through a layoff that has an adverse impact, an employer's decision to have a layoff that perpetuates prior discrimination may be non-CDP.  (See § 616.18(a)(2) for further discussion.)

(3)  Unilaterally Imposed Seniority System - When the seniority system was implemented unilaterally by an employer, without agreement by a union or other employee representative, the issue is non-CDP.  It is not clear whether § 703(h) applies only to collectively bargained seniority systems or to other types of systems as well.  (See § 616.15.)

616.19  Investigation of Charges: Determining Whether Seniority System Is Bona Fide

(a)  When Determination Must Be Made -

In all of the CDP cases involving seniority systems (except those involving voluntary seniority overrides; see § 616.27), a determination will have to be made by the district office as to whether the seniority system is bona fide.  Most seniority systems will be presumed to be bona fide unless the District Director decides an investigation is necessary, Exhibit 12-A and § 16.2 of Volume I of the Compliance Manual may provide some guidance in this regard.  If the system is presumed to be bona fide, then it is protected by § 703(h) regardless of whether it has adverse impact or perpetuates any pre- or post-Act past discrimination.  A no cause determination can therefore usually be made without any further investigation, except perhaps as to the possibility of disparate treatment in the application of the system (see § 616.14(c)).  However, if the District Director decides that there is reason to suspect that the seniority system is not bona fide then the EOS should first determine if the system has adverse impact or if there was past discrimination that the system has perpetuated.  If the seniority system does not have adverse impact or does not perpetuate past discrimination, then there is no need to proceed with the more complicated investigation of whether the system is bona fide.

Sections 604.7 and 610 explain how to determine if an employment practice such as a seniority system has adverse impact. Section 604.8 discusses perpetuation of past discrimination.  The respondent may admit to any such past discrimination, particularly if it occurred pre-Act.  If not, the EOS should determine whether any charges had been filed against the respondent with a state 706 agency or the Commission regarding the alleged prior discrimination and whether a cause LOD had been issued.  The EOS should also ask the respondent if there have been any court cases regarding the alleged prior discrimination; this information can also be obtained by looking up respondent's name in the court case indexes to the CCH Employment Practices Guide or BNA's Fair Employment Practice Cases and reading any cases listed there.  The Office of Federal Contract Compliance Programs of the Department of Labor may also be able to provide information about past discrimination.  (See Exhibit 607-E of § 607 for the addresses of the regional offices.)  If respondent does not admit to the prior discrimination and there are no Commission, state 706 agency, Department of Labor, or judicial findings that it existed, the EOS should investigate the alleged prior discrimination under the appropriate sections of this Manual.  The EOS should then determine whether the seniority system perpetuated the prior discrimination, as explained above.

(b)  Factors Relevant to Determination

(1)  Intentional Discrimination - Section 703(h) requires that the seniority system must be bona fide for it to be protected from challenge under Title VII.  In order for a system to be bona fide, any differences in treatment must not be the result of an intention to discriminate because of membership in a protected class.  James v. Stockham Valves & Fittings Co., 559 F.2d 310, 15 EPD ¶ 7842 (5th Cir. 1977), cert. denied, 434 U.S. 1034 (1978).  The James court derived four interrelated factors from Teamsters v. U.S. to be considered in making these determinations.  (Also see Taylor v. Mueller Company, 660 F.2d 1116, 27 EPD ¶ 32,161 (6th Cir. 1981); Sears v. Atchison, Topeka & Santa Fe Railway, 645 F.2d 1365, 25 EPD ¶ 31,621 (10th Cir. 1981), cert. denied, 456 U.S. 964, 29 EPD ¶ 32,672 (1982); Younger v. Glamorgan Pipe & Foundry Co., 21 EPD ¶ 30,406 (W.D. Va. 1979), aff'd per curiam, 621 F.2d 96, 23 EPD ¶ 30,908 (4th Cir. 1980); Wattleton v. Ladish Co., 520 F. Supp. 1329,  29 EPD 32,727 (D. Wis. 1981) aff'd sub nom Wattleton v. International Brotherhood of Boilermakers, Local No. 1509, 686 F.2d 586, 29 EPD ¶ 32,996 (9th Cir. 1982), cert. denied, 459 U.S. 1208 (1983); Commission Decision No. 81-3, CCH Employment Practices Guide ¶ 6761; cf. Pullman-Standard v. Swint, 456 U.S. 273 fn. 8, 28 EPD ¶ 32,619 (1982).)

(i)  Equal Operation - The seniority system must operate to discourage all employees equally from transferring between seniority units, i.e., the system must be facially neutral.

(ii) Same or Separate Bargaining Units - The seniority system must be investigated as to whether the seniority units or tracks are in the same or separate bargaining units and the reasons therefor.

(iii) Genesis - The seniority system cannot have its genesis in prohibited discrimination.

(iv) Negotiation and Maintenance - The seniority system, if negotiated, must have been negotiated and maintained free from any illegal purpose.

(2)  Types of Evidence - The investigation should focus on all of these interrelated factors.  One type of evidence that differences in treatment under a seniority system are the result of an intention to discriminate is evidence showing that the system itself was actively used as a tool for discrimination, rather than simply being a "neutral" policy that passively and coincidentally perpetuated prior discrimination; e.g., evidence that a seniority system that originally allowed retention of seniority on transfer was changed to deny it, in order to discourage transfers so as to create or maintain racially, sexually, or ethnically segregated unions, bargaining units, departments, etc, Another type of evidence is anything that would show that the hiring and assignment practices, collective bargaining structure, and/or organizational structure underlying the seniority system were manipulated in a discriminatory manner, with the employer and/or union knowing or perhaps even relying on the seniority system to then "passively" maintain and further that discrimination; e.g., evidence of the deliberate creation of one-race departments, knowing that the neutral seniority system would preserve that segregation.  Sections 616.20 through 616.23 will discuss the above four factors and give more specific examples of the types of evidence that can indicate intentional discrimination.

An investigation as to whether a seniority system is bona fide can be quite complex and will often involve interpretation of a variety of legal issues.  The EOS should therefore work closely with the district office's legal division.

(3)  Totality of Circumstances - After investigation the EOS should consider the evidence on all four factors.  If the totality of the circumstances indicates that the system was not developed in a neutral fashion but rather as a means of discriminating or of perpetuating prior discrimination, then the EOS should conclude that the system is not bona fide, James v. Stockham Valves, 559 F.2d at 352, 15 EPD at p. 6194; cf. Pullman-Standard v. Swint.  Even if only one of the factors isn't satisfied, if the circumstances surrounding that factor clearly show intent to discriminate then the system is not bona fide.  Wattleton v. Ladish Co., supra; Sears v. Atchison, Topeka & Santa Fe Railway, 454 F. Supp. 158, 17 EPD ¶ 8,413 (D. Kan. 1978); Chrapliwy v, Uniroyal Inc., 458 F. Supp. 252, 15 EPD ¶ 7,708 (N.D. Ind. 1977), reconsid. denied, 15 EPD ¶ 7,933 (N.D. Ind. 1977).

(c)  When System Is Not Bona Fide -

When the investigation reveals that the seniority system has adverse impact and is not bona fide, the EOS should handle the charge under §§ 604.7 and 610. When the investigation reveals that the seniority system perpetuates prior discrimination and is not bona fide, the EOS should handle the charge under § 604.8.

616.20  Equal Operation -

For a seniority system to be bona fide, it must not be the result of an intention to discriminate.  The first factor the EOS should consider in this regard is equal operation; for a system to be bona fide, all employees must be equally discouraged from transferring between seniority tracks.

(a)  Unequal Operation Due to Relative Job Desirability -

The above statement does not mean that the desirability of the jobs covered by each of the seniority tracks cannot be taken into account.  Desirability includes both pay and working conditions. James v. Stockham Valves.  If the lower paying, less desirable jobs are held entirely or primarily by Blacks, for instance, while the better paying, more attractive jobs are held entirely or primarily by Whites, then Whites are less likely to want to transfer to the less desirable jobs.  The result is that the "locking in" effect has a greater impact on Blacks, with Blacks discouraged more than Whites from transferring between seniority tracks.  In such a case, the system would not be considered as equally discouraging all employees.  Sears v. Atchison, Topeka & Santa Fe Railway, 645 F.2d. 1365, 25 EPD ¶ 31,621 (10th Cir. 1981), cert, denied, 456 U.S. 964 (1982); Miller v. Continental Can Co., 544 F. Supp. 211, 25 EPD ¶ 31,543 (S.D. Ga. 1981); Myers v. Gilman Paper Co., 527 F, Supp. 647, 25 EPD ¶ 31,692 (D.C. Ga. 1981); Russell v. American Tobacco Co., ____ F. Supp. ____, 26 EPD ¶ 32,006 (M.D. Ga. 1981); but see Taylor v. Mueller Company, 660 F.2d 1116, 27 EPD ¶ 32,161 (6th Cir. 1981).  The EOS should therefore determine if all or most of a respondent's employees in the charging party's group (e.g., Black) are in less desirable jobs, with none or few of the majority group (e.g., White) in these jobs, while the more desirable jobs are held predominantly by employees of the majority group.  The relative desirability of the jobs can be determined by comparing such things as job descriptions, pay rates, opportunities for advancement, hours of work, availability of overtime, on-site observations, and by interviewing employees in the various jobs.

In Teamsters v. U.S., the employer had long distance "line drivers" and short haul "city drivers."  Line drivers were paid more than city drivers.  Under the collectively bargained seniority system, any employee transferring from city to line driving or line to city driving would lose his/her seniority in the prior track.  Most of the line drivers were White, while Blacks were only city drivers; however, many Whites were also city drivers.  Because both Black and an even larger number of White city drivers were equally discouraged from transferring to the more attractive line driver positions, the Supreme Court held that the system operated equally.

In Miller v. Continental Can Co., Blacks were originally hired for certain relatively low paying positions in the Woodyard Department, whereas Whites were hired for more desirable jobs in other departments throughout the plant.  In fact, Blacks in the highest paying Woodyard positions would earn less than Whites in most of the relatively junior positions in the other departments.  Any worker would have to sacrifice all or most of his/her seniority in order to transfer to another department and would have to begin at the bottom of the line of progression in that department.  Because all (or most) of the White workers were already in more desirable jobs or in lines of progression that would quickly lead to them, they had little desire to transfer. Blacks, however, had good reason to transfer, in order to obtain better jobs with increased opportunities for advancement.  When the discrimination in hiring and assignment ended and Blacks were finally allowed to transfer though, the loss of seniority and reduction in pay involved (the latter even though temporary) discouraged them from doing so.  The seniority system's locking in effect, then, was more likely to serve as a disincentive to Blacks. The system was held to not operate equally.  This was also true in Sears v. Atchison, Topeka & Santa Fe, 645 F.2d at 1373, 25 EPD at p. 19,607.

In Taylor v. Mueller Co., the seniority system was changed in 1965 to allow use of plant seniority for some competitive purposes while retaining departmental seniority for other competitive purposes.  This reduced the disincentive to transfer somewhat and a large number of Blacks in fact transferred into the formerly all-White department.  The court held that the modified system had accounted for the significant integration of the department and that this was evidence that the system was bona fide.  However, in other situations the fact that a large number of minorities or women actually transferred may not mean that the system applied to all groups equally.  On the one hand, as in Taylor, if a large number of Blacks have actually transferred it could be an indication that Blacks have not been locked in or at least have not perceived themselves as being locked in.  On the other hand, it could also mean that the desirability of the White jobs was so much higher relative to that of the Black jobs that Blacks were willing to sacrifice seniority and/or pay in order to improve their lot.  Similarly, if a small number of Blacks have actually transferred it could be an indication of the existence of obstacles locking them in to their present jobs, or it could mean that their present jobs are not less desirable than the White jobs. This also holds true for Whites and White jobs.  The EOS will be able to determine which of these possibilities applies by comparing the actual numbers of White versus Black transfers and by comparing the relative desirability of the jobs.

Example 1 - Respondent Railway Company employs porters and brakemen.  Brakemen make more money and can retire sooner than porters.  Prior to 1965, R only hired Whites as brakemen and Blacks as porters.  There is one seniority roster for brakemen and another for porters.  Until 1965, no transfers between jobs were allowed.  Afterwards, an employee transferring from one job to another would lose his/her seniority on the prior roster. Very few Black porters have transferred to brakemen jobs.  Interviews with porters reveal that the porters feared that they would be more likely to be laid off if they lost their seniority by transferring.  No White brakemen have transferred because, in the words of one brakeman, "Why transfer to such a crummy job?"

This would be strong evidence of locking in, and would indicate that the seniority system did not operate equally.

Example 2 - Consider the same employment situation as in the above example except that, in 1969, R eliminated half of its passenger service. Because porters only work on passenger trains, a large number of them were to be laid off.  In anticipation of this, a large number of Black porters did transfer to brakemen positions in 1968 and 1969, taking a cut in pay and a loss of seniority.  Again, no White brakemen transferred. In this case, the desirability of the brakemen jobs was so much greater than that of the soon-to-be reduced porter jobs that Blacks transferred despite the locking in effects of the system.  The correct conclusion in this case is also that the system did not operate equally.

(b)  Exceptions: Disparate Treatment -

If the respondent's seniority system does equally discourage all employees from transferring, the EOS should determine if the respondent has ever deviated from the system by making exceptions for members of the majority group but not for members of the charging party's group. If respondent has made such exceptions, there will be a presumption that the system does not operate equally.  Cf. Scott v. Ryder Truck Lines, Inc., ____ F. Supp. ____, 26 EPD ¶ 31,825 (N.D. Ga. 1981) (transfers generally prohibited, except that some allowed on a subjective basis, this policy amounted to a pattern and practice of discrimination because (1) it permitted transfer on a subjective basis, resulting in approval of transfer requests of all but one White employee and denial of requests of all but one Black employee, (2) it perpetuated pre-Act discrimination, and (3) it had an adverse impact on Blacks).

Example 1 - Respondent trucking company hires long distance drivers and city drivers.  Long distance drivers are paid an extra per-mile premium in addition to their base salary, while city drivers earn just their base salary; a long distance driver will usually earn more than a city driver.  Each type of job has its own seniority track and an employee transferring from one track to the other loses previously earned seniority.  Prior to 1968, R refused to hire women as long distance drivers and only hired them as city drivers.  R hired men as both long distance and city drivers.  In 1968, as a result of a charge of discrimination, R stopped discriminating against women and began hiring them as long distance drivers, a woman already employed by R as a city driver could transfer to long distance driving but would lose the seniority earned as a city driver.  In 1971, a female city driver filed a charge of discrimination alleging that the seniority system perpetuated the earlier discrimination by locking women in city driver jobs.  As in the first example in § 616.20(a)(1), the seniority system would seem to operate equally: there were both male and female city drivers, and city drivers of both sexes were equally discouraged from transferring to the more attractive long distance positions.  However, investigation discloses that R has allowed a number of male city drivers to transfer and retain most of their previously earned seniority.  R has not allowed women to do this.  Because of this disparate treatment, the system has not operated to equally discourage men and women from transferring.

616.21  Same or Separate Bargaining Units -

Seniority tracks may be in the same or separate bargaining units.  (See § 616.8.)  This will in large measure depend upon the factors on which mutual interests can be based, as discussed in § 616.21(d).  As will be explained below, this will affect whether a seniority system is bona fide.

(a)  Racial, Sexual, or Ethnic Composition of Seniority Tracks -

As explained in § 616.20, if a seniority system operated unequally due to the relative desirability of various jobs, it could be an indication that the system was the result of an intention to discriminate or to perpetuate past discrimination.  The system would not be truly neutral and may therefore not be bona fide.  For this first factor to apply, all or most of the employees in the seniority track for the less desirable jobs must be members of a different protected class than those in the better jobs; however, an investigation of the factor of same or separate bargaining units can reveal an intention to discriminate even when this is not so.

Example - R has two seniority tracks, one for welders and another for packers.  Due to past discrimination, all the welders are men, while 70% of the packers are men and 30% are women. Because so many male as well as female packers are discouraged from transferring to the better paying welder jobs, the system operates equally. However, if it can be shown that the seniority tracks were intentionally created or manipulated to perpetuate the past discrimination that excluded women from welder jobs, then the seniority system will not be bona fide.  This could be so if the systems were in the same or in separate bargaining units.  (See § 616.21(c) below.)

(b)  Racial, Sexual, or Ethnic Segregation -

A special case does exist however, when all or most of the employees in the seniority track(s) for the more desirable jobs are members of one protected class, and all or most of the employees in the seniority track(s) for the less desirable jobs are members of another protected class.  In this situation, and when the seniority tracks are in the same bargaining unit, the seniority system may not be bona fide.  Russell v. American Tobacco Co., ____ F. Supp. ____, 26 EPD ¶ 32,006 (M.D. Ga. 1981), but see Taylor v. Mueller Company, 660 F.2d 1116, 27 EPD ¶ 32,161 (6th Cir. 1981).

(1)  If the interests of the employees are sufficiently alike for them to be included in the same bargaining unit, there must be some reason for creating separate seniority tracks within the unit.  When the tracks are segregated by race, sex, or national origin in this way, there is a presumption that there can be no other reason for creating separate tracks than an intention to discriminate or to perpetuate prior discrimination against one of the protected classes.  When the seniority tracks are in separate bargaining units, however, other, nondiscriminatory reasons can exist, even when the tracks are extremely segregated.  (See § 616.21(c).)  Russell v. American Tobacco Co.

(2)  The same degree of segregation might exist when the seniority tracks are in separate bargaining units.  When it is clear that the original bargaining units were intentionally drawn along racial, ethnic, or sexual lines, there is an indication that the seniority system is not rational.  This is the view taken by the appellate court in Sears v. Atchison, Topeka & Santa Fe, 645 F.2d 1365.  However, this indication is not conclusive as to whether a system is rational or bona fide; there must be additional evidence as described below.

(c)  How Same or Separate Bargaining Units Affect Whether System Is Bona Fide -

Whether the seniority tracks are in the same or separate bargaining units, the reasons for creating separate tracks must be determined.  If the interests of the employees are sufficiently alike for them to be included in the same bargaining unit, then it would be reasonable to expect that all the employees would be in the same seniority track.  If this is not so, i.e., if there are a number of tracks within the one bargaining unit, the system will not be bona fide unless there is some nondiscriminatory reason for the arrangement.  Similarly, the fact that the employees' interests are sufficiently different for the employees to be in separate bargaining units goes a long way towards explaining why the tracks are in separate units.  James v. Stockham Valves, relying on U.S. v. Teamsters, held that if the tracks are in separate bargaining units, then having separate bargaining units must be rational and in conformance with industry practice.  While this two-part test was mentioned in relation to separate bargaining units, it can also be useful in understanding why separate tracks exist within one unit.  Wattleton v. Ladish Co., 520 F.  Supp. at 1342 and 1346, 29 EPD at pp. 25,418 and 25,422; Faulkner v. Republic Steel Corp., 22 EPD ¶ 30,698 (D. Ala. 1979).  If this line of investigation and analysis does not disclose any nondiscriminatory reasons for having the separate tracks then the EOS should conclude that the system is not bona fide.

(d)  Seniority System Must Be Rational -

The relationship between the seniority tracks and the bargaining unit structure will be considered rational when the separate tracks and/or units are "clearly defined, homogeneous, and functionally distinct groups with separate interests which can effectively be represented separately for bargaining purposes...."  Factors to consider in making this determination include a comparison of the duties and functions, whether there is separate supervision, and whether there are different, bases of payment.  Teamsters v. U. S., 431 U.S. at 356 fn. 42, 14 EPD at p. 4876, quoting Georgia Highway Express, 150 N.L.R.B. 1649, 1651, 1965 CCH N.L.R.B. ¶ 9,087 (1965); Taylor v. Mueller Company.  Some of these factors are the same as those set out, in § 630.3(c), as factors on which mutual interests can be based in creating collective bargaining units in the first place. These factors will be discussed below.  No one factor alone will make a system rational or irrational; the EOS should make a determination on the basis of all the factors considered as a whole.  (But see § 616.21(b).)

(1)  Similar Relation to Production Process - Many of the relevant factors can be considered in light of the production process or processes at the respondent's installations.  Are the bargaining units (whether plant, departmental, or craft) related to the production process?  Do the seniority tracks (whether departmental, craft, job, etc.) within the bargaining units reflect this relationship?  Taylor v. Mueller Company.  Relevant to these determinations are similarities in the kind of work performed and in the skills, qualifications, and training of the employees doing the work.  The geographic proximity of employees can be important if employees at different plants perform different steps in the production process.  Specifically, if a respondent has a number of plants or departments, with each plant or department performing a separate step in the production process, then having separate bargaining units and/or seniority tracks for each plant or department would be rational.  This would be based on the similar duties and functions performed by the employees in each plant or department, all related to the step of the production process undertaken at that plant or department.  Similarly, if all employees in a particular job or craft work on the same step of the production process, or perform similar duties and functions at various stages of the production process, then separate bargaining units and/or seniority tracks would be rational.  In each of these situations there are clearly defined, homogeneous, and functionally distinct groups with separate interests.

Example 1 - R has a departmental seniority system at its Balmer plant.  A number of R's departments are represented by the International Association of Carpenters (IAC) and constitute one bargaining unit; most of the other departments are represented by the United Maintenance Association (UMA).  A number of the departments involving production and manufacturing are represented by the IAC.  All of the departments having anything to do with maintenance, security, and plant safety are represented by the UMA.  Each department has its own seniority track.  It is rational for the seniority tracks in the IAC-represented departments to be separate from those in the UMA-represented departments, due to their respective relationships to the production processes and the types of duties involved. Whether the seniority system as a whole is bona fide will depend on whether it is rational to have a separate seniority track for each production-related department (involving a comparison between those departments), and a separate track for each maintenance-related department (involving a comparison between those departments).  (See next example.)

Example 2 - In the above example, the United Wood Workers (UWW) also represents a number of departments at the Balmer plant involved in production-related work.  In fact, R has two Glue Departments, one represented by the UWW and the other by the IAC.  Similarly, there are two Dowel Departments, one represented by the UWW and the other by the IAC.  The employees in each of the Glue Departments do substantially the same work; this is also true for the employees in the two Dowel Departments.  This departmental structure is not rationally related to the production process because it is duplicative.  The departmental seniority system therefore may not be bona fide, although this will also depend upon the seniority practices of other employers engaged in the same industry.  (See § 616.21(e).)  This situation was found to exist by the appellate court in Sears v. Atchison, Topeka & Santa Fe, 645 F.2d 1365, where one of each of the duplicate departments was all-White and the other was all-Black.

If the production process is one continuous operation, a seniority system with more than one seniority track may not be rational.  In Miller v. Continental Can Co., the company was engaged in the manufacture of pulp and paper products.  The court found that the company had practiced widespread discrimination in its hiring practices in the past and that the company's facially neutral seniority system perpetuated that discrimination.  The company was divided into departments according to functional lines, with each department having one or more LOPs and with each LOP having a separate seniority track.  During the period of prior discrimination, Blacks were only hired into one of the two LOPs in the woodyard department, while Whites were hired into the other LOP in the woodyard department and into LOPs in other departments.  Seniority was based on length of employment in a particular LOP, with no transfer of seniority allowed between LOPs.  The result was to lock employees into the LOPs in which they were originally hired, e.g., Blacks hired into the Black LOP in the woodyard department were discouraged from transferring to the White LOP in the woodyard and into LOPs in other departments.  One union represented all the employees in the woodyard department and in two other departments as one collective bargaining unit; therefore, there were a number of seniority tracks in the same unit.  The same union represented a collective bargaining unit of employees in three other departments, and other unions represented employees in yet other departments; therefore, there also were seniority tracks in separate bargaining units.  In holding that the seniority track structure in the woodyard was not rational, the court found that there was no clear division of function between the two LOPs in that department.  In other words, because the production process was one continuous operation, there was no justification for having two separate LOPs.  Because the LOPs were divided between races, the court stated that the implication was that the real reason for having two woodyard LOPs was not production but race.  Because seniority was based on length of employment in a particular LOP, this was an indication that the seniority system was not bona fide.

(2)  Similarity of Pay Scale - Another factor that will indicate whether employees' interests are disparate enough to justify separate bargaining units and/or seniority tracks is the manner of determining earnings and the pay scale.  If these are the same for two units and/or tracks, it is an indication that having separate units and/or tracks is not rational.  If the manner of determining earnings and the pay scale are the same, then employees may well want to be represented together in negotiations over pay-related matters.  Similarly, it would be reasonable for the employer to treat the employees the same for seniority purposes, at least for those seniority matters dealing with pay.

Example 1 - Salespeople at Company A are paid on commission, receiving a percentage of everything they sell.  Other employees are paid a straight salary.  This is one indication that it would be rational to have a separate bargaining unit and/or seniority track for salespeople.  Office workers in the administrative division are paid a weekly salary, while employees in the production and maintenance divisions are paid by the hour.  This can be an indication that, as regards the pay factor, office workers have different interests than production and maintenance workers.  This is supported by the factor of relation to the production process and job duties.  (See § 616.21(d)(1).)  However, office workers' salaries are based upon a 40 hour work week; production workers, though paid by the hour, are guaranteed and in fact must work 40 hours per week; maintenance workers, also paid by the hour, work on an "as needed" basis (often less than 40 hours per week) and are only paid for work actually performed.  Because the pay of both office workers and production staff are based on 40 hour weeks, it could also be rational to view them as having a community of interests separate from the interests of maintenance workers.

Example 2 - The federal government has a number of pay scales.  The General Schedule (GS) scale is for professional, clerical, administrative, and technical employees --  so-called "white collar workers."  The Wage Grade (WG) scale is for plumbers, carpenters, other crafts-people, and general laborers -- so-called "blue collar workers." The pay ranges on the two scales are different, as are the methods in which the scales are set.  Moreover, a particular employee's place on the GS scale and how that employee can move up or down the scale is determined in a different manner than for a WG employee; different weights are given to experience, length of employment with the government, performance evaluations, etc., for each pay scale.  It would be rational to consider employees in each scale as having common interests, those interests being separate from the interests of employees in the other scale.  This would be one indication of the rationality of bargaining units and/or seniority tracks based on pay scales.

(3)  Similar Terms and Conditions of Employment - Another indication that having separate bargaining units and/or seniority tracks is rational is if employees in the units or tracks have different employment benefits, hours of work, and/or other terms and conditions of employment.  The greater the difference, the more reasonable it is to have separate units or tracks.  There are a number of reasons for this.  As the differences between employees' benefits, terms, and conditions increase, the less they have in common to bargain about and the more reasonable it is for the employer to treat them differently.  Further, seniority can control vacation leave, order of layoff, promotion, transfer, recall, pensions, rates of pay, hours of work, and other benefits, terms, and conditions of employment.  (See § 616.3(b).)  As the differences in these benefits, terms, and conditions increase between various groups of employees, the more reasonable it becomes to treat these groups separately for seniority purposes.

Example - Employees in R's Maintenance and Production Departments work from either 8:00 a.m. to 4:30 p.m. or 4:30 p.m. to 1:00 a.m. Most employees would prefer to work the day shift but only one half can.  The employees in both departments have to compete with one another for the day shift.  Because employees in both departments work the same hours (either the day or night shifts), it would be rational for R to have one seniority track for both departments, with competition for the day shift based on length of service in either department.  Employees in R's Security Department can only work from 12:30 a.m. to 9:00 a.m. On the basis of similarity in hours, it would be rational to have a separate seniority track for employees in this department.  R need not base its seniority track structure just on work hours, however, particularly if similarities and differences in other terms and conditions of employment, and in the other factors discussed above such as relationship to the production process, would call for another arrangement.  But hours of work would, in this example, make this type of structure a rational possibility.

(4)  Other - The other factors listed in § 630.3(c) also can be relevant in determining whether a respondent's seniority track structure is rational.  These other factors may not be as important in this regard as the employees' relationship to the production process, similarities in pay, and similarities in other terms and conditions of employment, but the EOS should investigate them nonetheless.  The other factors include: frequency of contact or interchange among employees; geographic proximity even if unrelated to the production process, e.g., combining all the salespeople in one region into one seniority unit; common supervision and determination of labor-relations policy; relationship to the employer's administrative organization; the history of collective bargaining (see §§ 616.22 and 616.23), desires of the affected employees; and the extent of union organization.

(5)  Resource Materials - In considering whether a particular seniority track arrangement is rational, the EOS should obtain information on the above factors for the period immediately prior to creation of the respondent's first seniority system through the present.  The seniority track arrangement must have been rational at its creation and must still be rational.

(i)  Information on the above factors can be derived from a number of sources, including: job descriptions, annual corporate reports, charts of the respondent's organizational structure; EEO-1 et seq. reports and other documents showing the racial/sexual/ethnic composition of the respondent's workforce by job, department, plant, etc.; collective bargaining agreements and materials pertaining to the history of collective bargaining; and interviews with affected employees.

(ii) A decision by the National Labor Relations Board (NLRB) that a particular bargaining unit and/or seniority structure is appropriate should be given great weight.  The NLRB office nearest the respondent can provide copies of any such decisions.  (See Appendix A for addresses.)  However, when the other factors addressed by §§ 616.20 through 616.23 run counter to the NLRB decision, that decision can be outweighed.  (In certifying that a bargaining unit is appropriate, the NLRB does not consider issues relating to discrimination; see § 630.9.)

(iii) Also relevant is information showing whether the seniority track structures at respondent's other plants differ from the one being challenged as discriminatory.  (See § 616.21(e).)

Example - In Examples 1 and 2 in § 616.21(d)(1), all or most of R's other plants have only one Glue Department and one Dowel Department.  The work and production processes at these other plants are similar to those at the Balmer plant. This is further evidence that the seniority system at the Balmer plant is not rationally related to the production process.

(iv) These and other possible sources of information are discussed in more detail in §§ 616.22 and 616.23.

(e)  Whether Seniority System Conforms with Industry Practice -

In addition to determining whether the seniority system is rational, the EOS should also determine whether the respondent's seniority track structure conforms with industry practice, i.e., whether it is similar to the arrangements at other companies engaged in the same industry and to the arrangements at the respondent's other installations.  If a system does not conform with industry practice, it is a further indication that it is not rational.  The EOS should determine what the seniority track structure is in the industry now and what it has been in the past. If the general practice in the industry has been to have seniority tracks in the same bargaining unit, then a respondent with tracks in separate bargaining units is not in conformance with that practice.  Similarly, if the industry practice has been to have seniority tracks in separate bargaining units then a respondent with tracks in the same unit is not in conformance.  More importantly, if the industry practice has been to have plant- or company-wide seniority (therefore creating little or no locking in effect) then a respondent with a departmental, craft, or job seniority system with a locking in effect is not in conformance. Miller v. Continental Can.  Also see Taylor v. Mueller Company, where at least one other company in the same industry had the same departmental structure as the defendant.  All of the defendant's departments were in the same bargaining unit and represented by one union, while each of the other company's departments was a separate unit represented by a different union.  Nevertheless, because both companies had departmental seniority tracks, the defendant's seniority system was considered as conforming with industry practice.

Example - Spud Inc., has eight plants around the country, each one making potato chips.  There are seven other companies in the country that make potato chips, with a total of 56 plants.  All of Spud's plants have departmental seniority systems.  Prior to 1965, Spud only hired Blacks as Cutters and Whites as Fryers; this practice ended in 1965.  At Spud's Boise plant, Cutters are in one department and Fryers are in another; the departmental seniority system has therefore perpetuated the pre-1965 discrimination.  However, at Spud's seven other plants the Cutters and Fryers are all in the same departments, and employees in each job have been able to change jobs without loss of seniority.  While all of Spud's plants have departmental seniority systems, this difference in departmental organization alone is enough to prove that the system at the Boise plant is not in conformance with industry practice.  Moreover, 48 of the 56 plants of the other companies have plant-wide seniority systems.  This difference alone is also enough to prove that the system at Spud's Boise plant is not in conformance with industry practice.

(1)  Regional Differences - In investigating seniority practices within a particular industry, the EOS should pay particular attention to regional differences.  Certain industries, in the past and even to this date, have had different seniority systems at their plants in one part of the country than at their plants in another part.  For example, as in the Miller case discussed below, Northern plants in a particular industry may have more flexible seniority systems, while the Southern plants may have restrictive ones, e.g., plant- or company-wide in the North versus departmental, line of progression, craft, or job in the South; or plant- or company-wide or departmental in the North versus line of progression, craft, or job in the South.  Investigation will sometimes reveal a history of a high degree of segregation in the plants in the region with the more restrictive systems, with Blacks historically hired for less desirable jobs and then locked in to those jobs because of the restrictive seniority systems.  Plants in the regions with less restrictive systems, on the other hand, may be more integrated, with less discrimination in initial hiring and less or no subsequent locking in.  The reason for the greater segregation in the region with the more restrictive system will often be the deliberate historic exclusion of Blacks from certain jobs, crafts, lines of progression, or departments.  As will be explained in § 616.22, the fact that this historical discrimination in hiring and assignment is perpetuated by a seniority system does not in itself make the system discriminatory.  Taylor v. Mueller Company, Sears v. Atchison, Topeka & Santa Fe R.R., 454 F. Supp. at 179, 17 EPD at p. 6209, citing U.S. v. Teamsters.  However, depending upon the degree of segregation within the industry and the degree of difference between the regions, this regional difference can be at least one indication that a restrictive system was intentionally created to further the prior discrimination in hiring.  Miller v. Continental Can Co., 544 F. Supp, at 227, 25 EPD at p. 19,234.

The court in Miller had found that the seniority track structure in the woodyard department was not rational, as it was not related to the production process.  (See § 616.21(d)(1).)  It concluded that this was a strong indication that the seniority system was not developed in a neutral fashion, but instead as a means to continue the prior discrimination.  Seniority in the woodyard department and in the other departments was based on length of employment in a particular LOP.  The court also considered whether the defendant employer's seniority track structure was in conformance with industry practice.  In doing so, it looked at seniority systems at other pulp and paper plants and particularly at the differences between the seniority systems at Northern and Southern plants.  The defendant employer's plant was located in the South.  The one union that represented all employees in defendant employer's woodyard department also represented employees in all other plants nationwide.  This made the court's comparison relatively simple -- all it had to do was compare contract provisions dealing with seniority at each of the plants.  The result was that, in the South, 65 plants had LOP or job seniority systems while 14 plants had less restrictive departmental, plant, or company systems.  In the Northeast and Midwest, where most pulp and paper plants were located, 95 plants had LOP or job systems while 137 plants had less restrictive systems.

Based on this, the court concluded that paper mill seniority arrangements in the South (including the one at the defendant employer's plant) are not typical of those found in other parts of the country.  Systems at the Southern plants are more likely to support past discrimination, based on the predominance of restrictive systems in the South versus the predominance of broader systems in the North.  The court therefore found that, even though the seniority system at defendant employer's plant did conform to industry practice in the South, the regional differences gave rise to a strong implication that the system was developed not in a neutral fashion but as a means to provide for continuation of the prior discrimination.

(2)  Resource Materials - In investigating whether a seniority system conforms to industry practice, the EOS should use the following publications.

The Department of Labor's Bureau of Labor Statistics has issued a number of pamphlets, books, and bulletins describing or summarizing seniority provisions in various industries.  These include:  Characteristics of Major Collective Bargaining Agreements (issued intermittently from 1970 on); Major Collective Bargaining Settlements in the Private Sector (issued quarterly); Major Collective Bargaining Agreements:  Layoff, Recall, and Worksharing Procedures (Bulletin No. 1425-13, 1972); Major Collective Bargaining Agreements:  Seniority in Promotion and Transfer Provisions (Bulletin No. 1425-11, 1970); Collective Bargaining Provisions:  Seniority Provisions, by Abraham Weiss and Eleanor Lehrer; and other publications on collective bargaining in a wide variety of industries.  These publications are available from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402.  They are also available from the regional office of the Bureau of Labor Statistics; the addresses are provided at Appendix B.  When contacting a regional office, the EOS should explain what industry (s)he is concerned with, so that the regional office can provide any publications it might have on that specific industry.

Another helpful publication is issued by the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO), Comparative Survey of Major Collective Bargaining Agreements, Manufacturing and Non-Manufacturing.  It is issued about every 18 months and is available from the AFL-CIO, Industrial Union Department, 815 16th Street, N.W., Washington, D.C. 20006 (202-842-7800).  The Bureau of National Affairs (BNA) publishes Basic Patterns in Union Contracts (10th edition, 1983).  It is available from BNA at 1231 25th Street, N.W., Washington, D.C. 20037 (202-452-4523), and at most law libraries.  Tab 75 on "Seniority" and Tab 20 on "Selected Contracts in Text" are most helpful.

The union or unions at a respondent's plants may be able to identify all the employers and unions engaged in a particular industry, and provide information about the types of seniority systems at all of the respondent's plants and throughout the industry.  Most helpful in this regard is the collective bargaining agreement for each installation.  If one union represents employees throughout the industry, the EOS should compare the agreements for the entire industry (for an example, see § 616.21(e)(1) for a discussion of how the court did this in Miller).  If a number of unions are involved, the EOS should also compare the agreements for the entire industry.  If the unions involved cannot provide the necessary agreements, the Bureau of Labor Statistics may be able to do so.  Also helpful in this regard may be the union's constitutions and by-laws.  (See § 616.22.)

Another source of industry-wide information is the National Labor Relations Board (NLRB).  (See Appendix A for addresses.)  As explained in § 616.21(d)(5)(ii), decisions by the NLRB regarding the respondent or others in the industry should be given great weight.  However, when the factors addressed by §§ 616.20 through 616.23 run counter to an NLRB decision, the decision may be outweighed.  (See § 630.9.)

Finally, the Office of Federal Contract Compliance Programs of the Department of Labor may be able to provide information about seniority arrangements at a particular company or in a specific industry, and whether these arrangements have ever been found to be discriminatory in the past.  (See Exhibit 607-E of § 607 for the addresses of the regional offices.)

Other useful information is discussed in § 616.22.

616.22  Genesis and Negotiation -

In order to determine whether the seniority system had its origins in prohibited discrimination, the EOS should have a detailed knowledge of the history of the employer, of the union or unions involved, and of the process of unionization at the employer's installation(s) that is the subject of the charge.  The focus of the inquiry is to determine whether the seniority system arose in an era of deliberate discrimination by the employer and/or union.  The fact that the seniority system was adopted at a time when the employer and/or union practiced racial discrimination does not in itself mean that the system had its genesis in a racially discriminatory purpose.  For example, in Wattleton v. Ladish Co., all the unions signed their first collective bargaining agreements with the employer in the early or mid-1940's.  All the agreements provided for bargaining unit seniority, with loss of seniority on transfer between units. Because the employer did not hire any Blacks at all until 1948, the court concluded that race could not have been a factor in the creation of the seniority systems and that they had been created for legitimate labor-management purposes.  However, even if the unions had been involved in the employer's discriminatory hiring (in this case they were not), or even if there were Black employees and racially segregated unions when the systems were created, the systems may still have been adopted for the same legitimate reasons and without regard for race.  Taylor v. Mueller Company. Nevertheless, the existence of such discrimination may be one indication that the system was in fact intentionally created to be discriminatory.  The system may be neutral on its face but it may have been deliberately developed to perpetuate prior discrimination.  The inference is that. if the respondent took the trouble to discriminate in the first place, it would want to perpetuate that discrimination.  For example, if the respondent employer intentionally hired Blacks into lesser-paying or "dead-end" jobs, then it would want to ensure that they stayed in those jobs and couldn't advance to better "White" jobs.  Similarly, if bargaining and/or seniority units were originally defined by respondent employer and respondent union along racial lines, they would want to ensure that no Blacks could obtain jobs in the "White" bargaining units.  Miller v. Continental Can Co.  The investigation of the seniority system's genesis should shed light on whether the system was created to accomplish this purpose.  This is also the focus of the inquiry on negotiation and maintenance; in fact, much of the evidence on genesis will be relevant to the investigation of the system's initial negotiation.  For ease of investigation, negotiation will also be discussed here.

Any direct evidence of intent that the EOS can obtain will be most helpful, e.g., documents from the period when the system was created that acknowledge this discriminatory purpose, or testimony from individuals who were involved in developing and negotiating the system.  More frequently, however, the EOS should expect to have to obtain evidence from which an implication or inference of discriminatory purpose can be made.  Much of the information obtained in §§ 616.20 and 616.21 will also be useful in determining whether the seniority system had its genesis in racial discrimination.

Example - An employer has an announced policy of promotion based entirely on seniority.  The employer also has a policy of hiring Hispanics only for night shifts.  The union is aware of this latter policy, but enters into a collective bargaining agreement with the employer that awards seniority based only on day work.  The result is that Hispanics can never get any seniority and therefore can never be promoted. The hiring policy is discriminatory and the supposedly neutral seniority system perpetuates that discrimination.  But the system in fact is not neutral.  The employer and the union have announced seniority as the basic criteria for promotion, and then knowingly and intentionally manipulated this factor to prevent advancement by Hispanics.  The seniority system was created as an independent instrument of discrimination and is therefore not bona fide and not protected by § 703(h).

(a)  Context of First Bargaining Agreement -

Employer and unions have frequently negotiated and signed their first collective bargaining agreements in climates of employer-sponsored, industry-wide or even societal segregation.  This is particularly true for those agreements signed before Title VII became effective. It is not surprising that an agreement negotiated and signed in a climate of discrimination reflected that climate, e.g., the agreement had a facially neutral seniority system that resulted in perpetuating the employer-sponsored, industry-wide, or societal discrimination.  Employers and unions will argue that the intended function of the seniority system was not to foster, maintain, and perpetuate these types of discrimination.  Rather, they will argue that the seniority system and the agreement it was a part of served the interest of all employees, including minorities and women, in job protection and improved working conditions for all.  This mutual interest had a higher priority than racial, sexual, or ethnic considerations.  If certain jobs were more desirable and/or received more protection and more improvements than others, and these jobs were held primarily by members of one racial, ethnic, or sexual class, this was merely an unfortunate and unintended side effect of the discriminatory climate, the collective bargaining agreement and the seniority system were not independent instruments of discrimination, and the system is therefore bona fide.  This argument appears all the more reasonable when, for example, both Black and White union members were involved in negotiating and ratifying the agreement.

This argument will frequently be legitimate.  It can be defeated, however, when there is evidence that the system was intentionally created to discriminate.  The system will not be bona fide if there is evidence showing that it was more than a reflection of the employer sponsored, industry-wide, or societal discrimination, and was actually created with the intent that it be a part of, and that it perpetuate, that discrimination.  Factors that bear on this are set out in the following subsections.

(b)  Rational and in Conformance With Industry Practice -

Sections 616.21(d) and (e) discussed a seniority system's rationality and conformance with industry practice, the second criterion from Teamsters and James v. Stockham Valves, as factors in determining whether a seniority system is bona fide.  Rationality and conformance with industry practice at the time of the seniority system's creation are also relevant to genesis and whether the system was negotiated free of any discriminatory purpose.  If, at the time a system was created, it was more restrictive than others in the same industry by having a greater locking in effect, particularly on minorities or women, that is an indication that the system had its genesis in intentional discrimination.  If a system was not rational when it was created, the possibility exists that the real reason for its creation and structure was an intent to discriminate.  If, on the other hand, a system closely resembled other, rational systems in the same industry at the time it was created, it is an indication that the system was merely a reflection of the industry practice and was not itself intended to be discriminatory.  This indication of lack of discriminatory genesis and intent in a system's creation is weakened, however, when there was widespread discrimination in the industry at the time the system was created.  Miller v. Continental Can Co.  Because of the widespread discrimination, there is a suspicion that everything in the industry was tainted with discrimination, including all the seniority systems.  If all the systems were similarly irrational, this can be a further indication of underlying discrimination.  This is only an indication and is not conclusive, but it is enough to weaken the argument that a system's conformance with industry practice indicates a genesis free of intentional discrimination.

(c)  Segregated Unions -

If, at the time a seniority system was created, the union or unions involved in its development were intentionally segregated, there is an indication that the system had its genesis in discrimination and was negotiated with discrimination in mind.  This would be true even if all the unions involved agreed to the creation of the seniority system.  For example, if one union was intentionally predominantly White and another intentionally predominantly Black, and the resulting seniority system perpetuated prior discrimination against Blacks, there is an inference that the system itself had its genesis in discrimination.  The reason is that, historically, segregation of unions along racial, sexual, or ethnic lines has frequently been intentional; in fact, many union constitutions have had clauses limiting membership to Whites and/or males particularly before the enactment of Title VII.  Unions composed predominantly of Whites and/or men have historically been stronger than unions composed predominantly of minorities and/or women.  Further, Whites and men have historically had more desirable jobs.  When the unions involved in the initial negotiation for a seniority system were intentionally segregated at that time, it is reasonable to infer that the intentional discrimination would have carried over into the bargaining process and the resulting seniority system.  The predominantly White and/or male union(s) would have protected its members' jobs and working conditions, often at the expense of minorities and/or women, by bargaining for a restrictive type of seniority system that would perpetuate the union's own segregation. The Black union(s) may even have gone along under the notion that some seniority protection, even if of less desirable jobs, is better than no seniority protection at all.  The result would be segregated jobs, crafts, and/or departments.  (See § 616.21(e), and the discussion of Sears v. Atchison, Topeka & Santa Fe in § 616.22(e).)  The same reasoning would apply to segregated locals within the same union, with each local considered a separate bargaining unit and/or having a separate seniority roster or system.  (See §§ 630.8 through 630.10 for how to determine if a union is intentionally segregated.)

Example - The two unions involved in the initial organizing of the employer each signed a separate collective bargaining agreement with it, with separate but similar seniority systems.  At the time of the initial organization effort, the bargaining unit represented by Union #1 was predominantly White but did have 24 Black carpenters.  The unit represented by Union #2 contained both Black and White workers.  Before any bargaining agreements were signed, Union #1 initiated a "trade" with Union #2 of 24 of Union # 1's Black carpenters for two of Union #2's White workers.  Union #2 agreed, apparently in order to increase its membership.  One result was that carpenters in certain departments were White and were represented by Union #1; carpenters in other departments were Black and were represented by Union #2.  Another result was that Union #1 became an all-White bargaining unit; Union #2 on the other hand, remained racially mixed, although with segregated departments.  This is evidence of an intent to foster and maintain discrimination on the part of the Union #1 which became all-White, and would taint the bargaining agreement and seniority system negotiated by the union.  Absent other evidence, Union #2's agreement to the swap does not indicate a discriminatory motivation on its part.  On this point see Pullman-Standard v. Swint, 456 U.S. 273, 292 fn. 23, 28 EPD ¶ 32,614 (1982).

(d)  Segregated Bargaining Units -

At the time a seniority system was created, only one union may have been involved.  If that union represented several bargaining units and those units were intentionally segregated (see § 630.9), there is a strong indication that the system had its genesis in discrimination and was negotiated with a discriminatory purpose.  This is also true if there were a few unions involved, and one of the unions was so segregated.  The reason is similar to that given in § 616.22(c) for segregated unions.  In unions with segregated bargaining units, Whites and/or males have historically dominated the unions and the collective bargaining processes.  Further, Whites and/or males have historically had more desirable jobs.  There is an inference, therefore, that the White and/or male dominated unions placed the greatest emphasis on protecting the jobs and working conditions of the White and/or male bargaining units, often at the expense of minorities and/or female units, by bargaining for restrictive seniority systems.  Minorities or women in the bargaining units with less desirable jobs may even have gone along under the notion that some seniority protection, even if of less desirable jobs, is better than no seniority protection at all.

In Miller v. Continental Can Co., one union (UPIU) represented several bargaining units while other unions represented other bargaining units.  (See discussion of case in § 616.21(d)(1).) The woodyard department was originally divided into two bargaining units, with one unit for each of the two LOPs in the department. Because the LOPs were segregated along racial lines, one bargaining unit was all-White and the other was all-Black.  Both units were represented by UPIU.  In 1965 the two units were merged but the segregated LOPs were retained.  Seniority was determined by length of employment within a particular LOP (and therefore bargaining unit) and was not transferable between LOPs.  UPIU represented employees at paper plants (the industry Continental Can was engaged in) throughout the country.  Seniority systems in the South were the most restrictive.  (See discussion of case in § 616.21(e)(1).) This was where Continental Can was located, and was precisely the area where UPIU maintained segregated bargaining units.  A union official admitted that this policy was developed knowingly and directly out of the segregated work arrangements which prevailed in the South generally and particularly in the Southern paper industry.  Had the union insisted on integrated locals, according to this official, it would not have been able to recruit both Whites and Blacks as members.

In order to increase its membership and facilitate organizing at various plants, the international union decided that the plants in the South could have separate bargaining units (and therefore separate locals) based on race.  In agreeing to allow the locals to be segregated and represent segregated bargaining units, the court stated, the international union also agreed to the company's admittedly racially based hiring and assignment policies. This segregation of the bargaining units not surprisingly resulted in segregated seniority systems: at Continental Can, the White woodyard bargaining unit/local negotiated a separate seniority roster from the Black bargaining unit/local, in order to protect the jobs of its members from those holding jobs in other LOPs/units (including, if not especially, the Black LOP/unit).  All this, the court held, showed that the seniority system had its genesis in racial discrimination.  The racial views embodied by these arrangements were more than merely the social context in which the employer's plant was organized.  They were the basis for a plant organization which presumed that Blacks should only have the most menial and poorest paying jobs.  While the union may have deplored the company's hiring and assignment policies, it nevertheless agreed to them in allowing segregated bargaining units and in agreeing to a seniority system that ensured that Blacks would be locked in to the less desirable jobs.  (See § 616.22(f) for the consequences of this agreement.)

(e)  Segregated Jobs, Crafts, Lines of Progression, or Departments -

Another factor in determining whether a system had its genesis in racial discrimination and was negotiated with a discriminatory purpose is whether, at the time of unionization and negotiation of the first collective bargaining agreement, any jobs, crafts, LOPs, or departments were already segregated or were modified so as to be segregated.  The inference here is that creation of a seniority system that has the effect of creating, preserving, or furthering this segregation by basing seniority on job, craft, LOP, or department may have been done intentionally with just that effect in mind.

Example - In the example in § 616.22(c), Union #1 and Union #2 juggled the composition of their respective bargaining units so that Union #1 became an all-White bargaining unit and union. Union #2 represented both Black and White employees in its bargaining unit.  However, prior to and at the time of unionization, most of the jobs at the plant were treated as "White only" or "Black only." Some of the small number of "mixed" jobs even had different pay scales for Whites and Blacks.  A number of one-race departments were created at the time of and as part of the original unionization, including departments within Union #2's own bargaining unit.  When Union #2 subsequently signed its first bargaining agreement with the employer, the bargaining agreement provided for departmental seniority for all the workers in the bargaining unit Union #2 represented.  This would perpetuate the recently created one-race departments.  Moreover, the agreement further excluded Blacks from the better jobs, assigning them to the poorest paying departments.  These one-race departments were all created out of previously mixed departments.  This all happened at the same time as the original unionization and at the same time as creation of the departmental seniority system.  This course of events is an indication that the system had its genesis in racial discrimination and that an intent to discriminate played a part in negotiation and creation of the seniority system.

One way that segregated jobs, crafts, LOPs, or departments can come about (and/or be maintained; see § 616.23) is through segregated unions, as demonstrated in both the district court and appellate decisions in Sears v. Atchison, Topeka & Santa Fe R.R.  From at least the 1930's through the 1960's the constitutions of the unions representing brakemen and conductors contained clauses allowing only Whites to be members.  While the employer technically had an open shop so that non-union members could be hired, the union was strong enough to force the employer to hire only union members.  (See §§ 630.10 through 630.13 for a discussion of how a union can do this.)  Since Blacks could not become union members, they could not get jobs as brakemen or conductors, and they could not be eligible for the economic protection of the craft seniority system covering brakemen and conductors.  This relationship indicates an intent to keep the brakemen and conductor crafts and jobs all-White.  If this situation had existed at the time the bargaining agreement was originally negotiated, it would have indicated that the bargaining agreement and the seniority system included in it had their genesis in racial discrimination.

In U.S, v. Georgia Power, 634 F.2d 929, 25 EPD ¶ 31,527 (5th Cir. 1981), vacated and remanded on procedural grounds, 456 U.S. 952, 28 EPD ¶ 32,672 (1982), reaffirmed, ____ F.2d ____, 30 EPD ¶ 33,286 (5th Cir. 1983), the Court of Appeals found that the seniority system had its genesis in an era of overt racial discrimination at Georgia Power.  Blacks were prevented by express policy from holding all but the four least desirable jobs.  These were also the only jobs not connected to any LOPs; the White jobs were all part of LOPs which permitted those employees to exercise their seniority to progress up the ladder.  The court stated: "...the seniority system ... tracked and reinforced the purposefully segregated job classification scheme maintained by the company and the conclusion is inescapable that the seniority system itself shared in that same unlawful purpose.... [The seniority system] was but part and parcel of the total package of purposeful discrimination at Georgia Power." 642 F.2d at 936, 25 EPD at p. 19,146.  This was an indication that the system had its genesis in discrimination and was at least in part negotiated and created with a discriminatory intent.

(f)  Acquiescence

(1)  When a union agrees to discrimination by an employer, then it is not fulfilling its duty of fair representation under Title VII.  In the context of collective bargaining, it will generally also make the union jointly liable with the employer for the original discrimination.  (See § 630. 16 and the cases cited therein.)  This also applies to an employer agreeing to discrimination by a union: "Title VII requires that both union and employer represent and protect the best interests of minority employees.... [I]f a discriminatory contract provision is acceded to the [employer] as well as the [union] will be held liable." Robinson v. Lorillard Corp., 444 F.2d 791, 799, 3 EPD ¶ 8,267 at

p. 6901 (4th Cir. 1971). cert. withdrawn, 404 U.S. 1006 (1971).  If one party to a bargaining agreement proposes seniority provisions that are intentionally discriminatory, then the party on the opposite side of the bargaining table is under a duty to oppose the provisions; failure to do so will make the second party jointly liable for the discriminatory seniority system.  The system will have been negotiated with a discriminatory intent.

In Miller v. Continental Can (see § 616.22(d)), the union acquiesced to the employer's racially-based hiring and assignment policies.  Its acquiescence was most notably demonstrated in its creation of segregated bargaining units.  The employer's policies were more than mere reflections of the overall social context in which the plant was organized.  They were the basis for a plant structure which presumed that Blacks were unsuited for all but the most menial jobs.  The policies were embodied in a seniority system which not merely reflected this discriminatory view, but insured that the view would never be challenged by preventing Blacks from becoming eligible for promotion to the better jobs.  Because the union agreed to these policies by creating segregated locals, and then agreed to a seniority system that perpetuated the policies, the system was found to have had its genesis in discrimination.

(2)  In Miller, there was also evidence that the union agreed to discrimination not by an employer sitting on the opposite side of the bargaining table but by other unions.  This is discussed in more detail in the example in § 616.22(c) above.  The two unions participated in a "trade" that left Union #1 all-White and Union #2 racially mixed.  Even though Union #2 did not initiate this "trade" and remained racially mixed, it agreed to it in order to increase its membership.  Union #2's acquiescence may have helped create a climate of discrimination, possibly giving the seniority system it subsequently bargained for a genesis in racial discrimination.  While this sort of acquiescence would not by itself conclusively demonstrate a discriminatory purpose on Union #2's part, Pullman-Standard v. Swint, 456 U.S. 292 fn. 23, 28 EPD at p. 24,762, it leaves open the possibility that the acquiescence could nevertheless be one more indication of discriminatory intent.

Another rationale for basing liability at least in part on acquiescence is to view the issue in terms of the union's duty of fair representation.  The Fifth Circuit took this approach in Terrell v. United States Pipe and Foundry Co., 644 F.2d 1112, 26 EPD ¶ 31,856 (5th Cir. 1981), vacated and remanded on other grounds, 456 U.S. 955, 29 EPD 32,672 (1982).  The overall seniority system was a composite of separate agreements between the employer and each of the five unions.  The court held that a union can be liable for discriminatory seniority provisions in another union's bargaining agreement, even though the first union did not sign that agreement.  The discriminatory provisions in this case provided that an employee transferring into a job covered by the agreement would be put on the bottom of that seniority roster, losing all seniority in jobs covered by other bargaining agreements.  The reason for the shared responsibility is that the first union is under an obligation to represent its own members (see §§ 630.14 et seq.).  The court quotes Myers v. Gilman Paper Co., 544 F.2d 837, 13 EPD ¶ 11,300 (5th Cir. 1977), which in turn quotes Carey v. Greyhound Bus Co., 500 F.2d 1372, 8 EPD ¶ 9,698 (5th Cir. 1974), to the effect that the first union must at some point try to initiate negotiations with the employer and perhaps the other union, in an effort to prevent its own members from losing seniority should they transfer to jobs represented by the other union.  If the nonsignatory union (the first union) fails to make these efforts, then it will share in the liability for the discriminatory provisions in the signatory union's agreement.  However, if the first union does try, then, even if its efforts are unsuccessful, it may not be liable.  (See § 630.18(d) on defenses to the charge of failure to represent.)

(3)  In Terrell, the court held that the union had in fact tried hard enough to protect its members from discrimination that would occur because of the other unions' bargaining agreements.  In Miller, while there was evidence that the union "deplored" the company's racially-based views and policies, it nevertheless agreed to them without very much opposition.  A union or an employer that agrees to discrimination by another party to a collective bargaining agreement, even if under protest, will frequently also be found to be a participant in and liable for the discrimination.  Burwell v. Eastern Airlines, 458 F. Supp. 474, 18 EPD ¶ 8,759 (D. Va. 1978).  There will be certain situations, though, when one party will not be found liable; e.g., when the union or employer does more than simply protest but opposes the discrimination through concerted, aggressive action of a compelling nature, or when the collective bargaining agreement was forced on one party by the other.  See "Title VII and Collective Bargaining: Proposal and Resolution to Encourage Voluntary Effort" at Exhibit 630-A.  This also applies to situations such as that in Terrell, where a union acquiesces in discrimination by another union, but only after vigorous opposition.  (Examples and more detailed discussion of this can be found at § 616.24 on liability and § 630.18(d) on defenses an employer or union can raise to a charge of failure to represent the interests of minorities and women.)

(g)  Resource Materials -

The EOS should obtain an organizational chart of the company at the time it was first organized.  This should indicate the jobs in each bargaining unit and the union representing each unit.  It may also indicate the reasons for this breakdown.  It will frequently show which jobs were held by minorities and/or women; if it does not, the EOS should try to obtain this information from other records, such as employment and transfer applications, records of hires and transfers, payroll information, union membership rosters, etc.  Many seniority systems were first negotiated before Title VII went into effect; records from that period will therefore frequently indicate or even be kept by race, sex, and/or national origin.  The EOS should look for formal employer policies restricting jobs, departments, etc., to a particular race, sex, or ethnic group as expressed in personnel handbooks or other statements of personnel policies.

In examining union actions and documents, the EOS should consider both the parent international union and the local chapter.  The EOS should first look at the initial certification process, i.e., when the union (or unions, if the company was organized by more than one) was formally recognized as representing all or some of the employees.  The employer can simply agree that the union represents its employees, this recognition will usually be made in a letter or memo.  (See §§ 630.2, 630.3, and 630.9.)  The EOS should obtain this, along with all related correspondence, from the union or the employer.  Alternatively, the employer and/or union can ask the National Labor Relations Board to decide if the union is the proper employee representative.  (See §§ 630.2, 630.3, and 630.9.)  If the union was certified as the employees' representative by the National Labor Relations Board, the EOS should obtain a transcript of the Board's certification hearing (usually including a discussion of which jobs are to be included in or excluded from the unit, and why), submissions to the Board by the union and the employer, and the Board's final decision.  If the employer or union does not have these, they can be obtained from the nearest regional office of the Board.  (See Appendix A for addresses.)

The EOS should obtain copies of the constitution and bylaws in effect at the time of unionization, of both the local chapter and the international union.  If the union is unable to provide these, they can often be obtained from the Labor Management Services Administration, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C. 20210.  The EOS should obtain a copy of the first collective bargaining agreement with the employer; if the employer and union do not have it or will not provide a copy, the EOS should contact the regional office of the Bureau of Labor Statistics of the Department of Labor (see Appendix B for addresses) or its headquarters at 441 G Street, N.W., Washington, D.C. 20212.  The EOS should obtain from the company or union all negotiation memoranda, voting records, and anything else related to the contract negotiation process.  Any employees, union officials, or company officials who actually participated in the negotiations should be interviewed regarding the factors described in §§ 616.22(a) through (f).

When the first bargaining agreement was negotiated, both the union and the employer probably drew up and maintained bargaining unit and seniority lists.  The EOS should request these from the employer and the union.  These will have the names of all the employees in each seniority track, their jobs, and perhaps their racial, sexual, or ethnic status; if not, this may be available from company personnel records.  Union membership rolls will also be helpful, particularly if the race, sex, or national origin of the members is indicated.  Any formal policy restricting membership to a particular race, sex, or ethnic group should be identified.  The local or international union's charter, constitution, or bylaws will be helpful in this regard.

Other useful evidence will include anything on the company's general employment practices at the time of unionization. Any personnel handbooks, printed descriptions of benefits, or other statements of personnel policies should be obtained.  Again, any formal discriminatory policies are highly relevant.  For information regarding seniority arrangements in the industry generally and whether there was considerable discrimination in the industry, the EOS can check with the Director's Office of the Office of Systemic Programs, and/or the Department of Labor's Office of Federal Contract Compliance Programs (see Exhibit 607-E of § 607 for addresses).  If a few large companies control the industry, the EOS can look up the names of these companies in the court case indexes to the CCH Employment Practices Guide or BNA's Fair Employment Practice Cases and read any cases listed there.  Much of the information obtained in §§ 616.20 and 616.21 will also be relevant.

All the above evidence should be analyzed for evidence that the seniority system had its genesis in discrimination and for indications of either overt or inferred discriminatory intent, pursuant to §§ 616.22(a) through (f).

616.23  Maintenance of the System -

The seniority system, once negotiated and created, must have been maintained free from any illegal purpose.  A collective bargaining agreement, as a contract, is only in effect for the number of years specified in the agreement.  This means that a bargaining agreement must be periodically renegotiated.  At times the agreement is renewed almost without change; more frequently, there are at least minor changes if not major revisions.  A seniority system, as part of a bargaining agreement, is also subject to renegotiation and revision.  This section will describe how maintenance of a seniority system, with few or no changes, can be an indication of discriminatory intent.  Similarly, discriminatory intent may also be indicated by modifications to a system.

(a)  Rational and in Conformance with Industry Practice -

Sections 616.21(d) and (e) explained that a seniority system that was not in conformance with industry practice might not be bona fide.  Section 616.22(b) explained that a seniority system's rationality and conformance with industry practice at the time of its creation is relevant in determining whether the system had its genesis in discrimination and whether it was negotiated with a discriminatory purpose.  These factors can also be relevant in determining whether a system has been maintained with or free from a discriminatory purpose.  A seniority system that locks minorities or women into less desirable jobs may have originally been rational and in conformance with industry practice.  If it can be shown that the system has been changed so that it is no longer rational and in conformance, with the result that segregation has been maintained, then an intent to discriminate in the maintenance of the system can be inferred.  If there have been industry-wide changes in the production processes, pay scales, and ocher factors about which employees may have mutual interests (see § 616.21(d)), seniority systems throughout the industry might also have been changed as a result.  If segregation is maintained by a modified system as a result, there may not be any indications of an intent to discriminate in the modified seniority system, as long as the modified system rationally reflects the changes in the industry and therefore continues to be rational and in conformance.  However, if most of the seniority systems have been modified to rationally reflect the changes, but one system that has had a locking in effect on minorities or women did not change, that system would lose its rationality and conformance.  An inference could be made of a discriminatory purpose behind its maintenance.

(b)  Segregated Unions -

Section 616.22(c) described how a discriminatory genesis or intent may be indicated by the existence of one or more intentionally segregated unions.  The preservation of segregated unions through a seniority system can also indicate a discriminatory intent. (For further discussion of how a union can maintain segregation, see §§ 630.8 through 630.11.)

(1)  Discriminatory Membership Policies - When a union intentionally discriminates in its admission and membership policies, this can have a continued and direct effect on who the employer hires, to what jobs they are assigned, and consequently on what seniority system or roster they will participate in.  This would be particularly true when there is a closed shop or when there is a union or open shop but the employer only hires union members.  (See discussion of Sears below.)   In short, if the unions (and the bargaining units they represent; see § 616.23(c)) are intentionally kept segregated and this results in the maintenance of segregated seniority systems or rosters, a discriminatory intent in the maintenance of the seniority system should be inferred.  The intentional segregation can take the form of a stated exclusionary policy, as in the following case, or an unstated practice of exclusion.  For further examples, see §§ 616.23(c) and (d) and 630.10.

In Sears v. Atchison Topeka & Santa Fe. 454 F. Supp. at 180, 17 EPD at p. 6207, 645 F.2d at 1374. 25 EPD at

p. 19,608, the seniority system was found to be maintained with a discriminatory purpose.  As explained in the discussion of this case in § 616.22(e), the unions representing brakemen and conductors were all-White.  These unions were involved in maintaining the seniority system for brakemen and conductors through negotiations and collective bargaining with the employer.  These same unions had clauses in their constitutions which limited membership to White males.  The first bargaining agreements were negotiated in the late 1800's when the constitutions did not have this limitation.  The appellate court therefore held that the seniority system may have originated without conscious regard to race, 645 F.2d at 1374, 25 EPD at p. 19,608 (see § 616.22 on genesis); it is not clear whether there was evidence indicating, or whether the court considered the possibility of, an unwritten practice of discriminatory exclusion.  However, the written prohibition of Black membership lasted at least from the 1930's to the 1960's and there were no Blacks in the unions before that period.  The employer had an open shop during this period, so theoretically a BlacK who was not a member of the union could get a brakeman or conductor job.  However, through negotiations, grievances, and other procedures, the unions were able to gain control of most of the braking and conducting work and ensure that only union members were hired as brakemen and conductors.  Since Blacks were not eligible for membership in the unions, they could not get jobs as brakemen or conductors and therefore could not take advantage of the protection of the seniority system covering brakemen and conductors.  Both the district and appellate courts concluded that the seniority system was used by the unions in their efforts to deprive Blacks of equal employment opportunity.  This proved that the system was maintained for a racially discriminatory purpose.

In Taylor v. Mueller Company, the union originally had a formal policy excluding Blacks from memberships.  The policy was eliminated in 1963 and Blacks were allowed to join.  The court considered this change as relevant to a finding that the system was bona fide.

(2)  Changes in Seniority System or Bargaining Arrangement to Maintain Segregation - A discriminatory intent may be indicated when a seniority system that has a locking in effect, or the bargaining arrangement on which it is based, is changed in response to changes in the employer's hiring practices.  An employer might cease its discriminatory hiring and assignment practices, and/or minority and female employees might transfer to new LOPs or departments despite the loss of seniority.  In either case the result would be that, despite the existing seniority system, minorities or women became eligible for or actually worked their way into jobs and bargaining units represented by a formerly segregated union and, therefore, into the union itself.  If the bargaining arrangement of the seniority system was then modified with the result that the segregation of the union (and possibly bargaining unit; see § 616.23) was maintained or restored, a discriminatory intent in the maintenance of the system should be inferred.

Example - The nonmanagement employees at Armageddon Airlines are represented by two unions, each representing a different department.  The Flying Dutchmen's Association (FDA) originally represented the flight staff division as one bargaining unit consisting of jobs in a line of progression from flight mechanic to flight engineer to navigator to pilot.  The Airlines Service Union (ASU) originally represented the ground crew division as another bargaining unit consisting of a variety of jobs in a number of lines of progression.  Until 1965, Armageddon only hired men into the flight staff division; as a result, all the members of the FDA were male. (There were also indications that the union encouraged or even insisted on this discrimination by the employer, see § 616.23(b)(1).)

Both men and women were hired into the ground crew division; therefore ASU represented both men and women.  In 1965, Armageddon announced that it would hire women into the flight staff division, in the entry level flight mechanic position.  However, the seniority system that had been in effect since 1962 provided for departmental seniority.  Anyone transferring from the ground crew department to the flight staff department (or vice-versa) would lose all previously earned seniority.  This locked employees into their original departments, with the result that none of Armageddon's female ground crew employees applied to transfer to flight mechanic positions.  The employer's prior discrimination was thus perpetuated by the seniority system.  In 1968, however, two female ground crew mechanics did transfer even though it meant giving up their prior seniority.  These women were therefore also eligible for membership in the FDA, as they now held jobs in the bargaining unit represented by the FDA.

Shortly thereafter, the collective bargaining agreement between the two unions and the employer expired.  As part of the renegotiation and at both unions' insistence, the departmental structure and bargaining arrangement was changed so that flight mechanics would be part of the ground crew division and bargaining unit.  The result was that the job of flight mechanic would now be represented by ASU, making FDA an all-male union and bargaining unit again.  This itself may be an indication of discriminatory intent, at least on the part of one or both of the unions.  Further, because the seniority system and LOP structure were otherwise unchanged, those women already hired as flight mechanics or who would be hired in the future would be locked in to that job.  They would be part of what is now a cross-divisional line of progression; they could still choose to advance to flight engineer and so on, but only by changing divisions at the cost of their flight mechanic and other seniority.  This would therefore discourage women from advancing into the more desirable positions represented by the FDA, keeping that union all-male.  The same locking in effect would also be felt by male flight mechanics, of course (equal operation; see § 616.20), but the change in bargaining structure is an indication of an underlying intent to discriminate in the maintenance of the seniority system on the part of the unions (certainly FDA, and possibly ASU for going along; see the example in § 616.22(c)) and perhaps the employer.

(c)  Segregated Bargaining Units -

Just as action taken by a segregated union to preserve its segregated nature can be an indication of a discriminatory intent in the maintenance of a seniority system (see § 616-23(b)(2)), so can action taken by a union or unions on behalf of a segregated bargaining unit.  In the example in § 616.23(b)(2), FDA was able to keep both its membership and the bargaining unit it represents all-male.  This can also happen even if the same union represents, for example, both a White bargaining unit and a Black or mixed bargaining unit, the union can use its influence to benefit members of the White bargaining unit at the expense of the members of the Black or mixed unit, and take steps to ensure that the units remain segregated.  (See § 616-22(d), on the relevance of segregated bargaining units to a seniority system's genesis and initial negotiation.)   In the example in § 616.23(b)(2), two unions took steps to ensure that the bargaining unit represented by the Flying Dutchmen's Association remained all-male.  The conclusion would also be the same if one union represented both the flight staff division as one unit and the ground crew division as another unit, and did the same kind of shifting of positions between units.

In Wattleton v. Ladish, there were three unions involved in the trial, the Blacksmiths, the Die Sinkers, and the Machinists.  Each union represented a different bargaining unit, with each unit having its own seniority system.  Transfers between units were allowed, but only by losing all previously earned seniority.  Before 1968, the employers only hired Blacks as machinists and for other jobs represented by the Machinists.  While these employees theoretically could eventually transfer into jobs in other bargaining units, the court found that the company was successful in discouraging all transfers and that the Blacksmiths also discouraged transfers into the unit it represented.  The court found both the pre-1968 hiring practices and the discouragement of transfers to be discriminatory.  Further, the "seniority suicide" provisions of the three seniority systems perpetuated this discrimination by locking Blacks into their jobs in the bargaining unit represented by the Machinists.  However, the court then concluded that the Machinists' and Die Sinkers' seniority systems were bona fide while the Blacksmiths' system was not.

The first two systems were virtually the same from the time they were created until the present and never allowed retention of seniority on transfer between bargaining units.  The Blacksmiths' system also did not allow seniority retention when it was first created in 1945.  However, it was changed in 1949 to allow retention:  a person transferring into a job in the Blacksmiths' unit from another unit would bring with him/her all previously earned seniority.  This new system lasted until 1955 when it was changed back to the original system that didn't allow retention -- but all those who had transferred into the unit between 1949 and 1955 would keep their plant-wide seniority as, in effect, Blacksmith seniority (a so-called "grandfather" arrangement).  Also, prior to 1949, the Blacksmiths' bargaining agreement said nothing about how transfers between bargaining units were to be done, meaning that the employer had complete control.  In 1949 the bargaining agreement was changed to give the union veto power over anyone applying for a job in its jurisdiction/bargaining unit.  This lasted at least until 1961.  Finally, the agreement originally had a general nondiscrimination clause.  This was dropped in 1949 and not put back in until 1965.

The court decided that these changes showed that the Blacksmiths' seniority system was maintained with a discriminatory intent.  A number of non-Blacks had transferred between jobs in the Blacksmiths' bargaining unit between 1949 and 1955, taking advantage of the change allowing retention of seniority.  The few Blacks employed by the company at that time were discouraged from transferring by the employer and the union and none had done so.  The reason why the system was changed back to the original in the mid-1950s, when the company began hiring more Blacks into jobs in the Machinists' bargaining unit, was to prevent the newly hired Blacks from transferring to jobs in the Blacksmiths' unit.  The court rejected the Blacksmiths' explanation of the changes, that the union was attempting in 1949 to convince the other unions to also use plant-wide seniority and that it gave up in 1955 when none had done so.  Rather, the court concluded that the three changes in 1949 and the change back in 1955, together with evidence of discriminatory attitudes of individual blacksmiths, showed that the Blacksmiths' seniority system was negotiated and maintained deliberately to prevent Blacks from getting jobs in the Blacksmiths' bargaining unit.  Based on this the court concluded that the seniority system was not bona fide and not protected by § 703(h).

(d)  Segregated Jobs, Crafts, Lines or Progression Departments -

Use of or reliance on a seniority system to create, maintain, or reestablish segregation of jobs, crafts, LOPS, or departments can reveal a discriminatory intent in the maintenance of the system that the system was purposely used or relied on to deny women or minorities certain jobs or jobs in certain crafts, LOPS, or departments.  Section 616.22(e) discussed the jobs, etc., to providing that a system had its genesis in and was negotiated with an intent to discriminate.  Similarly, the creation and maintenance of segregated jobs, etc., in the years after a seniority system was first negotiated, and the effect of the system in maintaining the segregation, can indicate a discriminatory purpose in maintaining the seniority system.  The examples in §§ 616.23(b)(2) and (c), dealing with segregated unions and bargaining units, also touch on segregated job classifications.  Further examples follow.

Example - Company P signed collective bargaining agreements with Union Q and Union M in 1958.  The agreement with Q covered all employees in the Maintenance Department, while the agreement with M covered all employees in the Motor Vehicle Department.  Each agreement created a seniority system for employees within the department; however, each agreement provided that employees could transfer between departments and retain all the seniority accrued in the prior department.  In 1958, all the employees in both departments were male.  By 1968, however, some women had obtained jobs in the Maintenance Department; the Motor Vehicle Department was still all male.  The agreements expired in 1968.  Each was renegotiated so as to eliminate retention of seniority in interdepartmental transfers.  This discouraged transfers, locking women into the Maintenance Department, and tended to keep the Motor Vehicle Department all male.  If the hiring practices of Company P which resulted in the Motor Vehicle Department remaining all male were or continued to be discriminatory, and the renegotiated systems perpetuated the discrimination, this change in the system would indicate a discriminatory intent in the maintenance of the system.

In Sears v. Atchison, Topeka & Santa Fe, 645 F.2d at 1374, 25 EPD at p. 19,608, the appellate court discussed how the seniority system was used to maintain racially-identifiable job classifications.  As explained in the discussion of this case in § 616.23(b)(1) and in earlier sections, Blacks were not accepted as members of the brakemen's union.  Porters also performed many braking duties.  Blacks could be hired for this lesser-paying position which had no seniority coverage.  Beginning as early as 1920, the brakemen's union pushed for transfer of braking duties from Black porters to White brakemen.  The union based its argument on the series of bargaining agreements with the railroad, which all provided that the brakeman with the highest seniority would perform the next available braking duty.  The union argued that the railroad was violating this seniority-related provision of the agreements by allowing porters to perform some braking duties.  By 1942 the union had effectively won its case.  Virtually all braking duties were given to brakemen; because Blacks could not become members of the union, they could not become brakemen, so only White union members were assigned that work.  The court concluded that this use of the seniority system showed that it was maintained for a racially discriminatory purpose.

In Miller v. Continental Can Co., there were two bargaining units in the woodyard department until 1965.  One bargaining unit included employees in the "chipper-feeder" LOP, all of whom were Black; the other bargaining unit included employees in the other LOP, all of whom were White.  This segregation was due to the employer's racially discriminatory hiring practices.  Both units were represented by the same union. (See § 616.22(d) for a discussion of the relevance of this to the seniority system's genesis.)   Seniority was based on length of employment in a particular LOP.  In 1965, in response to the enactment of Title VII, the union combined the two bargaining units.  Despite this, and despite the employer's efforts to combine the two LOPs and go to departmental seniority, the union insisted that the LOPs remain separate and that the seniority system not be changed.  The union's resistance to changing the seniority system in a way that would have eliminated the system's perpetuation of prior discrimination indicates an intent on the union's part to maintain the system for an unlawful purpose.  The union manipulated the company's organizational structure and used the seniority system to protect the jobs and benefits of its White members at the expense of its Black members, based on race.  (See § 616.23(e) for the relevance of a union's and/or employer's knowledge of the discriminatory effects of a seniority system hen renegotiating the system.  Also see §§ 616.22(f) and 630.16 for a discussion of the relevance of one party's resistance to another's effort towards ending those effects.)

In Taylor v. Mueller Co, the employer had four departments within the machine division.  One union represented all four departments as one bargaining unit.  Before 1965, the lowest paying and least attractive department was all-Black while the other three departments were all-White.  Also before 1965, employees could not transfer between departments.  Seniority for all purposes was based on length of employment in a particular department.  In 1965, the union and the employer renegotiated the existing collective bargaining agreement and changed the seniority and transfer provisions.  The previously all-Black department was made an entry level department for all new employees, both Black and White.  Employees in any department were allowed to bid out of their department based on plant-wide seniority.  However, department    seniority was maintained for purposes of bidding within a department.  If a layoff occurred, departmental seniority would control the order of layoff.  However, if a laid off employee had ever worked in another department, (s)he could return to his/her original department with full seniority, in that department.  These changes at least partially "unlocked" the locking in effect by allowing the use of plant-wide seniority for at least some competitive purposes, including providing some layoff protection.

The court found that both the original and the renegotiated seniority system tended to perpetuate some of the effects of the past discriminatory employment practices, but the 1965 changes showed that the system was maintained free from a discriminatory purpose.  The system applied to Blacks and Whites alike.  It allowed the use of plant seniority for interdepartmental transfers and reduced the fear of layoff for those employees who did transfer.  These changes thus lessened the seniority system's locking in effect, as demonstrated by the large number of Blacks who in fact did make use of the modified system to transfer to other departments, despite the loss of their departmental seniority.  The court said that these changes and the resulting number of transfers showed that the system was bona fide.

(The decision in this case gives somewhat more weight to the changes in the system and the resultant number of transfers than the Commission might be willing to.  Section 616.20 explains that, when the less attractive jobs are held primarily by one group and the better jobs primarily by another, then the fact that a number of the minority or female employees were willing to sacrifice their departmental seniority and transfer may not always mean that the system has operated equally.  The changes in the system in 1965 only partially "unlocked" the locking in effect.  Depending on the evidence in a specific case, a discriminatory intent might still be discoverable behind the continued disincentives to transfer.)

(e)  Awareness of System's Effects When System Is Renegotiated -

A seniority system that locks Blacks into less desirable jobs and Whites into better jobs, thereby perpetuating prior discrimination, may or may not be considered as operating equally, depending upon the surrounding circumstances.  (See § 616.20.)   However, if the employer and/or union are made aware that a previously negotiated system is having this effect, and yet the system is maintained when the bargaining agreement is renegotiated, there is an indication of intentional discrimination. Cf. Columbus Board of Education v. Penick, 443 U.S. 449, 464 (1979) (Fourteenth Amendment school desegregation case: "...actions having foreseeable and anticipated disparate impact are relevant evidence to prove the ultimate fact, forbidden purpose"); Detroit Police Officers Ass'n v. Young, 608 F.2d 671, 21 EPD ¶ 30,313 (6th Cir. 1979), cert. denied, 452 U.S. 938, 26 EPD ¶ 31,881 (1981) (Title VII affirmative action case citing Penick); Houston v. Inland Marine Industries,   F.Supp.  , 30 EPD ¶ 33,296 (N.D. Cal. 1982) (Title VII case applying awareness principal in context of maintaining a discriminatory wage system); Arnold v. Ray, 21 EPD ¶ 30,521 (N.D. Oh. 1979) (same in hiring context).  This indication will be stronger hen one party (either the union or the employer) proposes a change and the other party resists; it will be even stronger when the party suggesting the change can show that it was willing to or in fact did strike, refuse to sign the agreement, or take other concerted action in support of it.  (See §§ 616.23(f) on acquiescence, 616.24 on liability, and 630.18(d) on defenses for employers and unions.)   The factors that can show that an employer and/or union are aware that a system perpetuates prior discrimination include communications between union members and the union, employees and the employer, or the union and the employer; bargaining proposals to change the seniority system; grievances; and charges of discrimination filed with the Commission, the Department of Labor's Office of Federal Contract Compliance Programs, or other federal, state, or local agencies.  The grievances and charges can relate to the original discrimination that the seniority system is perpetuating or to the perpetuation effect itself.  (See Example 2 in § 616.17(b)(2).)

In Russell v. American Tobacco Co., the company and the union had agreed to a longstanding seniority rule providing for a one year probationary period for the company's better-paying jobs.  An employee in one of these jobs could not use company seniority to protect against demotion to his/her precious job until after completion of the probationary period.  Black employees had traditionally been excluded from these jobs.  The court concluded that the evidence showed that the company and the union were aware that the rule had an adverse impact on Blacks, and that the company proposed to change the probationary period to 35 days to eliminate the adverse impact.  This shorter period was in fact long enough to determine whether an individual was able to do the job, which was the purpose of the probationary period; the one year period was therefore not justified by business necessity.  Nevertheless, the union resisted the change, with a compromise being reached in 1968 to reduce the period to six months.  The court concluded that the failure to reduce the probationary period to 35 days was intended to limit the advancement of Blacks to the better-paying jobs.  As the rule was part of the seniority system, the failure of the company and union to change it once aware of its discriminatory impact indicates that the system was maintained with a discriminatory intent.

(f)   Resource Materials -

The investigation of whether a seniority system was maintained with a discriminatory purpose will be similar to that in § 616.22 regarding the genesis and initial negotiation of a system.  The EOS should obtain from the employer the employer's organizational and departmental charts since the system was first negotiated.  The EOS should also obtain from either the union or the employer all subsequent employee rosters and seniority lists.  This information should indicate any changes in the composition of the bargaining units subsequent to the initial negotiation, and any changes in the unions representing the units.  It should also indicate which jobs were held by minorities and/or women; if it does not, the EOS should try to obtain this information from employment and transfer applications, records of transfers, payroll information, etc.  Any formal policies limiting employment opportunities or union membership to a particular race, sex, or ethnic group should be identified.  Much of the information obtained in §§ 616.21 and 616.22 regarding industry practices and a particular system's rationality will be relevant.

The EOS should obtain copies of all union constitutions and bylaws in effect after unionization, for both the local chapter and the international, and of all subsequent bargaining agreements. (These can be obtained from the sources identified in § 616.22(g).) The EOS should use these documents to identify any modifications in the bargaining arrangement or the seniority system.  Records, including minutes and voting records, of the union's constitutional conventions and bargaining agreement ratification sessions will help, as well as any internal union or employer memos regarding the progress of negotiations, these should all be obtained from the union or the employer.  Of particular importance is whether any changes to the seniority system that would eliminate its perpetuation of prior discrimination were proposed, either by a union or an employer to the other party or by the union to its membership.  Rejection of such a proposal could be an indication of intentional discrimination.  Also important would be any provisions in the bargaining agreements or the union bylaws or constitutions restricting employment opportunities based on race, sex, or national origin -- when the provision was first adopted, how long it was included, and when it was eliminated.  Proposals to eliminate such a clause that were rejected could also be an indication of intentional discrimination.  Similarly, whether the bargaining agreement, bylaws, or constitutions contain a general clause prohibiting discrimination is important.  Bargaining or voting records showing that such a clause was rejected could also be an indication of intentional discrimination.  Interviews with union or employer bargaining representatives can also provide useful information.

Finally, any personnel handbooks, printed descriptions of benefits, or other statements of personnel policies should be obtained, to determine if any distinctions were made based on race, sex, or national origin and whether the seniority system was related to the distinctions.

616.24  Liability -

As mentioned in § 616.1, charges challenging a seniority system can be filed against the employer and/or any of the unions involved.  When the seniority system is found to have adverse impact or perpetuate prior discrimination and is also found not to be bona fide, a cause determination may be made as to both the employer and/or one or more of the unions, depending upon the circumstances.  If all parties clearly agreed to and supported the creation and maintenance of the seniority system, a cause determination should be made as to all parties; relief should also be obtained from all parties.  However, if one party expressed disapproval with the system and/or attempted to change it because it had adverse impact or perpetuated prior discrimination. a cause determination may not be appropriate regarding that party - even if the protesting party eventually agreed to the system or allowed it to continue unchanged.  In certain circumstances, even when a cause determination is appropriate, the party's protests may nevertheless be sufficient to affect the type and extent of relief from that party.  This is explained in more detail in § 630.18(d) on defenses for both unions and employers and in Exhibit 630-A, "Title VII and Collective Bargaining: Proposal and Resolution to Encourage Voluntary Efforts."  A brief explanation follows.

The liability of the protesting party will depend upon the form and the extent of that party's resistance.  According to the proposal and resolution at Exhibit 630-A, the resistance must be of a compelling and aggressive nature.  A protest made "for the record" during a negotiation session, followed quickly by acceptance of the system as proposed, will not be enough.  Examples of actions that may be adequate include actively proposing and bargaining for an alternative system; prolonged refusal to agree to the proposed system that perpetuates prior discrimination; prolonged refusal to sign a bargaining agreement because it contains the proposed seniority system; striking over the proposed system; and filing a grievance, unfair labor practice (with the National Labor Relations Board), or charge of discrimination during the bargaining sessions or while the system is in operation.  Again, see § 630.18(d) for more specific information.

Example - Company A had two racially segregated LOPs in its woodyard department.  Each LOP was a separate bargaining unit, with both units represented by Union B.  There was a separate seniority track for each LOP.  The organizational structure, racial segregation, and bargaining unit structure were due to formal policies of discrimination by the employer as to hiring and the union as to bargaining units.  The formal discrimination ended in 1965 but was perpetuated by the seniority system.  In 1967, the company and the union began to discuss a merger of the two LOPS, including their seniority tracks.  During these negotiations, the union sought to have the post-merger promotional rights of the most senior Blacks in the Black LOP subordinated to the rights of two Whites with less seniority in the White LOP; i.e., the union wanted the two Whites to be treated as though they had worked for the company longer and had more seniority than the Blacks, even though the Blacks had in fact worked longer.  The company refused to do this, and the union then rejected the proposed merger of the two LOPS.  The union then tried to convince the most senior Blacks to waive their rights for promotion and defer to the two Whites.  The Blacks refused.  The company continued to press for merger of the two LOPs with no subordination of the Black workers' rights through 1968, when the existing collective bargaining agreement expired.  After three months of operating without a contract, the employer finally agreed to drop the merger proposal and continue the original system.

The union's insistence on maintaining the original seniority system in the face of the company's proposed alternative is an indication that the system is not bona fide.  Moreover, if the other factors discussed in §§ 616.19 through 616.23 lead the EOS to conclude that the system is in fact not bona fide, the union's insistence would justify a cause determination for it as a respondent.  The company's presentation of an alternative that would end the prior system's perpetuation effect, and its prolonged insistence on that alternative would, on the other hand, justify either a no cause determination for it as a respondent or affect the type of relief it would have to provide.  For example, if the employer's involvement in the creation, maintenance, and operation of the system was minimal, and the system was in effect forced on it by the union, then a no cause finding regarding the company may be appropriate.  The more the company was involved in setting up, maintaining, and operating the system, the more likely a cause determination will be appropriate.  Even then, however, in recognition of the company's attempts to change the system, the relief it might have to provide could be limited.  Because the company actively tried to change the seniority system to eliminate its discriminatory effect beginning in 1967, the company's liability for back pay may run only up to that time.  Even though the system was not changed at that point, this was primarily due to the union's resistance.  A union's role as a party to the bargaining process can be sufficient to impose back pay liability on the union. Sears v. Atchison, Topeka & Santa Fe, 645 F.2d at 1375, 25 EPD at p. 19,609; Carey v. Greyhound Bus Co., 500 F.2d 1372, 8 EPD ¶ 9,698 (5th Cir. 1974); Guerra v. Manchester Terminal Corp., 498 F.2d 641, 8 EPD ¶ 9,584 (5th Cir. 1974); Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 7 EPD ¶ 9,233 (5th Cir. 1974).  Cf. Kaplan v. International Alliance of Theatrical and Stage Employees, 525 F.2d 1354, 10 EPD ¶ 10,504 (9th Cir. 1975) (finding International liable for back pay for discriminatory collective bargaining agreement negotiated by Local).  Here, the union might be solely liable for back pay for the period after 1967; depending on the degree of its involvement in creating, maintaining, and operating the system, it might also be wholly or partially liable for back pay before 1967.

616.25  Maternity Leave -

An employer rule that an employee will not earn seniority while on any type of leave is an ancillary rule and part of the seniority system.  Similarly, an employer rule that an employee returning from leave will lose all seniority earned before going on leave and, in effect, be treated like a new employee for seniority purposes is also an ancillary rule.  Both rules stop the seniority clock from ticking and therefore affect how the system will operate. (See § 616.9 on ancillary rules.)

(a)  Rule Still in Effect -

When an employer has either of these types of seniority rules for maternity leave, i.e., leave taken while disabled because of pregnancy, but not for leave for other temporary disabilities, there will be a violation of Title VII.  The seniority system will not be bona fide in this respect because it doesn't treat men and women equally.  Effective October 31, 1978 , the Pregnancy Discrimination Act (PDA) amended Title VII to define sex discrimination as including discrimination on the basis of pregnancy or related medical conditions.  (See § 626, Pregnancy.)   A seniority policy that treats leave for maternity purposes differently from leave for other temporary disabilities provides for disparate treatment based explicitly on sex and is therefore a violation of Title VII if made the subject of a timely charge.  (See §§ 605.4 et seq. on timeliness.)  The charge must be filed while the policy is still in effect or within 180/300 days after it was ended.

Prior to the PDA, such maternity leave seniority policies were also considered discriminatory but for another reason.  In Nashville Gas Co. v. Satty, 434 U.S. 136, 15 EPD ¶ 7,948 (1977), the employer's seniority system provided that an employee returning from any type of disability leave except maternity leave would not lose his/her previously earned seniority.  Anyone returning from any other type of leave, including maternity leave and nondisability leave, would lose his/her previously earned seniority.  The Supreme Court held that this was a neutral rule but that it had an adverse impact on women.  Because the employer could not provide a business necessity for the rule, the rule as held to violate Title VII.  Also see Zuniga v. Kleberg County Hospital, 692 F.2d 986, 30 EPD ¶ 33,213 (5th Cir. 1982), and cases cited therein. (See § 626.)

As a result of Nashville Gas Co. v. Satty and the PDA, a seniority policy that treats maternity leave differently from other types of disability leave is a violation of Title VII regardless of whether the charge was filed before or after the PDA.  For charges filed pre-PDA, the policy would be discriminatory under the adverse impact theory as explained in Satty.  For charges filed post-PDA, the policy would be discriminatory under the disparate treatment theory.

Example 1 - CP began working for R in 1966.  CP took maternity leave in February of 1974 and returned to work in September of 1974.  Under R's seniority system, CP lost all seniority earned from 1966 to February of 1974; employees taking leave for other disabilities did not lose their previously earned seniority.  This rule or policy was part of the seniority system when it was first negotiated in 1963.  CP filed a charge in November of 1974.  The charge is timely, as it was filed within 180/300 days of the cancellation of CP's seniority.  Under Nashville Gas Co. v. Satty, the seniority rule would violate Title VII and a cause determination should be made.

Example 2 - The result in the above example could be different if CP had not filed her charge In 1974.  In September of 1979, CP was laid off.  CP filed a charge 20 days later.  If she had not lost her prior seniority when she took her maternity leave in 1974, CP would have had enough seniority not to have been laid off.  If the same leave/seniority policy was still in effect within 180/300 days of the filing of the charge in 1979, the charge would be timely as alleging a continuing violation.  A cause determination should be made, and CP's relief should include restoration of the cancelled seniority.  If, however, the policy had been discontinued in 1977, or at any time more than 180/300 days before CP had filed the charge, then the charge would be untimely and should be dismissed unless the perpetuation theory applies (see § 616.25(b)).

(b)  Rule No Longer in Effect:  Perpetuation of Past Discrimination -

When a seniority rule or policy that treats maternity leave differently from other disability leave is no longer in effect and a charge had not been filed while the policy as still in effect or within 180/300 days after it was discontinued, a violation of Title VII may nevertheless exist under the perpetuation of past discrimination theory.  Under this theory, if past discrimination is perpetuated by a present neutral practice or policy, there could be a present violation of Title VII.  In this context, the prior discriminatory denial or cancellation of seniority while on maternity leave is being perpetuated by the seniority system.  If the seniority system is not bona fide there will be a violation of Title VII.  Whether the system is bona fide will depend upon when the rule or policy was discontinued.

It is the Commission's position that United Air Lines, Inc. v. Evans, 431 U.S. 553, 14 EPD ¶ 7,577 (1977), does not affect the perpetuation theory as it involved an allegation of a continuing violation and not perpetuation.  Moreover, in Evans, the seniority system was not itself being challenged as not being bona fide.  The original discrimination was discharge due to a no-marriage rule.  This rule was unrelated to the seniority system.  (See § 616.25(c).) The only seniority rule involved was that individuals who resigned or were terminated for any reason, who were later reemployed, would be treated as new employees receiving no credit for their prior service.  However, a policy denying accrual of seniority while on maternity leave but not while on other disability leave is itself a seniority rule.  Note that the fact that such a rule may have since been changed may not save the system from challenge under the perpetuation theory.  (See § 616.14(b)(2) for a more detailed discussion of why Evans does not affect the perpetuation theory.)

1 )  Rule Ended Pre-Pregnancy Discrimination Act - When the maternity leave/seniority rule was discontinued or to the effective date of the PDA (October 31, 1978), the perpetuation theory will frequently not apply.  According to the Supreme Court in Nashville Gas Co. v. Satty, a seniority rule that singled out pregnant women for differential seniority was a neutral policy.  It was a violation of Title VII only because it had an adverse impact on women.  As explained in § 616.19, a seniority system is bona fide unless the differences in treatment of men and women are intentionally based on sex.  A rule's adverse impact is not enough to show intent.  Unless the maternity leave rule can be shown to have been the result of intentional discrimination, the rule and the seniority system of which it is a part would be considered bona fide.

Example I - Consider the same facts as in the examples in § 616-25(a), except that the rule was ended in 1977.  CP was laid off in 1980, and filed her charge at that time.  If there is no indication of intentional discrimination in the creation, operation, and maintenance of the rule and the seniority system, then there is no violation of Title VII.

Example 2 - The result in the above example would be different if the rule and the seniority system are found to not be bona fide.  The maternity leave rule was first negotiated during the baby boom after the Korean War.  The employer and the union wanted to open up jobs held by women during the war to men returning from the Army.  Because of the baby boom most of the female employees were pregnant.  The union and the employer knew this and therefore created the rule to discourage women from coming back to work after their maternity leave.  Proof of this includes memos between the employer and the union and internal union documents.  There are also indications that the rule was maintained with a discriminatory intent.  As the seniority system is not bona fide, it is not protected by § 703(h).  Therefore, because the system perpetuated the prior discriminatory cancellation of CP's seniority, a cause determination should be made.

(2)  Rule Ended Post-Pregnancy Discrimination Act - Because of the PDA, a seniority rule that treats maternity leave differently from other types of disability leave is not neutral.  As explained in § 616.25(a), this alone makes the rule and the seniority system of which it is a part not bona fide.  The perpetuation theory can work.

Example - In 1963, the employer and union agreed to a seniority/leave policy that would deny previously earned seniority to women returning from maternity leave but not to other employees returning from other types of disability leave.  CP began working for the employer in 1973 and took a few months of maternity leave in 1976.  The leave rule was changed in January of 1980, to treat maternity leave and other types of disability leave alike.  CP was laid off in May of 1981; she would not have been laid off if she had not lost the seniority she earned from 1973 through 1976.  CP files a charge in July of 1981.  This is more than 180/300 days after the rule was ended, but within 180/300 days of the layoff.  The rule was in existence after October 31, 1978, the effective date of the PDA, so the seniority system is not bona fide as regards the rule.  Because the system has perpetuated the prior pregnancy based discriminatory cancellation of seniority. there is a present violation.  A cause determination should be made, CP should have all her lost seniority restored, and she should be recalled to work with back pay to the date of the layoff.

(c)  Pregnancy and Maternity Policies Not Related to Seniority -

If a woman successfully challenges a discriminatory pregnancy or maternity practice or policy that is not related to and part of a seniority system, then -- even if the system is neutral and bona fide -- relief can include retroactive seniority within the existing system.  (See § 616.14.)  The woman is not challenging the seniority system itself, but is merely seeking the seniority she would have had but for the discrimination.  This would apply when an employer has a forced maternity leave policy that it cannot justify. (See § 626, Pregnancy.)  Another example could occur when an employer refuses to hire a pregnant woman simply because she is pregnant, even if she is able to work.  (See § 624, Reproductive and Fetal Hazards, and § 626, Pregnancy.)

616.26  Layoff and Recall

(a)  Definition -

As explained In § 616.3(b), layoff and recall can both be controlled by seniority.  A layoff occurs when an employer has a reduced need for employees and/or work hours.  This can be due to a drop in business, seasonal patterns such as in the agriculture industry, a shortage in raw materials, or any number of other reasons.  During a layoff, employees with the least seniority are "furloughed," "laid off," "let go" -- told not to report to work.  During the layoff period, the employer or union might provide some limited employment benefits, e.g., partial wages, continued insurance coverage. and possibly continued accrual of seniority.  If and when the employer decides to increase its workforce, the employees who were laid off will usually be recalled.  Of the employees who were laid off, those which the most seniority will usually be recalled first.

(b)  Seniority System Is Bona Fide

(1)  The protection provided by § 703(h) may        apply to layoffs and recalls carried out pursuant to a bona fide seniority system.  This is true even if the layoff or recall itself has an adverse impact on a particular racial, sexual, or ethnic group, and even if the layoff or recall perpetuates prior discrimination.  Commission Decision No. 81-3, CCH Employment Practices Guide § 6761.

Example - A, an automobile manufacturer, is going through a slow sales period.  It decides to make fewer cars and therefore wishes to lay off 100 of its 500 assembly line workers.  Under the plant-wide seniority system it had first negotiated with Union B in 1961, those with the least plant seniority are to be laid off first.  Investigation discloses that the seniority system is bona fide.  A had long discriminated against Hispanics in hiring for assembly line positions.  This intentional discrimination ended just two years ago, when A began hiring Hispanics under an affirmative action plan.  Most of the Hispanics hired in the last two years will be laid off now, as they are the least senior employees in the plant.  Use of the seniority system to determine who is to be laid off will consequently have an adverse impact on Hispanics; it will also perpetuate A's prior discrimination by resulting in an all-Anglo workforce again.  Nevertheless, because the pre-Act seniority system is bona fide, the employer would not be violating Title VII by conducting the layoff pursuant to the seniority system. (Note: If the employer in this example had never discriminated against Hispanics in the past, and the layoff still had an adverse impact against Hispanics, there would also be no violation.)

(2)  There is one possible exception to the general protection provided by § 703(h) to layoffs carried out under a bona fide seniority system.  While it is true that a layoff will be protected once it occurs, the decision to have a layoff in the first place may not be.  The challenge will not be to the employer's decision that it needs to reduce the number of work hours, but to its decision to make that reduction through a layoff rather than through some other method that would have less or no adverse impact or perpetuation effect.

Many collective bargaining agreements expressly require that, in the event of a layoff, employees are to be let go in order of reverse seniority.  However, a bargaining agreement will usually not expressly require that the employer in fact use a layoff in order to reduce the number of work hours.  Under general labor law principles, this may mean that the employer is free to choose any other method of reducing the number of work hours.  See, for example, Industrial Garment Manufacturing Co., 65 Lab. Arb. 875 (1975) (Hall, Arbitrator); Rex Chainbelt Inc., 52 Lab. Arb. 852 (1969) (Murphy, Arbitrator).  The most significant alternative is worksharing.  Under a worksharing plan, the employer reduces the hours of all employees instead of laying some people off completely.  Instead of laying off 100 of its 500 workers, the employer in the above example could make everyone take one day off a week without pay.  By reducing the work week this way, the employer would achieve the same 20% reduction in work hours as through a layoff.

In some cases, an employer who needs to reduce its work hours will have no choice but to use a layoff.  Some bargaining agreements expressly require that an employer use a layoff and only a layoff for this purpose.  Others will explicitly guarantee employees a certain number of hours of work per week.  Any reduction in that number, such as through a worksharing plan, would be a violation of the bargaining agreement with the result that the employer has no choice but to use a layoff.  Because the layoff requirement or explicit work hour guarantee is an integral part of the seniority system, § 703(h) will protect the employer's decision to use a layoff and the layoff itself.  This issue is CDP and the EOS should recommend a no cause determination if the seniority system as a whole is bona fide.

In many cases, however, the bargaining agreement will not clearly, require that the employer wishing to reduce the number of work hours do it through a layoff.  The agreement may state that, when a layoff occurs, it be done in order of reverse seniority, but not explicitly state that a layoff must be the method used to reduce work hours.  As long as the employer has some freedom under the bargaining agreement to choose how to reduce the number of work hours, then a decision to have a layoff may not itself be a part of or flow from the seniority system.  If the layoff has adverse impact or perpetuates past discrimination, then § 703(h) may not protect the decision to have a layoff or the layoff itself, even if the seniority system used as part of the layoff is bona fide.  Instead, the employee may have to justify the use of a layoff to reduce its work hours as a business necessity.

Under Title VII, an employer must justify a policy or practice with adverse impact or that perpetuates prior discrimination by showing that it is a business necessity.  Involved in this is a showing that consideration was given to any alternatives that might be available that would achieve the same business purpose as the challenged policy or practice but with less or no adverse impact or less or no perpetuation of past discrimination.  An employer's initial decision that it must reduce the number of work hours will not be subject to challenge under Title VII.  However, when the use of a layoff to do so would have an adverse impact and/or perpetuate past discrimination, then, as long as the bargaining agreement does not clearly require that a layoff be used, Title VII may require that the employer at least consider using worksharing or other alternatives instead.  If the employer can show that such an alternative is not possible or would not accomplish the purpose of work hour reduction adequately, then the employer would be justified in using a layoff despite its adverse impact or its perpetuation of past discrimination.  See the Commission's statement on layoffs at 45 Fed. Reg. 60832 (September 12, 1980).

While the law concerning the methods an employer can or must use to reduce its work hours is not settled, Title VII will clearly apply to layoffs in this way when the bargaining agreement specifically requires the employer to use worksharing instead of layoff.  If a charge is filed where an employer used a layoff anyway and the layoff had an adverse impact or perpetuated past discrimination, then whether or not the seniority system is bona fide is irrelevant and § 703(h) will not apply.  The employer will have to show why using worksharing was not possible or would not have accomplished the purpose of work hour reduction adequately.  This issue is CDP.  If the employer can make this showing then it has justified its use of the layoff and the EOS should recommend a no cause determination.  If the employer cannot make this showing then the EOS should recommend a cause determination.

It is less clear whether Title VII will apply when the bargaining agreement specifically allows use of worksharing instead of layoff and less clear still when the agreement simply provides that a layoff, when conducted, be done in order of reverse seniority.  The first type of provision provides the employer with some flexibility in how it can reduce its work hours.  The second type of provision can also be read as leaving it open to the employer to use worksharing or any other method of reducing work hours instead of a layoff.  See Industrial Garment Manufacturing Co., and Rex Chainbelt Inc.  This issue is non-CDP.  If a charge is filed involving a layoff that is coming up or that has already taken place and the bargaining agreement contains either type of provision, then the EOS should contact the Guidance Division of the Office of Legal Counsel for further guidance.

The issue is also non-CDP when, in addition to providing that a layoff, when conducted, be done in order of reverse seniority, the bargaining agreement sets out the number of hours that constitute the normal work week".  A number of labor arbitration decisions have interpreted such provisions as an implicit guarantee that the normal work week will not be reduced.  See, for example, Morris Machine Works, 40 Lab. Arb. 456 (1975) (Feldesman, Arbitrator); Line Materials Industries, 35 Lab. Arb. 936 (1960) (Eckhart, Arbitrator); but see  Rex Chainbelt Inc., 52 Lab. Arb. at 854 (any guarantee of hours must be "explicit not implicit") and Industrial Garment Manufacturing Co.  (same).  If this interpretation is correct, then the employer would be in the same position as if the bargaining agreement contained an explicit work hour guarantee.  As explained above, an employer faced with such a guarantee has no choice but to use a layoff in order to reduce work hours.  Section 703(h) would then protect both the decision to use a layoff for this purpose and the layoff itself.  However, because-there is a conflict in labor law about whether a "normal work week" provision is an implied work hour guarantee, the issue is non-CDP.

(c)  Disparate Treatment -

Even if the seniority system is bona fide, the respondent will not be protected by § 703(h) if there is disparate treatment in the application of the system, e.g., Blacks with low seniority are laid off pursuant to a departmental seniority system but a White with less seniority in the same seniority track is retained for no legitimate reason.  Scarlett v. Seaboard Coast Line R.R., 676 F.2d 1043, 29 EPD ¶ 32,717 (5th Cir. 1982); Commission Decision No. 72-0510, CCH EEOC Decisions (1973) ¶ 6,305.

(d)  Seniority System Is Not Bona Fide -

A layoff or recall carried out under a seniority system that is not bona fide will not be protected by § 703(h).  If a layoff or recall under a seniority system that is not bona fide has an adverse impact on a particular racial, sexual, or ethnic group, the EOS should recommend a cause determination.  (See §§ 604 and 610 for how to investigate this type of charge.)  If the layoff or recall is under a seniority system that is not bona fide and that perpetuates prior discrimination, the EOS should recommend a cause determination; the layoff or recall doesn't have to have an adverse impact in this situation (see § 616.14(b)).

(e)  Unilateral Seniority System -

When a respondent employer implements a layoff or recall according to a seniority system imposed unilaterally by the employer, the issue is non-CDP.  It is not clear whether § 703(h) applies only to collectively bargained seniority systems or to other types of systems as well. (See §§ 616.15 and 616.18.)

616.27  Seniority Modification or Override

(a)  Voluntary Affirmative Action -

As explained in the Commission's Affirmative Action Guidelines and § 607 of the Compliance Manual, an employer can base an employment decision at least in part on race, sex, or national origin as long as the employment decision is made pursuant to an affirmative action plan.  The plan must comply with the Guidelines and with United States Steelworkers of America v. Weber, 443 U.S. 193, 20 EPD ¶ 30,026 (1979), reh'g denied, 444 U.S. 889, 20 EPD ¶ 20,266 (1979).  Specifically, the employer must conduct a reasonable self-analysis and have a reasonable basis for concluding that affirmative action is appropriate.  The actions provided for by the plan must also be reasonable; the plan cannot call for the discharge of employees not covered by the plan and their replacement with new minority or female hires; it cannot create an absolute bar to the employment or advancement of those not covered by the plan; and it must be temporary.  Such voluntary affirmative action can involve seniority and will often be appropriate in the context of a layoff.

There will be situations when a reasonable self-analysis will tell an employer and union, or an employer alone if there is no union, that the seniority system has an adverse impact and/or perpetuates past discrimination.  Even though the system is bona fide, the employer and union, or employer alone if there is no union, may have a reasonable basis for voluntarily eliminating or minimizing the discrimination.  One way to do this would be to develop an affirmative action plan that changes the system completely, replacing a more restrictive measure of seniority with a less restrictive one; e.g., changing from job seniority to departmental seniority, or from departmental seniority to plant seniority.  Another way to do this that would not involve changing the entire system would be to develop a plan that modifies or overrides seniority in making certain employment decisions where seniority alone usually controls; i.e., not considering seniority at all or considering it as only one factor among others.  Race, sex, or national origin can be one of those factors.  Whether these are reasonable actions would depend on the particular circumstances. (See the examples below.)

The need for either type of change will frequently arise as a result of a layoff, when the employer and union, or employer alone if there is no union, realize through the self-analysis that the layoff will have an adverse impact on minorities or women; e.g., when the system provides that the least senior employees are to be laid off first, and many of the minority or female employees have only recently been hired.  Because the layoff is pursuant to a bona fide seniority system, the adverse impact will generally not give rise to a violation of Title VII (but see § 616.26(b)).  However, the employer and union, or employer alone if there is no union, may wish to voluntarily reduce the impact of the layoff on the affected protected class.  To do so, they can agree to conduct the layoff on some basis other than pure seniority, or on some measure of seniority other than what the bargaining agreement would usually call for.  Examples that may be reasonable in particular situations might include using plant seniority instead of departmental seniority just for the purposes of the layoff, without completely changing the system, adopting a worksharing plan where everyone is "laid off" one day a week and works the other four days, regardless of seniority; or creating separate seniority lists based on race, sex, or national origin just for layoff purposes.

Both changing the system entirely and changing it only regarding certain types of employment decisions can reduce the expectations of those employees who had worked and earned seniority under the original system.  Rather than being able to enjoy the full job protection provided by the original seniority system, they may find themselves laid off or working less hours.  Many of these more senior employees will be male and/or White.  In agreeing to voluntarily modify or override the seniority system, the employer and union are in effect undertaking voluntary affirmative action.  Employment decisions will be made at least in part on the basis of race, sex, or national origin, in favor of minorities and/or women.  Voluntary affirmative action can be taken in the Context of layoffs and recalls without violating Title VII, as long as it is part of a reasonable affirmative action plan.  Section 1608.3(c)(4) of the Commission's Affirmative Action Guidelines; Tangren v. Wackenhut Services, Inc., 480 F. Supp. 539, 22 EPD ¶ 30,566 (D. Nev. 1979). aff'd, 658 F.2d 705, 27 EPD ¶ 32,169 (9th Cir. 1981), cert. denied, 456 U.S. 916. 28 EPD ¶ 32,562 (1982); Wygant v. Jackson Board of Education, 546 F. Supp. 1195 , 30 EPD ¶ 33,199 (E.D. Mich. 1982) (decided on constitutional grounds but same principles apply); Commission Decision No. 81-13, CCH Employment Practices Guide ¶ 6,766; cf. United States Steelworkers of America v. Weber (approving voluntary affirmative action generally).  Instructions on how to handle a charge filed by an employee adversely affected by a voluntary seniority modification or override are the same as those for handling a charge involving any other type of affirmative action issue.  These instructions are provided in § 607, Affirmative Action

Example 1 - Ace Boilermaker's business has recently dropped off sharply.  As a result, Ace has to lay off about 20% of its workforce.  The collective bargaining agreement with the Boiler-makers Union provides that layoffs are to be conducted in order of reverse seniority, with those hired last laid off first.  Because many of Ace's Black workers were only hired in the last few years, the employer and union realize that this would result in a significantly greater percentage of its Black workers being laid off than its White workers who generally have more seniority.  Because the seniority system is in fact bona fide, Ace and the union may not be obligated by Title VII to deal with this adverse impact.  Nevertheless, they decide to develop an affirmative action plan to minimize the impact.  The plan includes their analysis showing the effects of the seniority system, and provides that everyone in the plant will give up one day of work a week so that no one has to be laid off.  This type of affirmative action plan, specifically designed to reduce the effect of the layoff on Black workers, will not violate Title VII.  If a charge is filed later by a senior White employee who would not have been laid off and who objects to losing a day's pay, the EOS should recommend a no cause determination if all the facts support such a determination.

Example 2 - Prior to 1979, respondent employer had hired virtually no women.  In 1979, the employer obtained a contract to provide guard services for the federal government.  As required by Executive Order No. 11246, the employer as a federal contractor adopted an affirmative action plan.  The employer did not admit to past discrimination by the employer or by the respondent union.  Under the plan, which the Office of Federal Contract Compliance Programs approved under Executive Order No. 11246, the employer established certain hiring goals for women based on the percentage of women in the civilian labor force (CLF) in the relevant labor area. (See § 609 on utilization analyses.)

By 1981, the employer was close to meeting these goals.  However, in 1981 the employer had to lay off a large number of its security guards.  Under the terms of the original bargaining agreement with respondent union, layoffs were to be conducted in order of reverse seniority, with the employees with the least seniority laid off first.  As a result of the layoff, the percentage of women in respondent employer's workforce dropped to well below the percentage in the CLF and set the employer back in its timetable to meet the goals in its affirmative action plan.  To prevent this from happening again, the employer and union amended the provision of their bargaining agreement dealing with layoffs in 1982.  The new provision provided that, from 1982 on, the usual layoff procedures would not be followed as long as the percentage goals in the affirmative action plan had not been met or, if met, the layoff would result in dropping below the goals again.  Instead, for layoff purposes only, the employer would draw up separate seniority rosters for men and women.  As long as the goals of the original plan had not been reached, two male employees would be laid off for every one female employee.

A number of male employees responded to this change by filing a discrimination charge based on sex.  They claimed that, because the original seniority system was bona fide, it should not have been changed.  The change, however, does not violate Title VII.  The investigation by the EOS indicated that the change was the result of a reasonable self-analysis that showed a reasonable basis for concluding that affirmative action was appropriate, based primarily on the underrepresentation of women in respondent's workforce as compared to the CLF (see §§ 609 and 610).  The actions included in the original affirmative action plan to increase the number of women hired were reasonable, as is the new layoff procedure.  (See § 1608.3(c)(4) of the Commission's Affirmative Action Guidelines.)  Among other considerations, the new provision does not require the discharge of male employees and their replacement with female employees, does not create an absolute bar to the employment of men, and is temporary in that it will only last until the present bargaining agreement expires.  The seniority override, just like the provisions of the original plan, is a reasonable form of affirmative action.  The EOS should recommend a no cause determination if all the facts support such a determination. (See § 607, Affirmative Action.)

Note that under Title VII, the employer in the above example could have taken the same action without the agreement of the union.  This might, however, result in the employer being responsible for a violation of the collective bargaining agreement.  W.R. Grace & Co. v. Local 759, Internat'l Union of United Rubber, Cork, Linoleum & Plastic Workers of America, 461 U.S. 757, 31 EPD ¶ 33,616 (1983) (employer took action as part of conciliation agreement with EEOC, without union's agreement).

(b)  Court, or Agency Action -

In Example 2 in ¶ 616.27(a), the original affirmative action plan could have been part of an order or consent decree signed or approved by a court under a federal, state, or local fair employment practices law.  (See § 607.7(d).) The order or decree would have required actions to hire, promote, and otherwise increase the proportion of women and/or minorities in the employer's workforce, generally with no mention of what to do should layoffs ever become necessary.  A court generally retains jurisdiction over an order or consent decree to ensure that its terms are carried out.  If attainment of the order's or decree's goals are threatened by a layoff and/or recall because of seniority-based layoff and/or recall procedures, the court could order that the layoff and/or recall procedures be changed to minimize or eliminate the use of seniority even if the seniority system is bona fide.  This would be done to preserve the intent of the original order or consent decree.  Stotts v. Memphis Fire Department, 679 F.2d 541, 28 EPD ¶ 32,679 (6th Cir. 1982), cert. granted,    U.S.    (Docket No. 82-229); Boston Chapter, NAACP v. Beecher, 679 F.2d 965, 29 EPD ¶ 32,794 (1st Cir. 1982), vac'd and rem'd for consideration of mootness sub nom Boston Firefighters Union, Local 718 v. Boston Chapter, NAACP, 461 U.S. 477, 31 EPD ¶ 33,578 (1983); Brown v. Neeb, 644 F.2d 551, 25 EPD ¶ 31,593 (6th Cir. 1981); cf. Morgan v. O'Bryant, 671 F.2d 23, 28 EPD ¶ 32,544 (1st Cir. 1982), cert. denied 459 U.S. 843 (1982) (same reasoning applied under Constitution); EEOC v. Safeway Stores, 611 F.2d 795, 21 EPD ¶ 30,456 (10th Cir. 1979), cert. denied, 446 U.S. 952, 22 EPD ¶ 30,890 (1980) (provisions of original consent decree regarding seniority interpreted by district court in subsequent order; no layoff or recall involved); Chrapliwy v. Uniroyal, 458 F. Supp. 252, 14 EPD ¶ 7,708 (D. Ind. 1977), reconsid. denied, 15 EPD ¶ 7,933 (D. Ind. 1977) (seniority override included as part of required affirmative action in original court order); Commission Decision No. 78-32, CCH Employment Practices Guide ¶ 6,717 (seniority override included in original court order; Commission found no cause in subsequent charge where, pursuant to the order, male charging parties were laid off before females with less seniority); but see Youngblood v. Dalzell, 568 F.2d 506, 15 EPD ¶ 8,022 (6th Cir.  1978) (less senior Black plaintiffs benefitted by original consent decree subsequently asked not that seniority be overridden in their favor in conducting a layoff but that no layoff take place at all).  As a result of a court order containing a seniority override, a more senior White and/or male employee might be laid off before a minority or female employee with less seniority, or might not be recalled while a minority or female with less seniority is.  If the White and/or male employee files a charge with the Commission, the EOS should recommend a no cause determination.  (See § 1608.8 of the Affirmative Action Guidelines and § 607.7(d) of the Affirmative Action section of this Manual, dealing with action taken according to a court order.)  Note that if an employer takes such action pursuant to a court order without the union's agreement, the employer may not be responsible for a violation of the collective bargaining agreement.  W.R. Grace & Co. v. Local 759, 461 U.S. 757 at fn. 9, 31 EPD at p. 29,901.

Instead of being part of a consent decree or court order, the original affirmative action plan may have been approved by OFCCP or another federal agency order Executive Order No. 11246.  The agency that approved the plan may subsequently direct that the layoff and/or recall procedures be changed so as to preserve the intent and goals of the original plan.  The Commission will respect such a change and issue a no cause determination should a charge be filed later by someone laid off or not recalled because of the change.  In Example 2 in § 616.27(a), if the employer and union had not voluntarily agreed to provide for a seniority override during their 1982 negotiations, the Office of Federal Contract Compliance Programs may have insisted on it as a condition of continuing the employer's federal contract.  (See § 1608.5 of the Guidelines and § 607.7(a) of the Compliance Manual, dealing with action taken under an affirmative action plan approved under Executive Order No. 11246.)  This could also hold where the original affirmative action plan was part of a conciliation or settlement agreement to which the Commission or a state or local 706 agency was a party, or that was ordered by a state or local 706 agency.  Should layoffs ever become necessary while the agreement is still in effect, the Commission or the 706 agency could reopen or try to reopen the agreement or order to add a seniority override provision.  (See §§ 1608.6 and 1608.7 of the Guidelines and §§ 607.7(b) and (c) of the Compliance Manual, dealing with action taken under an affirmative action plan that is part of a Commission conciliation or settlement agreement or that has been approved or ordered by a 706 agency.) Under Title VII, the employer in such a situation can agree to the seniority override provision even if the union refuses to do so.  However, this might result in the employer being responsible for a violation of the collective bargaining agreement.  W.R. Grace & Co. v. Local 759.

 

                       NATIONAL LABOR RELATIONS BOARD

                              REGIONAL OFFICES

REGION 1

Keystone Building - 12th Floor
99 High Street
Boston, MA 02110
Phone:    (8) 223-3330
(617) 223-3300

REGION 2

Federal Building, Room 3614
26 Federal Plaza
New York, NY  10278
Phone:    (8) 264-0330
(212) 264-0300

REGION 3

Federal Building - Room 901
111 West Huron Street
Buffalo, NY 14202
Phone:    (8) 437-4934
(716) 846-4931

REGION 4

1 Independence Hall - 7th Floor
615 Chestnut Street
Philadelphia, PA 19106
Phone:    (8) 597-7608
(215) 597-7601

REGION 5

Candler Building - 4th Floor
109 Market Place
Baltimore, MD 21202
Phone:    (8) 922-2737
(301) 962-2822

REGION 6

1501 William S. Moorehead Federal Building
1000 Liberty Avenue
Pittsburgh, PA 15222
Phone:    (8) 722-2944
(412) 644-2977

REGION 7

Patrick V. McNamara Federal Building
477 Michigan Avenue - Room 300
Detroit, MI 48226
Phone:    (8) 226-3210
(313) 226-3200

REGION 8

Anthony J. Celebrezze Federal Building
1240 E. 9th Street - Room 1695
Cleveland, OH 44199
Phone:    (8) 293-3725
(216) 522-3715

REGION 9

Federal Office Building - Room 3003
550 Main Street
Cincinnati, OH 45202
Phone:    (8) 684-3621
(513) 684-3686

REGION 10

Marietta Tower - Suite 2400
101 Marietta Street, N.W.
Atlanta, GA 30323
Phone:    (8) 242-2861
(404 ) 221-2896

REGION 11

US Courthouse, Federal Building
251 North Main Street - Room 447
Winston-Salem, NC 27101
Phone:    (8) 670-3240
(919) 761-3201

REGION 12

Robert L. Timberlake Jr.
Federal Office Building, Room 706
500 Zack Street, P.O. Box 3322
Tampa, FL  33602
Phone:    (8) 826-2646
(813) 228-2641

REGION 13

Everett McKinley Dirksen Building
219 S. Dearborn Street
Chicago, IL  60604
Phone:    (8) 353-7574
(312) 353-7570

REGION 14

210 Tucker Boulevard North - Room 448
St. Louis, MO  63101
Phone:    (8) 279-4142
(314) 425-4167

REGION 15

600 South St. - Room 600
New Orleans, LA  70130
Phone:    (8) 682-6396
(504) 589-6361

REGION 16

Federal Office Building - Room 8A24
819 Taylor Street
Fort Worth, TX  76102
Phone:   (8) 334-2938
(817) 334-2921

REGION 17

Two Gateway Center - Room 616
Fourth at State
Kansas City, KS 66101
Phone:    (8)- 758-4434
(816) 374-4518

REGION 18

Federal Building - Room 316
110 South Street
Minneapolis, MN 55401
Phone     (8) 725-2601
(612) 725-2611

REGION 19

Federal Building - Room 2948
915 Second Avenue
Seattle, WA 98174
Phone     (8) 399-7542
(206) 442-4532

REGION 20

Federal Building - Room 13018,
P.O. Box 36047
450 Golden Gate Avenue
San Francisco, CA 94102
Phone     (8) 556-6721
(415) 556-3197

REGION 21

City National Bank Building - 24th Floor
606 South Olive Street
Los Angeles, CA 90014
Phone     (8) 798-5204
(213) 688-5200

REGION 22

Peter D. Rodino Jr. Federal Building - Room 1600
970 Broad Street
Newark, NJ 07102
Phone:    (8) 341-3240
(201) 645-2100

REGION 23

One Allen Center - Room 920
500 Dallas Avenue
Houston, TX 77002
Phone:    (8) 526-7726
(713) 229-3748

REGION 24

Federico Degatau Federal Building
U.S. Courthouse - Room 591
Carlos E. Chardon Avenue
Hato Rey, PR 00918
Phone:    (8) 753-4225
(809) 753-4347

REGION 25

Federal Building - Room 238
575 North Pennsylvania Street
Indianapolis, IN 46204
Phone;    (8) 331-7401
(317) 269-7430

REGION 26

Mid-Memphis Tower Building, Suite 800
1407 Union Avenue,
P.O. Box 41559
Memphis, TN 38104
Phone;    (8) 222-2707
(901) 521-2725

REGION 27

U.S. Custom House - Room 260
721 19th Street
Denver, CO 80202
Phone:    (8) 327-3558
(303) 837-3555

REGION 28

3030 North Central Avenue - 2nd Floor
Phoenix, AZ 85012
Phone:    (8) 261-2373
(602) 241-2350

REGION 29

16 Court Street - 4th Floor
Brooklyn, NY 11241
Phone:    (8) 656-7700
(212) 330-7713

REGION 30

310 W. Wisconsin Avenue
Suite 1240
Milwaukee, WI 53203
Phone:    (8) 362-3870
(414) 291-3861

REGION 31

Federal Building - Room 12100
11000 Wilshire Boulevard
Los Angeles, CA 90024
Phone:    (8) 799-7371
(213) 824-7352

REGION 32

Breuner Building - 2nd Floor
2201 Broadway, Post Office Box 12983
Oakland, CA 94604
Phone:    (8) 536-4285
(415) 273-7200

REGION 33

Savings Center Tower - 16th Floor
411 Hamilton Boulevard
Peoria, IL 61602
Phone:    (8) 360-7083
(309) 671-7080

 

                BUREAU OF LABOR STATISTICS REGIONAL OFFICES

REGION I

1603 JFK Federal Building
Government Center
Boston, Massachusetts 02203
Phone:    (617) 223-6761
Massachusetts, Connecticut, Maine, Vermont, New Hampshire, Rhode Island

REGION II

1515 Broadway, Suite 3400
New York, New York  10036
Phone:    (212) 944-3121
New York, New Jersey, Puerto Rico, Virgin Islands

REGION III

3535 Market Street, P.O. Box 13309
Philadelphia, PA 19101
Phone:    (215) 596-1154
Pennsylvania, West Virginia, Virginia, Maryland, Delaware

REGION IV

1371 Peachtree Street, N.E.
Atlanta, Georgia 30367
Phone:    (404) 881-4418
Alabama, Florida, Georgia, Kentucky, Tennessee, Mississippi, North Carolina, South Carolina

REGION V

Federal Office Building, 9th Floor
230 S. Dearborn Street
Chicago, Illinois 60604
Phone:    (312) 353-1880
Illinois, Indiana, Minnesota, Michigan, Ohio, Wisconsin

REGION VI

555 Griffin Square Building
Second Floor
Dallas, Texas 75202
Phone:    (214) 767-6971
Arkansas, Louisiana, Oklahoma, New Mexico, Texas

REGION VII and VIII

911 Walnut Street
Kansas City, Missouri 64106
Phone:    (816) 374-2481
Iowa,  Kansas, Missouri, Nebraska, Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming

REGION IX and X

450 Golden Gate Avenue
Box 36017
San Francisco, California 94102
Phone:    (415) 556-4678
California, Nevada, Arizona, Hawaii, Alaska, Idaho, Oregon, Washington

 



     [1]The same criteria that apply to defining seniority systems in general and determining whether they are bona fide also apply for unilaterally created systems.  These criteria are set forth in Section 616 of the Compliance Manual.