Opposition Brief — International Ass'n of Bridge, Structural & Ornamental Ironworkers v. Berger

Nos. 2.2 and 88-820

IN THE

DEC i7 1988

Supreme Court of the Unite BistRion., a

CLERK

OCTOBER TERM, 1988

INTERNATIONAL ASSOCIATION OF BRIDGE,

STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL-CIO,

Petitioner,

Vv.

JESSIE BERGER, RANDOLPH JACKSON, TOMMY KIRKLAND,

VAN EDWARD LEWIS, RONALD TUCKER, ERNEST BELLAMY,

GARRETT SIMMONS AND WILLIE LEE MCMILLIAN,

Respondents.

IRON WORKERS REINFORCED RODMEN, LOCAL 201,

Petitioner,

Pr

JESSIE BERGER, et al.,

Respondents.

ON PETITIONS FOR WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

John L. Oberdorfer John F. Dienelt*

Andrew S. Newman Christopher L. Killion

Deborah M. Lodge Diane F. Killion

Patton, Boggs & Blow Reed Smith Shaw & McClay

2550 M Street, N.W. 1150 Connecticut Avenue, N.W.

Washington, D.C. 20037 Washington, D.C. 20036

(202) 457-6000 (202) 457-6100

Joseph M. Sellers

The Washington Lawyers’ Committee

For Civil Rights Under Law

1400 Eye Street, N.W.

Washington, D.C. 20005

(202) 682-5900

*Counsel of Record

December 17, 1988 Attorneys for Respondents

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QUESTIONS PRESENTED

1. Did statistical evidence presented on behalf of a class of

experienced black rodmen, which identified, as the cause of a

statistically significant disparity between the proportion of

experienced black and white rodmen who became union members,

the requirement that experienced blacks undertake classroom

training before being permitted to take an exam for union mem-

bership, establish a prima facie case of racial discrimination

under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. 1981,

as the courts below ruled?

2. Did the court of appeals correctly hold that defendant

unions, which at trial did not argue, or offer any evidence, that

their membership practices are based on legitimate business

reasons or are justified by business necessity, failed to rebut

plaintiffs’ prima facie case of racial discrimination?

3. Did the court of appeals correctly affirm the district

court’s ruling that the International Union was liable for racial

discrimination when the facts showed that the International

Union actively participated in and approved of the discrimina-

tory membership practices implemented by its affiliate, Local

201? tae

TABLE OF CONTENTS

MOTI PW MMOENTED occ cc cccccccccccscuncecee

ee PS

MURR AVCAe Cbs eas b bea edbdceveedseceas

Il. The Court Of Appeals Correctly Affirmed

The District Court’s Ruling That The

International Violated Title VII And

MUI SE vv cccdevwacccvcécciee

OO

TABLE OF AUTHORITIES

CASES

Albemarle Paper Co. v. Moody, 422 U.S. 405

Berger v. Tron Workers Re inforce d Rodmen Local

201, 843 F.2d 1395, modified in part on reh’g,

852 F.2d 619 (D.C. Cir. 1988)................

Carbon Fuel Co. v. UMWA, 444 U.S. 212 (1979) ..

General Building Contractors v. Pennsylvania,

Oe Wl SE EEMOED ccccccccccccccce

Goodman v. Lukens Steel Co., 482 U.S. 96 L.

is Oe te PE nv wc tc uccccccee cnckiwnnr

Griggs v. Duke Power Co., 401 U.S. 424 (1971).

Hazelwood School District v. United States. 433

RR EEUNET Tc c.ck o0ccccccecevncenca,

Howard v. International Molders & Allied

Workers Union, 779 F.2d 1546 (11th Cir.).

cert. denied, 476 U.S. 1174 (1986)

International Brotherhood of Teamsters v. United

States, 431 U.S. 324 (1977) . ees,

Kaplan v. IATSE, 525 F.2d 1354 (9th Cir. 1975)

10

14

passtm

111

iil

McKenzie v. Sawyer, 684 F.2d 62 (D.C. Cir. 1982) .

Myers v. Gilman Paper Corp., 544 F.2d 837 (5th

Cir.), modified on other grounds, 556 F.2d 758,

cert. dismissed, 434 U.S. 801 (1977) ..........

Patterson v. American Tobacco Co., 535 F.2d 257

(4th Cir.), cert. denied, 429 U.S. 920 (1976) ...

Sagers v. Yellow Freight System, Inc., 529 F.2d

oR: GS A | RRA a et eee

Sinyard v. Foote & Davies Division of McCall

Corp., 577 F.2d 943 (5th Cir. 1978)...........

Taylor v. Armco Steel Corp., 373 F. Supp. 885

EE Ade a Dn > ee

Terrell v. U.S. Pipe & Foundry, 644 F.2d 1112

(5th Cir. 1981), vacated on other grounds, 456

SE a oe Gk Sela tree IE a!

United States v. N.L. Industries, 479 F.2d 354 (8th

Se Sa eS Va tas 60k veo our hedee eis

United Mine Workers v. Gibbs, 383 U.S. 715 (1966)

Wards Cove Packing Co. v. Atonio, 827 F.2d 439

(9th Cir. 1987), cert. granted, 108 S. Ct. 2896

GN IDE oa 'va's Code ec can ose kers

Watson v. Fort Worth Bank & Trust, 108 S. Ct.

ig PEARSE BE ton ee bps on

Wheeler v. American Home Products Corp., 19

FEP Cas. (BNA) 143 (N.D. Ga. 1979) ........

STATUTES

Se es EE ah 5s 3 2.5 6-00 060-00 0 €S oo oweuak een

Title VII of the Civil Rights Act of 1964, 42

U.S.C. $§2000e ef se iehde eb eeue ae esas cee

Page

1.5.6.9

Nos. 88-699 and 88-820

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

INTERNATIONAL ASSOCIATION OF BRIDGE,

STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL-CIO,

Petitioner,

V.

JESSIE BERGER, RANDOLPH JACKSON, TOMMY KIRKLAND,

VAN EDWARD LEWIS, RONALD TUCKER, ERNEST BELLAMY,

GARRETT SIMMONS AND WILLIE LEE MCMILLIAN,

Respondents.

IRON WORKERS REINFORCED RODMEN, LOCAL 201,

Petitioner,

V.

JESSIE BERGER, et al.,

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION

The respondents, Jessie Berger et al., respectfully request that

this Court deny the petitions for writs of certiorari filed by the

International Association of Bridge, Structural and Ornamental

Iron Workers (“the International’) and its affiliated local union,

Iron Workers Reinforced Rodmen, Local 201 (“Local 201”’).' The

petitions seek review of the decision of the United States Court of

Appeals for the District of Columbia Circuit, reported at 843 F.2d

1395, modified in part on reh'g, 852 F.2d 619 (D.C. Cir. 1988),

which held Local 201 and the International liable for racial dis-

crimination against a class of black rodmen.

' By Order dated November 16, the Court granted respondents leave to file their

opposition to the petition of the International, which was served on October 26, at

the same time they file their opposition to Local 201s petition, served pursuant to

an extension on November 17.

2

STATEMENT OF THE CASE

This case involves the efforts of a class of experienced black

rodmen to gain membership in Local 201 and the International.

Plaintiffs contended below that defendants’ use of classroom train-

ing aS a prerequisite to being permitted to take a test for union

membership denied or delayed membership for qualified black

workers. The district court found that defendants had violated Title

VII of the Civil Rights Act of 1964, 42 U.S.C. §2000¢ et seg., and

42 US.C. §1981 by this practice. After a “meticulous review” of

the record (Pet. App. 4a), the court of appeals affirmed the district

court's ruling in a detailed per curiam opinion (Edwards, D.H.

Ginsburg and Starr, JJ.). Pet. App. la-87a.

At trial, plaintiffs presented a “straightforward” (Pet. App.

18a) statistical case in support of their claim of racial discrimina-

tion. As the district court found, the defendant unions required

experienced black rodmen to complete one of two classroom pro-

grams (either the Apprenticeship Program for those 30 and under

or the Training Program for others) as a prerequisite to taking the

test for union membership, which no experienced worker failed.

This prerequisite created unnecessary barriers to union membership

that disproportionately disadvantaged experienced black rodmen,

some of whom had worked more than 10,000 hours in the trade. See

Pet. App. 17a-18a; Pet. App. 95a-96a, 97a-98a, 101a-102a (Trial

Findings 12, 14, 17).

The court of appeals agreed that plaintiffs had demonstrated

that the percentage of eligible blacks who became union members

(i.e., took and passed the journeyman exam) was lower than the

percentage of eligible whites by a statistically significant margin,

and thus that the challenged practice had a disparate impact in

violation of Title VII. Indeed, the disparity resulting from the

challenged practice was so great that the district court found, and

the court of appeals affirmed, that defendants also had engaged in

disparate treatment in violation of Title VII and had intentionally

discriminated against the class in violation of section 1981. Pet.

App. 18a-40a, 87a.

3

Defendants challenged the validity of a number of aspects of

plaintiffs’ statistical case. The court of appeals rejected those chal-

lenges. Pet. App. 27a-40a. The court of appeals, in particular,

rejected defendants’ claim that plaintiffs had failed to identify the

specific practice that was discriminatory:

Quite simply, defendants once again decline to recognize the

thrust of plaintiffs’ challenge. The “specific procedure” under

challenge is the requirement of ciassroom training before

experienced workers may qualify to enter the ranks of journey-

men rodmen. That theory of the case fully satisfies defendants’

obvious right to know precisely what is under challenge.

Pet. App. 34a. The court of appeals likewise ruled, contrary to

defendants’ assertion, that plaintiffs had established a causal con-

nection between the challenged practice and the discriminatory

result. Pet. App. 35a-36a.

Defendants made no response to plaintiffs’ statistical case

apart from the asserted inadequacies which the district court and

the court of appeals rejeeted. The court of appeals observed that

“[i]n the typical case, defendants’ rebuttal case will likely focus on

(1) inadequacies in the plaintiffs’ statistical case, or (2) an alterna-

tive, more favorable statistical case, or (3) a nondiscriminatory

explanation for the statistical disparitics.” Pet. App. 22a. Defend-

ants, however, did not offer evidence of more favorable statistics.

Nor did they offer evidence of a nondiscriminatory explanation for

the racial disparities the district court found. See Pet. App. 150a-

1Sla (Conclusions of Law 16, 18, 19). Thus, the court of appeals

concluded that “[t]he record is, indeed, devoid of any affirmative

rebuttal case” (Pet. App. 40a, emphasis in original) and affirmed

the district court’s findings of racial discrimination.

Applying traditional principles of agency law, the court of

appeals upheld the district court’s conclusion that the International

was liable under Title VII because of its active participation in and

approval of Local 201’s membership procedures. Pet. App. 5la-63a.

In addition, the court of appeals affirmed the ruling that the

International was liable under section 1981. It held: “[t]his ques-

tion need not detain us long... because... [t]he International’s

support of and participation in the very practices to which the

plaintiffs’ statistics apply is a sufficient basis from which the intent

to discriminate on the part of the International may properly be

inferred.” Pet. App. 63a.

4

REASONS FOR DENYING THE PETITIONS

The court of appeals correctly applied established principles

regarding proof of racial discrimination and common law agency in

affirming the findings of the district court that defendants, “by

adopting and implementing the requirement that applicants for

union membership complete a Union-supervised educational pro-

gram, discriminated against the properly certified classes of black

plaintiffs in violation of Title VII and Section 1981.” Pet. App. 87a.

The decision below raises no issue worthy of review.

Local 201 tries in its petition to tie this case to the Court's

decision in Watson v. Fort Worth Bank & Trust, 108 S. Ct. 2777

(1988), and the issues presented in Wards Cove Packing Co. v.

{fonio, 827 F.2d 439 (9th Cir. 1987), cert. granted, 108 S. Ct.

2896 (1988) (No. 87-1387). However, nothing in Watson warrants

further review of the instant case. Nor is there any connection

between this case and Wards Cove that justifies Local 201’s request

that the Court defer action on, or grant, its petition. Similarly, the

decision below does not conflict with the Court's decision in Carbon

Fuel Co. v. UMWA, 444 U.S. 212 (1979), or national labor policy,

as the International contends.

The court of appeals’ ruling is nothing more than a routine, yet

painstaking review of factual determinations of a trial court. More-

over, the decision of the court of appeals is correct. First, plaintiffs

proved that a specific employment practice—the classroom training

prerequisite——caused a disparity between experienced blacks and

whites who sought union membership. Second, defendants failed to

rebut plaintiffs’ statistical case, either by offering their own statisti-

cal model showing an absence of disparate impact or by producing

evidence of business justification or necessity. Third, plaintiffs

proved, pursuant to established standards, that defendant Interna-

tional was aware of, and participated in, the discriminatory

practices

ARGUMENT

I. Neither Watson Nor Wards Cove Has Any Bearing On

The Decision Below That Petitioners Violated Title

VII And Section 1981.

Plaintiffs presented a straightforward disparate impact analy-

sis under Griggs v. Duke Power Co., 401 U.S. 424 (1971). Specifi-

cally, as the court of appeals observed, plaintiffs proved statistically

that, during the three-year period prior to suit, the classroom

training barrier interposed by Local 201 and the Internationa!

between experienced black rodmen and the journeyman exam dis-

proportionately kept those black rodmen from taking that exam and

thus obtaining admission to the union.”. The court of appeals

likewise held that plaintiffs’ “evidence relating to Union admissions

going back to 1967... showed a statistically significant disparity

between the proportion of eligible blacks and whites who became

union members.” Pet. App. 26a

Local 201 seeks this Court’s review by attempting to link the

instant case to Watson v. Fort Worth Bank & Trust, 108 S. Ct

2777 (1988), and Wards Cove Packing Co. v. Atonio, 827 F.2d 439

(9th Cir. 1987), cert. granted, 108 S. Ct. 2896 (1988). But none of

the issues in those cases has any effect on the unanimous opinion o!

the court of appeals in this case. No purpose would be served either

by granting Local 201’s petition or deferring decision on it pending

resolution of Wards Cove.

A. Local 201 first presents the recycled argument that plain-

tiffs’ showing of causation between defendants’ practices and the

discriminatory impact was deficient. Local Pet. 9-13.‘ However,

the court of appeals ruled that plaintiffs’ prima facie case had

focused on a specific employment practice: “[t]he ‘specific proce-

dure’ under challenge is the requirement of classroom training

* The court of appeals affirmed that the disparity was statistically significant (Pet

App. 19a-20a, 26a & n. 16), a determination which petitioners do not dispute

’ The court of appeals twice rejected the centerpiece of Local 201°s petition— that

plaintiffs made an insufficient showing of causation. See Pet. App 29a-30a, 34a-

36a; Pet. App. 89a. Loca! 201 argues that the decision in Watson and the grant

of the petition in Wards Cove occurred after the court of appeals’ principal!

decision in this case. Local Pet. 9-10. However, both decisions were issued one

month before the court of appeals ruled on Local 201’s petition for rehearing

6

before experienced workers may qualify to enter the ranks of

journeymen rodmen.” Pet. App. 34a. Moreover, the court of

appeals expressly rejected the argument Local 201 is making

here that plaintiffs had failed to show “a causal connection

between the challenged practice and the alleged discriminatory

result.” Pet. App. 35a. Plaintiffs proved their case, as Watson

contemplates (108 S. Ct. at 2788), by “identifying a specific

employment practice’-—the classroom training prerequisite for

experienced applicants—and by showing that this practice caused

the disparate impact. Pet. App. 34a-36a.

B. No other aspect of Watson requires further consideration of

the decision below. This case does not involve promotions based on

subjective criteria, as did Watson, but rather union admission pro-

cedures using objective, standardized criteria: a classroom training

requirement for all union membership applicants, regardless of

experience, as a prerequisite to taking the journeyman exam.* The

court of appeals’ opinion is a proper application of Griggs and is

well within the framework of Watson.

C. Nor does the “comparative statistics” issue on review in

Wards Cove pertain to this case. There, the Ninth Circuit relied on

statistics showing that a disproportionate number of minorities held

low-paying, unskilled jobs and a disproportionate number of whites

held high-paving, skilled jobs for its holding that 16 different

subjective criteria had a disparate impact on defendant's workforce.

S27 F.2d at 444. The petition granted by this Court challenged that

ruling for its failure to provide statistics keyed to any one employ-

ment practice, and for its reliance on statistics providing nothing

more than a snapshot of the composition of defendant's workforce.

\ passage from the plurality opirmon in Warson quoted by Local 201 makes clear

that the evidentiary standards the opinion was describing were directed toward

erteria which include subjective elements, not merely objective criteria:

Papecially in cases where an employer combines subjective criteria with the

use of more rigid standardized rules or tests, the plaintiff is in our view

responsible for isolating and identifving the specific employment practices

that are allegediy responsible for any observed statistical disparities.

ISS Ct at 2788-89 (entation omitted), cited at Local Pet. 11. Yet. as Local 201

concedes in its Questions Presented, the criterion at issue here 1s an “objective

selection device” Lacal Pet. (i)

7

In contrast, the court of appeals here did not base its decision

on statistics relating only to the racial composition of the union’s

membership. Nor did it fail to identify the particular employment

practice that caused the disparate impact. The court of appeals

identified the specific employment practice causing racial discrimi-

nation as the requirement that experienced black rodmen complete

the Apprenticeship Program or the Training Program before taking

the journeyman exam. The court of appeals also held that the

discriminatory effect of this requirement was proven by comparing

the racial composition of experienced rodmen seeking to take the

journeyman exam to the racial composition of experienced rodmen

admitted to the union.°

Local 201’s petition erroneously argues that the Apprentice-

ship Program and the Training Program are somehow analogous to

the routes to non-cannery and cannery employment in Wards Cove.

Local Pet. 13. But the court of appeals here did not premise its

ruling of discrimination upon a comparison of the percentage of

blacks in the Training Program versus that in the Apprenticeship

* Local 201 contends (Local Pet. 7), as it did below, that plaintiffs’ statistical case

improperly included apprentices in the “experienced pool.” The court of appeals

gave the argument appropriate short shrift:

This argument suffers from a fatal flaw. Defendants’ analysis focuses on

black participation in the Apprenticeship and Training programs, rather

than black completion of the programs (i.e., achievement of union

membership).

Pet. App. 30a (emphasis in original). Local 201 claims, moreover, that appren-

tices should be subtracted both from the pool of applicants and the union

membership. On this supposition, it argues that there would be no disparate

impact. Local Pet. 11-14. Even assuming arguendo that not counting the

examined apprentices has merit, correct application of Local 201’s argument

would require subtraction of these apprentices from the applicant pool only. This

is because of “the unmanipulable nature of the figure of actual new mem-

bers ....” Pet. App. 29a (emphasis in original). Removing apprentices, whom

petitioners concede were predominantly white (Local Pet. 7), from the exper-

ienced pool would result in a bias in plaintiffs’ favor and increase even more the

deviation between the black composition of the applicant pool and the black

composition of the group given an opportunity to take the exam. Plaintiffs’

statistical approach, on this and other elements of the analysis challenged by

defendants, was a proper and “conservative methodology.” Pet. App. 25a; see

Pet. App. 29a-30a.

Program, or on the racial composition of union membership gener-

ally. To reiterate, it based its ruling on a comparison of the percent-

age of blacks in the group of experienced rodmen who sought to

become union members to the percentage of blacks in the group

who became union members.°

D. In a final effort to gain review by this Court, Local 201

contends that the proper allocation of proof when a defendant has

produced evidence that the challenged employment practices are

based on legitimate business reasons is at issue here. It urges that

this aspect of its petition be considered in light of Wards Cove.

No review is warranted on this basis because Local 201

presented no argument or evidence below on either a “business

necessity” or a “job relatedness” defense.’ Rather, defendants’

entire defense was directed at contesting plaintiffs’ statistical case.

No defendant claimed that the challenged classroom prerequisite to

the journeyman exam was based on legitimate business reasons.

The record is, indeed, devoid of any affirmative rebuttal case—

that is, seeking to prove by their own evidence that admission

to union ranks was not racially disproportionate. We therefore

® Local 201 seems to make a separate argument that the court of appeals’ ruling

that no named plaintiff had standing to challenge the high school diploma

requirement for admission to the Apprenticeship Program means that statistics

relating to examinees who completed the Apprenticeship Program are not

relevant. See Local Pet. 7. This argument is wrong. The absence of a named

plaintiff with standing to challenge the high school diploma requirement does not

mean that statistics relating to defendants’ use of the Apprenticeship Program as

a prerequisite to the journeyman exam should be ignored in the analysis. As the

court of appeals observed, plaintiffs’ claim “is not that the Training Program or

the Apprenticeship Program (setting aside the high school diploma requirement)

were themselves discriminatory; rather it is that the requirement that the

rodmen complete such a program before being allowed to take the journeyman

examination worked discriminatory effects.” Pet. App. 63a. Therefore, the

courts below properly approved of the inclusion of those apprentices who actu-

ally took the journeyman exam in the “experienced pool” analysis.

The plurality in Watson recognized that defendants have at least the production

burden in connection with a business justification or necessity defense. 108 S. Ct.

at 2790. Moreover, Wards Cove concerns the allocation of the burden of proof

relating to a business necessity defense of subjective hiring criteria, in contrast to

the standardized classroom training prerequisite challenged in this case.

9

conclude, in light of our earlier analysis, that plaintiffs’ prima

facie case went unrebutted.

Pet. App. 40a (emphasis in original); see Pet. App. 150a-15la

(Conclusions of Law 16, 18, 19). Thus, the court below “did not, in

terms, formulate a ‘business justification’ test,” as Local 20]

appears to contend it should have. Local Pet. 15. The court had no

need to do so, because no defendant offered any evidence on that

subject. In fact, this Court is the first forum in which any defendant

has attempted to raise the issue.

Contrary to Local 201’s petition, the court below did not

acknowledge “that the Local's practice of requiring classroom

training for journeymen did, in Watson's words, further ‘legitimate

business reasons.’ Local Pet. 15. The court of appeals’ general

statements that unions may limit their size and are not required to

admit unqualified individuals (Pet. App. 36a, 40a) cannot be dis-

torted to suggest that the court approved the precise practice it held

to be unlawful—the requirement of classroom training, regardless

of experience, as a condition to taking the journeyman exam.

Indeed, because defendant unions, during the so-called Open Period

in part of 1971, permitted rodmen to take the journeyman exam

solely on the basis of their experience in the trade, the court of

appeals concluded “that the Union itself has not viewed an educa-

tional requirement as an absolute, minimum objective qualifica-

tion.” Pet. App. 39a. Thus, there was no conceivable business

justification for defendants’ discriminatory practice. As the court of

appeals held, “the Union has, in effect, hoisted itself on its own

petard, having chosen in the Open Period to treat experience alone

as sufficient for admission to the journeyman exam. ... In our

view, the Open Period establishes that experience can qualify one

to be a journeyman rodman....” Pet. App. 39a (emphasis ‘in

original).*

* As a third issue for this Court to review, Local 201 raises the court of appeals’

assessment of plaintiffs’ proof of disparate treatment. Local Pet. 9, n.7. How-

ever, Local 201 offers no reason for the Court to review this issue, and there is

none. The court of appeals applied the well-established principle that statistical

disparities themselves, when great enough, establish the discriminatory motive

element of a disparate treatment case. See, e.g.. Hazelwood School District v.

United States, 433 US. 299, 307-08 (1977); International Brotherhood of

10

Il. The Court of Appeals Correctly Affirmed The

District Court’s Ruling That The International

Violated Title VII And Section 1981.

The court of appeals had “little difficulty concluding that the

International’s involvement in the membership practices of Local

201 was sufficiently extensive to subject it to liability under Title

VII and section 1981.” Pet. App. Sla. The court of appeals

endorsed the district court’s findings that “the International

actively participated in and approved of Local 201°’s membership

procedures.” Pet. App. 63a. Accordingly, the court of appeals,

applying established common law agency principles, affirmed the

district court's determination that the International was liable.

A. On its review of the record, the court of appeals concluded

that there was “overwhelming evidence of the International’s

awareness of and participation in Local 201°s membership prac-

tices.” Pet. App. 64a. The evidence amply supported the findings of

the district court that: (1) the International at all times endorsed

the existence of classroom training prerequisites for membership;

(2) the International exercised significant control over the Appren-

ticeship Program and Training Program; (3) the International

knew about Local 201°s membership practices, the discriminatory

effect of those practices, the racial imbalance in Local 201, and

claims of discrimination against Local 201; (4) on at least two

occasions, the International prescribed the membership test Local

201 employed; (5) the International created the Open Period and

expressly instructed Local 201 to implement it; and (6) the Interna-

tional endorsed the system that “placed unnecessary barriers

between experienced black rodmen and Union membership.” Pet.

App. 12a (emphasis in original); see Pet. App. 61a-64a; Pet. App.

1 38a-143a (Trial Findings 128-139).

Teamsters v. United States, 431 U.S. 324, 338 (1977); McKenzie v. Sawyer, 684

F.2d 62, 71 (D.C. Cir.1982). General Building Contractors v. Pennsylvania,

458 U.S. 375 (1982), cited by Local 201, merely reiterates the proposition that

intent must be proven in a section 1981 case; it does not take issue with the

principle, based on this Court's decisions, that statistical evidence may be used to

prove intent.

11

The International ignores the “overwhelming” evidence (Pet.

App. 64a) against it, making the bewildering assertions that “there

was no evidence that the International knew that a disparate impact

was occurring at Local 201” (Int'l Pet. 4) and that “[t]here was

simply no evidence whatsoever in this case which showed that the

International Union authorized, condoned or ratified the challenged

conduct.” Int'l Pet. 11. Similarly, the International claims that all

of its activities “were designed to increase minority participation

in... Local 201” (Int’l Pet. 14, emphasis in original), despite the

finding that the International intentionally discriminated against

experienced black permit workers. Pet. App. 63a-64a.

The International’s assertions that the lower courts erred in

finding the facts and reviewing those factual determinations would

not warrant review by this Court, even if there were some support

for those assertions in the record. See Goodman v. Lukens Steel

Co., 482 US. — , 96 L. Ed. 2d 572, 584 (1987). Here, there is no

support for the International’s factual claims.

B. The ruling against the International raises no issue of law

warranting review. The court of appeals applied the test for interna-

tional union liability established by Carbon Fuel Co. v. UMWA, 444

U.S. 212, 216-18 (1979)—-the standard advocated by the Interna-

_ tional itself. Int’l Pet. 9. Contrary to the implication of the Interna-

tional’s petition, the court applied the Carbon Fuel test without

relying upon the International’s constitution to support the imposi-

tion of liability. Intl Pet. 11; see Pet. App. 59a-61a. Instead, the

court focused on the International’s conduct with respect to the

membership practices at issue and found the International liable.

The International makes the absurd claim that the court of

appeals’ opinion conflicts with national labor policy and “could

mean the end of the Labor Movement as we know it.” Int’l Pet. 12,

13. The opinion, however, is just another in a long line of cases

holding international unions liable under Title VII and section 1981

for discriminatory conduct at the local level.’ It does not conflict

” See, e.g.. Howard v. International Molders & Allied Workers Union, 779 F.2d

1546, 1548 (11th Cir.), cert. denied, 476 U.S. 1174 (1986); Myers v. Gilman

Paper Corp., 544 F.2d 837, 850-51 (Sth Cir.), modified on other grounds, 556

F.2d 758, cert. dismissed, 434 U.S. 801 (1977); Patterson v. American Tobacco

12

with decisions of this Court or other courts of appeals. The Interna-

tional here did not merely attempt to mediate an isolated local

dispute, as did the international union in United Mine Workers v.

Gibbs, 383 U.S. 715, 738-39 (1969). Nor did the International take

every reasonable step to bring Local 201 into compliance with the

law, as did the international union in Terrell v. U.S. Pipe &

Foundry, 644 F.2d 1112 (Sth Cir. 1981), vacated on other grounds,

456 U.S. 955 (1982). Rather, as the district court found, and the

court of appeals affirmed, the International, over a period of several

years, “actively participated in and approved of” the unlawful

membership practices. Pet. App. 63a.'°

Finally, upholding the International's liability in this case will

not discourage other international unions from endeavoring to elim-

inate racial discrimination at the local union level. The court of

appeals’ decision will, if anything, deter international unions from

creating, endorsing, or administering programs and policies that

disproportionately discriminate against blacks seeking union mem-

bership. That result is entirely consistent with the purposes of Title

VII and section 1981. Cf. Albemarle Paper Co. v. Moody, 422 US.

405, 417-18 (1975) (“It is the reasonably certain prospect of a

backpay award that ‘provide[s] a spur or catalyst which causes

employers and unions to self-examine and to self-evaluate their

employment practices and to endeavor to eliminate, so far as possi-

ble, the last vestiges of an unfortunate and ignominious page in this

country’s history, ” quoting United States v. N.L. Industries, 479

F.2d 354, 379 (8th Cir. 1973)).

v. keliow Freight System, Inc., 529 F.2d 721, 737-38 (Sth Cir. 1976); Kaplan v

LATSE, 528 F.2d 1354, 1389-60 (9th Cir. 1975); Wheeler v. American Home

Products Corp., 19 FEP Cas. (BNA) 143, 146 (N.D. Ga. 1979); Taylor v

Armco Steel Corp., 373 F. Supp. 885, 911-12 (S.D. Tex. 1973). Cf, Goodman v

Lukens Steel Co., 96 L. Ed.2d at 584-87 (International and two local unions

held liable under Title VII and section 1981)

’ Sinvard v. Foote & Davies Division of McCall Corp., §77 F 2d 943 (Sth Cir

1978), also does not conflict with the rulings below. In Sinyard, the court

refused to impose Title VII liability on an international union that had no

involvement with the operations of its local. Sinvard, like the decision below,

was decided on its facts. In the instant case, the facts established liability

13

CONCLUSION

The court of appeals’ decision applies sound principles of law

established by this Court to the factual determinations of the

district court. Neither Local 201 nor the International has

presented any issue warranting review by this Court. The petitions

for certiorari should accordingly be denied.

Respectfully submitted,

John L. Oberdorfer John F. Dienelt*

Andrew S. Newman Christopher L. Killion

Deborah M. Lodge Diane F. Killion

Patton, Boggs & Blow Reed Smith Shaw & McClay

2550 M Street, N.W. 1150 Connecticut Avenue, N.W.

Washington, D.C. 20037 Washington, D.C. 20036

(202) 457-6000 (202) 457-6100

Joseph M. Sellers

The Washington Lawyers’ Committee

For Civil Rights Under Law

1400 Eye Street, N.W.

Washington, D.C. 20005

(202) 682-5900 *Counsel of Record

December 17. 1988 Attorneys for Respondents