Petition — United Transportation Union Lodge No. 550 v. Rock

4 Supreme Court, U, &

“ FILED

FEB 25 97K

tn

No. 5 - ] 220

RODAK, JR. oy ERK

IN THE

Supreme Court of the Anited States

OctoBeR Term, 1975

NORFOLK AND WESTERN RAILWAY COMPANY,

@ corporation, :

Petitioner,

Vv.

ROBERT ROCK, EZELL B. JOHNSON, RUSSELL C.

WALKER, each individually and on behalf of all others

similarly situated; UNITED TRANSPORTATION UNION

LOCAL NO. 974, an unincorporated association; UNITED

TRANSPORTATION UNION LODGE NO. 550, an

unincorporated association; and UNITED TRANSPORTA-

TION UNION, an unincorporated association,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JamMEs T. TURNER Howarp J. TRIENENS

WiiuiaMs, WorRRELL, Lee B. McTurnan

Kewiy & GREER Epna SELAN EpsTEern

1700 Virginia National Srmotey & Austin

Bank Building One First National Plaza

Norfolk, Virginia 23514 Chicago, Illinois 60603

Attorneys for Petitioner

Norfolk and Western Railway Company

February, 1976

CHAS. P. YOUNG-CHICAGO

TABLE OF CONTENTS

PAGE

I ooo ake dc et tabeenaddcunehae 2

ET OR ORES O EOS Mee me 2

QUESTIONS PRESENTED ...........ccccccccens 2

Se ee. PRED cancel coecaindecevavedces 4

STATEMENT OF THE CASE ................0.. 5

REASONS FOR GRANTING THE WRIT ......... 11

EE b.cba SUNG parc decatecddivwaiokes ane 23

Pe I ee ee Re eee A-1

Opinion Of The Court Of Appeals For The Fourth

Commit, Gbembor BB, BOGD oc ccc cccccccsccnccsecs A-1

Order Of The Court Of Appeals For The Fourth

Circuit Denying Petitions For Rehearing, December

DE 4450K6o45s0 Oca cbekesakesies peauenaene A-25

Order Of The Court Of Appeals For The Fourth

Circuit To Stay Mandate, December 11, 1975 ...... A-26

Opinion And Order Of The District Court For The

Eastern District Of Virginia, Norfolk Division, May

Pe Ee Sk chk dcanadcusudusvetesacvarneneend aces A-27

Opinion Of The Court Of Appeals For The Fourth

CopamER, PURUURIT BE, BIS oc ccc cccceccccesceceses A-35

Memorandum Opinion Of The District Court For

The Eastern District Of Virginia, Norfolk Division,

ED CE ST v0 5: 9 90644405 600040 0405 cheese A-47

Amended Decree Of The District Court For The

Eastern District Of Virginia, Norfolk Division, April

ee SE Seawsdcdéndacckacecdowuehasmeenceenates A-62

5

CITATIONS

CASES: PAGE

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) ..

ida densdehenaeusenenies 10, 11, 12, 15, 16, 18, 21

Bush v. Lone Star Steel Co., 373 F. Supp. 526 (E.D.

CN ogc odusuunsevcasscabunseedwenneeasans 17

Carey v. Greyhound Bus Co., Inc., 500 F.2d 1372 (5th

Sl SE ccc Uee UU cl seus echaensaeede seeded e6e oo 17

Chicago and Northwestern Railway Co. v. United

Transportation Union, 402 U.S. 570 (1970) ........ 19

Conley v. Gibson, 355 U.S. 41 (1957) ................ 13

Detroit & Toledo Shore Line Railroad Co. v. United

Transportation Union, 396 U.S. 142 (1969) ........ 19

Guerra v. Manchester Terminal Corp., 498 F.2d 641

i Mo cccceeneanned seeks ens oseengen es 16, 17

Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364

ee Gh ED cckcecueguecdeans tashesebecaneens 17

Kober v. Westinghouse Electric Corp., 480 F.2d 240

Sl EEE kd eaeens cas udsaeutenecesucvennsese 18

LeBlanc v. Southern Vell Telephone & Telegraph Co.,

— Fe § fF fs ee rrry TT rT re 18

Manning v. General Motors Corp., 466 F.2d 812 (6th

ee EE. sadde-boucukusenaeeeke dunt wesbecuuesd 18

Norfolk & Western R. Co. v. Nemitz, 404 U.S. 37 (1971)

a ee er le ete es uae e 22-23

Rosenfeld v. Southern Pacific Co., 444 F.2d 1219 (9th

errr ern Pre 18

Steele v. Louisville & Nashville Railroad Co., 323 U.S.

Se EE i cncnnbyokesesasedaunews ene sesannas 13

Stevenson v. International Paper Co., 516 F.2d 103

GL OED iu does sce dace ces cdvies cenvsswens 16, 17

United States v. N.L. Industries, Inc., 479 F.2d 354 (Sth

SE au oes Le een Cua bheneeeeesuesieex 12

Virginian Railway Co. v. System Federation No. 40,

ee Nand 66 Seu e ee neae cueeuc 20

STATUTES : PAGE

Title VII, Civil Rights Act of 1964

Re Wits © ee OE OO 6 vv nwewcccdciccccccdocsee 4

42 U.S.C. § 2000e—2(a)(2) ........ cece eee e cece 4

42 U.S.C. § 2000e—2(c)(2)(3) ............ 0. ce eee 4

42 U.S.C. § 2000e—5(g) ................008, 4-5, 15, 20

The Railway Labor Act

SY EEE ua innededciddvardscucacuddes® 4, 5, 13-14

Federal Rules of Civil Procedure

Se as SI ID 6 sd vdnicevancwddedecsckccnes 21

IN THE

Supreme Court of the Anited States

Ocroser Term, 1975

NORFOLK AND WESTERN RAILWAY COMPANY,

a corporatio

- - Petitioner,

V.

ROBERT ROCK, EZELL B. JOHNSON, RUSSELL C.

WALKER, each individually and on behalf of all others

similarly situated; UNITED TRANSPORTATION UNION

LOCAL NO. 974, an unincorporated association; UNITED

TRANSPORTATION UNION LODGE NO. 550, an

unincorporated association; and UNITED TRANSPORTA-

TION UNION, an unincorporated association,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

The Norfolk and Western Railway Company petitions

for a writ of certiorari to review the judgment of the Court

of Appeals for the Fourth Cireuit rendered in this case on

September 22, 1975. A petition for a writ of certiorari

seeking review of the same judgment has been filed with

this Court (No. 75-973) by the United Transportation

Union and the United Transportation Union Lodge No. 550,

the unions that were co-defendants with the Norfolk and

Western in the trial court. The instant petition, however,

seeks review of issues other than the dovetailing merger

of seniority rosters.

2

OPINIONS BELOW

The opinion of the Court of Appeals for the Fourth Cir-

cuit and the opinion of the dissenting judge, reported at

_... F.2d ...., are set forth in the Appendix to this Peti-

tion (A. 1).?

This case was also before the Court of Appeals on a

prior oceasion (473 F.2d 1344 (1973)). The Appendix sets

forth that opinion (A. 36), the initial opinion (A. 47) and

the implementing decree (A. 62) of the district court,

and the opinion of the district court on remand (A. 27).

JURISDICTION

The judgment of the Court of Appeals was entered on

September 22, 1975. Re-hearing was denied on December 1,

1975. The jurisdiction of this Court is invoked pursuant to

28 U.S.C. § 1254(1). The jurisdiction of the District Court

was predicated on Title VII of the Civil Rights Act, 42

U.S.C. § 2000e et seq.

QUESTIONS PRESENTED

(1) Whether the ruling of the majority of the Court of

Appeals that the employer cannot escape liability, and that

the co-defendant unions cannot be held solely and directly

liable for backpay arising from the unions’ refusal to merge

separate seniority rosters, fails to accommodate the deter-

rent objective of Title VII of the Civil Rights Act with

the duty of fair representation imposed upon unions under

the Railway Labor Act.

(2) Whether the ruling of the court below conflicts with

decisions of the Court of Appeals for the Fifth Circuit

1“A.” refers to the Appendix to this petition; “R.” refers to the

Joint Appendix filed in the first appeal to the Court of Appeals;

“R. Supp.” refers to the Supplemental Apnendix filed in the sec-

ond appeal.

3

establishing principles for dividing, allocating or assigning

backpay responsibility with respect to employers and unions

as co-defendants on the basis of their individual actions

and relative good faith or fault.

(3) Whether the ruling of the court below, by ignoring

duties imposed by the Railway Labor Act, conflicts with

even the narrowest application of principles followed in

decisions by courts of appeals in other circuits which have

exonerated employers who, by honoring state “female pro-

tective” statutes, violated the Civil Rights Act.

(4) Whether the majority of the court below, in assign-

ing backpay liability to the employer, erred as a matter

of law by failing to consider that the United Transporta-

tion Union was the excluzive statutory bargaining agent

for the plaintiffs and that, as against the company, both

the UTU and its member-plaintiffs are bound by the UTU’s

undisputed knowledge of the- employer’s unconditional,

written 1968 offer to dovetail seniority rosters.

(5) Whether the backpay provision of Title VII, which

requires factual inquiries as to the responsibility of each

respective co-defendant for the continuation of the separate

seniority rosters, was misinterpreted by the majority below

as requiring that the entire liability be imposed directly on

the company as “a financially responsible party” (A. 8),

thus applying what the dissent characterized as “Robin

Hood justice” (A. 24) while ignoring the financial ability of

the union co-defendants to satisfy the backpay liability.

(6) Whether the court below improperly substituted its

opinion for specific, substantiated findings of fact by the

trial court, contrary to this Court’s pronouncement thai in

Title VII cases courts of appeals must recognize that the

trial court has the keener appreciation of the facts, cireum-

stances and combination of factors, and improperly over-

ruled the trial court’s exclusion of belated references to

wage guarantees under a 1964 merger agreement, approved

by the Interstate Commerce Commission, which was not

part of the record.

4

STATUTES INVOLVED

The statutes involved are Title VII of the Civil Rights

Act of 1964 (42 U.S.C. § 2000e et seq.) (“Title VII”) and the

Railway Labor Act (45 U.S.C. § 152). The relevant sections

of Title VII provide that:

“(a) It shall be an unlawful employment practice for

an employer—

“(2) to limit, segregate, or classify his employees or

applicants for employment in any way which would

deprive or tend to deprive any individual of employ-

ment opportunities or otherwise adversely affect his

status as an employee, because of such individual’s

race, color, religion, sex, or national origin.” (42 U.S.C.

§ 2000e-2(a) (2))

s ® s

“(¢) It shall be an unlawful employment practice for

a labor organization—

“(2) to limit, segregate, or classify its membership

or applicants for membership, or to classify or fail or

refuse to refer for employment any individual, in any

way which would deprive or tend to deprive any indi-

vidual of employment opportunities, or would limit

such employment opportunities or otherwise adversely

affect his status as an employee or as an applicant for

employment, because of such individual’s race, color,

religion, sex, or national origin; or

“(3) to cause or attempt to cause an employer to

discriminate against an individual in violation of this

section.” (42 U.S.C. § 2000e-2(c) (2) (3))

“Tf the court finds that the respondent has intention-

ally engaged in or is intentionally engaging in an un-

lawfui employment practice charged in the complaint,

the court may enjoin the respondent from engaging in

such unlawful employment practice, and order such

5

affirmative action as may be appropriate, which may

include, but is not limited to, reinstatement or hiring of

employees, with or without back pay (payable by the

employer, employment agency, or labor organization,

as the case may be, responsible for the unlawful employ-

ment practice), or any other equitable relief as the

court deems appropriate.” (42 U.S.C. § 2000e-5(g))

The Railway Labor Act (45 U.S.C. § 152) provides that:

“First. It shall be the duty of all carriers, their

officers, agents, and employees to exert every reason-

able effort to make and maintain agreements concern-

ing rates of pay, rules, and working conditions, and to

settle all disputes, whether arising out of the applica-

tion of such agreements or otherwise, in order to avoid

any interruption to commerce or to the operation of

any carrier growing out of any dispute between the

carrier and the employees thereof.

“Second. All disputes between a carrier or carriers

and its or their employees shall be considered, and, if

possible, decided, with all expedition, in conference

between representatives designated and authorized so

to confer, respectively, by the carrier or carriers and by

the employees thereof interested in the dispute.”

STATEMENT OF THE CASE

Two of the principal controversies in this case have con-

cerned the merger of separate seniority rosters and possible

backpay liability arising from the continued existence of

those separate rosters. Before the commencement of this

litigation, the Norfolk and Western Railway Company

(“N & W”), in a letter of October 31, 1968 (A. 19-20; R.

926a), made an unconditional offer to eliminate and dovetail

the separate rosters. The N & W did not in the court below,

and does not, contest the dovetailing merger. The N & W

does, however, seek review of those rulings of the majority

6

of the court below that pertain to the co-defendants’ respec-

tive liabilities for backpay.

The background of the case was succinctly described by

the district court in its initial opinion (A. 48-49) :

“The Norfolk and Western Railroad terminal at Nor-

folk is in fact two separate yards. The CT Yard is the

commercial and classification yard into which is

received all incoming Norfolk and Western freight from

sea or by rail or truck, of every description, including

coal. There is also the Barney Yard facility which is

exclusively a terminal for receipt of coal by rail for

export to the world over.

“As in the case of railroad industry nationwide, Nor-

folk and Western employment at Norfolk is down from

peak years. The Barney Yard operation has approxi-

mately 145 operating employees, nearly all black,

divided into a three step employment progression of

brakemen, foremen, and car retarder operators. The

CT Yard has approximately 350 operating employees,

mostly white, in a three step employment system of

brakemen, conductors, and car retarder operators.

“The pay is identical in each step in each yard and no

problem of disparate wages is presented in this case. A

single international union, United Transportation

Union, has jurisdiction throughout both yards. Work-

ers of both yards are governed by a single collective

bargaining agreement negotiated between the UTU and

N& W.”

Over the years new employees, though relatively few

in number, were hired largely by referrals from the em-

ployees themselves (word-of-mouth recruiting). Although

the terminal’s racial composition fairly mirrored the geo-

graphic region, each yard had a distinct racial identity.

Long before the Civil Rights Act of 1964, rates of pay

were identical for all job classifications in both yards. For

7

some years before and in each year after 1965, many black

Barney Yard employees earned more than their white CT

Yard counterparts with substantially identical dates of

hire. Bidding for jobs and promotions is controlled by

date of hire within each yard. Absent separate rosters,

black Barney Yard and white CT Yard employees would

have competed for jobs and promotions at both vards.

Although the United Transportation Union (“UTU”)

was the exclusive bargaining agent for both vards, there

were two separate locals or lodges. UTU Local No. 974 was

comprised of Barney Yard employees. UTU Lodge No. 550

members were from the (T Yard. The officers and indivi-

dual members of the separate locals had provincial, vested

interests in maintaining the separate locals and opposing

dovetailing of the rosters. The members of the predomi-

nantly white lodge did not wish to merge; the members of

the predominantly black lodge were of divided opinion,

presumably because a substantial number of them actually

had higher annual earnings than their white counterparts.

In addition, having separate lodges and rosters permitted

each lodge to have its own grievance procedures, officers,

and representatives to the UTU conventions (A. 52).

The subject of possible integration of the two seniority

rosters was first raised in August of 1967 (R. 928a). At

meetings in 1967 the UTU representative insisted that in-

2 See data at A. 17-18, fn. 1 and R. Supp. 442-455. In every year

since 1966, not less than about 15% and up to about 30°7 of the

black Barney Yard employees carned more than their white CT

Yard counterparts with equivalent seniority.

3In April of 1908 officials of the black local conducted a refer-

endum to determine the opinions of its members with respect to

the merging of seniority rosters. Most of the ballots were not

returned but the results indicated some opposition to any form of

merger and the number of those responding who either opposed

any merger or did not favor dovetailing was almost equal to the

number who indicated that dovetailing would be acceptable (R.

241a-243a).

8

tegration of rosters was “an internal matter” for the UTU

(R. 940a). Robert Rock, one of the class representatives,

was present and concurred in the UTU statement (R. 940a).

The N & W was also told that it would be contacted if and

when any integration of rosters was acceptable (R. 940a).

The UTU’s statements in the 1967 meetings placed in abey-

ance any form of roster merger.

On October 31, 1968, the N & W made a written, uncondi-

tional offer to the UTU to dovetail the separate rosters

(A. 19-20; R.926a). The letter proposed dovetailing and

urged meeting “to effect this [‘dovetailing of seniority

rosters’] as soon as possible” (A. 20; R. 926a).

The UTU representative responded to the N & W’s

unconditional offer by informing the company that the two

locals “could not reach an agreement” to dovetail, but that

the UTU was willing to discuss the possibility that an

agreement to top and bottom could be reached (R. 580a).

Thus, the UTU rejected dovetailing and would discuss

only topping and bottoming. “Topping and bottoming”

would have placed the employees in each yard at the bottom

of the other yard’s seniority roster. Unlike “dovetailing,”

which combines the employees of both yards in one roster

based on seniority dates, topping and bottoming would have

neither basically changed the status quo for existing em-

ployees nor fnndamentally conflicted with provincial union

interests in separate rosters.

In June of 1969 this action was commenced under Title

VII by Robert Rock, who was chairman of the predomi-

nantly black local, and the other named plaintiffs on behalf

of themselves and that local (“plaintiffs”). The co-defen-

dants named in the suit were the employer, N & W; the

UTU ;* and the predominantly white local.

* At that time the international union was the Brotherhood of

Railroad Trainmen, which was succeeded by the UTU. For sim-

plicity, the international union is referred to herein as being the

UTU.

9

After a trial involving approximately thirty-four wit-

nesses and sixty-six exhibits, the district court on J anuary

20, 1972, concluded that the maintenance of separate locals

had discriminatory effects (A.59). The court found that

the N & W was not responsible for the maintenance of those

separate locals (A.59), but ordered it to cease hiring

through employee referrals (A. 60). The separate local

unions were ordered to, and did, merge. The separate sen-

iority rosters were to be merged by topping and bottoming.

No backpay was awarded.

On the first appeal, the Court of Appeals for the Fourth

Circuit, on February 13, 1973, ordered a dovetailing of

rosters. The court remanded with instructions that the

district court consider whether a backpay award would be

appropriate in light of its finding that the dovetailing

remedy was necessary. The union co-defendants sought

and were denied certiorari on the issue of the judicially

mandated dovetailing (412 U.S. 993).

On remand, the method for dovetailing the conductor

rosters was litigated between the plaintiffs and the union

defendants. On May 17, 1974, the district court rendered

an opinion as to the method of dovetailing certain job

classifications and denied backpay (A. 27). The court based

its denial of backpay on a combination of factors including

the following specifie findings:

“The Norfolk and Western, in an offer which this

court has already found to be bona fide, proposed in

1968, that the rosters of the two yards be dovetailed.

This was communicated to the Unions. The proposi-

tion was turned down by the Unions. It is hard for

this court to believe, and frankly, it doubts, that such

an offer could be known to the Unions and not known

to the nominal plaintiffs in this suit, most of whom

were local union officials. In 1968, they, as rank and

file members, simply did not want to voluntarily chance

a loss of seniority by any dovetailing of rosters, and

they ought not to be allowed back pay now for some-

thing they opposed then.” (A. 32-33)

10

A second appeal ensued. On September 22, 1975, the

majority of the Court of Appeals held that the employer,

as a matter of law, could not escape direct liability for the

backpay, while the co-defendant unions, also as a matter

of law, could not be held similarly liable. The majority

said that:

“We do not think that N & W can escape liability to

plaintiffs for backpay. As we have said, irrespective

of any good faith effort on the part of N & W to obvi-

. ate the d'scriminatory effect of separate seniority lists

in 1968, the fact is that the discrimination was not

obviated; under Albemarle Paper Co., N & W’s good

faith efforts cannot insulate it from plaintiffs’ claims.”

(A. 7)

Silent as to the existence of any duty or economic incentive

for a union to obviate discrimination voluntarily, the

majority concluded that:

“any judgment should be against N& W and the

unions jointly and severally, or against N & W solely,

with a right to partial indemnity from the unions so

as to insure that there be an economic incentive for an

employer to obviate discrimination voluntarily ... .”

(A. 8)

Thus the Court of Appeals in effect mandated the trial

court to find the employer directly liable’ for all backpay

5 Although the court suggested that a judgment could be entered

jointly and severally against the employer and the defendant

unions, as a practical matter no union member will seek to collect

a judgment from his international union or his presently merged

local union when he can hold the employer fully liable. Moreover,

the court stated that any partial indemnity from the unions is to

be predicated upon a finding that they “combined with N & W to

deprive black employees of income opportunities” (A. 9). The

district court, however, had already found that the union refused to

“combine” with the N & W to eliminate separate seniority rosters.

(Footnote continued on next page)

Ee a a |

11

with the possibility of a partial indemnity from the unions.

The corollary—that either or both of the co-defendant

unions be held directly and solely liable for all or a sep-

arable portion of the liabilities, with or without a partial

indemnity from the employer—was ignored.

The Court of Appeals also reversed the trial court’s

ruling that it would not consider references at closing

argument to the wage guarantees of the 1964 Nickel Plate

merger agreement, approved by the Interstate Commerce

Commission, which was not in the record (A. 12-14, 17).

The dissenting judge emphasized that the majority’s

discussion of backpay liability should have been broken

down to distinguish “the period prior to the October 31,

1968 offer to dovetail” from the subsequent years (A. 17).

The dissent stated that the “across the board backpay

award against the railroad” was “unsupported by the rec-

ord in fact,” “contrary to recognized legal principles and

...a reading of Albemarle Paper Company unsupported

by that opinion” (A. 19).

REASONS FOR GRANTING THE WRIT

This Court has ruled that “courts of appeals must main-

tain a consistent and principled application of the backpay

provision, consonant with the twin statutory objectives

... ” of Title VII (Albemarle Paper Co. v. Moody, 422

U.S. 405, 421 (1975)). One of those “twin statutory objec-

(Footnote continued from previous page)

Robert Rock and the other plaintiffs have emphasized to this

Court in No. 75-973 that: “Neither court below has yet ruled on

the issue of the Unions’ liability” (Br. in Opposition, p. 4). That

statement reflects plaintiffs’ relative lack of concern with the mat-

ter of which defendant pays the liabilities, and the statement is

misleading since the majority below did rule that the company

can be held directly liable and, further, the majority precluded

the trial court from finding the union co-defendants directly and

solely responsible for all the liabilities resulting from their refusa!

to aecept the October 31, 1968 offer to dovetail.

12

tives” is to compensate the injured claimants. The other

is a prophylactic or deterrent objective—to encourage vol-

untary compliance. As the Court stated in Albemarle, “the

primary objective [of Title VII] was a prophylactic one,”

directly pertinent to backpay:

“It is the reasonably certain prospect of a backpay

award that ‘provide[s] the spur or eatalyst which

causes employers and unions® to self-examine and self-

evaluate their employment practices and to endeavor

to eliminate, so far as possible, the last vestiges of an

unfortunate and ignominious page in this country’s

history.’ United States v. N.L. Industries, 479 F.2d 304,

379 (CA8 1973).” (Id. at 417-418).

Where there are two or more defendants, the “make-

whole” objective of Title VII may generally be accom-

plished by any division, allocation or assignment of the

backpay liability which assures the availability of money

to satisfy awards. However, in so dividing, allocating or

assigning responsibility for backpay liabilities a court must

honor the prophylactic objective of Title VII and also

avoid conflict with important duties under provisions of

other federal statutes.

In the present case, the Court of Appeals focused on the

compensation objective, and considered the deterrent ob-

jective solely as providing “an economic incentive for an

employer to obviate discrimination voluntarily . . .” (A.8).’

Thus the majority failed to apply the deterrent objective

to the co-defendant unions that never offered to dovetail

the separate rosters, that had in 1968 received and declined

® Italics in this petition are ours unless indicated otherwise.

7 Except for that single reference to the deterrent objective, the

majority throughout its opinion directly and indirectly proceeded

on the assumption that: “The objective of an award of backpay is

‘to make persons whole for injuries suffered on account of unlawful

employment discrimination’.” (A. 6)

13

an offer to do so, and that even today continue to litigate

every possible issue concerning the dovetailing.

The ruling below actually encourages a union to resist a

company’s efforts to eliminate discrimination. For, in a

case such as this, the company has paid the same wage rates

to everyone and did not profit from the maintenance of

separate seniority rosters for the adjacent yards. But a

union, by resisting the remedy, preserves for some of its

members advantages that might otherwise have been re-

duced and yet offers to other members claims for backpay

against the employer. Such a result perverts the deterrent

objective of Title VIT.

The backpay ruling, moreover, does far more than defeat

a fundamental objective of Title VII:

(1) By foreclosing the trial court from concluding that

the UTU could be held solely and directly liable for backpay

arising from its actions, the Court of Appeals defeated the

long-established purpose of the duty of fair representation

imposed on the UTU under the Railway Labor Act. Neither

the statutory duty nor the problem here is a new one. As

Mr. Justice Black observed, speaking for the unanimous

Court almost twenty years ago:

“Once again Negro employees are here under the

Railway Labor Act asking that their collective bargain-

ing agent be compelled to represent them fairly. In a

series of cases beginning with Steele v. Louisville &

Nashville R. Co., 323 U.S. 192, this Court has emphati-

cally and repeatedly ruled that an exclusive bargaining

agent under the Railway Labor Act is obligated to

represent all employees in the bargaining unit fairly

and without discrimination because of race... .” (Con-

ley v. Gibson, 355 U.S. 41, 42 (1957))

The union’s duty is an affirmative, continuing one “which

does not end with the making of an agreement” (id. at 46)

and which, in the present case, applies to the UTU as the

14

exclusive statutory bargaining agent for all the relevant

employees, black and white, in both yards. Although Title

VII is fully consistent with that fair representation duty,®

the backpay ruling of the court below unnecessarily and

erroneously failed to integrate or accommodate the pur-

poses of Title VII with those of the Railway Labor Act.

The majority below, as aptly stated by the dissent, pred-

icated its backpay ruling “entirely on the failure of the

railroad to dovetail ...” (A. 17). To the majority, it was

sufficient and thereby controling that “Even if N & W did

offer to dovetail seniority rosters in 1968, the fact is that

dovetailing was not accomplished” (A. 4). That approach

led to the imposition of an across-the-board liability on the

employer and ignored both the employer’s and the union’s

duties under the Railway Labor Act.

First, as the dissent states (A. 23), the court’s action

assumed that the N & W could unilaterally have dovetailed

the seniority rosters. However, the N & W is prohibited

by the Railway Labor Act from making unilateral changes

in a union agreement. Criminal sanctions preclude such

unilateral action (45 U.S.C. 6152). Second, in limiting the

type of liability exposure for the unions, the court effec-

tively exonerated the UTU from violating its affirmative

duty under the Railway Labor Act to represent all em-

ployees fairly. This undermining of the affirmative duty

of fair representation is clearly unjustifiable here sinee the

employer unconditionally offered to do what the union

should have been demanding.

The unions’ insistence that the integrating of seniority

rosters was “an internal matter” for the UTU (R. 940a) to

resolve is an admission of the UTU’s responsibility here.

Despite the UTU’s position that the resolution of the con-

Micting, provincial, vested interests of the separate locals

was “an internal matter,” and notwithstanding its duty of

fair representation, the UTU would now be exonerated

® See the provisions of Title VII set forth at p. 4 above and of

the Railway Labor Act at p. 5 above.

———————<

15

from any sole and direct liability comparable to that im-

posed on the employer. At the same time, the employer,

who unconditionally offered the dovetailing prior to its

being required by the Court of Appeals, is now made liable.

(2) The backpay ruling conflicts with decisions of the

Court of Appeals for the Fifth Circuit that have divided,

allocated or assigned backpay liability among co-defendant

unions and employers for maintaining separate seniority

systems. The conflict stems in part from the erroneous

attempt of the court below to apply the recently decided

4lbemarle case to an issue not raised or involved in that

decision.® It is one thing to rule, as this Court did in

Albemarle, that good faith “is not a sufficient reason for

denying backpay” (422 U.S. at 422). But, it is far different

to rule that the employer, and not the co-defendant unions.

can be held directly liable for backpay arising from the

unions’ rejection of a good-faith offer on a matter they

insisted was their “internal” responsibility. Yet, that is

what the majority did here:

“As we have said, irrespective of any good faith effort

on the part of N & W to obviate the discriminatory

effect of separate seniority lists in 1968, the fact is that

the discrimination was not obviated; under Albemarle

Paper Co., N & W’s good faith efforts cannot insulate

it from plaintiffs’ claims.” (A. 7)

Thus the court below misapplied Albemarle and ignored

Section 2000e-5(g¢) of Title VII which specifies that any

backpay award is to be:

“payable by the employer, employment agency, or

labor organization, as the case may be, responsible

for the unlawful employment practice.”

The Court of Appeals for the Fifth Circuit, in Title VII

cases challenging seniority systems where unions and

* Albemarle was decided after the present case had been briefed

and argued but before the Court of Appeals’ September 22, 1975

opinion.

16

employers have been co-defendants, has sustained rulings

which deemed the good faith actions of a co-defendant-

employer not only relevant but also sufficient to impose on

the co-defendant unions sole and direct liability for all,

or for a separate identifiable portion, of the backpay

liability. In Guerra v. Manchester Terminal Corp., 498

F.2d 641 (5th Cir. 1974), the court held that the good-

faith actions of the defendant-employer, as contrasted with

the actions of the union, were relevant:

“once a court passes the finger-pointing stage and be-

gins to decide who bears the dollars and cents respon-

sibility for righting the wrong.” (Jd. at 656)

Further, in sustaining the district court’s order requiring

unions to indemnify the employer for all of the backpay

liability, the Fifth Circuit explained that:

“We do not mean to intimate that all of the dirt in

this case is to be found on union hands. The district

court certainly did not think so, and we agree that

the employer, too, violated the statute. Nor do we

mean to suggest that employers can avoid paying for

their civil rights violations by standing passively by

as unions take the active role. We say only that be-

cause the undisputed facts of this case identify the

unions, particularly the Local, as those principally re-

sponsible for plaintiff’s loss of the Dock job, the district

judge did not abuse his discretion in placing final re-

sponsibility for the monetary recovery at the feet of

{union-] appellants.” (Ibid.)

This ruling applies a fortiori here where the employer was

not responsible at all for the failure of the unions to dove-

tail rosters.

Another Fifth Circuit ruling conflicting with the present

case is Stevenson v. International Paper Co., 516 F.2d 103

(1975), decided after Albemarle. In Stevenson, the plaintiffs

attacked certain steps taken by the company and the unions

17

to merge previously segregated lines of job progression.

The Court of Appeals recognized that two of the practices

for which backpay was sought had been “spawned” by the

unions’ “disagreement with [company] policy” (516 F.2d at

113, 108). The court concluded that on remand the district

court should “consider the extent to which the unions...

might be held separately liable for back pay” for losses

caused by those practices and the possibility that the em-

ployer “might be liable for back pay only to those [members

of the affected class] who were impeded by the [other]

inadequacies” (id. at 113-114). If the same equitable prin-

ciples had been applied in the present case, the court would

then have directed the trial court to consider various divi-

sions of backpay liability including, among others, whether

either or both of the co-defendant unions should bear direct

and separate responsibility for the backpay liability arising

because of their failure or refusal to dovetail in 1968.

Guerra and Stevenson clearly established that, even

though both the employer and unions have been parties to

an agreement that violated Title VII, consideration should

be given in determining the imposition of liability for back-

pay to good faith actions and relative fault. Unions may

be and have been held directly responsible for paying all

of the liability stemming from resisting or obstructing an

employer’s offer to eliminate or mitigate the effects of past

discrimination. Other decisions applying equitable prin-

ciples have indicated that an equal sharing of backpay

liability between a company and a union is appropriate

where the findings show that “all parties seem to be equally

guilty—or guiltless” (e.g., Carey v. Greyhound Bus Co.,

Inc., 500 F.2d 1372, 1379 (5th Cir. 1974) ).1°

10 See also Johnson vy. Goodyear Tire & Rubber Co., 491 F.2d

1364 (5th Cir. 1974); Bush v. Lone Star Steel Co., 373 F. Supp.

526 (E.D. Tex. 1974) (backpay award divided 1% union, 1% local,

44 company as to earlier period of time; 4% local, 1% company as

to period of time when statute of limitations exempted the union).

18

Here, however, the majority of the Court of Appeals

ignored the unions’ duties and conduct in arbitrarily re-

stricting their maximum potential liability to a “partial

indemnification.”

Resolution by this Court of the conflict that the Fourth

Cireuit decision creates between the circuits is necessary

if this Court’s objective of having “a consistent and prin-

cipled application of the backpay provision” is to be at-

tained in those recurrent situations, not addressed in

Albemarle, in which a court must determine the respective

liabilities of employers and unions as co-defendants (422

U.S. at 421).

(3) This Court noted in Albemarle that:

“some courts have denied backpay, and limited their

judgments to declaratory relief, in cases where the

employer discriminated on sexual grounds in reliance

on state ‘female protective’ statutes that were incon-

sistent with Title VII. See, e.g., Kober v. Westinghouse

Electric Corp., 480 F.2d 240 (CA3 1973); LeBlanc v.

Southern Bell Telephone € Telegraph Co., 460 F.2d

1228 (CA5 1972); Manning v. General Motors Corp.,

466 F.2d 812 (CA6 1972); Rosenfeld v. Southern Pa-

cific Co., 444 F.2d 1219 (CA9 1971). There is no ocea-

sion in this case to decide whether these decisions were

correct.” (422 U.S. at 423 fn. 18)

The present decision conflicts with even the most limited

application of the principles sustained in those cases involv-

ing state “female protective” statutes. As the dissenting

judge stated in this case:

“Why an employer may be exempted from liability

under some circumstances by complying with a state

law and condemned to liability for complying with a

federal law is an inconsistency I do not think accept-

able, and no reason exists to fashion such a distinc-

tion.” (A, 23-24)

19

The Railway Labor Act has long required and conditioned

employers to negotiate expeditiously and in good faith with

unions on matters of working conditions and to eschew

unilatera! action. Chicago and Northwestern Railway Co. v.

United Transportation Union, 402 U.S. 570 (1970) ; Detroit

& Toledo Shore Line Railroad Co. v. United Transportation

Union, 396 U.S. 142 (1969). Since the UTU refused to coop-

erate in dovetailing the seniority rosters, the N& W was

no less trapped between conflicting duties under different

federal statutes than were those employers who honored

the terms of state female protective statutes. Indeed, the

only reason the N & W was caught between the Seylla of

the labor laws and the Charybdis of Title VII was because

the UTU failed in its affirmative duty of fair representa-

tion under the Railway Labor Act.

Moreover, application of the conflicting-obligations prin-

ciples recognized in cases involving state female protective

statutes would not, in this case, defeat the objective of

providing compensation to the injured claimants, since

here the co-defendant unions can be held directly and solely

liable for all the results of their actions.

(4) The court below failed to consider, and therefore

rejected, the important principle that the UTU was the sole

statutory bargaining agent for the plaintiffs and that the

UTU and its member-plaintiffs are, as against the N & W,

bound by the admitted knowledge of the UTU representa-

tive. The majority violated that principle by proceeding from

its assertion that “the record does not support the district

court’s suggestion that plaintiffs knew of the merger offer

in 1968” (A. 4) to the conclusion that the N& W has “no

defense” against, and cannot “escape,” liability to the plain-

tiffs (A. 4,7). On any view of the facts, the UTU not only

knew of, but received in writing, the N & W’s unconditional

offer to dovetail the seniority rosters. As the dissenting

opinion indicates, upon a disagreement with the district

20

court’s finding that the named claimants actually knew of

the offer to dovetail, it was necessary to:

“reach the valid legal proposition that they [the indi-

vidual union claimants] are nevertheless bound by the

knowledge of their representatives in a contest with

the railroad. In a contest with the union, of course,

they would not necessarily be bound.” (A. 22 fn. 3),

Holding, as the majority did, that the N & W is somehow

responsible for the union members’ alleged lack of knowl-

edge shifts onto the employer the duty of communicating

directly with the union membership on issues where the

employer cannot reach an agreement with the statutory bar-

gaining agent. That duty properly rested only on the UTU.

Virginian Railway Co. v. System Federation No. 40, 300

U.S. 515 (1937). As the dissenting judge observed, any lack

of knowledge among union members was “bound to be

based on their international and local officials not imparting

knowledge of the offer to them” (A. 20 fn. 2).

Finally, as the dissent also notes, “it is nothing less than

an injustice to mulch it [the railroad] for damages based

on any lack of knowledge of the 1968 offer on the part of

the class plaintiffs” when “the railroad in fact made a

bona fide offer to do, in 1968, the same thing we now com-

mand it to do in 1975... .” (A. 20 fn. 2).

(5) The court below misconstrued the backpay provision

of Title VIT as requiring only that liability be placed upon

a financially solvent co-defendant and tacitly assumed, with-

out foundation, that neither co-defendant union was finan-

cially capable of satisfying the backpay liability (A. 8),

Section 2000e-5(g¢) of Title VIT provides that any backpay

award is to be “payable by the employer, employment

agency, or labor organization, as the case may be, responsi-

ble for the unlawful employment practice.” Those terms

require a factual inquiry into what discriminatory conse-

quences are attributable to the actions of each respective

21

co-defendant. Here, however, the section has been sub-

verted by the imposition of strict liability oblivious of

relative fault and predicated on an assumed ability to pay.

Significantly, no attempt was made by the majority below

to suggest that a large international union such as the UTU

would be unable to satisfy the backpay liability. The dis-

sent properly rejected “the reasoning of the majority that

an award should be made against any party in any lawsuit

because it is financially solvent. This is a kind of Robin

Hood justice which I do not and may not subscriie to”

(A. 24).

(6) A majority of the court below unjustifiably rejected

certain specific findings of fact. In doing so, the majority

neither mentioned nor honored this Court’s injunction in

Albemarle that, in measuring backpay rulings against the

purposes of Title VII, the courts of appeals must “recog-

niz{e] that the trial court will often have the keener

appreciation of those facts and circumstances peculiar to

the” case (422 U.S. at 421-422). The dissent properly con-

cluded that the majority’s actions were “a flagrant disre-

gard of FRCP 52(a), not to mention the recent express

command of the Supreme Court in Albemarle Paper Com-

pany” (A, 22).

The court below accepted the fact that in 1968 the N & W

made a bona fide and unconditional offer to dovetail senior-

ity rosters. However, the trial court had also specifically

found that the offer “was turned down by the Unions” (A.

32). The majority below attempted to transform that find-

ing by the district court into an abandonment of the offer

by the employer (A. 7 fn. la). The record is replete with

evidence justifying the district court’s conclusion that the

unions “turned down” the offer in furtherance of their own

multiple provincial interests (A, 19, 22; see also pp. 7-9

above).

The district court also had found that the offer to dove-

tail was known by the representatives of the plaintiff class,

most of whom were local union officials (A. 32). The

majority below, however, preferred to accept testimony

from class representatives indicating that they had neither

22

seen nor heard of the offer. The dissenting judge found it

“beyond comprehension” that the majority should reject

perfectly well supported findings of fact made by the dis-

trict court and accept “inherently incredibie” testimony:

“Te|specially in view of the fact that a copy of the

October 31, 1968 proposal of dovetailing was filed with

a motion to dismiss on July 21, 1969, and necessarily

known to the plaintiffs’ attorneys in this case and also

to the plaintiffs ....” (A. 21)"

In reversing the trial court’s findings with respect to the

knowledge of the plaintiffs and by ignoring the unions’ past

and continuing resistance to dovetailing, the court below

laid a basis for its footnote argument that the N & W

should have made a “more assiduous effort” to merge

rosters (A.7 fn. la) and therefore that the N & W — but

not the unions that made no effort — could be held directly

liable for backpay. That conclusion rejected the duty of

fair representation imposed upon the unions and failed to

apply established equitable principles as between the

unions and the company.

Finally, the district court refused to consider the 1964

Nickel Plate merger miriimum wage agreement because it

was raised for the first time in closing argument after the

second trial. By overruling the district court, the Court of

Appeals failed to consider whether the terms and condi-

tions of that agreement were within the province of the

Interstate Commerce Commission which had approved that

agreement as “a fair and equitable arrangement to protect

the interests of [affected] railroad employees” under 49

U.S.C. §5(2)(f) (Norfolk & Western R. Co. v. Nemitz, 404

11 Other relevant facts are referred to in the dissent at A. 20-22.

In addition, as indicated above (p. 7 fn. 3), the black local had

conducted a referendum in April of 1968 on the question of a

merger of rosters. Officials sufficiently concerned with merger to

conduct a referendum cannot lightly be presumed to be unaware

of a company offer on the same subject.

~ a eee eae

23

U.S. 37 (1971)). Furthermore, not having a copy of the

document in the record, the Court of Appeals erroneously

assumed that the agreement did not “extend” to the em-

ployees in the Barney Yard (A. 3, 12, 13).

CONCLUSION

For the foregoing reasons, this petition for a writ of

certiorari should be granted.

Respectfully submitted,

James T. TuRNER Howarp J. TRIENENS

Witiiams, WorRELL, Lee B. McTurnan

Ketiy & Greer Epna Sevan Epstein

1700 Virginia National Siptey & Austin

Bank Building One First National Plaza

Norfolk, Virginia 23514 Chicago, Illinois 60603

Attorneys for Petitioner

Norfolk and Western Railway Company

February, 1976

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