Amicus Brief — Teamsters Local Union 657 v. Rodriguez

Supreme Court, U. S.

FILED

6

In THE

Supreme Court of the sinh ———

OCTOBER TERM, 1976

No. 75-651

TEAMSTERS LOCAL UNION 657,

. Petitioner,

N) .

i

| JESSE RODRIGUEZ ET AL.,

Respondents.

No. 75-715

SOUTHERN CONFERENCE OF TEAMSTERS,

. Petitioner,

JESSE RODRIGUEZ ET AL.,

Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Fifth Circuit

MOTION FOR LEAVE TO FILE BRIEF AS

AMICUS CURIAE AND

BRIEF FOR THE NATIONAL RAILWAY LABOR

CONFERENCE AS AMICUS CURIAE

STEPHEN J. POLLAK

JOHN D. ALDOCK

JOHN TOWNSEND RICH

SHEA & GARDNER

734 Fifteenth Street, N.W.

Of Counsel: Washington, D.C. 20005

SHEA & GARDNER Davi P. LEE

734 Fifteenth Street, N.W. 1225 Connecticut Ave., N.W.

Washington, D.C. 20005 Washington, D.C. 20036

Attorneys for Amicus Curiae

October 13, 1976 National Railway Labor Conference

A SA SS

WILSON - EPES PRINTING Co.. INC. - RE 7-6002 - WASHINGTON, D. C. 20001

TABLE OF CONTENTS

Page

Ee adi tcitaiaties i

Motion for leave to file brief as amicus curiae —............ v

Brief as amicus curiae ..............................-- a 1

ee cctasnantenctuenetecaessnese |

Question presented 2

EE 2

ae 6

EEE ATT 17

TABLE OF AUTHORITIES

Cases:

Alexander v. Gardner-Denver Co., 415 U.S. 36

EEE EEE Ee 16, 17

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

SEE 14,17

Bing v. Roadway Express, Inc., 485 F.2d 441 (5th

EE 9

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

EEE 13, 15

Dent v. St. Louis-San Francisco Railway Co., 406

F.2d 399 (6th Cir. 1969) ..........................0.......... 16

EEOC \. Detroit Edison Co., 515 F.2d 301 (6th

Cir. 1975), petitions for writs of cert. pending,

Nos. 75-220, -221, -239, -393 —............................... i)

Emporium Capwell Co. v. Western Addition Com-

munity Organization, 420 U.S. 50 (1975) ........ 13

Franks Vv. Bowman Transportation Co., No. 74-728,

decided March 24, 1976, 47 L. Ed. 2d 444 _........ 11

Griggs V. Duke Power Co., 401 U.S. 424 (1971)... 17

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

TE 12, 13, 15

Kaplan v. International Alliance of Theatrical Em-

ployees, 625 F.2d 1354 (9th Cir. 1975) —...... 12

ii

TABLE OF AUTHORITIES—Continued

Local 189, United Papermakers & Paperworkers

v. United States, 416 F.2d 980 (5th Cir. 1969),

cert. denied, 397 U.S. 919 (1970) -...................... 9,

Macklin v. Spector Freight Systems, Inc., 156 U.S.

App. D.C. 69, 478 F.2d 979 (1973) ~.....................

Myers v. Gilman Paper Corp., 392 F. Supp. 413

(S.D. Ga. 1975), appeal pending, 5th Cir. No.

EE : cnccsscissicicstiantecsnsaieaianiaieeintisiaiimaatiiite incialinctaiiemeataile

Oatis v. Crown Zellerbach Corp., 398 F.2d 496

ERS eS EER ee

Pettway v. American Cast Iron Pipe Co., 494 F.2d

| eee. aE:

Quarles v. Philip Morris, Inc., 279 F. Supp. 505

GES Fels Be cccestggrnsenssnnecnsennimsiecnpamiiaeenini 9,

Robinson v. Lorillard Corp., 444 F.2d 791 (4th

Cir. 1971), petition for cert. dismissed, 404 U.S.

1006 (1971) _....... ee ae eS Lee Me ee N

Russell v. American Tobacco Co., 528 F.2d 357

(4th Cir. 1975), cert. denied, 48 L. Ed. 2d 176

CAT, Tih TEED ccetnnccionenitininsetenniniaretetianiiatiadiinns

Sabala v. Western Gillette, Inc., 516 F.2d 1251

(5th Cir. 1975), petition for writs of cert.

pending, Nos. 75-781 & 75-788 _..........................

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

See Ge A I cnteniisniiortentnitietenans

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

Ge Ge SEE cnneeieceniccensutecintienicicinhiaiae

Swint v. Pullman-Standard, 13 FEP Cases 604

I ES NE

Thornton Vy. East Texas Motor Freight, 497 F.2d

Ge Be Ss Ce cccinnccentedintednenninpienatigiiniaes

United States v. Bethlehem Steel Corp., 446 F.2d

— Fe te

United States v. Chesapeake & Ohio Railway Co.,

471 F.2d 582 (4th Cir. 1972), cert. denied sub

nom. Local 268, Brotherhood of Railroad Train-

men V. United States, 411 U.S. 939 (1973) ........

Page

10, 12

13

14

16

9

10, 12

12, 15

9, 12

vii, 9

TABLE OF AUTHORITIES—Continued

Page

United States v. Jacksonville Terminal Co., 451

F.2d 418 (5th Cir. 1971), cert. denied, 406 U.S.

906 (1972) ...... vii, 9, 10, 12

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

LEER OE 9, 12, 14

United States v. St. Louis-San Francisco Railway

Co., 464 F.2d 301 (8th Cir. 1972), cert. denied,

409 U.S. 1116 (1973) and sub nom. United

Transportation Union v. United States, 409 U.S.

EA oe vii

Waters v. Wisconsin Steel Works, 502 F.2d 1309

(7th Cir. 1974), cert. denied, 48 L. Ed. 2d 823

| Bf ‘et 15

Statutes and Rules :*

Civil Rights Act of 1964, Title VII, Pub. L. 88-352,

July 2, 1964, 78 Stat. 253, and as amended by the

Equal Employment Opportunity Act of 1972,

Pub. L. 92-261, March 24, 1972, 86 Stat. 103:

Section 703(a), 42 U.S.C. (1970 ed. & Supp.

ee I iii iii einneniteiincnasasinie 8,11

Section 703(c), 42 U.S.C. (1970 ed. & Supp.

i (EEE 9, 11, 15

Section 703(h), 42 U.S.C. § 2000e-2(h) 11

Section 706(b), 42 U.S.C. (Supp. V) § 2000e-

SE a eae ee 16

Section 706(d), 42 U.S.C. § 2000e-5(d), as

amended, 42 U.S.C. (Supp. V) § 2000e-

ee Ec a ae 9

Section 706(f), 42 U.S.C. § 2000e-5(f), as

amended, 42 U.S.C. (Supp. V) § 2000e-

SUED ncantunmnentidiehtnindiciennionmens ent

* All undesignated references to the U.S. Code are to the

1970 edition.

iv

TABLE OF AUTHORITIES—Continued

Page

Section 706(g), 42 U.S.C. (Supp. V) § 2000e-

I» saithasibiatadteincaaidahienld itera ndeceeiadiiaiaiaaaeed viii, 14, 15

Fe > SF 5 | | A} RRR NECnenneneeon 2,7

Railway Labor Act, 45 U.S.C. § 151 et seq. _........... vi

Supreme Court Rules:

I ca 2

I Aa eevee ison Ne ene ae Aeerer vi

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

No. 75-651

TEAMSTERS LOCAL UNION 657,

Petitioner,

Vv.

JESSE RODRIGUEZ ET AL.,

Respondents.

No. 75-715

SOUTHERN © JNFERENCE OF TEAMSTERS,

Petitioner,

V.

JESSE RODRIGUEZ ET AL.,

Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Fifth Circuit

MOTION OF THE NATIONAL RAILWAY LABOR

CONFERENCE FOR LEAVE TO FILE BRIEF

AS AMICUS CURIAE

(v)

vi

The National Railway Labor Conference (NRLC)

hereby moves, pursuant to Rule 42 of the Rules of this

Court, for leave to file the attached brief as amicus

curiae on the merits of the above-captioned cases. Re-

spondents have consented to the filing of this brief,’ but

petitioners have withheld their consent. Accordingly,

NRLC seeks leave of the Court to file its brief.

The NRLC represents almost all of the nation’s Class

I railroads in national collective bargaining with unions

representing employees of those railroads pursuant to

the Railway Labor Act, 45-U.S.C. § 151 et seg. Under

that Act, employees are unionized according to crafts and

classes. Even though a given union may represent more

than one craft or class of employees, there are generally

fifteen or s.a’een unions representing the crafts or classes

of employees engaged by any single railroad. Over the

years, each union in the railroad industry has bargained

for and obtained an elaborate seniority system for its

members, and each union has jealously guarded the jobs

and work of its craft against efforts by the carriers to

consolidate the work performed by separate crafts.

For the past several years, the NRLC and the unions

have been engaged in industry-wide collective bargaining

that is bringing important changes in the seniority sys-

tems now in force. Agreements have already been en-

tered into with about one-third of the railroad unions,

covering some 45 percent of the industry’s employees. In

general, the agreements provide opportunities for mi-

nority and female employees in designated job classi-

fications to transfer to certain other classifications with

“carry-over seniority.” That is, the agreements permit

the covered employees to use their “company seniority

dates,” as defined in the agreements, in bidding for va-

cancies in the new crafts and, after successful transfer,

The consent letters from counsel for respondents are on file

with the clerk.

vii

for all purposes for which seniority is relevant under

collective bargaining agreements, such as bidding on

future vacancies, recall, work shifts, vacations, fringe

benefits, and the like. The agreements also give trans

ferring employees “carry-back seniority,” pursuant to

which the employees are permitted to retain seniority in

their old craft for a minimum of 90 days from the date

of transfer or from the date of expiration of any pro-

bationary or training period in the new craft, which-

ever is longer. Transfers with carry-over seniority are

permitted on a “one-time-only” basis and only to clas-

sifications within the jurisdictions of unions that have

signed the agreements.

The NRLC believes that these agreements fulfill the

requirements of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. (1970 ed. & Supp. V)

§ 2000e et seqg., and satisfy the reasonable goals of the

Equal Employment Opportunity Commission and the

Office of Federal Contracts Compliance to minimize re-

straints upon the intercraft or interclass transfers of

minority and female workers in the industry. See gen-

erally United States v. Jacksonville Terminal Co., 451

F.2d 418 (5th Cir. 1971), cert. denied, 406 U.S. 906

(1972) ; United States v. St. Louis-San Francisco Railway

Co., 464 F.2d 301 (8th Cir. 1972), cert. denied, 409 U.S.

1116 (1973) and sub nom. United Transportation Union

v. United States, 409 U.S. 1107 (1973) ; United States v.

Chesapeake & Ohio Railway Co., 471 F.2d 582 (4th

Cir. 1972), cert. denied sub nom. Local 268, Brotherhood

of Railroad Trainmen v. United States, 411 U.S. 939

(1973).

While substantial results have been achieved through

voluntary modification of seniority rules by agreement

with several unions, the NRLC is concerned about the

progress of negotiations with the remaining railroad un-

viii

ions. In the absence of union pressure, the carriers

would willingly alter the seniority systems. There is

nothing to be gained by a carrier from perpetuation

of a seniority system that is arguably discriminatory.

It is the unions and the employees protected by existing

seniority systems who have a special interest in those

systems and who, if a system is found discriminatory,

would want to modify the system only to the minimum

extent necessary to cure the particular defect.

While the carriers do not have an interest in per-

petuating a seniority system that is arguably discrimina-

tory, they have a significant interest in having the un-

ions join with them in altering seniority systems. By

unilaterally modifying a seniority system that has been

memorialized in collective bargaining agreements, the

carriers risk strikes and slowdowns, protracted litiga-

tion, and jeopardized relationships with the unions and

employees.

For all of these reasons, the NRLC wishes to empha-

size to the Court the importance of the general prin-

ciple that unions as well as employers should be held

liable under Title VII for violations embodied in col-

lective bargaining agreements. Without the incentive of

avoiding liability under Title VII, and thus avoiding

the possibility of back pay awards under Section 706(g)

of the Act, unions would have little or no incentive to

modify provisions that they have long insisted upon. The

briefs of petitioner labor organizations suggest that un-

ions should stand in a different position from employers

vis-d-vis liability under Title VII, when seniority sys-

tems in collective bargaining agreements have been

found unlawfully to perpetuate the effects of prior dis-

crimination in hiring. Amicus seeks leave to file this

brief to respond to this position, which may be given little

ix

attention in the briefs of respondents in view of the

many other issues in the case.’

Wherefore, the National Railway Labor Conference

requests that this Court grant leave to file the accom-

panying brief as amicus curiae.

Respectfully submitted,

STEPHEN J. POLLAK

JOHN D. ALDOCK

JOHN TOWNSEND RICH

SHEA & GARDNER

734 Fifteenth Street, N.W.

Of Counsel: Washington, D.C. 20005

SHEA & GARDNER Davip P. LEE

734 Fifteenth Street, N.W. 1225 Connecticut Ave., N.W.

Washington, D.C. 20005 Washington, D.C. 20036

Attorneys for Amicus Curiae

October 13, 1976 National Railway Labor Conference

* This brief is being filed on October 13, 1976, the date that the

brief for respondents Rodriguez et al. is due (letter from Clerk

to Vilma S. Martinez, Esq., September 3, 1976).

IN THE

Supreme Court of the United States

OcTOBER TERM, 1976

No. 75-651

TEAMSTERS LOCAL UNION 657,

- Petitioner,

JESSE RODRIGUEZ ET AL.,

Respondents.

No. 75-715

SOUTHERN CONFERENCE OF TEAMSTERS,

Petitioner,

Vv.

JESSE RODRIGUEZ ET AL.,

Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF FOR THE NATIONAL RAILWAY LABOR

CONFERENCE AS AMICUS CURIAE

INTEREST OF AMICUS

The interest of the amicus curiae is set forth in the

attached Motion for Leave to File Brief as Amicus Curiae.

(1)

2

QUESTION PRESENTED

Whether labor organizations are properly liable under

Title VII of the Civil Rights Act of 1964, as amended,

when they have negotiated or are parties to a collective

bargaining agreement, the seniority provisions of which

are found to “lock in” the effects of prior discriminatory

hiring by the employer.’

STATEMENT OF THE CASE

These petitions bring before the Court three related

employment discrimination actions, all initiated in the

United States District Court for the Western District of

Texas, dismissed on the merits after trial on the liability

issues, and reversed and remanded for further proceed-

ings by the United States Court of Appeals for the Fifth

Circuit. The facts of the cases are discussed in detail in

the briefs of the parties and the decisions of the court of

appeals; we shall merely summarize here the facts of the

principal case, Rodriguez v. East Texas Motor Freight

System, Inc. (ETMF).?

Three Mexican-American individuals working as city

truck drivers for ETMF in San Antonio, Texas, sued

under Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. (1970 ed. & Supp. V) § 2000e et seq.,

and under R.S. § 1977, 42 U.S.C. § 1981, on behalf of

themselves and similarly-situated Mexican-American and

black individuals, alleging various discriminatory employ-

ment practices on the parts of defendants ETMF, Team-

sters Local Union 657 (petitioner in No. 75-651), and the

1 Amicus believes that this question is “fairly comprised” in the

questions stated by the petitioners. Supreme Court Rule 23(1)(c).

2505 F.2d 40 (5th Cir. 1974). The other two cases are Herrera

v. Yellow Freight System, Inc., 505 F.2d 66 (5th Cir. 1974), and

Resendis v. Lee Way Motor Freight, Inc., 505 F.2d 69 (5th Cir.

1974).

Southern Conference of Teamsters (petitioner in No.

75-715) .*

Prior to 1970, ETMF had never employed a black or

Mexican-American as a road driver in the area of Texas

covered by the Southern Conference. (A. 73-74.) Approxi-

mately 35 percent of ETMF’s city drivers in Texas are

black or Mexican-American. (A. 74.) The brunt of plain-

tiffs’ case below against ETMF was that Mexican-

American and black city drivers were discriminatorily

locked into the city driver jobs and prevented or discour-

aged from transferring to the more desirable road driver

jobs by the “no transfer” policy in effect at ETMF. That

policy was explained by the court of appeals as follows:

“Since 1954 ETMF has followed a ‘no-transfer’

policy, prohibiting the transfer of drivers between

city and road driver classifications and between ter-

minals. [Footnote omitted.} Under the policy, in

order for a city driver to obtain a position as a road

driver, he must resign his city driver job and apply

for a rvad driver slot. He thereby forfeits all ac-

cumulated seniority. © * * For the purposes of

strengthening his application, he gains no ‘credit’

for his years as a city driver. And if his bid to be

a line driver fails, there is no guarantee that he will

be rehired as a city driver.” A. 72.

The court of appeals went on to relate the company’s no-

transfer policy to the seniority provisions in the existing

collective bargaining agreements, which were the crux of

plaintiffs’ case against the unions (A. 99). Teamsters

Local 657, of which plaintiffs in the underlying action

were members, represents city drivers employed by

* The employer, ETMF, is the petitioner in No. 75-718; this Court

has granted that petition and consolidated that case for argument

with Nos. 75-651 and 75-715, the cases brought to this Court by

the labor organizations (order dated May 24, 1976). This amicus,

however, is addressing an issue presented only by the labor organi-

zation petitions.

4

ETMF and other employers in certain Texas counties

(A. 423) ; it represents no road drivers.‘ The court said:

“ETMF’s policy against transfers is complemented

by the fact that under collective bargaining con-

tracts between ETMF and Local unions, including

the defendant Local 657, city drivers who trans-

fer to the road do not carry over their ‘competi-

tive-status’ seniority, that is, seniority for job bid-

ding and lay off purposes. [Footnote omitted]. Under

separate collective bargaining agreements for road

and city drivers, competitive-status seniority runs

from the time an employee enters a particular collec-

tive bargaining unit. Transfer is not expressly pro-

hibited, but it is not expressly permitted either, and

the agreements have been universally interpreted to

prohibit the carryover of seniority from one classifi-

cation to another.” A. 72-73.

ETMF’s no-transfer policy was modified for thirty days

in January and February of 1972 to permit city-drivers

at terminals which also employed road drivers to transfer

to road driver jobs if they could meet certain require

ments. Even under the modification, however, any city

driver transferring to the road still lost his seniority for

job bidding and lay off purposes. (A. 73.)

After trial on the liability issues, the district court

denied plaintiffs all relief and dismissed the complaint on

the merits. (A. 55-67.) Although it found that the indi-

vidual plaintiffs were not qualified to hold road driver

jobs in any event (A. 23), it found the company’s no-

transfer policy and the separate seniority rosters to be

* The Southern Conference of Teamsters is the bargaining agent

of local unions—both city and road locals—in a ten-State area that

includes Texas. It negotiated the separate agreements for city and

road drivers that contain the seniority provisions at issue in this

case. The details of the negotiating arrangements between the local

unions, the Southern Conference, and the International Brotherhood

of Teamsters, are explored in the court of appeals opinion (A. 98-

99) and in the briefs of the parties.

reasonable and proper and accordingly found that defend-

ants “did not discriminate against the plaintiffs or any

other employee or Union member on the basis of race or

otherwise.” (A. 65.) It further concluded that the action

was not a proper class action. (A. 56.)°

The court of appeals reversea the judgment of the

district court and remanded for further proceedings. A.

68-111; 505 F.2d 40 (5th Cir. 1974). It found the dis-

missal of the class action claims erroneous, ordering that

on remand the class considered for relief should be defined

as all of ETMF’s Mexican-American and black city driv-

ers included under the coilective bargaining agreement

entered into between ETMF and the Southern Conference

of Teamsters covering the State of Texas. (A. 83.)

Turning to the liability issues, the court found that

plaintiffs, by their statistical evidence on the absence of

minority road drivers, had established a prima facie case

of discrimination in hiring, and that ETMF had failed

to rebut that case. (A. 90.) It went on:

“The conclusion is inescapable that both the no-

transfer policy and the maintenance of dual sen-

iority rosters, one for city drivers and one for line

drivers, have perpetuated ETMF’s past discrimina-

tory hiring practices. Together, they have removed

all realistic opportunity for transfer.” A. 90.

The court rejected ETMF’s efforts to justify the no-

transfer policy in terms of business necessity. (A. 92-93.)

It further rejected ETMF’s defense of the dual seniority

system—as preferred by minority city drivers (A. 93)

or as not amenable to unilateral change by ETMF. (A.

93-94.) Finally, it rejected ETMF’s argument that plain-

tiffs had failed to show that any of the plaintiff class met

ETMF’s road driver qualifications. (A. 94-97.)

5 We have not tried to present or summarize the stipulations

entered into before and during trial. Their significance—as to the

precise issues to be decided—is the subject of dispute among the

parties, and we do not enter that dispute.

6

Turning to the union defendants, petitioners here, the

court held that “[fjor their role in continuing the effect”

of the discrimination against minority city drivers “that

closed out the possibility of their being hired originally

as road drivers,” “the union defendants must share the

blame and the liability.” (A. 99.) It rejected the justifi-

cation that petitioners were “merely following the desires

of the majority of their black and Mexican-American

members” (A. 100), and announced that the availability

of the reasonable alternative of a one-time-only transfer

with seniority carryover vitiated the unions’ business ne-

cessity defense. (A. 101.)

The court remanded the case for consideration of the

question of remedy, directing that minority city drivers

with three years’ experience at city driving must be per-

mitted to transfer to road vacancies, unless they failed

to meet other nondiscriminatory qualifications essential

for safety or efficiency. (A. 103.) Those city drivers who

transfered were to carry with them seniority from the

date that they acquired the experience necessary to qual-

ify them for road driivng. (A. 105-07.) No view was

intimated as to the apportionment of back pay awards

among the three defendants. (A. 107-08.)

ARGUMENT

Labor Organizations Are Properly Held Liable Under

Title VII When They Have Negotiated or Signed a

Celective Bargaining Agreement, the Seniority Pro-

visions of Which “Lock in” the Effects of Prior Dis-

criminatory Hiring by the Employer.

I

In the cases before the Court, the seniority provisions

in the collective bargaining agreements covering road and

city drivers at ETMF were found to “lock in” the effects

of prior discriminatory hiring by the employer, by dis-

7

couraging transfers between city and road driver jobs.

Accordingly, the court of appeals held both the employer

and the unions to be liable under Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. (1970 ed. &

Supp. V) § 2000e et seg., and remanded for consideration

of remedy. The petitioner labor organizations contend

that this holding was erroneous as to the unions for a

variety of reasons, many closely tied to the facts and

trial proceedings in the particular cases before the Court.

Amicus National Railway Labor Conference (NRLC)

does not desire to enter into the disputes over many of

the issues briefed by the parties. In particular, we do not

discuss here the class action issues,° any matter pertain-

ing to liability under R.S. § 1977, 42 U.S.C. § 1981,’ the

arguments that the seniority provisions had no effect of

discouraging transfers because of the employer’s own flat

no-transfer policy,* the arguments peculiar to the local’s

limited jurisdiction over city and not road drivers,® and

the arguments involving the significance of the desires of

a majority of the local union.*” Nor do we discuss the

factual and legal arguraent that these particular seniority

provisions did not lock-in the effects of prior discrimina-

tory hiring because the collective bargaining agreements

themselves, properly read and construed, permit and even

require the granting of “rightful place” seniority to indi-

* Both labor organizations adopt by reference the arguments on

the class action issues in the Brief for Petitioner ETMF in No. 75-

718. Brief for Petitioner Teamsters Local 657 at 4 n. 1; Brief for

Petitioner Southern Conference at 2 n. 2.

7 Both Teamsters Local 657 and the Southern Conference included

references to 42 U.S.C. § 1981 in the questions presented in their

petitions, but do not separately brief the construction and appli-

cation of Section 1981.

® Brief for Petitioner Southern Conference at 18-23.

® Brief for Petitioner Teamsters Local 657 at 16-18.

1° Brief for Petitioner Teamsters Local 657 at 22-23.

8

vidual employees previously discriminated against.”

Amicus files this brief in support of the ruling below

that when an employer is liable under Title VII because

of seniority provisions in collective bargaining agreements,

then the union that signed or negotiated those agreements

must be held liable as well.

II

The court of appeals held the employer liable both for

its no-transfer policy and for the separate seniority ros-

ters for road and city drivers in the collective bargaining

agreements, on the ground that both the policy and the

seniority rules perpetuated the effects of past discrimina-

tion in hiring. (A. 84-87.) Thus, the court necessarily

found that the dual seniority system constituted an “un-

lawful employment practice” on the part of the employer

under Section 703(a) of the Civil Rights Act of 1964."

In so doing, the court of appeals followed a long line of

lower court cases that have stated that seniority provi-

11 Brief for Petitioner Teamsters Local 657 at 22; Brief for

Petitioner Southern Conference at 29-30 & 33. See also Brief for

Petitioner International Brotherhood of Teamsters in Nos. 75-636,

International Brotherhood of Teamsters v. United States, and 75-

672, T1.M.E.-D.C. v. United States, (consolidated) at 42-43 (related

cases now before the Court). Closely involved is the argument

that minority employees never filed grievances with their unions.

Brief for Petitioner Teamsters Local 657 at 21; Brief for Peti-

tioner Southern Conference at 33.

% Section 703(a), 42 U.S.C. (1970 ed. & Supp. V) § 2000e-2(a),

provides :

“It shall be an unlawful employment practice for an em-

ployer—

“(1) to fail or refuse to hire or to discharge any individual,

or otherwise to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges

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

religion, sex, or national origin; or

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

cants for employment in any way which would deprive or tend

to deprive any individual of employment opportunities or

otherwise adversely affect his status as an employee, because

of such individual’s race, color, religion, sex, or national origin.”

9

sions that lock in the effects of past discrimination con-

stitute separate and continuing violations of Title VII.”

Having made that determination with respect to the

employer, the court of appeals passed with little trouble

to the conclusion that the union defendants—which had

negotiated or signed the agreements at issue—were liable

as well. That is, the court necessarily found that the

separate seniority provisions also constituted an “un-

lawful employment practice” on the part of the unions

under Section 703(¢> of the Act.”

13 E.g., Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (E.D.

Va. 1968); Local 189, United Papermakers & Paperworkers Vv.

United States, 416 F.2d 980 (Sth Cir. 1969), cert. denied, 397 U.S.

919 (1970); United States v. Jacksonville Terminal Co., 451 F.2d

418 (5th Cir. 1971), cert. denied, 406 U.S. 906 (1972); Bing v.

Roadway Express, Inc., 485 F.2d 441 (5th Cir. 1973); Pettway v.

American Cast Iron Pipe Co., 494 F.2d Z11 (5th Cir. 1974) ; United

States v. Bethlehem Steel Corp., 446 F.2d 652 (2d Cir. 1971);

United States v. Chesapeake &@ Ohio Railway Co., 471 F.2d 582

(4th Cir. 1972), cert. denied sub nom. Local 268, Brotherhood of

Railroad Trainmen v. United States, 411 U.S. 9839 (1973); United

States v. N. L. Industries, Inc., 479 F.2d 354 (8th Cir. 1978); See

also EEOC v. Detroit Edison, 515 F.2d 301 (6th Cir. 1975), peti-

tions for writs of cert. pending, Nos. 75-220, -221, -239, -393 ; Sagers

v. Yellow Freight System, Inc., 529 F.2d 721 (5th Cir. 1976);

Swint v. Pullman-Standard, 13 FEP Cases 604 (5th Cir. 1976).

Unless the allegedly discriminatory exclusion from road jobs was

a separate and continuing violation, or resulted from separate and

recurring instances of refusal to allow transfer, there would ap-

parently have been no subject-matter jurisdiction under Section

706(d) and -(f), 42 U.S.C. (1970 ed.) §§ 2000e-5(d) & -(f), since

the plaintiffs filed their EEOC charges years after the dates of

their initial hirings. (A. 8-14.)

4 Section 703(c), 42 U.S.C. (1970 ed. & Supp. V) § 2000e-2(c),

provides :

“Tt shall be an unlawful employment practice for a labor

organization—

(1) to exclude or to expel from its membership, or other-

wise to discriminate against, any individual because of his

race, color, religion, sex, or national origin;

(2) to limit, segregate, or classify its membership or appli-

cants for membership, or to classify or fail or refuse to refer

10

Petitioner Southern Conference argues at length in its

brief that the court of appeals misapplied early lower

court cases on the validity of seniority provisions in

collective bargaining agreements in holding the unions

liable in this case.’* It cites specifically United States v.

Jacksonville Terminal Co., 451 F.2d 218 (5th Cir. 1971),

cert. denied, 406 U.S. 906 (1972); Local 189, United

Papermakers and Paperworkers v. United States, 416

F.2d 980 (5th Cir. 1969), cert. denied, 397 U.S. 919

(1970) ; and Quarles v. Philip Morris, Inc., 279 F. Supp.

505 (E.D. Va. 1968). The Southern Conference dis-

tinguishes those cases from the instant case in several

different ways:

(1) That the seniority rules at issue here “have

no origin in nor do they represent an intention to

discriminate” ;

(2) That the unions here have never been segre-

gated upon racial or ethnic lines;

(3) That there is no line of progression between

city and road jobs, and city jobs are not menial, low-

paying, or otherwise necessarily less desirable jobs

than road jobs; and

(4) That the collective bargaining provisions

themselves, properly read and construed, prohibit

racial or ethnic discrimination and provide a means

for employees to obtain “rightful place” seniority

upon a showing of such discrimination.”

for employment any individual, in any way which would de-

prive or tend to deprive any individual of employment oppor-

tunities, 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 discrimi-

nate against an individual in violation of this section.”

15 Brief for Petitioner Southern Conference at 27-36.

16 See Brief for Petitioner Southern Conference at 29-30.

11

The Southern Conference argues that these considera-

tions, taken in light of the “bona fide seniority * * * sys-

tem” provision of Section 703(h) of the Act’ and this

Court’s recent decision in Franks v. Bowman Transpor-

tation Co.,”* absolve the unions from liability.

Whatever the force of this argument by the Southern

Conference, it is significant for amicus’s purposes that it

does not offer a justification for absolving the unions

under Section 703(c) while leaving the company liable

under Section 703(a). Neither the district court nor the

court of appeals found that the company, as opposed to

the unions, had accepted the continued operation of the

separate road and city driver seniority systems with the

intention of continuing to injure prior victims of discrim-

ination in hiring. Petitioner’s remaining points, we

believe, support only the proposition that the seniority

provisions cannot be said unlawfully to “lock in” the

effects of prior discriminatory hiring. And if that

proposition is correct, then the conclusion must be that

neither the unions nor the employer violated the Act by

continuing the operation of the seniority provisions that

are challenged.

Petitioner Southern Conference, therefore, attempts

to disassociate the unions from the employer primarily

on the ground that the seniority provisions in this case

17 Section 703(h), 42 U.S.C. § 2000e-2(h), provides:

“Notwithstanding any other provision of this title, 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, or a system which measures

earnings by quantity or quality of production or to employees

who work in different locations, provided that such differences

are not the result of an intention to discriminate because of

race, color, religion, sex, or national origin, * * *.”

18 No. 74-728, decided March 24, 1976, 47 L.Ed. 2d 444.

12

had no practical effect on plaintiffs at all, because of

the ETMF’s no-transfer policy.”* Petitioner Teamsters

Local 657 has an assortment of arguments revolving

around its limited jurisdiction and role in negotiating the

agreements. We have left these contentions to the parties.

For the consideration of petitioners’ arguments, however,

amicus believes that the importance of the general prin-

ciple that unions share liability with employers for vio-

lations embodied in collective bargaining agreements

must not be overlooked.

Ill

The principle that unions as well as employers are

liable under Title VII for violations embodied in collec-

tive bargaining agreements has commanded widespread

acceptance in the lower courts.” It found succinct—

and often quoted—expression in Robinson v. Lorillard

Corp., 444 F.2d 791 (4th Cir. 1971), petition for cert.

dismissed, 404 U.S. 1006 (1971):

“The rights assured by Title VII are not rights

which can be bargained away—either by a union,

by an employer, or by both acting in concert. Title

VII requires that both union and employer rep-

resent and protect the best interests of minority

employees. Despite the fact that a strike over a

1° Brief for Petitioner Southern Conference at 18-23.

2° The early cases generally cited are Quarles v. Philip Morris,

Inc., 279 F.Supp. 505 (E.D. Va. 1968); United States v. Jackson-

ville Terminal Co., 451 F.2d 418 (5th Cir. 1971), cert. denied, 406

U.S. 906 (1972); Local 189, United Papermakers & Paperworkers

v. United States, 416 F.2d 980 (5th Cir. 1969), cert. denied, 397

U.S. 919 (1970); and United States v. Bethlehem Steel Corp., 446

F.2d 652 (2d Cir. 1971). Some important recent cases are United

States v. N. L. Industries, Inc., 479 F.2d 354 (8th Cir. 1978);

Johnson V. Goodyear Tire & Rubber Co., 491 F.2d 1364 (5th Cir.

1974); Russell v. American Tobacco Co., 528 F.2d 357 (4th Cir.

1975), cert. denied, 48 L.Ed. 2d 176 (Apr. 19, 1976); Sagers v.

Yellow Freight System, Inc., 529 F.2d 721 (5th Cir. 1976); Kaplan

v. International Alliance of Theatrical Employees, 525 F.2d 1354

(9th Cir. 1975).

13

contract provision may impose economic costs, if a

discriminatory contract provision is acceded to the

bargainee as well as the bargainor will be liable.”

444 F.2d at 799 (footnote omitted).

To impose liability upon both parties to an unlawful

collective bargaining agreement does no more than hold

both liable for the foreseeable effects of their own delib-

erate actions. In Johnson v. Goodyear Tire & Rubber Co.,

491 F.2d 1364, 1381 (1974), the Court of Appeals for

the Fifth Circuit addressed a union’s argument that “the

mere fact that it was a party to a discriminatory collec-

tive bargaining agreement is legally insufficient” to im-

pose liability upon the union.” The court observed that

the union “must have known precisely what effect the in-

corporation of the departmental seniority provisions in

the collective bargaining agreement would have on [af-

fected] employees.” It concluded: “Common sense de-

mands that a union be held to th .atural consequences

of its labor in negotiating a collective bargaining agree-

ment.” Id. See also Emporium Capwell Co. v. Western

Addition Community Organization, 420 U.S. 50, 70

(1975): “When union and employer are not responsive

to their legal obligations [under Title VII], the bargain

they have struck must yield pro tanto to the law * * *.” *

21 In the Johnson case the union was appealing an award of back-

pay, but its argument clearly relates to the underlying liability

under Section 703(c).

22 Lower courts have also indicated that unions may be held

liable for “acquiescing” in an unlawful employment practice not

embodied in a collective bargaining agreement with that union, or

for failing to negotiate for the cessation of such a practice. See,

e.g., Macklin v. Spector Freight Systems, Inc., 156 U.S. App. D.C.

69, 478 F.2d 979, 989 (1973) (“A union’s duty, in representing

its members and protecting them from invidious treatment, must

certainly be broader than simply refusing to sign overtly discrim-

inatory agreements. * * * [T]acit union acquiescence in an em-

ployer’s discriminatory practices effectively produces the same end

result that was condemned in Steele [v. Louisville & Nashville R.

Co., 323 U.S. 192 (1944)].”); Carey v. Greyhound Bus Co., 500

14

The imposition of liability upon unions as well as em-

ployers is necessary if the prophylactic and compensatory

purposes of back pay awards, recently discussed by the

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

(1975), are to be served. As the Court noted in Albe-

marle,

“If employers faced only the prospect of an injunc-

tive order, they would have little incentive to shun

practices of dubious legality. It is the reasonably

certain prospect of a backpay award that ‘provide[s|

the spur or catalyst which causes employers and

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

ployment practices and to endeavor to eliminate,

so far as possible, the last vestiges of an unfor-

tunate and ignominious page in this country’s his-

tory.’ United States v. N. L. Industries, Inc., 479

F.2d 354, 379 (CA 8 1973).” 422 U.S. at 417-18

(emphasis added).

In particular cases, there may be equitable considera-

tions that should determine the apportionment of any

back pay award under Section 706(g) of the Act* in

favor of the employer or in favor of the union. There is

a developing body of case law on the issue of what portion

F.2d 1372, 1379 (5th Cir. 1974); Myers v. Gilman Paper Corp.,

393 F. Supp. 413, 421-22 (S.D. Ga. 1975), appeal pending, 5th Cir.

No. 75-2201. But cf. Thornton v. East Texas Motor Freight, 497

F.2d 416, 424-26 (6th Cir. 1974).

23 Section 706(g), 42 U.S.C. (Supp. V) § 2000e-5(g), provides:

“If the court finds that the respondent has intentionally

engaged in or is intentionally engaging in an unlawful em-

ployment practice charged in the complaint, the court may

enjoin the respondent from engaging in such unlawful employ-

ment practice, and order such affirmative action as may be

appropriate, which may include, but is not limited to, rein-

statement or hiring of employees, with or without back pay

(payable by the employer, employment agency, or labor organ-

ization, as the case may be, responsible for the unlawful

employment practice), or any other equitable relief as the

court deems appropriate. * * *”

a a 0 an

15

of a back pay award should be paid by unions,** but the

equitable considerations applicable under Section 706(g)

come into play only after a determination of liability

under Section 703(c). They are not at issue in this case,

where trial on remedy has not yet been held. However,

the acknowledgment in Albemarle of the practical im-

portance of the possibility of back pay awards applies

precisely to the liability issue discussed here.

As representative of the railroad industry in collective

bargaining with national labor organiaztions, amicus is

well aware that established seniority systems are a sub-

ject of great concern to labor. There is little to be gained

by any employer in the perpetuation of a seniority system

that is arguably discriminatory. Seniority systems are

generally the creature of collective bargaining, instituted

at union’s insistence and altered only over their strenuous

objections. Without the strong incentive of avoiding li-

ability under Section 703(c)—and thus avoiding the pos-

sibility of back pay awards under Section 706 (g)—unions

would have little or no incentive to modify provisions they

have long bargained for. And without that incentive,

efforts to secure the Title VII rights of individual em-

ployees at the bargaining table would be frustrated.

The voluntary modification of seniority and other pro-

visions of collective bargaining agreements is the most

desirable method of granting relief to individuals who

are the victims of discrimination in hiring. The alterna-

tives are the further crowding of discrimination claims

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

(5th Cir. 1974) ; Carey v. Greyhound Bus Co., 500 F.2d 1372 (5th

Cir. 1974); Waters v. Wisconsin Steel Works, 502 F.2d 1309 (7th

Cir. 1974), cert. denied, 48 L.Ed. 2d 823 (May 24, 1976); Steven-

son V. International Paper Co., 516 F.2d 108 (5th Cir. 1975); Sa-

bala v. Western Gillette, Inc., 516 F.2d 1251 (5th Cir. 1975), peti-

tions for writs of cert. pending, Nos. 75-781 & 75-788; Russell v.

American Tobacco Co., 528 F.2d 357 (4th Cir. 1975), cert. denied,

48 L.Ed. 2d 176 (Apr. 19, 1976).

16

based on collective bargaining agreements into already

overcrowded courts, or the accommodation of individual

employees to the discrimination that Title VII is designed

to eliminate. The policy favoring voluntary solutions to

employment discrimination problems is embodied in the

statute itself** and has often been remarked on in the

lower courts. See Oatis v. Crown Zellerbach Corp., 398

F.2d 496 (5th Cir. 1968): “[I]t is thus clear that

there is great emphasis in Title VII on private settle-

ment and the elimination of unfair practices without liti-

gation.” See also Dent v. St. Louis-San Francisco Rail-

way Co., 406 F.2d 399, 402 (5th Cir. 1969) :

“Thus it is quite apparent that the basic phil-

osophy of these statutory provisions is that volun-

tary compliance is preferable to court action and

that efforts should be made to resolve these em-

ployment rights by conciliation both before and after

court action.”

And in Alexander v. Gardner-Denver Co., 415 U.S. 36

(1974), this Court said:

“Cooperation and voluntary compliance were se-

lected as the preferred means for achieving [the

elimination of employment discrimination}. To this

end, Congress created the Equal Employment Op-

portunity Commission and established a procedure

whereby existing State and local equal employment

opportunity agencies, as well as the Commission,

would have an opportunity to settle disputes through

conference, conciliation, and persuasion before the

aggrieved party was permitted to file a lawsuit.”

415 USS. at 44.

25 Section 706(b), 42 U.S.C. (Supp. V) § 2000e-5(b), provides

that the Equal Employment Opportunity Commission, when it finds

reasonable cause to believe that a charge filed with it is true, “shall

endeavor to eliminate any * * * alleged unlawful employment prac-

tice by informal methods of conference, conciliation and persua-

sion.”

17

Employers alone cannot modify offending seniority pro-

visions without risking strikes and slowdowns, protracted

litigation, and jeopardized relationships with the unions

and employees. Thus, absent the incentive of avoiding

backpay awards, unions reluctant to modify long-estab-

lished seniority systems can seriously undermine the

statutory policy of voluntary elimination of employment

discrimination.

The policies of Title VII, recognized by this Court in

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

ander Vv. Gardner-Denver, supra, and in Albemarle Paper

Co. v. Moody, supra, require that when an employer is

held liable under Title VII because the seniority pro-

visions in a collective bargaining agreement perpetuate

the effects of prior discrimination, the unions which have

signed and negotiated those provisions be held liable as

well.

CONCLUSION

For the foregoing reasons, the judgment of the court

of appeals should be affirmed insofar as it holds the

union defendants liable under Title VII.

Respectfully submitted,

STEPHEN J. POLLAK

JOHN D. ALDOCK

JOHN TOWNSEND RICH

SHEA & GARDNER

734 Fifteenth Street, N.W.

Of Counsel: Washington, D.C. 20005

SHEA & GARDNER Davip P. LEE

734 Fifteenth Street, N.W. 1225 Connecticut Ave., N.W.

Washington, D.C. 20005 Washington, D.C. 20036

Attorneys for Amicus Curiae

October 13, 1976 National Railway Labor Conference