Appendix — Trans World Airlines, Inc. v. Hardison

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Supreme Coart, 6. &

FILED

JAN 14

APPENDIX

E. L. Menpennatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

1977

R_CLEM

In the Supreme Court of the United States

OCTOBER TERM. 1976 *

No. 75-1126

TRANS WORLD AIRLINES, INC.,

Petitioner,

vs.

LARRY G. HARDISON, ET AL.

No. 75-1385

INTERNATIONAL ASSOCIATION OF MACHINISTS

AND AEROSPACE WORKERS,

AFL-CIO, ET AL.,

Petitioners,

vs.

LARRY G. HARDISON, ET AL.

On Writ or CERTIORARI TO THE UNITED STATES

Court oF APPEALS FOR THE EIGHTH CIRCUIT

PETITIONS FOR WRITS OF CERTIORARI FILED

FEBRUARY 9, 1976 AND MARCH 29, 1976

CERTIORARI GRANTED NOVEMBER 15, 1976

INDEX

SIE IEE GNI cicctntcisnisiiieirssinssrenenertictbssintsninneieniconnncten 1

I |: disctticeitehedetnditincnnteniscisesiinnisiinnicibimminaipeminmeess 3

Answer of International Association of Machinists and

Aero Space Workers, District 142 ae 10

Answer of International Association of Machinists and

Aero Space Workers, Local 1650 0.00022... eeeeee eee 13

Separate Answer of Defendant Trans World Airlines,

TT, sccpesiintnnssipiedineibaenbipsenstmnstintensitininaatineniaiiaitibiimnatinndiaten 16

Answer of International Association of Machinists and

I CI dctresetsecisceinctacinnscinsiinianinientiiebaiuninmeiien 17

ne 21

SITTIN ‘aceniicsictiiaehapshitisidnsensiantecineccciiahiapineiiinestegensioumnctmaterssinns 56

TTI ssc aeecineatnda eaten iiidanaastianenepianineenniinegseneiieitngs 60

SEINE tovinicicssertiansinenisiictndepuiitensiniasevaniesenentiisiciatnisensnenemncmnes 63

Transcript of Proceedings—

Testimony of Larry Glenn Hardison ........................ 65

SUIT, <cciisscisitaspdipsciticlaanpisidipeiviuieisesionscadeepimentmienese 98

Testimony of Everett Herbert Kussmanon ................ 115

Testimony of Wilbur Stone — 0.220222. 148

Testimony of Earl Box .....0......2.-.:cccecccsscoessseeceeeseeeeseeees 165

Testimony of Joseph Whitney Bowman .................... 178

ID SID GD i corineseesisnin-seedmeedsiatotlibesenenias 183

Excerpts From Agreement Between Trans World Air-

lines, Inc., and the Mechanics and Related Employees

in the Service of Trans World Airlines, Inc., As Rep-

resented by International Association of Machinists

and Aerospace Workers ...............2...2.--..-:-0cee-eee-eeeeeeeeseeees 210

Memorandum and Order of the United States Dis-

trict Court for Western District of Missouri, May 15,

ON ea aa 218

RELEVANT DOCKET ENTRIES

Feb. 10,1972 Complaint—filed.

Mar. 1, 1972 Answer of International Association of

Machinists and Aero Space Workers District 142—Filed.

Mar. 1, 1972 Answer of International Association of

Machinists and Aero Space Workers Local 1650—Filed.

Mar. 2, 1972 Separate answer of defendant Trans

World Airlines, Inc.—Filed.

Mar. 30, 1972 Answer of International Association

of Machinists and Aero Space Workers—Filed.

Apr. 5, 1972 Interrogatories to plaintiff by defendant

District 142 and defendant Local 1650—Filed.

Jul 12, 1972 Answers to interrogatories propounded

by defendants District 142 and Local 1650—Filed by plain-

tiff. Submitted.

Oct. 17,1972 Standard Pretrial Order No. 2—Filed.

Oct. 26,1972 Stipulation of the Parties—filed

Nov. 8,1972 Stipulation—filed.

Nov. 21, 1972 Stipulation—Filed. (Charles Riley was

a non-union employee of Bendix Corporation and not cov-

ered by collective bargaining agreement. )

July 3, 1973 Suggested findings of fact by plaintiff—

filed.

July 3, 1973 Suggested conclusions of law by plaintiff

—filed.

July 19, 1973 Defendant Unions’ response to plain-

tiff’s suggested findings of fact and suggested conclusions

of law and defendant unions’ suggested findings of fact

and conclusions of law—Filed.

Jul 19, 1973 Defendant TWA’s response to plaintiff's

suggested findings of fact and suggested conclusions of

law and defendant TWA’s suggested additional findings

of fact and suggested conclusions of law—Filed.

May 15, 1973 Memorandum and Order—Filed. (Title

VII, 42 USC, §2000e-2(h) indicates that Congress did not

intend that unions or employers be required to take actions

that would impinge upon bona fide seniority systems. The

Court finds that neither TWA nor any of the three (3)

unions violated Title VII of the Civil Rights Act of 1964

by reason of its discharge of plaintiff for his refusal to

work on his Sabbath. The Clerk of the Court is hereby

Ordered to enter judgment for the defendants. JWO)

Copies to counsel. .

May 17, 1973 Notice of Appeal—filed. Copies mailed

to counsel.

December 16, 1975 Decision of United States Court

of Appeals for the Eighth Circuit.

January 19, 1976 Stay of Mandate by United States

Court of Appeals for the Eighth Circuit

February 9, 1976 Petition for Writ of Certiorari in

No. 75-1126

March 8, 1976 Order Extending time to file Petition

for Writ of Certiorari (No. A-763)

March 29, 1976 Petition for Writ of Certiorari in

No. 75-1385

November 15, 1976 Order of Supreme Court Granting

Certiorari

COMPLAINT

(Filed February 10, 1972)

COMES NOW plaintiff and for his Cause states:

1. That plaintiff is a resident of Kansas City, Jack-

son County, Missouri, which is within this Judicial District;

that defendant, Trans World Airlines, Inc., is a corporation

authorized to do business in Missouri, with a principal

office located in this Judicial District, and defendant, Trans

World Airlines, Inc., being an “employer” as defined in

Title 42 U.S.C., Section 2000e; that defendant, International

Association of Machinists and Aero Space Workers, and

District 142 and Local 1650 of the International Association

of Machinists and Aero Space Workers are unincorporated

labor organizations having officers and agents for man-

agement of said labor organizations representation of their

member employees in this Judicial District.

2. Jurisdiction of this Court is invoked pursuant to

Section 706 of the Civil Rights Act of 1964, Titled 42

U.S.C. 2000e-5(e). Jurisdiction of this Court is further

invoked pursuant to 28 U.S.C. 1343.

3. This is a proceeding for a permanent injunction

restraining defendant, Trans World Airlines, Inc. from

maintaining a policy, practice, custom and usage of with-

holding, denying or attempting to withhold or deny, and

depriving or attempting to deprive, or discharge or at-

tempting to discharge or otherwise interfering with the

employment of the plaintiff on the ground of his religion.

This is further a proceeding for a permanent injunction

restraining all defendant labor organizations from the same

activity as aforesaid regarding defendant Trans World Air-

lines, Inc., and further to enjoin them from engaging in

_ unlawful employment practice for a labor organization by

discriminating against plaintiff because of his religion, by

failing to discharge their duty towards the plaintiff as

a member of their labor organization because of his re-

ligion, and by acting in such a manner as to deprive

or tend to deprive the plaintiff of an employment oppor-

_tunity with defendant Trans World Airlines, Inc., and any

and all activity. that would otherwise adversely affect his

status as an employee of Trans World Airlines, Inc. Fur-

ther, this is also a proceeding for other equitable relief

as the Court may deem proper and for legal relief to

be afforded the plaintiff due to the religious discrimination

of all defendants herein.

4. That plaintiff is a member of a religion which

observes the Sabbath from Friday at sunset until Saturday

at sunset.

5. That plaintiff was employed by defendant Trans

World Airlines, Inc. from June 5, 1967 until he was dis-

charged by defendant Trans World Airlines, Inc. on April

2, 1969; that plaintiff informed defendant Trans World

Airlines, Inc. of his religious beliefs on or before October

11, 1968, after accepting said beliefs on or about September,

1968; that subsequent to March, 1969, defendant Trans

World Airlines, Inc., discriminated against plaintiff by rea-

son of his religion and discharged plaintiff on April 2,

1969. Said conduct on the part of defendant Trans World

Airlines, Inc. all being in violation of Title 42 U.S.C. Sec-

tion 2000e-2.

6. Defendant International Association of Machinists

and Aero Space Workers, and defendants District 142 and

Local 1650 of the International Association of Machinists

and Aero Space Workers, discriminated against plaintiff

because of his religious beliefs in failing to negotiate, assist,

or correct the discriminatory policies of defendant Trans

World Airlines, Inc. The said labor organizations coop-

erated, acted in concert, and assisted defendant Trans

World Airlines, Inc. in their discharge of the plaintiff.

The said conduct on the part of all defendants herein

being in violation of Title 42 U.S.C. Section 2000e-2.

7. On or about October 28, 1969, the Equal Employ-

ment Opportunity Commission (E.E.O.C.) assumed juris-

diction of plaintiff’s timely and proper complaint (Exhibit

A) which alleged denial by all defendants herein of plain-

tiff’s rights under Title VII of the Civil Rights Act of

1964, 42 U.S.C., Section 2000e, et seq. That plaintiff filed

his administrative charge with the E.E.0.C. within 210

days after the unlawful employment practice by all defen-

dants occurred, and that plaintiff requested a “Notice of

Right to Sue Letter” which was mailed to him on January

11, 1972. This civil action in this Court is now being

brought against all defendants herein, all of said proce-

dures being in compliance with Title 42 U.S.C. 2000e et

seq.

8. By reason of the aforesaid religious discrimination

against the plaintiff in violation of the applicable statutes,

by all defendants herein, plaintiff has suffered a loss of

wages and benefits in the amount paid by the defendant

Trans World Airlines, Inc., to said such employees for

such position as occupied by that of the plaintiff, and

plaintiff has been damaged in an amount to be determined

by this Court.

WHEREFORE, plaintiff respectfully prays this Court:

1, That a permanent injunction issue enjoining defendant,

Trans World Airlines, Inc., its agents, successors, employ-

ees, attorneys, and those acting in concert with it and

at its dircction from continuing or maintaining the policy,

practice, custom and usage of denying, abridging, withhold-

ing, conditioning, limiting, or otherwise interfering with

the right of plaintiff to be employed by defendant Trans

World Airlines, Inc. on the basis of merit rather than

that of religion, and the right to equal employment oppor-

tunities as secured by Title VII of the Civil Rights Act

of 1964, 42 U.S.C., Section 2000e et seq.

2. That a permanent injunction issue enjoining all

defendant labor organizations, International Association of

Machinists and Aero Space Workers, and District 142 and

Local 1650 of the International Association of Machinists

and Aero Space Workers, and their agents, successors,

employees, attorneys, and those acting in concert with

them and at their direction from continuing or maintain-

ing the policy, practice, custom and usage of failing to

adequately represent, denying, abridging, withholding, con-

ditioning, limiting, or otherwise interfering with the right

of plaintiff, including cooperation and assisting defendant

Trans World Airlines, Inc. or any other employer in dis-

criminating against the plaintiff, by reason of the fact

that plaintiff believes in certain religious beliefs, and fur-

ther that all labor organizations be enjoined from depriving

plaintiff of the right to equal membership opportunities

and equal employment opportunities as secured by Title

VII of the Civil Rights Act of 1964, 4. U.S.C., Section

2000e et seq.

3. Award plaintiff all loss in wages and lost benefits

which he suffered as a result of his discriminatory dis-

charge from defendant Trans World Airlines, Inc., and

prays that the Court order such affirmative relief and

action as may be appropriate and the Court may deem

proper.

4. Allow plaintiff his costs herein including reason-

able attorney’s fees and other additional relief as may

appear to the Court equitable and just.

Exhibit A

} a aon no ne «©», dees a . we ~ . 7 > = sae a 7 ates on Bate. CON ie Ce, SOK, GI NATIT maa. i

Poy soon ‘* preossibter ft nent bee cnsthedandinatei-deys awe thre ates.

c yp wettwehigls ¢ See athlresses yon bak payed ae A

cna tie tin LOOGLSE :

(PLEASE PRINT OR TYPE)

= —— =e te }_— +

1 Your Name (Mr., ACK _ larry_Clenn_Hardisen _ Phone Number_483-4243

Sucet Address 5017 Thompson--Apt. 3

City Kanses City State_ Missouri Zip Code_64124

2 WAS THE DISCRIMINATION BECAUSE OF . (Please check onc

Race o Color 1) Rehgows Cored 1B Nations! Ongin O = Sex O

2 Who discriminated against you? Give the name and address of the employer, pageaam Ge ane”

commitice. if more than one, list all.

Mane ——-Trens orld Airlines. — 7

Swart Addo ? , Kansas City International Airport _ Dros

City. Kansae- Cit y—- stale Pissourt _2ip Code___$44100

AND (other parties if any) —Intemattona} sasceiaLion af:Liachiniata and Aare Snase \orkers

—Mixion. Roads Clittujeu, Dive. ad

Riverside, Higzourd_—_. yD)

: eT :-

Wf your chatge % against a Company of a union, 7 mom a cntgagec or members? Over 25 0 Over 50 &

S).2 2 EES oe aE SE = -<—. eee eee oe = - t ——

G the most recent date on which this discrimination took place Month Apr i1—__—_—- oy _—__2______ Wen. 1949. —

ae — ee ~-- =< ——_-< «- ss - =

———— ee - =

7 Captain what volar thing was done to you How were other penons ticated differently? (Use eatra shect if necessary

. On_June 5, 1967. I vag hired_hn T.W.A, as a stores clerk, About September 1 1968 J

wccepted a. relicoys faith which “observes Fricay sunset te to Saturday sunset as s the

Christian. $xbiath,_ 1 isscdiately approache:! the company with this informaticn. I

contacted not only ny imediate supervisor but. 719 Mr, Everett Kussren, Supervisor —

System Stares, about my. relinoun convictions, ~ _____ —_—

a: ae PSO. ‘to October 196% l_ was sble to se nedulo throuch. seniority preference, ry \:

week x> that I'd be able to obucrve the Sebort? . On Octedsr “hth 1 wrote % Mr. — Koso :

ae advising hinofry nos schedule, end the t I vould ‘provics b hin 2 list of ann” 2)

sthat.l v = ae off for religozs ,parpeses_which +0 > discussed a al ovr previ:

rr W.AASE_S 24 BsCIOsUtS FA) pa eg

no» Rortegitie: | rote Letween Octater. 162 and Varcht69 1 hui trensfered to a diffe. pnt

{stidl in Stores), and in the enging ovarb-ol ‘buildin: .. Poring the month ef Febre::s

yaertion vere. seh-duled, Tre man vith lowest senie: “ity thodule: his vecation “For :

rt thru ‘arch. Vth, Wen his veertion_emms duc. ire the urs: n celled re to his cfr’

Tass Sas” ~ S53. £5.35 ° Ste eee ome “eGo “Eos Sle-seo oot ode Se SSS” ~ § 6h Nes Oi. 7%) Ne" : +¥

: S4eT)

Nt ¢- t Team " at have tad the ahove Char: we and ay ‘edits a tag the est of my tem lode it: “atten end bebet

rere Oe | 2) ees, prog rn ren, SC ON ry ct Oe

~,* * "ee, , iy eft Farat

¥s d Y “wv ee” LE Ha sos {GP g (svt: *. YA? et 7 a —— » --1% ae

". Aa tg

— t: f ~ aa ; < —— an —-—ie

pet bee yet wo eevt ey | re oe VBS cma ” , t. fy mt be the COM |, Pe wilt *

ats 47 ¢ o

(As I would be required to work in his place. This man had Tuesday and Wednesday

eff and worked weekends,) Mr. Kussman and I discussed how to avoid my being

required to work on the Sabbath, not whether I would or not as he already knew I

was a Sabbath observer. A trade ef shifts was mentioned but the union would not

albow that, a change of sections was also brought up but again the union would not

allew the company to transfer re. When the company was willing to avoid ths Sabbath

problen the union would not allow any reasonable solution therefore forcing the

company into a postion which they wished to avoid. Therefore the union became dis-

criminataiy in not allowing the company to make arraingements for my Sabbath observer--,

ner did they at any time offer solutions to the problem , but coveted and protected

their seniority system to the point of violating the law, and constituional rights ve

all hold dear. .

On March the 8th I was scheduled to work. March the 6th I asked my ‘supervisor

for that day off, I was refused. The morning of March 8th I called in and told the

duty storekeeper that I would not be in that day. Neither my regular supervisor nor

the duty storckeceper tad been informed by higher management that I was a Sabbath

observer therefore conpounding the problen.

On the 15th I was again scheduled to work to cover for vacation. At thet time

Mr. Richard Stewart had taken over Mr. Nicholson's position while he was on vacation.

On approximately the 14th I had a discussion with Mr. Stewart, and requested th:

15th off, I was fefused. He instructed ne that I would be considercd insubordinate

if I did not show up on the 15th. I asked him who he would I rather insubordinate

T.W.A. or God, he gave mo no answer. lic then asked me if I would he in, I told hin

no I wouldn't. On the morning of the 15th I tried to ca)l but no one answered.

Admitted)y I should have made a later call but I didn't, even though I had told Mr.

Stewart I wouldn't be in,

On March 21st I was called into Mr. Butcher's office and told that if I did not

work on the 22nd © dischcge hacaring would be held because of my insubordinction,

At that timc I inforwned hin of wy religous convictions and that there could b>

no exceptions. He offercd no solutions nor suggestions, nor did my union steward +42

also was jn attendance nor did he charge that this would be religous discrinincticn

if carric’ throvuvh. They (the coupany) did not concider religous beliefs an aceeptcbl:

justification for absccnce. (PLeASZ SEE ENCLOSURE F 2)

_ On March 22nd I was again scheduled to work, and on that morning I called

in and inforiazd the duty storekceper that I would not be in.

On March the 25th I received a letter from Mr. Butcher charging mz with

insubordination ind informing »« of the date of my discharge hearing. ( Pl ZASE

SKE ENCIOSUIC: / 3)

On March the Jist the discharge hearing was held. My hearing officer was

J.U.Frey, Hr. R. Shields of Jivlustris] Relations was in attendance, as was the

union grexiance comiittee. ‘Ine union did not defend my postion at the hearing.

The only defence they mide was to contest thet dischurze was too severe a p.nalty.

No one brought up the fect that if l.wes found guilty and discharged, they (both

the conpony ind the union) would be violating the Civil Rights Law of 196), ond

their contract with the government for their Cane Kennedy opereaticns, and the

many other fescral and stele Jays on religous freedoms. At that time I did not

know wit wouldi be vielited if 1 was discharged, nor sony tit: was 1 called cn for

testinony.

On April Od To owis ford Guilty and discharged at the end of my shiét.

(PLAAS 4 SRE PuCLOSUR. £ A)

Approximately the 10th of April I called Industrial Relations for a letter of

ee ce I cuestendy in will pleas¢ note that it states I was let go

ONLY because I would not work on certain days. The only days I will not work are

those religous days observed by my faith. (PLZASé Sid ENCLOSURE # 5)

On August 19th I scheduled an appointment with Mr. R. Shields of T.W.A.

Industrial Relations. We discussed the problem and I informed him that the dis-

charge was illegal and discriminatory and requested rehire. He denied discrimination

and refused to rehire we, therefore compounding and continuing their unfair and

illegal actions.

ANSWER OF INTERNATIONAL ASSOCIATION OF

MACHINISTS AND AERO SPACE WORKERS,

DISTRICT 142

(Filed March 1, 1972)

For its answer to Plaintiff's Complaint, Defendant In-

ternational Association of Machinists and Aero Space

Workers, District 142 (“District 142”) states

FIRST DEFENSE

1. Defendant District 142 admits that Plaintiff is a

resident of Kansas City, Jackson County, Missouri, which

is within this judicial district; Defendant District 142 ad-

mits that Defendant Trans World Airlines, Inc., is a

corporation doing business in Missouri with a principal

office located in this judicial district; Defendant District

142 admits that Defendant Trans World Airlines is an

employer as defined in Title 42 US.C., Section 2000e;

Defendant District 142 admits that it is an unincorporated

labor organization having officers and agents who represent

employees in this judicial district. Defendant District 142

admits that International Association of Machinists and

Aero Space Workers, Local 1650 (‘‘Local 1650’’) is a sep-

arate and distinct labor organization having officers and

agents who represent employees in this judicial district.

Defendant District 142 admits that the International Asso-

ciation of Machinists and Aero Space Workers (“Inter-

national’) is a separate and distinct labor organization

with agents in this judicial district. Defendant District

142 denies each and every other allegation contained in

Paragraph 1 of the Complaint.

2. Defendant District 142 admits that Plaintiff pur-

ports to bring this action pursuant to Section 706 of the

Civil Rights Act of 1964, Title 42 U.S.C. 2000e-5(e) and

28 U.S.C. 1343, but denies each and every other allegation

contained in Paragraph 2 of the Complaint.

3. Defendant District 142 states that Paragraph 3 of

the Cumplaint states legal conclusions and, accordingly,

denies the same.

4. Defendant District 142 has no direct knowledge

of the membership of Plaintiff in any religion or the sab-

bath which any such religion may observe.

5. Defendant District 142 admits Plaintiff was eni-

ployed by Defendant Trans World Airlines from June 5,

1967 and was discharged by Defendant Trans World Air-

lines on or about April 2, 1969 b ‘+ denies each and every

other allegation contained in Paragraph 5 of the Complaint.

6. Defendant District 142 denies each and every alle-

gation contained in Paragraph 6 of the Complaint.

7. Defendant District 142 states that the Plaintiff sent

a document to the Equal Employment Opportunity Com-

mission on August 25, 1969, against “International Associa-

tion of Machinists and Aero Space Workers”; that said

charge was deferred to the Missouri Commission on

Human Rights on September 1, 1969, which dismissed the

charge for lack of jurisdiction for failure to file within

ninety days of the alleged act of discrimination on Feb-

ruary 27, 1970 and that said charge was filed on or about

November 18, 1969 with the Equal Employment Oppor-

tunity Commission. Defendant District 142 denies each

and every other allegation contained in Paragraph 7 of

the Complaint and states that Plaintiff failed to file timely

charges with the Equal Employment Opportunity Commis-

sion and the Missouri Commission on Human Rights.

8. Defendant District 142 denies each and every alle-

gation contained in Paragraph 8 of the Complaint.

SECOND DEFENSE

9. The Complaint fails to state a claim upon which

relief can be granted.

THIRD DEFENSE

10. Plaintiff while employed by Defendant Trans

World Airlines bid for jobs and schedules which he knew,

or should have known, made it impossible for him to

exercise his seniority to select the days he desired to

be off work; Plaintiff thereafter failed and refused to

cooperate with Defendant District 142 in processing his

grievance. Plaintiff has therefore waived and is estopped

to assert the claims made herein.

FOURTH DEFENSE

This Court lacks jurisdiction of the subject matter oi

this case since Plaintiff has not fully complied with the

procedural requirements before the Equal Employment

Opportunity Commission or the Missouri Commission on

I man Rights in relation to Defendant District 142.

FIFTH DEFENSE

Plaintiff is barred from asserting the claims made

herein since he did not exhaust his internal Union remedies

or his rights to process his grievance under the Railway

Labor Act.

WHEREFORE, Defendant District 142 prays that the

Court (1) award Defendant District 142 its attorney fees

as the prevailing party within the meaning of Title VII

of the Civil Rights Act of 1964; and (2) allow Defendant

District 142 to be discharged with its costs.

ANSWER OF INTERNATIONAL ASSOCIATION OF

MACHINISTS AND AFRO SPACE WORKERS,

LOCAL 1650

(Filed March 1, 1972)

For its answer to Plaintiff’s Complaint, Defendant In-

ternational Association of Machinists and Aero Space

Workers, Local 1650 (“Local 1650”) states

FIRST DEFENSE

1. Defendant Local 1650 admits that Plaintiff is a

resident of Kansas City, Jackson County, Missouri, which

is within this judicial district; Defendant Local 1650 admits

that Defendant Trans World Airlines, Inc., is a corporation

doing business in Missouri with a principal office located

in this judicial district; Defendant Local 1650 admits that

Defendant Trans World Airlines is an employer as defined

in Title 42 U.S.C, Section 2000e; Defendant Local 1650

admits that it is an unincorporated labor organization hav-

ing officers and agents who represent employees in this

judicial district. Defendant Local 1650 admits that Inter-

national Association of Machinists and Aero Space Work-

ers, District 142 (“District 142”) is a separate and distinct

labor organization having officers and agents who represent

employees in this judicial district. Defendant Local 1650

admits that the International Association of Machinists

and Aero Space Workers (“International”) is a separate

and distinct labor organization with agents in this judicial

district. Defendant Local 1650 denies each and every other

allegation contained in Paragraph 1 of the Complaint.

2. Defendant Local 1650 admits that Plaintiff pur-

ports to bring this action pursuant to Section 706 of the

Civil Rights Act of 1964, Title 42 U.S.C. 2000e-5(e) and

28 U.S.C. 1343, but denies each and every other ailegation

contained in Paragraph 2 of the Complaint.

3. Defendant Local 1650 states that Paragraph 3 of

the Complaint states legal conclusions and, accordingly,

denies the same.

4. Defendant Local 1650 has no direct knowledge of

the membership of Plaintiff in any religion or the sabbath

which any such religion may observe.

5. Defendant Local 1650 admits Plaintiff was em-

ployed by Defendant Trans World Airlines from June 5,

1967 and was discharged by Defendant Trans World Air-

lines on or about April 2, 1969 but denies each and every

other allegation contained in Paragraph 5 of the Complaint.

6. Defendant Local 1650 denies each and every allega-

tion contained in Paragraph 6 of the Complaint.

7. Defendant Local 1650 states that the Plaintiff sent

a document to the Equal Employment Opportunity Com-

mission on August 25, 1969, against International Associa-

tion of Machinists and Aero Space Workers; that said

charge was deferred to the Missouri Commission on Human

Rights on September 1, 1969 which dismissed the charge

for lack of jurisdiction for failure to file within ninety

days of the alleged act of cuscrimination on February 27,

1970 and that said charge was filed on or about November

18, 1969, with the Equal Employment Opportunity Commis-

sion. Defendant Local 1650 denies each and every other

allegation contained in Paragraph 7 of the Complaint and

states that Plaintiff failed to file timely charges with

the Equal Employment Opportunity Commission and the

Missouri Commission on Human Rights.

8. Defendant Local 1650 denies each and every allega-

tion contained in Paragraph 8 of the Complaint.

SECOND DEFENSE

9. The Complaint fails to state a claim upon which

relief can be granted against Defendant Local 1650.

THIRD DEFENSE

10. Plaintiff while employed by Defendant Trans

World Airlines bid for jobs and schedules which he knew,

or should have known, made it impossible for him to

exercise his seniority to select the days he desired to

be off work; Plaintiff thereafter failed and refused to

cooperate in processing his grievance. Plaintiff has there-

fore waived and is estopped to assert the claims made

herein.

FOURTH DEFENSE

This Court lacks jurisdiction of the subject matter

of this case since Plaintiff has not fully complied with

the procedural requirements before the Equal Employment

Opportunity Commission or the Missouri Commission on

Human Rights in relation to Defendant Local 1650.

FIFTH DEFENSE

Plaintiff is barred from asserting the claims made

herein since he did not exhaust his internal Union remedies

or his rights to process his grievance under the Railway

Labor Act.

WHEREFORE, Defendant Local 1650 prays that the

Court (1) award Defendant Local 1650 its attorney fees

as the prevailing party within the meaning of Title VII

of the Civil Rights Act of 1964; and (2) allow Defendant

Local 1650 to be discharged with its costs.

SEPARATE ANSWER OF DEFENDANT

TRANS WORLD AIRLINES, INC.

(Filed March 2, 1972)

Comes now defendant Trans World Airlines, Inc. and

for its answer to plaintiff's complaint, alleges and states

as follows:

First Defense

1. Plaintiff's complaint fails to state a claim against

Trans World Airlines, Inc. upon which relief can be

granted.

Second Defense

2. It admits the allegations contained in paragraph

1 of plaintiff's complaint.

3. It denies each and every allegation contained in

paragraphs 2 and 3 of plaintiff’s complaint.

4. It states that this defendant is without knowledge

or information sufficient to form a belief as to the truth

of each and every allegation contained in paragraph 4

of plaintiff's complaint.

5. It denies each and every allegation contained in

paragraph 5 of plaintiff's complaint, except it admits that

plaintiff was employed by this defendant from June 5,

1967 until he was discharged on April 2, 1969.

6. It denies each and every allegation contained in

paragraph 6 of plaintiff's complaint.

7. It denies each and every allegation contained in

paragraph 7 of plaintiff's complaint, except it admits that

the Equal Employment Opportunity Commission received

an administrative charge from the plaintiff and that plain-

tiff requested a “Notice of Right to Sue Letter” which

was mailed to him by the E.E.O.C. January 11, 1972.

8. It denies each and every allegation contained in

paragraph 8 of plaintiff's complaint.

Third Defense

9. This court lacks jurisdiction over the subject mat-

ter of plaintiff's complaint for the reason that plaintiff

failed to comply with the procedures required by Title

42 U.S.C. §2000e et seq.

Fourth Defense

10. Plaintiff failed to exhaust his administrative rem-

edy under the collective bargaining agreement between

TWA and the International Association of Machinists and

Aero Space Workers as required by the Railway Labor

Act (45 U.S.C. §151 et seq. §181 et seq.).

WHEREFORE, having fully answered plaintiff's com-

plaint, defendant Trans World Airlines, Inc. prays that

said complaint be dismissed and for its costs herein in-

curred and expended.

ANSWER OF INTERNATIONAL ASSOCIATION OF

MACHINISTS AND AERO SPACE WORKERS

(Filed March 30, 1972)

For its answer to Plaintiff's Complaint, Defendant In-

ternational Association of Machinists and Aero Space

Workers, states that its true and correct name is “The

Grand Lodge of the International Association of Machinists

and Aerospace Workers” (hereinafter the International)

and for its answer states

FIRST DEFENSE

1. Defendant International states that it has not beén

properly served with process pursuant to F.R.C.P. 4 in

that the Court lacks jurisdiction over its person under

F.R.C.P. 12(b) (2) since there has been insufficient service

of process under F.R.C.P. 12(b) (5).

SECOND DEFENSE

2. Defendant International admits that Plaintiff is

a resident of Kansas City, Jackson County, Missouri, which

is within this judicial district; Defendant International ad-

mits that Defendant Trans World Airlines, Inc., is a cor-

poration doing business in Missouri with a principal office

located in this judicial district; Defendant International

admits that Defendant Trans World Airlines is an employer

as defined in Title 42 U.S.C., Section 2000e; Defendant

International admits that it is an unincorporated labor

organization having officers and agents who represent em-

ployees in this judicial district. Defendant International

admits that International Association of Machinists and

Aero Space Workers, District 142 (“District 142”) is a

separate and distinct labor organization having officers

and agents who represent employees in this judicial dis-

trict. Defendant International admits that the Interna-

tional Association of Machinists and Aero Space Workers

Local 1650 (“Local 1650”) is a separate and distinct labor

organization with agents in this judicial district. Defen-

dant International denies each and every other allegation

contained in Paragraph 1 of the Complaint.

3. Defendant International admits that Plaintiff pur-

ports to bring this action pursuant to Section 706 of the

Civil Rights Act of 1964, Title 42 U.S.C. 2000e-5(e) and

28 U.S.C. 1343, but denies each and every other allega-

tion contained in Paragraph 2 of the Complaint.

4. Defendant International states that Paragraph 3

of the Complaint states legal conclusions and, accordingly,

denies the same.

5. Defendant International has no direct knowledge

of the membership of Plaintiff in any religion or the sab-

bath which any such religion may observe.

6. Defendant International admits Plaintiff was em-

ployed by Defendant Trans World Airlines from June 5,

1967 and was discharged by Defendant Trans World Air-

lines on or about April 2, 1969 but denies each and every

other allegation contained in Paragraph 5 of the Complaint.

7. Defendant International denies each and every al-

legation contained in Paragraph 6 of the Complaint.

8. Defendant International states that the Plaintiff

sent a document to the Equal Employment Opportunity

Commission on August 25, 1969, against International Asso-

ciation of Machinists and Aero Space Workers; that said

charge was deferred to the Missouri Commission on Human

Rights on September 1, 1969 which dismissed the charge

for lack of jurisdiction for failure to file within ninety

days of the alleged act of discrimination on February 27,

1970 and that said charge was filed on or about November

18, 1969, with the Equal Employment Opportunity Commis-

sion. Defendant International denies each and every other

allegation contained in Paragraph 7 of the Complaint and

states that Plaintiff failed to file timely charges with the

Equal Employment Opportunity Commission and the Mis-

souri Commission on Human Rights.

9. Defendant International denies each and every al-

legation contained in Paragraph 8 of the Complaint.

THIRD DEFENSE

10. The Complaint fails to state a claim upon which

relief can be granted against Defendant International.

FOURTH DEFENSE

11. Plaintiff while employed by Defendant Trans

World Airlines bid for jobs and schedules which he knew,

or should have known, made it impossible for him to

exercise his seniority to select the days he desired to

be off work; Plaintiff thereafter failed and refused to

cooperate in processing his grievance. Plaintiff has there-

fore waived and is estopped to assert the claims made

herein.

FIFTH DEFENSE

This Court lacks jurisdiction of tne subject matter

of this case since Plaintiff has not fully complied with

the procedural requirements before the Equal Employment

Opportunity Commission or the Missouri Commission on

Human Rights in relation to Defendant International.

SIXTH DEFENSE

Plaintiff is barred from asserting the claims made

herein since he did not exhaust his internal Union remedies

or his rights to process his grievance under the Railway

Labor Act.

WHEREFORE, Defendant International prays that the

Court (1) dismiss the case against the International or

in lieu thereof quash service against it for the reasons

stated in Defendant International’s First Defense and/or

(2) award Defendant International its attorney fees as

the prevailing party within the meaning of Title VII of

the Civil Rights Act of 1964; and (3) allow Defendant

International to be discharged with its costs.

STANDARD PRETRIAL ORDER NO. 2

(Filed October 17, 1972)

Following pretrial proceedings pursuant to Rule 16

of the Federal Rules of Civil Procedure and Rule 20 of

this Court,

IT IS ORDERED:

I. This as an action for: This is an action by an

individual Plaintiff against his former employer, Trans

World Airlines (“TWA”) and three labor organizations

(“Local 1650”, “District 142”, and “The International”)

seeking redress from alleged religious discrimination in

violation of the Civil Rights Act of 1964, as set forth in

Plaintiff's Complaint filed February 10, 1972. All such dis-

crimination has been denied by each and every Defendant

in separate answers which also raised certain affirmative

defenses.

Il. Federal Jurisdiction is Involved Upon the Ground:

Plaintiff is a resident of Missouri and was a resident of

this federal district at all material times, and the unlawful

employment practice is alleged to have been committed

at the TWA overhaul base, located within this judicial

district. Defendant TWA is an employer engaged in inter-

state commerce and subject to the provisions of Title VII

of the Civil Rights Act of 1964, 42 U.S.C. 2000(e) (“Title

VII”). Defendant Local 1650, Defendant District 142 and

Defendant International is each a labor organization sub-

ject to the provisions of Title VII. Federal jurisdiction

is sought on the basis of 42 U.S.C. 2000(e) (5) (f). Defen-

dant International denies the Court’s jurisdiction over it

since it alleges it has not properly: been served with process.

| All Defendants deny the Court’s jurisdiction because they

allege Plaintiff has failed to follow procedural require-

ments established under Title VII, the Railroad Labor Act,

contractual grievance machinery and internal union

remedies, any one of which Defendants allege is a pre-

requisite to conferring the Court with jurisdiction in this

case.

III. The Following Facts are Admitted and Require

No Proof:

1. Plaintiff was employed by Defendant TWA on

June 5, 19€7 and terminated by TWA on April 2, 1969.

2. Plaintiff was a member of the International Asso-

ciation of Machinists and Aero-Space Workers, AFL-CIO

and was employed at a geographic point where the TWA-

IAM agreement was administered on a local level by Local

1650 and on a district level by District 142.

3. Plaintiff was a member of a religion which ob-

serves the Sabbath from Friday at sunset until Saturday

at sunset at the time of his discharge by Defendant TWA

on April 2, 1969.

4. Prior to Plaintiff’s discharge by Defendant TWA,

Plaintiff had informed Defendant TWA of his religious

beliefs.

5. That during the period of time that Plaintiff was

employed by Defendant TWA, his employment relationship

with Defendant TWA was governed by a collective bar-

gaining agreement between Defendant TWA and Interna-

tional Association of Machinists and Aero-Space Workers

covering all mechanics and related employees, which was

signed August 25, 1966. At the time Plaintiff was em-

ployed by TWA, the TWA-IAM agreement applied to and

covered about fifteen thousand employees located at more

than thirty-one geographic locations through the United

States.

6. Trans World Airlines, Inc. is a common carrier

engaged in the interstate transportation of passengers,

cargo and mail pursuant to operating authority granted

by the Civil Aeronautics Board. This authorization re-

quires the rendition of a safe, efficient and adequate service

in the public interest and Trans World Airlines, Inc. meets

its obligation to perform this service by conducting opera-

tions on a seven day a week basis. For this purpose

Trans World Airlines, Inc. employs approximately thirty-

seven thousand employees at approximately one hundred

locations.

A seven day a week operation depends upon support

from a number of departments within Trans World Air-

lines, Inc., including the Stores Department at the overhaul

base at Kansas City International Airport, Kansas City,

Missouri. The work at the Stores Department includes

the delivering of parts and materials to mechanics at the

overhaul base for the purpose of repairing, maintaining

and overhauling aircraft and engines. In addition to work

on TWA’s own fleet, TWA performs repair, maintenance

and overhaul at said overhaul base for approximately thirty

other airlines. All these activities require seven day a

week support from the Stores Department at the over-

haul base at Kansas City International Airport, Kansas

City, Missouri.

7. Plaintiff was initially employed by Defendant

TWA as a Stores Clerk in Building No. 1 at the Kansas

City Overhaul! Base.

8. On or about December 2, 1968 Plaintiff voluntarily

bid to another stores clerk section in Building No. 2 at

the overhaul base at Kansas City International Airport,

Kansas City, Missouri. Building No. 1 Stores Stockroom

Section and Building No. 2 Stores Progress Section are

two separate seniority groupings, and by bidding to the

Building No. 2 section Plaintiff had less relative seniority

within his new seniority grouping than he had previously

had in the Building No. section. Within the Building

No. 2 section Plaintiff became the second lowest man in

order of seniority on the day shift, the man with the

lowest seniority on that shift being an employee named

Bill Wyatt. Plaintiff’s title as Stores Clerk, his wages,

benefits and duties remained the same.

In March, 1969 Bill Wyatt went on vacation. Normally

when a weekend vacancy in a job in a Stores section

is created by a vacation schedule, TWA management ad-

vises the IAM steward in that section of the vacancy.

The application of the seniority provisions of the TWA/

IAM agreement within that section would have resulted

in Plaintiff being scheduled to work March 8, 1969 which

fell on a Saturday. Wyatt’s job entailed delivering parts

and materials to mechanics in Building No. 2 for the repair

and maintenance of aircraft engines. Wyatt had Tuesdays

and Wednesdays off and worked weekends.

9. TWA Overhaul Base works on a twenty-four hour

basis, with three shifts a day. The Store Department,

where Plaintiff was employed, was open all year around,

twenty-four hours a day.

10. When Plaintiff was employed at TWA, he re-

ceived the contract between the Machinists and TWA.

He also received a copy of the International Constitution,

a copy of Local 1650’s By-Laws, a copy of District 142’s

By-Laws, and he read them.

11. The Union was certified by the National Medi-

ation Board on November 20, 1945, May 15, 1946 and

September 3, 1949, in accordance with the provisions of

Title II of the Railway Labor Act.

12. On Hardison’s employment application dated Feb-

ruary 27, 1967, the following question was asked and an-

swered:

Q. “Are you willing to work shifts, including week-

end?”

A “Ves ”

13. A member of the Worldwide Church of God offi-

cially becomes a member upon baptism, but the obligations

for members are not different than for non-members who

are studying to become members.

14. The Worldwide Church of God celebrates holi-

days known as:

(1) The First Day of Unleavened Bread;

(2) Last Day of Unleavened Bread;

(3) Pentecost;

(4) Feast of Trumpet;

(5) Day of Atonement;

(6) Feast of Tabernacles;

(7) Last Great Day.

All the holidays occur at different dates in reference to

the Gregorian calendar. Those who practice the religion

are not to work on these holidays.

15. The International Association of Machinists and

Aero-Space Workers AFL-CIO is an international labor

organization with over one million members in a large

number of industries and geographic locations, both in

the United States and foreign countries. It maintains its

principal office in the Machinists Building, 1300 Connecti-

cut Avenue, N.W., Washington, D.C. It has agents located

within the State of Missouri and within this judicial dis-

trict, designated Grand Lodge Representatives. The of-

ficers of the International are elected by a vote of the

entire Machinists’ membership of approximately one and

one-half million members. The International maintains

its own treasury, hires and fires employees to work for

it, and files reports in its name with the United States

Governm, xt and other local and state governments.

16. District 142, International Association of Machin-

ists and Aero-Space Workers, is a delegate body made

up of representatives from approximately thirty-one locals

located throughout the United States and is responsible

for the representation, nationwide, of all employees in

certain classifications employed by TWA and Ozark Air-

lines. In April 1969, there were approximately fifteen

thousand TWA employees under District 142’s jurisdiction

at the time of Plaintiff's employment by TWA. District

142 at all material times has maintained its business offices

at 206 Northeast 32nd Avenue, Kansas City, Missouri. The

agent of 142 assigned to the Overhaul Base during the

time this grievance arose was Joseph W. Bowman, Sr.,

Assistant General Chairman. The District officers are

elected by employees whom they represent at TWA and

Ozark Airlines. The District maintains its own offices

and treasury, hires and fires its employees and files re-

ports with the United States and other local and state

governments.

17. Local 1650 represents and consists of employees

employed by TWA and Ozark Airlines located at Kansas

City, Missouri; Wichita, Kansas; and Louisville, Kentucky.

There are more than five thousand employees who belong

to Local 1650 at these locations, most of whom are em-

ployed by TWA in the Kansas City area. For about nine

years Local 1650 has maintained its business office and

main meeting hall at Vivion Road and Cliffview Drive

Bitte ones “

27.

in Rivérside, Missouri. Local 1650 elects its own officers,

maintains a treasury in its own name, makes expenditures

in its own name, files required reports in its own name

with United States Government and other governmental

agencies, hires and fires employees to work for it, conducts

its own meetings, and runs its day-to-day affairs. The

Local can take no action contrary to the International

Constitution or District By-Laws, but in all other ways

it runs its own affairs and makes its own decisions inde-

pendently. The International, District and Local are each

separate labor organizations and separate legal entities.

18. Stewards of Local 1650 are elected by members

of 1650. They receive no pay from Local 1650, no pay

from the District and no pay from tue International for

their duties as stewards. Stewards do receive reimburse-

ment of their union dues from Local 1650 if they serve

as stewards and attend one Local meeting per month and

one steward meeting per month. At all material times,

James Tinder and Earl Box were stewards or committee-

men and agents of Local 1650.

19. Service was made on Local 1650 on February

11, 1972 at its offices at Vivion Road and Cliffview Drive,

Riverside, Missouri. Service upon District 142 was made

on February 22, 1972 at its office in Kansas City, Missouri.

Purported service 6n the International was made on March

8, 1972 by serving a copy of the Complaint on James

Tarwater, Vivion Road and Cliffview Drive, Riverside,

Missouri, the address of Local 1650. James Tarwater is

Financial Secretary of Local 1650.

20. On April 25, 1968, Plaintiff wrote the following

note to Everett Kussmann, Manager of Store Systems:

Would like to see you about a change in weekly days

off. I wish to request either Friday and Saturday

off or from Friday sunset to Saturday sunset off with

the hours taken off Friday to be worked on Saturday

evening or Sunday. My reason is I sincerely believe

this is the Sabbath and no servile work may be done

then.

On April 27, 1968, Kussman wrote a note concerning Plain-

tiff’s April 25, 1968 memo:

Arrange for Mr. Hardison and his steward to see me

S.A.P.

On May 3, 1968, Kussman wrote a memo to Burns Prater,

a supervisor, as foilows:

1. Agreed to steward seeking swap or days off.

2. Agreed to odd holidays (excused T.O.) if he works

the Christian holiday when requested.

3. He advises you are getting him another jch—agreed

you should. Belongs to the ‘World Wide Christian

Church’ Garner Ted Armstrong, Ambassador Col-

lege, Pasadena, California.

On May 7, 1968, Prater wrote Kussman

I haven’t made any headway. His time off and day

off requirement are too difficult to handle. I under-

stand that no one would swap days off with him.

In the last part of September 1968, Plaintiff requested

and received a conference with Kussman. James Tinder

was also present.

21. By letter dated October 4, 1968 and received Octo-

ber 7, 1968, Plaintiff wrote to Kussman:

10-4-68

» Attn: Mr. E. Kussman

Subj: Days Off

From: L. G. Hardison

Sir;

As per our conversation several months ago con-

cerning certain religious days (annual), that I would

be required to be off. You said that you would excuse

me from work those days, when I could have the

Sabbath off and be accepted into the church.

This is to inform you that I have finally trans-

ferred to 11-7 shift and now can observe the Sabbath.

My enterance into the church will soon follow. I will,

if you so wish, furnish you (or your designate), a

list of those dates that I would need per year, begin-

ning with the new year.

I would appreciate a reply, with any comments

you wish to make.

Thank you for your sincere and understanding

consideration and cooperation.

On October 11, 1969, Kussman wrote Plaintiff the

following letter which verified the contents of the earlier

meeting.

I acknowledge with interest your letter of October

4 regarding our previous discussion relating to the

requirement of your religious belief, particularly with

relationship to holidays, both those provided by the

contract and those observed by your religious convic-

tions. In our previous discussion, I indicated a willing-

ness to consider your specific holiday requirements

for time off when possible and you in turn indicated

your willingness to volunteer for all contract provided

holidays making yourself available for work. You

recognized that I may not always be able to comply

for reasons that may be beyond my control and I

in turn recognized that you could only make yourself

available for contract provided holidays, but that you

may not be scheduled because of the union method

of scheduling in turn.

I would appreciate, at your earliest convenience, a

list of holidays that you refer to in your letter. I in

turn will respond with a list. I am pleased that your

shift change permits you to observe the sabbath. I

wish you every success and happiness in your relation-

ship with the church. You are probably aware that

the company’s response to your request has been as-

sisted by your fine attitude.

On October 20, 1968, Hardison wrote to “Manager, System

Stores”: ;

The following is the previously discussed list of reli-

gious holidays that I must observe for 1969.

APRIL 3 SEPT 27

APRIL 9 OCT 4 (SEE NOTE)

MAY 26

SEPT 13

NOTE: Sept. 27th, begins the Festival of Taber-

nacles which is a week long commanded assembly,

ending Oct. 3rd. October 4th is The Last Great Day

on which I can do no work. But it happens to fall on

one of my regular days off this year. I shall schedule

my vacation for the coming years to include these

days so that I will be able to comply with their ob-

servance.

I would like to thank you again for your sincere

understanding and cooperation in this manner. You

have certainly brightened my outlook and future.

22. In March 1969, Plaintiff requested from his super-

visor to leave early on a Friday evening so that he could

conform with the Sabbath. Fox told Plaintiff that he

could not say yes or no, but to use his own judgment.

Plaintiff subsequently punched out and went home. He

received no reprimand from the Company for so doing.

23. Plaintiff was absent on the following days when

he was scheduled to work for TWA: March 8, March

15 and March 22, 1969.

24. A few days prior to March 8, 1969, Plaintiff had

two separate conversations concerning his desire to be

excused from work on March 8, 1969, (1) with Everett

Kussman, Manager, Stores Systems and James Tinder, Lo-

cal 1650 steward; and (2) with his immediate foreman,

Nicholson, alone.

The first meeting was on March 6, 1969, and was

initiated by Kussman on March 6, 1969, with Plaintiff

and his Union steward, Tinder to discuss Plaintiff’s reli-

gious needs after Kussman saw that Plaintiff was sched-

uled to work on Saturday, March 8, 1969 due to vacation

schedules. Following the March 6, 1969 meeting, Plaintiff

was still scheduled to work on March 8, 1969.

25. On March 8 Plaintiff was absent from work. He

called in to the Day Storekeeper and told him he would

like to have the day off for personal business and that

he would not be in. The Day Storekeeper asked if the

Plaintiff had talked to his immediate supervisor. Plaintiff

said that he had, but that his immediate supervisor would

not allow the day off. The Day Storekeeper then said

that he could not allow the day off either. Plaintiff did

not inform the Day Storekeeper that he was being off

to observe what he considered to be the Sabbath.

26. A few days prior to March 15, Plaintiff had a

conversation with his substitute foreman, Stewart (a sub-

stitute for Nicholson), and asked to be excused for March

15, 1969. Stewart refused to excuse Plaintiff for March

15, 1969. No one but Stewart and Plaintiff were preseut

during this conversation.

27. On March 15, Plaintiff was absent from work.

Plaintiff tried one time to report his absence by telephone

and claims that he could not reach anyone at the Company.

28. On about March 21, Plaintiff had a conversation

with W. J. Butcher, Supervisor Stores Pianning and Con-

trol, in the presence of James Tinder, Local 1650 Steward.

29. Asa result of the March 21, 1969 meeting, Butcher

wrote Plaintiff the following letter, confirming the con-

tents of the meeting and setting forth TWA’s position:

This letter will confirm our conversation in my office

on this date, in the presence of Steward Jim Tinder,

regarding your failure to report for work on two con-

secutive Saturdays—March 8 and March 15, 1969.

During this discussion, you informed me your religious

tenets precluded your working at any time between

sunset Friday and sunset Saturday. Additionally, you

advised you had discussed this with your Minister

and there is no provision that would allow you to

deviate from this requirement.

The following facts are also a matter of record. Prior

to your change of days off from Saturday and Sunday

to Wednesday and Thursday, Mr. E. H. Kussman dis-

cussed the impending weekend work with you (since

he had already made some commitments on aiicwing

you to take special religious holiday periods through-

out the coming year), and you did not refuse to work

Saturday at that time.

Subsequently, on March 6, 1969 you asked your Super-

visor, John Nicholson, to be off on March 8, the first

Saturday scheduled to work for “personal business”

reasons which you refused to clarify. Permission was

refused. On the Saturday in question, March 8, 1969,

you telephoned Storekeeper Bob Jones and again

requested the day off for “personal business” which

you again refused to clarify and again were refused.

At this time, Mr. Jones asked why you hadn’t obtained

prior approval from your supervisor and your com-

ments were, “you just didn’t get around to it.” In

your discussion to me you stated your supervisor was

a difficult man to talk to. In any case, you did not

report.

The following Friday, your Supervisor (R. C. Stewart

acting for J. W. Nicholson) advised he had conversa-

tion with you directing you to report and explaining

the possibility of disciplinary action.

Again on Saturday, March 15, 1969, you did not re-

port nor did the Duty Storekeeper receive a telephone

call from you advising you would not be in. In our

discussion, you advised a call was made but the line

was busy. This fact should not have prevented a

later call.

As a result of the foregoing and since you are again

scheduled to work Saturday, March 22, 1969, I ad-

vised you I have no alternative but to schedule a

discharge hearing in your behalf should you fail to

appear without an acceptable justification.”

30. On March 25, 1969, Butcher wrote Plaintiff the

following:

A discharge hearing in your behalf has been sched-

uled for Friday, March 28, 1969 at 2:00 P.M. in the

Building #2 Conference Room. Your Hearing Officer

will be Mr. C. E. Bowman.

You are charged with insubordination in that on Satur-

day, March 22, you refused to work as directed spe-

cifically by my letter of March 21, 1969 which was

confirmation of a discussion held with you in the

" presence of your steward on that date.

The reason for your refusal to work on three successive

Saturdays (March 8, 15 and 22) is a matter of record.

31. On March 31, 1969, a discharge hearing was held

before J. H. Frey, a designated representative of TWA,

pursuant to Article XI(b) (8) of the IAM-TWA collective

bargaining agreement. At the hearing, members of Local

1650 grievance committee were present and argued against

Plaintiff's discharge on the grounds that TWA had com-

mitted certain procedural errors which made any discipline

improper and, in any event, that the penalty of discharge

was too severe to be invoked against the Plaintiff. Frey’s

decision was .eached by Frey alone. As a result of the

hearing, on April 2, 1969, Frey wrote the following to

Plaintiff:

At the discharge hearing held in your behalf om Mon-

day, March 31, 1969, it was established that the facts

in the case were not in dispute. You agreeci that

you refused to work as directed by your supervisor

on Saturday, March 22, 1969 and the charge that you

also refused to work on March 8 and March 15, 1969

was not contested.

- <I E. - en ee ihe eee - mO

Further testimony revealed that you conscientiously

object and refuse to work between the hour of sun-

down on Friday evenings to the hour of sundown

on Saturday evenings and on certain religious holidays.

I wouid not presume to censure you for abiding by

the tenets of your religion, but I would point out

to you that TWA as a transportation company, serving

the needs of the public seven days a week, has need

of employees who will work as required to fill this

need.

I, therefore, have no alternative but to find you guilty

of insubordination as charged.

Your service with TWA will be terminated effective

at the end of your shift on Wednesday, April 2, 1969.

32. Pursuant to the IAM-TWA collective bargaining

agreement, if a discharge is made as a result of a hearing

conducted by a TWA officer, the discharge is then referred

to District 142 for its review and if the District, after

reviewing the facts, concludes that the discharge is im-

proper it may refer the grievance to the System Board

of Adjustment where the grievance is subject to a final

and binding determination by the three man System Board

of Adjustment, which includes an impartial neutral and

qualified arbitrator pursuant to Article XII of the collective

bargaining agreement.

On April 7, 1969, the Local 1650 Grievance Committee

Chairman, Earl Box, transferred the case to District 142

Assistant General Chairman Joe Bowman, with the follow-

ing letter addressed to him

Dear Joe:

This is a sad case in which we found an individ-

ual torn between loyalty to his job and loyalty to

his religious beliefs. This individual indicated that

he was willing to work any hours, take any combina-

tion of Days Off, and work any shift as long as he

did not have to work between Sundown Friday and

Sundown Saturday. Of course, we know what would

happen to our TWA-IAM Agreement if we made an

exception to our “40 hours a week” clause in this

case. —

We patiently explained the situation to Mr. Hardi-

son and he indicated that under no circumstances could

he violate his religious beliefs even to save his job.

He insisted on a hearing and all we could do was plead

that discharge was too severe. Mr. Hardison refused

to work on three consecutive Saturdays and also

punched out and went home on Friday, March 28 at

6:32 p.m.—sundown—-even though his absence was not

excused. Needless to say, Mr. Hardison was dis-

charged effective Wednesday, April 2, 1969.

We will be happy to answer any questions you

might have.

33. On May 1, 1969, Joseph W. Bowman, Assistant

General Chairman of District 142, wrote to the Local 1650

Committee as follows:

This will acknowledge receipt of the above discharge.

After review of this case it is my opinion the Union

cannot help this Brother. I tried several times to

talk to this Brother about his problem, however, he

chose not to talk to me so I must assume he has

no interest in working at TWA.

This case is now closed in our files.

34. Plaintiff alleges his unlawful employment prac-

tice occurred on or before April 2, 1969.

35. Plaintiff's charge was signed August 25, 1969, and

was received by the EEOC before August 29, 1969. The

charge named “Trans World Airlines” and “International

Association of Machinist and Aero-Space Workers, Vivion

Road and Cliffview Drive, Riverside, Missouri.”

36. On August 29, 1969, Charles E. Clark, Area Di-

rector of the EEOC, wrote a letter to Plaintiff as follows:

We have received your communication alleging unlaw-

ful employment practices in violation of Title VII of

the Civil Rights Act of 1964. Under Section 706 (b)

of Title VII this Commission is unable to accept juris-

diction in your case until the matter has been deferred

for sixty (60) days to the Missouri Commission on

Human Rights, 314 East High, P.O. Box 1129, Jefferson

City, Missouri 65101.

We are sending a copy of your correspondence to

that state agency. Please contact them immediately

to be certain that all its requirements for commencing

proceedings in your case have been met.

Unless the Commission hears from you to the con-

trary, we will automatically assert jurisdiction over

your charge on the sixty-first (61st) day after receipt

by the state agency of your charge. If the state should

earlier terminate its — we will at that time

assert jurisdiction.

If you have any further questions, please do not hesi-

tate to call upon us.

37. On August 29, Charles E. Clark wrote the follow-

ing letter to Sandra Neese, Director of Investigation, Mis-

souri Commission on Human Rights which was received

September 2, 1969:

The enclosed communication has been submitted to

us alleging a violation of Title VII of the Civil Rights

Act of 1964. Pursuant to Section 706(b) of the Act

no charge may be filed with this Commission under

Section 706(a) until the expiration of sixty (60) days

after proceedings have been commenced under the

fair employment practice law of your State, unless

such proceedings are terminated earlier.

We would appreciate being informed of the status

of this matter at the expiration of 60 days, or at

the time you terminate the proceedings, whichever

occurs earlier.

On the 6lst day of receipt of this communication,

or upon earlier termination by you, the Commission

will automatically assume jurisdiction unless the

charging party notifies us to the contrary. If both

the 61st day and termination of your proceedings

would fall beyond the statutory limit of 210 days,

we will assume jurisdiction on the 209th day following

the occurrence of the alleged violation unless the

charging party notifies us to the contrary.

Thank you for your kind cooperation in this matter.

38. On October 31, 1969, Charles E. Clark wrote Plain-

tiff as follows:

This is in further reference to our letter of August

29, 1969. We advised you that we had to defer to

the State agency for sixty (60) days, and that we

would assume jurisdiction on the sixty-first (61) day

after receipt by the State agency if you had not ad-

vised us to the contrary.

are lyn

eyiaee a

Since we have not heard from you to the contrary

we assume you wish this Commission to proceed with

our investigation.

May we ask you to indicate the correct spelling of

your name, current address, and to furnish a telephone

number where you can be reached. This information

will assist us in proceeding with your case. A copy

of this letter is attached, with blanks for this informa-

tion. We are also enclosing a self-addressed, postage

paid envelope for your convenience.

Thank you for your very kind cooperation in this

matter.

39. On November 4, 1969, Plaintiff wrote the EEOC

as follows:

Upon receipt of your letter dated October 31, 1969

I telephoned your office and spoke with Mr. Villar-

real. I requested your office defer assumption of the

case until after November 18 due to a meeting sched-

uled between the state investigator, Mr. Lee Henson,

and the company involved.

I wish to ask for your deferment of the assumption

until after Mr. Henson talks with the company on

the above date, or until you are notified otherwise.

Thank you for your concern and continuing coopera-

tion in this matter.

40. On November 18, 1969, Plaintiff wrote the EEOC

a letter received on November 19, 1969, as follows:

This is to give you formal notice that you may now

proceed to assume the above referenced case from

the Missouri Commission on Human Rights.

I wish to thank you for your lasting interest and

consideration you have so well expressed. I re-

main...”.

41. On February 27, 1970, the Missouri Commission

on Human Rights wrote Plaintiff as follows:

The Missouri Commission on Human Rights has acted

to dismiss your complaint against the above captioned

company and union for lack of jurisdiction. In your

case this means that your complaints were not filed

within 90 days of the alleged act of discrimination.

As a matter of standard practice I wish to advise

you that you may request reconsideration of the Com-

mission’s decision within thirty days after this notifica-

tion by addressing a letter to Mr. Richard J. Chamier,

Chairman, Missouri Commission on Human Rights,

P.O. Box 1129, Jefferson City, Missouri 65101. This

letter should state the reasons for your request for

reconsideration, if you decide to request such, as well

as any additional information or evidence which you

believe is relevant.

If we can be of any assistance to you in the future,

please do not hesitate to contact us.

41(a). The EEOC’s record entitled “Kansas City Area

Office Charge Information Sheet” recites in two separate

places “filing date—11/3/69.”

42. Plaintiff never filed a grievance concerning his

discharge or concerning the Company’s refusal to allow

him to be absent on Saturdays, or concerning any other

matter relating to his employment at TWA.

43. When Plaintiff was discharged at TWA on April

2, 1969, he was making $3.37 per hour.

esse hela

Pt nee me mo at

;

‘

Plaintiff has worked at Kenworth Motor Truck Com-

pany since October 1969. Between October 1969 and

February 1970, Plaintiff made $475.00 per month. From

February 1970 to February 1971, Plaintiff made $520.00

per month. From February 1971 to February 1972, Plain-

tiff made $590.00 per month. After February 1972, Plain-

tiff made $660.00 per month.

From July 1969 until October 1969, Plaintiff worked

at Beal, Inc., 4001 Kaw Drive, Kansas City, Kansas, as

an inventory control clerk at $100.00 per week. From

May: 1969 until July 1969, Plaintiff worked at Black, Sivalls

and Bryson for $390.00 per month gross.

Since his discharge from TWA, Plaintiff has also

worked part-time as a store clerk for 7-11 Stores for about

a three-month period at $1.60 per hour. Plaintiff’s earnings

were as follows for the years indicated:

1) 1968—

2) 1969—$5,259.00

3) 1970—$6,855.00

4) 1971—$7,183.00

44. No Defendant made any statements insulting or

expressing animus against Plaintiff's religious beliefs.

45. The TWA-IAM collective bargaining agreement

was negotiated by the Defendants before the Plaintiff be-

gan employment at TWA and with no discussion of religion

and without any intent to discriminate against any re-

ligion.

46. The TWA-IAM collective bargaining agreement

was completely silent concerning matters related to Plain-

tiff’s religion in particular or any religion in general.

47. At no time during any of the Plaintiff’s contacts

with the Union, including at the discharge hearing on

March 31, did the Union tell or indicate to the Company

that it should discharge the Plaintiff. And at no time

did the Union agree with the Company that the Plaintiff

should be discharged.

48. The Union had no objection to the Company al-

lowing the Plaintiff an excuse for his religious holidays

which were granted by Kussman in September 1968.

49. The International was never notified of the Plain-

tiff’s alleged religious beliefs or of the discharge for re-

ligious beliefs.

50. The Plaintiff never attempted to exercise his

rights internally within the Union structure to have his

grievance processed or to have any alleged wrongs cor-

rected.

IV. The Reservations to the Facts Recited ir Para-

graph III Above are as Follows: Each Defendant denies

responsibility for the acts of any individuals except their

agents. Accordingly, each Defendant reserves the right

to object to the acts of any individual, other than its

agent, as irrelevant, immaterial and not probative of any

wrongdoing by that Defendant.

V. The Following Facts, Though not Admitted, are

not to be Contested at the Final by Evidence to the Con-

trary: None.

VI. The Following Issues of Fact, and No Others,

Remain to be litigated Upon the Trial: Whether the fol-

lowing facts are true:

1. When did Plaintiff begin to follow his religion.

When did he first mention it to the Company. Did Plain-

ep tell 2 ate De®

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tiff work some Saturdays and also some religious holidays

after beginning to follow his religion.

2. Did Plaintiff transfer to a new seniority grouping

that provided him less relative seniority at a time when

he knew, or should have known, that he would have less

ability to utilize his seniority to bump into an acceptable

day off. Could Plaintiff have avoided his problems and

have protected his right to be off on his Sabbath by not

transferring into the lower job seniority grouping.

3. Whether the Local District and International Union

at no time whatsoever complained to the Company of the

Plaintiff's conduct or take any other action designed to

penalize the Plaintiff or to charge him with insubordina-

tion or any other offense.

4. What were the positions of the Plaintiff and De-

fendants at the various meetings that each attended.

5. If Plaintiff was allowed to select a job or bid

a job or bump a job out of seniority, would it mean

that another individual with more seniority who also bid

on the same job but who did not share Plaintiff’s religious

beliefs would be deprived of the job as was the more

senior employee’s entitlement under the collective bargain-

ing agreement.

6. In replacing Wyatt, did Plaintiff become the only

employee available on weekends to perform the required

duties performed by Wyatt.

7. Whether Plaintiff’s absence from his job on Satur-

days would have a disruptive effect on the work schedule

on Building No. 2 of the overhaul base.

8. Whether Plaintiff's absence from his job on Sat-

urday would lead to personnel problems or grievances

from other employees.

9. Whether permitting all employees upon their re-

quest to be absent for religious observances would have

a disruptive effect on TWA’s business.

10. Whether due to the size of TWA’s work force and

the nature of its operation, to allow Hardison to be absent

after giving alleged false excuse and without prior Com-

pany approval would create chaotic personnel problems

and create an undue hardship upon TWA and the Unions

in administering a workable system regulating the employ-

ment relationship.

11. Whether decisions of the System Board of Adjust-

ment appointed pursuant to the grievance procedure under

the requirements set forth in the Railway Labor Act are

binding and final upon TWA and the Unions and establish

that employees must obey management directives and

grieve disputes with management rather than resort to

self-help or they are guilty of insubordination which, if

allowed to exist, would cause industrial chaos.

12. What happened when Plaintiff had a conversation

with his immediate supervisor, Nicholson, approximately

on March 6 and requested to be excused on March 8.

13. When the charging party was absent on March

8 and 15 what he told the Company about the reason

for his absence.

14. Whether both before and after the March 31,

1969, Company-conducted discharge hearing, the Plaintiff

was informed by the Local Union Committee and others

that an unfavorable decision in the hearing would be sent

to the District for its consideration and that he should

contact Joseph Bowman at the District to discuss the matter

so that Bowman would have sufficient knowledge to base

a decision on whether the matter shou!d be appealed to

the System Board of Adjustment.

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he et a i aT

15. Whether after Plaintiff’s discharge, his discharge

case was referred to District 142 and. thereafter, the agent

responsible for processing the grievance for District 142,

Joe Bowman, attempted to set up a meeting with Hardison

promised to meet with Bowman, but failed to keep his

appointment and never contacted or cooperated in the

processing of the grievance at the District level and thereby

caused the matter to be dropped by the District.

16. Whether Plaintiff took steps necessary to process

a grievance under the TWA-IAM agreement.

17. Whether Plaintiff took steps to bring his religious

days off to the Local 1650 Relief Committee.

18. Whether the Defendant Unions took steps to assist

Plaintiff in processing his grievance under the TWA-IAM

agreement.

19. Whether throughout his employment at TWA,

Plaintiff was aware that he could file a grievance to resolve

a grievance or dispute against the Company.

20. Whether the District had any knowledge of the

Plaintiff’s religious beliefs until the case was transferred

to the District level following the discharge hearing of

March 31.

21. Whether defendant Unions took steps to assist

Plaintiff in bringing his request for religious days off

before the Local 1650 Relief Committee.

22. What was the manner of filling vacancies when

a vacancy occurs on a weekend shift in the Stores Depart-

ment at MCI.

23. Whether Defendant TWA attempted a reasonable

accommodation for the observance of Plaintiff’s religious

beliefs.

24. Did TWA take any action to reasonably accom-

modate Plaintiff observing his Sabbath.

25. Whether accommodation of Plaintiff's Sabbath

observance was possible for TWA without due hardship.

26. Was Twa willing to accommodate Plaintiff's Sab-

bath observance but prevented from doing so by Defendant

Unions or any of them.

27. Whether Defendant Unions, or any of them, failed

to properly represent Plaintiff in his discharge grievance

against TWA.

28. Whether Plaintiff suffered any loss of income

or benefits due to his discharge by TWA.

VII. The Exhibits to be Offered at the Trial, Together

with a Statement of All Admission by and All Issues

between the Parties with Respect Thereto, are as Follows:

a) Exhibits which may be offered by Defendant

Unions 1650 and 142:

Union Ex. 1. Booklet entitled “Agreement between

TransWorld Airlines, Inc., and International As-

sociation of Machinists and Aerospace Workers,

Mechanics and Related Employ2es” signed August

25, 1966, consisting of one-hundred twenty pages.

Union Ex. 2. Booklet entitled “International Associa-

tion of Machinists and Aerospace Workers Con-

stitution, January 1, 1969” consisting of one hun-

dred forty-two numbered pages.

Union Ex. 3. Booklet entitled “By-Laws International

Association of Machinists & Aerospace Workers,

District Lodge No. 142, Amended in Convention,

1967, Approved by International President, Octo-

ber 2, 1967” consisting of sixteen numbered pages.

’

Union Ex. 4. Booklet entitled “By-Laws of Air Cap-

ital Lodge 1650 International Association of Ma-

chinists and Aerospace Workers, Affiliated with

the AFL-CIO, approved Effected by G. L. as of

July 1, 1968” consisting of thirty-one numbered

Union Ex. 5. Four page document entitled “Trans-

World Airlines, Inc. Application for Employment”

apparently completed by Larry Glen Hardison and

dated February 27, 1967.

Union Ex. 6. One page document on stationery

headed “TWA Interoffice Correspondence” appar-

ently addressed to L. G. Hardison from E. H.

Kussman, Manager, Systems Stores and dated Oc-

tober 11, 1968.

Union Ex. 7. One page document on stationery

headed “TWA Interoffice Correspondence” ap-

parently addressed to L. G. Hardison from W.

J. Butcher, Supervisor Stores Planning & Control

and dated March 21, 1969.

Union Ex. 8. One page document on stationery

headed “TWA Interoffice Correspondence” ap-

parently addressed to L. G. Hardison from W. J.

Butcher and dated March 25, 1969.

Union Ex. 9. Two page handwritten document ap-

parently notes of the Union committee at the dis-

charge hearing, headed “Discharge—L. G. Hardi-

son Co. Sen. 6-5-67”.

Union Ex. 10. One page document on stationery

headed “TWA Interoffice Correspondence” ap-

parently addressed to L. G. Hardison from J. H.

Frey, Hearing Officer, and dated April 2, 1969.

Union Ex. 11. One page letter on stationery headed

“TransWorld Airlines, Inc.” apparently. addressed

to Larry Hardison from Burns Prather, Manager,

Industrial Relations, and dated April 14, 1969.

Union Ex. 12. One page document apparently ad-

dressed to Joe Bowman Assistant General Chair-

man, District 142 from Earl Box, Chairman, CKI

Grievance Committee and dated April 7, 1969.

Union Ex. 13. One page document apparently ad-

dressed to Earl Box from Joseph W. Bowman

and dated May 1, 1969.

Union Ex. 14. Two page letter on stationery headed

“TWA TransWorld Airlines, Inc.” apparently ad-

dressed to Charles E. Clark from James J. Mol-

lenkamp, dated April 28, 1971.

Union Ex. 15. Three page letter apparently ad-

dressed to Charles E. Clark from Michael D. Gor-

don dated May 4, 1971.

Union Ex. 16. One page letter apparently addressed

to Charles Clark from Thomas J. Cox, Jr. and

dated May 13, 1971.

Union Ex. 16a. One page attachment originally en-

closed with Union Exhibit 16 headed “Answer-

TWA” written by L. G. Hardison.

Union Ex. 16b. Three page attachment originally en-

closed with Union Exhibit 16 headed “Answer-

Jolley, Walsh & Gordon” written by L. G. Hardi-

son.

Union Ex. 17. One page document apparently a

memo from Sandra Neese to Glenn Means dated

May 3, 1971.

FOP A RO AR EI ag + Bs ttt Seas pnatabe

Union Ex. 18. Decision of the System Board of Ad-

justment (Ralph Steward, neutral) in Grievance

No. 12346 arising in Kansas City, Kansas, dated

November 3, 1968, consisting of three pages.

Union Ex. 19. Award and Opinion of System Board

of Adjustment (Lennart V. Larson, neutral) trans-

mitted to parties on May 20, 1965, involving Dis-

ciplinary Layoffs for Insubordination and consist-

ing of eight pages.

Union Ex. 20. Report of Arbitration Proceedings,

Opinion and Award (Marion Beatty, neutral) ren-

dered September 10, 1965, involving L. R. Mor-

ris insubordination discharge and consisting of

four pages and a one page appendix.

Union Ex. 21. Decision of System Board of Adjust-

ment (Roy Ray, neutral) dated May 23, 1961,

arising at LaGuardia Airport, New York, involv-

ing J. P. Murray insubordination suspension and

consisting of nine pages.

b) Exhibits which may be offered by Defendant

D. TWA Ex. 1. Charge of Discrimination of Larry

Glenn Hardison dated August 25, 1969 and attach-

ments thereto. (eight pages)

D. TWA Ex. 2. Letter dated August 29, 1969 from

Charles E. Clark to Sandra Neese. (one page)

D. TWA Ex. 3. Letter dated August 29, 1969 from

Charles E. Clark to Larry Glenn Hardison. (one

page) ‘

D. TWA Ex. 4. Letter dated October 31, 1969 from

Charles E. Clark to Larry Glenn Hardison. (one

page)

TWA Ex. 5. Letter dated November 4, 1969 from

Larry G. Hardison to the Equal Employment Op-

portunity Commission. (one page)

TWA Ex. 6. Letter dated November 18, 1969

from Larry G. Hardison to the Equal Employment

Opportunity Commission. (one page)

TWA Ex. 7. Kansas City Area Office Charge

Information Sheet maintained by the Equal Em-

ployment Opportunity Commission. (one page)

TWA Ex. 8. Receipt for Certified Mail dated

August 29, 1969. (two pages)

TWA Ex. 9. Company Employment Record of

Larry Glenn Hardison. (two pages)

TWA Ex. 10. Application for Employment of

Larry G. Hardison dated February 27, 1967. (two

pages, including the front and reverse sides there-

of)

TWA Ex. 11. Letter dated October 11, 1968 from

E. H. Kussman to L. G. Hardison. (one page)

TWA Ex. 12. Letter dated March 21, 1969 from

W. J. Butcher to L. G. Hardison. (one page)

TWA Ex. 13. Letter dated March 25, 1969 from

W. J. Butcher to L. G. Hardison. (one page)

TWA Ex. 14. Letter dated April 2, 1969 from

J. H. Frey to L. G. Hardison. (one page)

TWA Ex. 15. Letter dated March 13, 1971 from

Thomas J. Cox to Charles E. Clark, and attach-

ments. (five pages)

TWA Ex. 16. Letter from Larry G. Hardison

to the Equal Employment Opportunity Commis-

sion. (one page)

ee ee aes

;

TWA Ex. 17. TWA Attendance Records for Larry

G. Hardison. (several pages)

TWA Ex. 18. TWA Stores Work Schedule. (sev-

eral pages )

TWA Ex. 19. Notices of Vacancies at MCI. (sev- -

eral pages)

TWA Ex. 20. Agreement between Trans World

Airlines, Inc. and the Interriational Association

of Machinists and AeroSpace Workers signed Au-

gust 25, 1966. (one hundred twenty-eight pages)

TWA Ex. 21. W-2 Statements for Larry G. Hardi-

son for the years 1967 to 1972 inclusive. (six pages)

TWA Ex. 22. Church Attendance Records of

Larry G. Hardison. (number of pages unknown)

Exhibits which may be offered by Plaintiff:

Plaintiff Ex. 1. Equal Employment Opportunity Com-

mission Regulation regarding employment duties

of employer involving religious discrimination to

all Equal Employment Opportunity Commission

records.

Plaintiff Ex. 2. All personnel records and employment

discipline records in the custody of the Defendants

which are the subject to a Rule 34 Motion before

the Court at this time.

Defendant Unions reserve the following objections:

(1) With respect to documents listed by Plaintiff,

Defendant Unions state that Plaintiff’s description is so

vague and ambiguous that it has insufficient knowledge

of the exact documents that may be offered by Plaintiff

at the trial and therefore reserves all objections that can

be appropriately made thereto.

(2) With respect to the following documents listed

by Defendant TWA, Defendant Unions have no objection

to the genuineness of such documents, but object to the

subject material contained in such documents to prove

the truth of any matter asserted therein as hearsay;

fendant Unions also object to the following docum~ .

as incompetent, conclusionary, immaterial and irrelevant

to prove any wrongdoing on the part of Defendant Unions:

D. TWA Ex. 1, 15 and 16.

VIII. The Following Issues of Law, and No Others,

Remain to be Litigated Upon the Trial:

1. Whether the International was properly served

with process.

2. Whether the purported service on the International

is defective because James Tarwater is not “an officer

or managing or general agent” or an “agent authorized

by appointment or by law to receive service of process”

within the meaning of FRCP4(d) (3).

3. Whether the Plaintiff properly filed his charge

before the EEOC against Defendant TWA and each of

the Defendant Unions within 210 days of the alleged unlaw-

ful employment practice.

4. Whether the District is responsible for any illegal

acts of Local 1650.

5. Whether Local 1650 is responsible for any illegal

acts of District 142.

6. Whether the International is responsible for any

illegal acts of Local 1650 or District 142.

7. Whether any Union Defendants are responsible

for any wrongful acts of Defendant, TWA, or vice versa.

er eee

’

8. Whether, absent intentional discrimination, unions

are legally responsible for Title VII rights arising under

Title VII or whether their duty is limited to fair repre-

sentation of employees pursuant to the collective bargain-

ing contract.

9. Whether there is any direct evidence of discrim-

inatory intent on behalf of any Defendants.

10. Whether the IAM-TWA collective bargaining

agreement is non-discriminatory on its face.

11. Whether any Defendant purposely attempted to

discriminate against Plaintiff because of his religion.

12. Whether the Railway Labor Act requires that

an employee discharged for “insubordination” which he

alleges is protected by a religious privilege, must exhaust

the grievance procedure set out in a collective bargaining

contract established pursuant to the Railway Labor Act

before instituting suit under Title VII of the Civil Rights

Act of 1964 where his allegations of discrimination are

on an individual, rather than a class basis.

13. Whether Title VII required reasonable accom-

modations at the time the Plaintiff’s discharge occurred.

14. Whether each Defendant Union was under a duty

to make reasonable accommodations for Plaintiff’s religious

beliefs.

14a. Whether TWA is relieved of liability if the Union

did not properly represent Plaintiff.

15. Whether TWA is not in violation of 42 U.S.C.

Section 200)0e et seq. because it miade reasonable accommo-

dations to Plaintiff’s religious needs.

16. Whether TWA is not in violation of 42 U.S.C.

Section 2000e et seq. because the IAM Defendants pre-

vented TWA from accommodating Plaintiff’s religious

needs by refusing to permit Plaintiff to trade shifts or

change sections.

17. Whether TWA is not in violation of 42 U.S.C.

Section 2000e et seq. because it would have suffered undue

hardship on the conduct of its business by making accom-

modations to Plaintiff.

18. Whether allowing Plaintiff to take off work Sat-

urdays without pay, which was acceptable to the Union,

or make other adjustments not inconsistent with the collec-

tive bargaining agreement, provided a “reasonable accom-

modation” that fulfilled the Unions’ legal responsibilities.

19. Whether allowing Plaintiff to select shifts or jobs

contiary to the express provisions of the collective bar-

gaining contract would create undue hardships upon the

Unions.

20. Whether to allow Hardison to select his shift or

jobs contrary to the express provisions of the collective

bargaining contract would violate the constitutional and

religious rights of other Union represented employees who

did not share the Plaintiff’s religious beliefs but who cele-

brated another Sabbath, or who exercised their right not

to celebrate any Sabbath at all.

21. Whether Plaintiff is precluded from asserting the

claims herein since the lack of seniority which he had

in March 1969 was caused by his own acts of bidding

into a new seniority grouping where he knew or should

have known, that his ability to select shifts would be

greatly diminished.

22. Whether Plaintiff should have filed a grievance

immediately when the Company first indicated it would

not excuse his Sabbath absences and whether his failure

nd CREED RO

ne en eee

to do so, and his subsequent resort to self-help and pur-

poseful disobedience to Company orders and work sched-

ules precludes him from bringirig this action.

23. Whether Plaintiff is precluded from enforcing his

Title VII rights against the Unions by not cooperating

with the processing of his grievance concerning his dis-

charge and otherwise exhausting his rights under the col-

lective bargaining contract.

24. Whether Plaintiff is barred from asserting the

claims made herein since he did not exhaust his internal

Union remedies or his rights to process his grievance under

the Railway Labor Act.

25. Whether 42 U.S.C. Section 2000e et seq. is uncon-

stitutional to the extent it purports to require an employer

such as TWA to accommodate the religious needs of an

employee such as Plaintiff in violation of the First Amend-

ment to the Constitution of the United States which pro-

vides, in part, that “Congress shall make no law respecting

an establishment of religion... .”

26. Whether if Plaintiff prevails in this action, De-

fendants’ liability for backpay is limited to two years by

reason of the 1972 amendment to 42 U.S.C. Section 2000e-

5(g).

27. Assuming Plaintiff’s Title VII rights have been

violated, whether Defendant Unions are liable for any

monetary damages and if so, which Union Defendants,

and in what amount.

28. Whether or not Plaintiff was discharged by De-

fendant TransWorld Airlines because of his religion and

in violation of Title VII of the Civil Rights Act of 1964,

42 U.S.C. 2000e.

29. Whether or not the Local 1650 and District 142

and the International Association of Machinists and Aero-

Space Workers violated Title VII of the Civil Rights Act

of 1964, 42 U.S.C. 2000e by any action taken towards Plain-

tiff.

30. The legal damages and reasonable attorney's fees

to which Plaintiff is entitled if any Defendant or all De-

fendants are in violation of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. 2000e.

IX. The foregoing admissions having been made by

the parties, and fee parties having specified the foregoing

issues of fact, and law remaining to be litigated, this order

shall supplement the pleadings and govern the course of

the final in this cause, unless modified to prevent manifest

injustice.

, 1972.

STIPULATION

(Filed October 26, 1972)

Come now the parties by their attorneys and stipulate

to the following additional facts which are admitted

and require no proof:

Trans World Airlines, Inc. (TWA or the Company)

was incorporated as Transcontinental & Western Air, Inc.

under the laws of the State of Delaware on December

27, 1934 by the consolidation of two Delaware corporations

engaged in air transportation, one of which had instituted

the first coast-to-coast air passenger service in 1930. The

corporate name was changed to Trans World Airlines,

Inc. on May 17, 1950.

tapaste sass cnatancasintmsamnsinniascartecmamamssn esis

TWA has been engaged in the transportation of per-

sons, property and mail by air since its organization. Dur-

ing that time TWA has operated a transcontinental system

in the United States. Since 1946 it has operated a trans-

atlantic system which extends from the United States to

points in Europe, Africa and Asia and since August 1969

a transpacific system between the United States and Asia

which connects with its transatlantic system, thus provid-

ing an around the world service. TWA’s wholly-owned

subsidiary, Hilton International Co. (Hilton), operates 51

hotels in 35 foreign countries, Hawaii, Puerto Rico and

St. Thomas in the United States Virgin Islands.

TWA’s passenger business is the chief source of its

revenues. Within the United States, TWA competes on

almost all of its routes with at least one of the other

ten domestic trunk airlines and on many of its major

routes competes with two or more of such airlines.

TWA’s international system encompasses travel be-

tween the United States and Europe, Africa and Asia.

Of this route structure the United States/Europe traffic

is of primary significance. TWA competes with 20 other

International Air Transport Association (IATA) airlines,

including one other United States flag carrier, and two

non-IATA airlines, which operate scheduled passenger ser-

vice between the United States and Europe. TWA carries

cargo (mail, express and freight) on its domestic system

and mail and freight on its international system and also

operates military and commercial charter flights, the mili-

tary being the more important of the two.

Under the Federal Aviation Act of 1958, as amended,

WA along with other air cai ‘iers, is subject to regulation

by the CAB, the Administrator of the FAA and the Post

Office Department. TWA operates over routes authorized

by Certificates issued by the CAB. In addition, the opera-

tions of TWA’s international system require the permission

of the respective countries served and compliance with

their laws and regulations.

Certificates issued by the CAB may be amended or

suspended by the CAB, after a hearing, if in its opinion

the public convenience and necessity so require, or they

may be revoked for intentional failure, after notice, to

comply with their terms or with the Federal Aviation

Act or orders, rules or regulations under the Act. No

Certificate may be transferred and no route may be aban-

doned without approval of the CAB. The issuance, re-

newal, amendment or revocation of international route

Certificates by the CAB requires the approval of the Presi-

dent of the United States. Every air carrier must obtain

a Certificate, or an exemption from the Certificate require-

ments of the Federal Aviation Act, in order to engage

in interstate or foreign air transportation or the transporta-

tion of mail by aircraft.

In addition to its control over routes, the CAB regu-

lates rates for transportation of United States mail and,

in domestic transportation, passenger fares and rates for

the transportation of property. Fares and rates for intra-

state operations is. certain states are subject to regulation

by state authorities.

The Administrator of the FAA, whose functions are

exercised within the Department of Transportation, is con-

cerned, generally, with the regulation of flying operations,

including aircraft, personnel, ground facilities and certain

technical matters.

The Post Office Department has jurisdiction over cer-

tain aspects of the transportation of mail. Rates for air-

mail dispatched from foreign countries are fixed by the

governments concerned pursuant to the Universal Postal

Union Convention.

LO A Te Al i I A i Ne me

TWA had approximately 42,500 employees in 1969 (in-

cluding approximately 2,500 working at the John F. Ken-

nedy Space Center, but excluding approximately 21,000

employees of Hilton and its subsidiaries), of whom about

8% were based outside the United States. Approximately

53% of TWA’s employees were covered by contracts with

unions in 1969, including approximately 15,000 employees

covered under TWA’s collective bargaining agreement with

the International Association of Machinists and Aero Space

Workers. At the present time TWA employs approxi-

mately 37,000 employees at approximately 100 locations.

Labor relations of air carriers are subject to Title

II of the Railway Labor Act, as amended, which contains

provisions giving employees the right to organize and bar-

gain collectively through representatives of their own

choosing and imposes upon air carriers and their employ-

ees the duty to use every reasonable effort to make and

maintain agreements concerning rates of pay, rules and

working conditions, and to settle by negotiation all disputes

arising between them.

TWA’s principal executive offices are located at 605

Third Avenue, New York, New York 10016. TWA’s prin-

cipal maintenance and overhaul base is located at Kansas

City International Airport, Kansas City, Missouri 64153.

The maintenance and overhaul facilities include Building

No. 1, which is used for the overhaul of air frames and

Building No. 2, which is used for the overhaul of aircraft

engines. All of TWA’s air frame overhaul work, as well

as the overhaul and major maintenance of aircraft engines

and aircraft components, is accomplished at the Kansas

City International Airport maintenance and overhaul base.

The foregoing stipulation having been made by the

parties, this stipulation shall supplement the pleadings and

STANDARD PRE-TRIAL ORDER NO. 2.

—

60 » i 61

Gross Federal FICA State City NET

STIPULATION 1969 $ 6,157.60 $1,087.60 $ 295.56 $ 74.85 $ 30.79 $ 4,668.80

(Filed November 8, 1972) | 1970 9,154.40 1,570.50 374.40 115.28 45.77 7,048.45

COME NOW the parties and hereby stipulate and es. 9,900.16 1,576.80 405.60 146.30 99.00 7,672.46

agree as follows: «1972 8,270.00 1,376.10 430.04 124.32 82.71 6,256.83

1. That plaintiff, Larry G. Hardison, received the

following wages for the respective years from each em-

ployer as stated below:

A. JMay, 1969 - July, 1969, Black, Sivalls & Bry-

son;

July, 1969 - October, 1969, Beal, Inc., 4001

Kaw Drive, Kansas City, Kansas;

October, 1969 - December, 1969, Kenworth

Motor Truck Company;

Total wages through December, 1969 -

$3,006.00.

B. 1970, 1971, Kenworth Motor Truck Compary,

1970 - $6,855.00

1971 - $7,183.00

C. January 1, 1972, through (tober 17, 1972

(date of trial) - $6,645.00.

D. TOTAL OF A THROUGH C - $23,689.00.

2. That Plaintiff, Larry G. Hardison, would have

earned the following wages at defendant, Trans World

Airlines, Inc., assuming Mr. Hardison would have worked

eighty (80) hours in each pay period (two weeks) from

April 1, 1969, through October 17, 1972 (time of trial):

a ad

2 4 OS SO gree te eek ew keer ~

Pdr De sten he ) brake +

Piette ce “

TOTAL $33,482.16 $5,611.00 $1,505.60 $460.75 $258.27 $25,646.54

IT IS FURTHER STIPULATED AND AGREED that

the preceding calculations took into consideration the fol-

lowing Contract Rate increases:

Rate

4/7/69 $3.97

6/16/69 $4.08

2/1/70 $4.35

8/1/70 $4.52

1/1/71 $4.59

5, 1/71 $4.84

6/14/71 $4.85

1/1/72 $4.92

6/12/72 $4.93

3. That the monetary amount of the fringes and bene-

fits available to plaintiff, Larry G. Hardison, if he would

not have been terminated from the employ of Trans World

Airlines, Inc. is contested by the parties and is submitted

for determination by the Court. Plaintiff claims that fringe

benefits have a value of 12.3% of plaintiff’s base pay.

This percentage was arrived at from TWA’s proposed fil-

ing with the Pay Board, and the figure includes Group

Insurance, Trust Annuity, Retirement Plan and Stock Pur-

chase Plan, but does not include airline passes. Plaintiff

claims that the gross monetary value of the fringe bene-

fits that plaintiff would have been entitled to if he had

(New Contract Rate)

remained with TWA is 12.39% of $33,482.16, which equals

the sum of $4,118.31.

Defendants claim that the value of fringes and bene-

fits is speculative and conjectural and cannot be determined

with reasonable certainty so as to constitute a proper ele-

ment of damages. Further, defendants claim that the

value, if any, of benefits which plaintiff would have ob-

tained at TWA should be reduced by the value of benefits

which plaintiff testified in his deposition he obtained in

his other employment. Finally defendant TWA claims

that if plaintiff's employment with TWA is reinstated as

a result of this action, certain benefits may be adjusted

to make plaintiff eligible therefor as if he had never

been terminated in lieu of cash damages to plaintiff.

4. That TWA employees such as plaintiff were en-

titled to an allotment of four (4) passes on TWA flights

during the years 1969 and 1970 and an allotment of five

(5) passes on TWA flights in 1971 and 1972 respectively.

This allotment is not cumulative from year to year and

unused passes are forfeited. Plaintiff claims he is entitled

to the monetary value of these flights which is submitted

for determination by the Court. Defendants claim that

the value, if any, of passes is too speculative and conjectural

and cannot be determined with reasonable certainty so

as to constitute a proper element of damages.

5. That during his employment plaintiff took one trip

with his wife, or used two (2) passes; said trip was to

Tampa, Florida.

The foregoing, having been submitted by the parties

hereto, by and through their respective counsel, may or

may not, in the Court’s discretion, be included in a de-

termination of plaintiff's damages, if the Court determines

that plaintiff has been subject to a violation of Title VII

of the Civil Rights Act of 1964.

STIPULATION

(Filed November 21, 1972)

During the trial of this cause a question was raised

concerning the status of the employee in Riley v. Bendix

Corp., 4 E.P.D. 97902 (5th Cir. 1972). Counsel for TWA

has contacted Mr. Aubrey L. Raymond, Regional Opera-

tions Counsel for Bendix, who furnished a letter dated

October 31, 1972 concerning this matter, a true copy of

which is attached hereto and made a part hereof. Based

upon this letter the parties by their attorneys stipulate

and agree that Charles Riley was a non-union employee

of Bendix and was not covered by any collective bargain-

ing agreement during his employment with Bendix.

BENDIX

The Bendix Corporation

Executive Offices

Bendix Center

Southfield, Michigan 48075

James Mollenkamp, Esq.

General Attorney

Transworld Airlines, Inc.

Room 1-319

Kansas City International Airport

Kansas City, Missouri 64153

October 31, 1972

Dear Mr. Mollenkamp:

In reply to your inquiry regarding Charles Riley’s

employment with The Bendix Corporation I have reviewed

our litigation files and find that his position as a salaried

employee with the title of supervisor at our Launch Sup-

port Division is stated in the recent opinion of the Court

of Appeals. A copy of the Court’s opinion is enclosed

for your information and use. You will find the statement

I refer to on page two of the opinion.

In addition it may assist you to know that our super-

visory employees are not unionized in this division and

that Charles Riley was not covered by any collective bar-

gaining agreement while employed by Bendix.

Please let me know if you require any further informa-

tion regarding this matter.

Very truly yours,

/s/ Aubrey L. Raymond

Aubrey L. Raymond

Regional Operations Counsel

ALR: dw

Enclosure

fa we

VORA ee ie * core abe

| IN THE

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

No. 20096-1

LARRY G. HARDISON,

Plaintiff,

-VSs-

TRANS WORLD AIRLINES, INC., et al.,

Defendants.

TRANSCRIPT OF PROCEEDINGS

BE IT REMEMBERED that heretofore on Wednesday,

the 18th day of October 1972, the above-entitled cause

came on before the HONORABLE JOHN W. OLIVER,

Judge of Division One of the above court, sitting at Kansas

City, Missouri, and the following proceedings were had

and entered of record:

The plaintiff was present in person and by his attor-

ney, Mr. William H. Pickett.

Defendant TWA was represented by their attorney,

Mr. James J. Mollenkamp.

Defendant Unions were represented by their attorney,

Mr. Michael D. Gordon.

[35] LARRY GLENN HARDISON,

called as a witness in his own behalf, was duly affirmed

and testified as follows:

Direct Examination by Mr. Pickett

[36] Q. And you are the plaintiff in this cause?

A. Yes.

Q. What particular member, what particular religion,

sir, are you a member of? A. The Worldwide Church

of God.

Q. Would you share with the Court briefly when

you first began to consider accepting the tenets of that

religion? A. I began a study in early of 68, in the

springtime, I believe.

Q. Did you at that time more or less come into the

religion or follow the religion? A. I was speaking to

my mother, who was also in the church, and she was

guiding me along, and I did not start attending at that

time nor following any of the major precepts.

Q. Now, sir, a»proximately what time in the chrono-

logical year of 1968 did you adopt the fundamental pre-

cepts and begin following, as you just stated to the Court,

the Worldwide Church of God? A. It would have been

late September or early October, 1968.

Q. All right, sir, you first began employment with

TWA approximately 1967. During the period of time in

approximately April 25, 1968, on what particular position

were you with TWA and what particular shift were you

[37] employed at with TWA? A. What time in 1968.

I’m sorry, I didn’t catch that.

Q. Yes, on April 25, 1968, where were you working

for TWA, what were you doing and what time of day

and what shift were you on? A. I was at Mid-Continent

Airport. I was a stores clerk in the stock room, and

I believe at that time I was on the twilight shift.

Q. The twilight shift being what? A. 3:30 to 11

o'clock p.m.

Q. At approximately September or October of 1968,

when you stated to the Court that you began to follow

*the religion, what shift were you on, what position? A.

I had the same position and I had transferred to the

graveyard shift, which is 11 p.m. to 7 a.m.

Q. During that particular period of time, what build-

ing were you employed at? A. Building 1.

Q. During the period of time that you had transferred

to the graveyard shift, aid this provide any problem with

any of your religious beliefs? A. No, sir.

Q@. Why? A. Because I had Saturday and Sunday

off, as such, graveyard being the first shift, when we

were off Friday, that [38] began our weekend Friday

morning, and we didn’t have to go back to work until

Sunday evening.

Q. When is the Sabbath, so the Court can get the

chronological essence of your testimony? A. Sunset Fri-

day to Sunset Saturday.

Q@. Are there other religious holidays which the —

Worldwide Church of God observes? A. Yes.

Q. The first one of these beginning on what day,

_ sir? A. Well, it is not any one set day. It is in the

springtime, which is the First Day of Unleavened Bread.

Q. During the year of 1969 do you remember when

the Day of Unleavened Bread fell? A. In April of ’69?

Q. Yes. A. It was April 3, I believe.

Q. When were you discharged from TWA? A.

April 2.

Q. 1969? A. Yes.

Q. That was the first religious holiday in 1969? A.

Yes.

Q. Now, when you transferred to the graveyard shift,

you did not have any trouble with your religion as far

as observing the Sabbath, is that a fair statement? [39]

A. Yes.

Q. When did you first encounter any problems with

Sabbath leave? Did you remain on the graveyard shift

and working in Building No. 1? A. Well, in December

of ’68 I transferred to the day shift in Building 2.

Q. Why did you do this, sir? A. So that I could

be on the day shift. I was married at the time and that

is more of a convenient time.

Q. Did you at that particular time while employed

on the day shift have any difficulty with observing your

Sabbath? A. Only when the man with less seniority

than me went on vacation.

Q. Prior to March 6, or 7, or 8, of May 1969, did

you have any difficulty observing the Sabbath while being

employed in Building 2? A. No.

Q. What transpired on or about March 7 that caused

you difficulty in observing the Sabbath? A. Well, March

8 was a Sabbath, and a man Of less seniority than I went

on vacation at that time, and beings as I was next up,

I was required to work in his position, and I did not

show up for work that day.

Q. Now, sir, when you say next up, would you care

to amplify that for the Court, please? [40] A. Well,

I was second from the bottom of the seniority group in

the section that I worked, which was the Progress Depart-

ment.

Q. In Building No.1? A. Yes.

Q. Onthe daylight shift? A. Yes.

Q. What was that gentleman who, as I understand,

his name is Bill Wyatt’s days off? A. Tuesday and

Wednesday.

Q. What were your days off prior to that? A. Sat-

urday and Sunday.

Q. Be being in the position of taking his position,

did this cause you any difficulty in observing your Sab-

bath, which I understand is basically Friday Sunset

through Saturday Sunset? A. Yes, it did cause problems

because I would have been required to work, and of course

that is not acceptable, so I did not work that day.

—_ eee ee oe

Q. All right, sir. I will hand you what has been

marked—

* * *

[41] A. Well, it is a letter written by me to Mr.

Everett Kussmann, dated April 25, where I am requesting

to meet him to see about changing my days off so that

I might have either Friday and Saturday or Friday Sunset

to Saturday Sunset off so that I might observe the Sab-

bath.

[81] Q. We have covered yesterday as to how you

informed them, et cetera, et cetera, and then I believe

around December 1968 you transferred into Building 2?

A. Yes.

Q. Then did you have any difficulty observing the

Sabbath while you were in Building 2? A. Only until—

I kept the Sabbath until the man of less seniority than

I went on vacation.

Q. All right, this would have meant that you would

have worked on March 8 and March 15 to replace him,

is that not correct? A. Yes.

Q. Now, did TWA at any time or did any of the

Union officials in conjunction with TWA set up any meet-

ing to discuss any way to eliminate this? A. Yes, before

the first Sabbath I would have been required to work.

Mr. Kussmann called me down to his office. Our Union

steward, Mr. Tinder, was present during that [82] discus-

sion.

The Court: Do you remember the date of that dis-

cussion?

The Witness: I believe it was March 8.

Q. (By Mr. Pickett) There has been no documentary

evidence about that particular meeting, March 6. Would

you share with the Court the extent that you can, the

best of your recollection, what transpired at that particular

meeting? A. Well, Mr. Kussmann started out the conver-

sation stating that he saw that a shift change was going

to require me to work on the Sabbath, and of course

I affirmed that there would be, and then we began discuss-

ing how to get around my requirement for work, not

whether I would work or not but we discussed a possible

shift change in that I knew that the man on the grave-

yard shift did not care for the graveyard shift, and so

we talked about that. Then Mr. Tinder—well, let me

state this, that it was acceptable with Mr. Kussmann that

if it could be worked out, fine.

Q. Would you please be more specific when you say

“worked out”,-and what do you mean by worked out?

A. Well, worked out by my shifting from the shift I

was on to the graveyard shift and the man that was on

graveyard shift switching to my position.

Q. All right, this would mean that you would remain

in the [83] same building or section but a change in

the hourly time of day that you would be working? A.

Yes, sir, then it was proposed to Mr. Tinder and he said

no, it would have to be by seniority, you know, for me

to bump in there. Well, the man that was on that shift

had higher seniority than I, so I could not bump him,

so the next thing that was discussed was my transferring

back to Building 1 in that I had planned on doing it

after my time had elapsed. By this, I mean I had trans-

ferred to Building 2. As best I recali, there was a six-

month waiting period before I could make another trans-

fer back to where I was. Therefore, all that time had

not elapsed yet and I had yet, oh, two or three months

to go, and I proposed this to Mr. Kussmann, saying, you

know, that I would like to go back, and if it could be

worked out then that would be acceptable to me.

Q. Now, if you had went back, how would this elimi-

nate your working on the Sabbath? A. I had enough

seniority to hold weekends off, on the graveyard shift,

at least.

Q. Which was the shift you had originally had before

you bumped in to Building 2? A. Yes.

Q. And what particular type of acceptance did the

Union have to this proposition? [84] A. They again

negated the proposal, because the problem of seniority

came up again, and also that my time had not yet elapsed,

which, you know, meant that I could not bid until the

six-month period, or however many months it was, was

up, so I was limited there.

Q. Was there anything else discussed as to how to

eliminate your working on the Sabbath, March 8? A.

Well, I again told Mr. Kussmann that I would be will-

ing to work six days a week if possible just so I could

have one day off without any extra pay, overtime pay,

just so I could have the one Sabbath off, the Sabbath

that I needed, and, if I recall the conversation properly,

Mr. Kussmann said, well, if I worked six days a week

I would be paid for it, and then Mr. Tinder said, well,

that I couldn’t because of the 40-hour work clause.

Q. The 40-hour work clause is what, sir? A. Well,

any time over 40 hours would be paid on overtime, and

this is your standard work week.

Q. Now, the way I understand this correctly, in Sep-

tember, I believe it has been stipulated to, you had a

meeting with Mr. Kussmann and Mr. Tinder was present

at that meeting. A. Yes.

Q. And Mr. Tinder was also present at the March

6 meeting? A. Yes.

[85] Q. Now, you then—first of all, was there any-

thing or any other type of plan discussed by either Mr.

Tinder, representing the Union, or Mr. Kussmann, repre-

senting TWA, to eliminate your working on the Sabbath,

March 8? A. No, there was no excused absence men-

tioned, that I recall, and if there was, it would probably—

this is just probably, in that my memory is so fuzzy on

this one area. We had discussed excused absence in our

September meeting, and Mr. Kussmann said, well, he

couldn’t, you know, continue to excuse me every Sab-

bath, that, you know, I would have to work it out.

Q. Now, on about March 21, there was another meet-

ing of which of course the Court has an exhibit in front

of it. At that time was Mr. Tinder present? A. Yes,

sir.

Q. Was Mr. Kussmann present? A. No.

Q. The other individual who held the meeting was

Mr. Butcher? A. Yes.

Q. I know yesterday the Court was concerned about

in the exhibit dated March 21, 1969, from Mr. Butcher

to yourself, there were certain things stated as a matter

of record. Mr. Tinder was present at the March 6 meet-

ing with Mr. Kussmann? A. Yes, sir.

[86] Q. He was also present with Mr. Butcher and

yourself? A. Yes, sir.

Q. I believe the document speaks for itself as to

the meeting on March 21, 1969. You did not work on

March 8, is that correct? A. That is correct.

Q. You did not work on March 15? A. That is

correct.

o o 6

[104] Cross-Examination

{115} Q. (By Mr. Mollenkamp) Mr. Hardison, I

believe you testified that in the spring of 1968 you began

studying the [116] tenets of the Worldwide Church of

God, isn’t that correct? A. In the spring, I believe

I had started subscription to a magazine published by

the Ambassador College, which is under the auspices of

the Church, called “The Plain Truth”. I was also reading

some auxiliary material such as booklets on Evolution

and so forth. It was a very, very light study. I was

just getting into it as such. My mother, as I have pre-

viously stated, was already into it and of course she was

trying to speed me up and telling me various doctrines

and all.

Q. At that time was your degree of practice in that

faith such that you needed to have Saturdays off to accom-

modate your religious belief? A. No, sir, my understand-

ing wasn’t that great at that time.

Q. When did that first become the case, namely, when

under the practice of your faith did it become necessary

for you to obtain Saturdays off in order to observe your

Sabbath? A. Well, as my understanding grew deeper

during that year, I became more deeply aware of what

the Sabbath meant, what God commanded. In September

I asked for a meeting with Mr. Kussmann and told him

that, you know, this was going to be a problem, and I

remember at that time my own conviction wasn’t great,

where I was going to say, [117] “I am going to take

it off,” because I thought at the time as long as I am

working for it, God is going to forgive me. But as it

grew, as my understanding grew, I saw that I was going

to have to take it off, and so I put a bid in for the

graveyard shift so that I could hold it. And this was

during—when I was thinking, you know, well, as long

as I am working for it, God is going to forgive me, and

I still wasn’t as such a hundred per cent convinced that

it was, you know, commanded, and I should just not show

up for work.

Q. Do you recall whether you worked on any Satur-

days between the spring of 1968 and September or Octo-

ber of 1968 when you first came into the faith? A.

Yes, sir, I did. I worked on Friday evenings, because

I was on the twilight shift, and then on occasionally I

would work overtime.

Q. Is there any single event under the practice of

your faith that fixes a point in time when you must observe

Saturday as a day off or Sabbath observance? A. Only

when the understanding becomes so great that you see

that this is a commandment of God, it is required, and

that you are absolutely convinced that you've got to have

it off. This was the point I was at, or just about at,

I should say, in September.

. Q. Was there a specific day in September when that

happened? [118] A. Not that I recall, not a specific

day.

Q. Is there anything in the records of your church

which documents a specific day in September or October

when you came into the faith? A. Well, I was not

baptized until February of '69. My studying, you know,

grew deeper and it grew deeper. I think in—well, around

September I stopped working overtime on the Sabbath

and just would work Sunday, but, yeah, I was still on,

if I recall, the twilight shift and was still working a few

hours.

Q. Did you receive Everett Kussmann’s letter to you,

dated October the 11th, which has been marked as Plain-

tiffs Exhibit 3 in this case? A. Yes, I did receive it.

Q. And Mr. Kussmann did indicate a willingness to

consider your specific religious holiday requirements by

that letter, is that correct? A. Yes, sir.

> o @

[128] Q. (By Mr. Mollenkamp) Mr. Hardison, I

believe you transferred to Building 2 on December 2 of

1968, is that correct? A. Yes, it was 2bout that time.

Q. .And was that a voluntary bid on your part?

A. Yes, sir.

Q. You were not required by the company to trans-

fer? A. No.

Q. What was your particular job in Building No.

2? A. Building 2? Well, I was in the Progress De-

partment, and my specific job in that department was

to run the train, as it was called, which is to go to each

shop, pick up or deliver material, just continually make

rounds in that fashion.

Q. And do you know where those parts are delivered

to that you pick up? A. To the various shops for re-

work or reassembly of engines.

Q. And those parts eventually become incorporated

in the [129] engines, is that correct? A. Yes.

Q. Now, were you the only one in that particular

job of train men? A. Yes.

Q. Now, are Building No. 1, Stores Stock Room Sec-

tion, and No. 2, Stores Progress Section, within separate

seniority groups? A. Yes.

Q. What was your relative seniority within Building

1, Stores Stock Room Section, prior to your bid to Build-

ing 2? A. Well, it is kind of hard to remember. I wasn’t

on the bottom. I was about halfway up, I think.

The Court: Next to the bottom, weren’t you, in

Building No. 2? Isn’t this the documentary evidence?

Mr. Mollenkamp: Well, my question is, what was

his relative seniority in Building No. 1 before he trans-

ferred.

The Court: Much better.

Mr. Mollenkamp: That is correct, and he has testi-

fied—

The Court: Is there any disagreement about what

the documentary evidence shows, and also that when he

voluntarily moved and changed to Building No. 2, that

[130] he couldn’t bump somebody to save it, and that

the operation of seniority meant that he was going to

be fired? Isn’t that the undisputed fact?

Mr. Mollenkamp: It is so far as I am concerned.

The Court: Well, I don’t think there is any quarrel

with that.

Mr. Mollenkamp: Would you stipulate to that?

Mr. Pickett: I would, Your Honor.

The Court: You took the position that if he could

save himself by reason of seniority, that is fine. If he

couldn’t, it was too bad. Isn’t that true?

Mr. Mollenkamp: Yes.

The Court: All right.

Q. (By Mr. Mollenkamp) Isn’t it also true, Mr. Har-

dison, that at the time you bid to Building 2, Stores Prog-

ress Section, that you could have gone to the graveyard

shift or the twilight shift and not placed yourself with-

in such a perilous position in terms of relative seniority?

A. Well, as far as I know, the only opening was on

days, because that is the only time the train ran, if I

am not mistaken.

Q. Now, I believe you testified that in March you

had a meeting with Everett Kussmann and James Tinder.

That was March of 1969, is that correct? A. Yes.

[131] Q. Who initiated that meeting? A. Mr. Kuss-

mann did.

Q. Do you know why he initiated the meeting? A.

Well, apparently he had seen that the man below me

was going on vacation and this man below me had Tues-

day and Wednesday off and worked weekends, and that

he realized that I would be required to work weekends.

Q. Now, was it Mr. Kussmann who suggested that

your religious needs might be accommodated by a trade

of shifts? A. I don’t remember whether it was him

or I, but it was discussed, yes.

Q. Was that agreeable to Mr. Kussmann? A. Yes.

Q. Was it agreeable to Mr. Tinder representing the

Union? A. No.

Q. Was it also Mr. Kussmann who suggested that

your religious needs might be accommodated by a change

of sections? A. No, sir, I suggested that.

Q. Was this agreeable to Mr. Kussmann? A. As

far as I remember, it was.

Q. And was that agreeable to the Union? A. No,

sir.

The Court: Let me be sure that I catch this. Do

I understand this testimony and anticipate what your evi-

dence will be, that Mr. Kussmann was agreeable to a

[132] trade with another employee, but this was vetoed

by the Union.

Mr Mollenkamp: Yes, sir.

The Court: And you agree with that.

The Witness: Yes, sir.

The Court: All right.

Mr. Mollenkamp: And for further clarification, Mr.

Kussmann was agreeable not only to a trade of shifts

which would have been within the same section, but Mr.

Kussmann was also agreeable to a change of sections;

in other words, have the plaintiff go into a different sec-

tion.

The Court: Can you tell me, also, will it be his testi-

mony, and may we have a possible conflict in evidence,

that it would have been agreeable to him, even though

it may have been in an apparent violation of seniority?

Mr. Mollenkamp: I believe Mr. Kussmann’s testi-

mony will be that it was agreeable to him if the Union—

* * *

[142] Q. (By Mr. Mollenkamp) Mr. Hardison, I

believe it is stipulated in our pre-trial order that you

did not report for work on March 8, March 15, or March

22 of 1969, is that correct? A. Yes, sir.

Q. On or about any of those dates did you attempt

to bring a grievance arising out of either the company’s

or the Union’s refusal to accommodate your religious

needs? A. No, sir.

Q. Did the Union initiate a grievance in your behalf

on or about any of those dates arising out of the company’s

refusal to accommodate your religious needs? A. No,

sir.

> oa e

Q. (By Mr. Mollenkamp) Now, at any time on or

about those dates, namely, March 8, March 15, or March

22, did you seek or request relief from the Union

Relief Committee? A. No.

[143] Q. And at any time on or about those dates

did the Union seek relief in your behaif vefore the Union

Relief Committee? A. Not that I know of.

Q. So that at no time prior to the discharge did

you take any action by way of grievance or by way of

action before the Union Relief Committee to resolve the

question of your religious needs? A. I didn’t file a

grievance nor did I even know of a Relief Committee.

Q. Were you furnished with copies of the constitution

and by-laws of the Union? A. Yes.

Q. Were you also furnished at the time of your em-

ployment a copy of your collective bargaining agreement

between TWA and the IAM? A. Yes.

The Court: Did you ever read either one?

The Witness: Yes, sir.

The Court: Before this happened?

The Witness: Yes, I had read the contract and had

glanced over the constitution.

[147] Cross-Examination by Mr. Gordon

Q. Mr. Hardison, when was the first time that the

Union, that you know of, had knowledge of your religious

requirements, as you asserted them? A. Well, Mr. Tinder

was in my discussion with Mr. Kussmann in September,

and as far as I know, that is the earliest.

Q. In September 1968? A. Yes.

Q. Now, it is true, isn’t it, that you had a number

of conversations with the Union—excuse me, with the com-

pany prior to that time discussing your religious require-

ments? A. Not in number. I had talked to Mr. Kuss-

mann once previously to this.

Q. Well, you wrote him a letter, didn’t you, on April

25 of 1968, saying as follows: “Would like to see you

about a change in weekly days off. I wish to request

either Friday or Saturday off from Friday Sunset to Sat-

urday Sunset off, with the hours taken off Friday to be

worked on Saturday evening or Sunday. My reason is

I sincerely believe this is the Sabbath and no servile work

may be [148] done then”? A. Yes, that is the letter

I wrote.

Q. You wrote that letter to Mr. Kussmann on April

25, at least it was dated April 25, 1968? A. Yes.

Q. And you had a discussion with Mr. Kussmann

concerning that letter at that time? A. I believe it

was shortly after.

Q. And the Union was not present? A. I do not

recall whether Mr. Tinder was there or not.

Q. When did you start changing your life style or

your life habits, your habits of living, to conform with

the requirements, as you understood them, of the World-

wide Church of God? A. Well, I tried changing as

soon as my understanding, you know, grew—grew, such

as earlier that year in ’68—not earlier than April, but

earlier than September, I came to find that certain foods

should not be eaten, so I tried to discontinue ali of that

type of thing. Let’s see, what else?

Q. This was when? A. This was prior to Septem-

ber of ’68, where, as I say, I came into the knowledge

that certain foods shouldn’t be eaten, so I tried to ab-

stain from those foods.

Q. Would this coincide with your beginning of study-

ing of [149] the religion? A. Yes.

Q. When did you begin to study the religion? A.

Spring of 68. This is, of course, what, brought the

letter on.

* * e

[150] Q. (By Mr. Gordon) I believe you originally

told me that to your knowledge the first notice that the

Union had of your religious belief was in September of

1968, is that correct? A. As best I can recall.

Q. This was at a meeting with Mr. Kussmann and

Mr. Tinder? A. Yes.

Q. What was discussed at that meeting concerning

what your religion required and how long you had been

in it? A. Well, I of course hadn’t been in it as such,

attending regularly or anything like that, but we discussed

what the Sabbath was. I told Mr. Kussmann I was coming

into a deeper knowledge of it and I could foresee a problem.

At that time I believe I had already put in a bid for

a different shift so I could observe the Sabbath, that I

was going to try to work it out with the seniority system

and, you know, try not to create an upset.

[151] Q. The fact of the matter is, you had talked

to Mr. Kussmann previously without the Union? A. As

far as I know, yes.

Q. Who called the Union into this meeting on Septem-

ber 6? Did you? A. I assume Mr. Kussmann did.

Se Sete = =

Q. Do you know whether it is the practice to call

a Union Representative in when a matter concerning em-

ployment is discussed with an employee? A. It was

the standard practice then.

Q@. Who was Mr. Tinder, in terms of what he did?

A. He was our Union steward for our group.

Q. Did he work fwltime at that? A. Yes, as far

as I know.

Q. Well, the fact of the matter is, he was an employee

like yourself. A. Oh, yes.

Q. And he worked fulltime in whatever job he per-

formed for the company. A. Yes.

Q. And if a Union matter came up, he was called

in as the lowest echelon of Union Representative, isn’t

that correct? A. Yes.

Q. And you knew you could go over his head if

you didn’t [152] agree with him, isn’t that correct? A.

Yes.

Q. And you knew that he didn’t have the authority

to establish Union policy, he only had the authority to

be present during the discussion? A. No, I didn’t know

that he had the authority.

Q. Were you satisfied as a result of the consequences

of the September 6 meeting? A. I was quite relieved.

Mr. Kussmann indicated a willingness to let mc nave the

annual days off, and like T had wia him, I was going

to try to work it out with seniority so I could have the

Sabbath off, and 1 thought things would work quite

smoothly.

Q. The Union voiced no objection over anything that

was decided at that September 6th meeting? A. Not

that I recall.

Q. On December 2nd, or thereabouts, sometime in

December, I believe you switched seniority groupings and

we have discussed that— A. Yes.

Q. —in some detail. Isn’t it true that at the time

of your bid from one building to another you discussed

with your father-in-law at that time the tact that you

would be put into a lower seniority grouping and that

your chances of having to work weekends would be greatly

[153] increased? A. If I talked to him about it at

all, I told him that I was transferring over so I could

work the day shift.

Q. Do you recall talking to him at all? A. Not

any specific discussion, no.

Q. Do you recall ever talking to him about the conse-

quences of your bid from one job into another? A. No,

not unless he brought it up.

Q. Well, I am not asking who brought it up, I am

asking if you have discussed with him the consequences

of you changing from one seniority group to another. A.

Not that I recall.

Q. And I don’t want to put words in your mouth

but I want to see if I understand what was talked about

at that [154] meeting. As I understand it, it became

apparent that you would have to work on Saturday and

three alternatives were discussed; one, the swapping of

a shift; two, the transferring of shifts; and three, working

four days a week or six days a week not on Saturdays

and if you worked six days either being paid six days

a week, or if you worked four days a week, being paid

for four days a week. Do you follow me? A. Well,

most of that is correct. We did discuss shift swap. We

discussed Section swap and I reiterated my willingness

to work six days a week if need be to make up for the

time I would be off or however we could work it out

where I could work extra to do so.

Q. You also indicated a willingness to work four

days a week? A. If I did, I don’t remember it, but I

might have.

* . * ,

Q. (By Mr. Gordon) Mr. Hardison, let me show

you the deposition that we took from you in this case.

You recall the taking of the deposition, don’t you? A.

Oh, yes.

Q. Let me direct your attention to Page 87, the line

beginning at Line 21: “QUESTION: Did Mr. Tinder dis-

cuss with you the possibility of you taking time off and

not being paid? ANSWER: I brought it up. I said,

‘I will [155] be glad to take the time off. I don’t want

my pay if I can have the time off, that will be good

enough.’ Mr. Kussmann could not allow that.” Were

you asked that question and did you give that answer

at the depoaition? A. Yes, as best I can recall, I did.

Q. Now, after a little dialogue we have just gone

through, do you recall mentioning working four days a

week and being off one day and not being paid? A.

The oniy day I didnt want to be paid is the Sabbath

I wouldn’t be working. Like I said, I still don’t recall

speaking of a four-day week.

Q. In any event, when you discussed the swap of

shifts, what was discussed ci that particular question on

March 6th? A. Well, in that I had worked days and

talked to the man that was on graveyard shift. I found

that he was unhappy with the shift, and this was brought

up. I told Mr. Kussmann, with Mr. Tinder present, that

if we could just swap me from the shift I was on to grave-

yard shift, this would be great because graveyard shift is

considered first shift.

Q. Now, you hadn’t actually worked out an agree-

ment with the man on the graveyard shift, with swapping,

did you? A. No.

Q. And you didn’t know for a fact that he was willing

to [156] swap? A. No, I didn’t.

Q. What was Mr. Tinder’s reaction to that discus-

sion? A. He brought up that only if I could bump

him out could I make that change.

Q. Would it be fair to say that he had no objection

to you making that shift if the job opening was put up

for bid and you were the most senior man to bid into

it? A. That is correct.

Q. Now, what about the transfer of departments—

was that basically the same thing, in other words, to short-

cut it, that Mr. Tinder had no objection to your trans-

ferring shifts if the job opening was put up for bid and

you had the seniority to bid into it? A. Well, if I

recall the discussion correctly, I was under obligation to

stay in my slot for X number of months until that time

expired, then I could jump out, or bump out, if a job

opening was available, say, back over in Building 1. And

it was only according to that and seniority, could I have

bumped into it.

The Court: Mr. Gordon, I still can’t understand, and

why I keep interrupting every counsel, but I would like

to know your theory cf relevancy of this line of examina-

tion.

Mr. Gordon: If I can ask one more question [157]

I think it will become apparent. If it won't, then I

would be glad to explain it, but I think there is one

more question and I will get to it eventually.

The Court: All right, but don’t get into the spot

of the fortune teller. You have one question and then

answer my question as to how this line of examination

is relevant.

Q. (By Mr Gordon) Isn't it true that if an employee

in another shift or another department left that shift and

that department and created a vacancy, that if you were

allowed to transfer to that shift or that department, outside

of the seniority, then a more senior employee would be

deprived of his seniority rights?

Mr. Pickett: I object to that on the ground, Your

Honor, this gentleman, I don’t believe, is qualified—

The Court: The objection will be overruled. Answer

it and then you answer my question.

A. If the opening was a valid opening and I took

it over, someone that had more seniority, yes, it would

be in violation of his seniority rights.

The Court: Now you tell me what this is all about.

What difference does it make if you are under obligation

to follow the laws of the United States, and if the laws

of the United States require a nondiscriminatory practice

as far as religion is concerned?

[158] Mr. Gordon: The basis is that I suppose we

just basically disagree on the statement of the issues in

the case. There is no question, I suppose, if you frame

any issue that is phrased in the terminology of, can you

violate the law, then obviously we can’t violate the law.

That is what the trial is about.

The Court: And you have taken the position consis-

tently from the first time you ever heard about it, and

I say “you”, I mean the Union, but the question was

in complete exercise of a legal right in discharging this

man for insubordination; indeed, the only argument you

ever made to anyone was either a technical argument

that one of your employees representing himself hadn’t

dotted all the i’s and crossed all the t’s and therefore

cannot invoke the jurisdiction of this district court of the

United States, or, secondly, you say, “Well, we will go

through the form of representation by contending that

discharge is a little rough in this case,” and you submitted

to somebody a set of arbitrations involving the question

of whether or not someone at either La Guardia or Ken-

nedy Airport was wearing an unauthorized jacket and

he got fired and it was taken to arbitration and the arbi-

trator held, with great reluctance, that the determination

of whether somebody ought to be fired for wearing some-

thing other than a company jacket [159] was really too

rough a penalty because other people in the past had

worn khaki jackets and therefore modified the discipline.

You didn’t raise any question at any time as to the

legality and the right of the company to fire him for

insubordination under the circumstances of this case. In-

deed, you agreed with it and you maintained, and you

maintain consistently now, just exactly as the company

does, that it is an undue hardship as a matter of law

to make any accommodation contrary to seniority require-

ments by what I assume is the handful of Sabbaticals

that are in the employ of TWA, and you continue to

maintain that position.

Mr. Gordon: Well, it is just not the way that I would

state our position.

The Court: No, you would state your position, and

all kinds of hocus-pocus, and you would try to get this

Court, you would try to get this Court to make some

sort of a finding of fact that is directly contrary to the

written position that you have taken.

I couldn’t describe better than someone in the lower

echelon who took a first step on behalf of this man as

to what kind of case is involved here, and that is, “It

is a sad case, a terribly sad case.”

Mr. Gordon: Well, unfortunately, as far as I [160]

know, we don’t have any jurisdiction to protect any em-

ployees against sad cases.

The Court: Oh, no, and you claim you have no duty

to go after an employer who may have violated the laws

of the Congress of the United States, because you say,

“That law cannot be read as being a part of our contract.

Now, we are very, very interested if there is a discharge

contrary to our agreement, but we do not consider the

Civil Rights Act of 1964 as a part of our agreement,”—

Mr. Pickett: I would like—

The Court: —‘therefore, you may disregard it with

impunity.”

Mr. Gordon: That hasn’t been our position as far

as I am concerned. |

The Court: Why isn’t it your position right now?

When have you ever said that the discharge for insub-

ordination by TWA is contrary to law?

Mr. Gordon: Pardon me?

The Court: I say, when have you ever said that the

discharge by TWA, even remotely contrary to law—

Mr. Gordon: There is some basic d ‘agreement, I sup-

pose, on whether you have to say what I would characterize

as some sort of magic words in using the Title 7 context

or whether you can go ahead and take [161] actions

which would still be legal under Title 7.

The Court: I will just ask you a very, very simple

question, and if you don’t understand it, you have me

rephrase it. It is my understanding that the Union’s posi-

tion throughout this controversy, and the Union’s position

right now, is that TWA took fully legal action when they

discharged the plaintiff in this case, and that there was

no possible violation of the Civil Rights Act of 1964.

Mr. Gordon: That is not correct.

The Court: All right, you tell me then when you

say TWA may have violated the law.

Mr. Gordon: I can tell you that we never said that

TWA violated Title 7, if that is what you are getting

at.

The Court: Yes, and you give me a negative answer

as to what your position is, but when I ask you to specify

when TWA may have violated the law, you say, “Well,

that has just never happened yet.”

Mr. Gordon: No, I say that we never expressly articu-

lated our opposition in terms of a violation of Title 7,

that is true, and we can stipulate to that if the Court

wishes. We did object to the discharge. We objected

to it on March 31, when it occurred. Under the contract

the procedure that has been followed is that [162] the

discharge grievance goes to the district.

The Court: Mr. Gordon, does the Court misunder-

stand your position in this case when you contend that

neither TWA nor the Union violation Title 7 of the Civil

Rights Act?

Mr. Gordon: That is correct, but for a different rea-

son.

The Court: I understand, but isn’t it your position,

regardless of what the reason is, that neither you nor

TWA ever violated Section 7 of the Civil Rights Act?

Mr. Gordon: My position is that the Union has never

violated Title 7 of the Civil Rights Act, and the company

will have to defend for it.

The Court: And your position also is that TWA didn’t

violate it?

Mr. Gordon: I think so.

The Court: All right, on cross-examination I find

out that what I stated as to my understanding of your

position is accurate.

Mr. Gordon: But whether TWA violated Section 7

or not is not dispositive of the question of whether the

Union has violated Title 7.

The Court: Well, you don’t contend anybody violated

it.

[163] Mr. Gordon: Well, my argument, I hope, is

more sophisticated than that.

The Court: Well, I don’t care whether it is sophisti-

cated or not. Sometimes unsophisiicated arguments are

correct. When somebody has to get sophisticated, it be-

comes a little difficult to get the sophistication off.

You know the origin of sophistication, do you not?

Mr. Gordon: I think I want to change my adjective.

The Court: Well, you better read your Plato and

Aristotle to find out who the Sophists were in ancient

Greece. It is my understanding throughout this case that

the consistent position of both TWA and the Union is

that they never violated Section 7 of the Civil Rights

Act at any time.

Mr. Gordon: All I can ask is about four sentences

worth of explanation. I just can’t give you—

The Court: Well, you can have five or six. Is my

understanding correct? Let’s take it just to the Union

itself.

Mr.Gordon: Fine.

The Court: You are contending that the Unions you

represented never at any time violated Title 7 of [164]

the Civil Rights Act of 1964.

Mr. Gordon: That is absolutely correct.

The Court: That is exactly correct, and that is the

position that you took before every administrative body,

it is the position that you took before TWA; indeed, you

said to TWA, “You didn’t violate, either. We are both

as clean as the driven snow, because it is an undue hard-

ship for us to make any accommodation in connection

with this particular case. Now, we haven’t tried very

hard, but we don’t have to try very hard, because it

is a per se hardship to violate seniority.”

What did the Union do to try to find somebody to

swap with this young man? The answer is, “Nothing.”

Isn’t that true? You said, “We didn’t have to do that’?

Mr. Gordon: No—

The Court: Well, what did you do?

Mr. Gordon: We said that if the job opening ended

up—and this is the point we started off with, maybe if

I can make this—

The Court: Why don’t you just answer my question,

what did the Union to do inquire whether anyone in their

membership would be delighted—

Mr. Gordon: Your Honor—

The Court: —to swap with this guy, irrespective of

seniority.

[165] Mr. Gordon: We don’t start out from the basic

set of assumptions. If I could just clarify one point. If

I don’t direct myself to it, I will be glad to try. It was

not the man who swaps jobs to swap. When a vacancy

opens up, the most senior employee is entitled to the

job. We cannot say that Mr. Smith over here has 30

years of seniority—

The Court: Mr. Gordon, let’s get this witness com-

pleted, because I am trying to—

Mr. Gordon: I’m sorry.

The Court: —to get some theory of fact, and I asked

you a specific question as to what the Union did, and

I asked you that question for the reason that I wanted

you to make inquiry of this plaintiff, “Did you know

that we circulated among our membership a request of

people that regardless of seniority would like to get the

weekend off,” and to see whether he knew about that

and whether he willfully, knowingly and intelligently said

“No, I don’t want to do that. I want to stand up and

be a martyr and be fired because of my belief, because

of my religion.”

You can go ahead and talk to him, because I want

to find out what they did do. It is my impression that

you said, “We don’t have to do anything, and therefore

we didn’t do anything.” If you didn’t think you [166]

had to do anything, why in the world would you do some-

thing?

(Off-the-record discussion between Mr. Mollenkamp

and Mr. Gordon.)

Mr. Gordon: Your Honor, I could tell you what I

think the facts are, if that is what you are aiming at.

We were totally agreeable to any adjustment that could

be made for the plaintiff as long as it didn’t deprive

another employee of the seniority rights.

The Court: I understand that.

Mr. Gordon: Okay, that included taking a day off—

The Court: And what you are saying is that if it

did, then all bets are off?

Mr. Gordon: Well, Judge, it is hard to—I would like

to tell you what we said. We said if a job opening opened

up, if he was the most senior employee, then he could

have it. Now, if that is wrong, it is wrong, but that

was our position.

The Court: Why, certainly, that is your position in

connection with any substitution, religious reason or any

other reason. That is straight Union doctrine. Do you

think this is the first labor case this Court has ever had?

Continue the examination of the witness. I [167]

want to get him off the stand so we can get on to getting

into this record what other additional relevant evidence

in addition to that which is stipulated and that which

is clearly apparent from the documentary evidence in this

case, which I have studied.

Q. (By Mr. Gordon) Mr. Hardison, I want to go

back to the March 6th meeting. I believe you said that

on the suggestions concerning shift changes and depart-

ment changes, I believe your terms were that the Union

vetoed that, is that correct? A. Yes, sir.

Q. Do you know what power the Union has to veto

acts of management? A. Well, Mr. Tinder said that,

you know, if it could be worked out, seniority, fine; but,

you know, just to take—-put me in a slot such as the

graveyard shift, or if the man was willing to change,

fine, or if I could go to a different department, if there

was an opening fine; but to take me unnaturally out of

my slot and put me unnaturally in a slot—

Q. That is not really my question, and maybe I didn’t

phrase it properly. My question really is, couldn’t the

company have done what it damn well pleased, even over

the Union’s objection? A. I think they could have, yes.

[168] Q. The company runs the plant out there,

don’t they? A. Well, they are supposed to, yes.

Q. Now, was there any job up for bid that you know

of on March 6th? A. Not that I know of.

Q. In fact, you know there was no job open for

bid? A. Yes.

Q. And in fact, you know that if there would have

been a job open for bid, you wouldn’t have had the seniority

to bid them? A.I might have had the seniority. It

would have, of course, depended upon the job.

Q. Let me direct your attention to Page 89 on the

deposition, starting at Line 5: “QUESTION: Actually I

probably misspoke. I suppese it would be fair to say

the Union had no objection to you changing shifts if you

were the most senior man on the bid? ANSWER: If

I could bid into something else, that would be correct,

but there was nothing I could bid into. QUESTION: Were

the jobs up for bid? ANSWER: No, there were no

jobs up, was one problem. There was no jobs up for

bidding to start with, and secondly, I did not have the

seniority to bid them.” Were you asked those questions

and did you give those answers? A. Yes.

[169] Q. Were they true when you gave them?

A. As far as I recollect, yes.

Q. And do you recollect that they are true now?

AD DISA 2 ARN ON AE Oe Nh EM it RO A ll tas. Coan tO» oh end

Pe ee

The Court: Mr. Gordon, how can there be any dispute

about that?

Mr. Gerdon: Well, I don’t think it has been estab-

lished that there were no jobs open for bid. I'll go on.

Q. (By Mr. Gordon) After the March 6 meeting were

you satisfied with the way things stood? A. No, sir.

Q. Why not? A. Well, because I was going to

be required to work on the Sabbath.

Q. Now, you kr. ¥v, did you not, that you could file

a grievance if you didn’t like something that was going

to happen to you out at TWA? A. Yes.

Q. But you didn’t file a grievance, did you? A.

I believe I spoke to Mr. Tinder about obtaining other

counsel or in some way, you know—

Q. Did you know that you could file a grievance?

A. Yes.

Q. Did you know that Mr. Tinder was overseen or

supervised by the Grievance Committee? [170] A. Yes,

I believe I know that.

The Court: Did Mr. Tinder or any member of the

Union ever indicate to you that they thought that you

may have some rights that were protected by the 1964

Civil Rights Act?

The Witness: No one mentioned it.

The Court: Did they ever mention it at any time,

ever mention the Civil Rights Act at any time?

The Witness: No, sir.

The Court: Talking seniority all the time.

The Witness: Yes, sir.

Q. (By Mr. Gordon) After the March 6 meeting,

you knew you could file a grievance. A. Well, yes, I

thought I could.

Q. And did you know also that under the collective

bargaining contract, only an employee can file a griev-

ance? A. Yes.

Q. And did you know that the Grievance Committee

was Mr. Tinder’s superior in matters regarding griev-

ances? A. Yes.

Q. And you knew where the Grievance Committee

was? A. No.

Q. You didn’t know where the Grievance Committee

was? A. No, sir.

a w *

[186] Q. Do you recall the Grievance Committee

telling you at that meeting that if you wished to go to

court, that that was your right? A. No.

Q. At the March 31 discharge hearing, I think we

can agree that the Union argued that your discharge was

too severe a penalty, is that correct? A. Yes.

Q. At any time did the company—at any time during

that meeting did the Union indicate to you or to the

company that they thought you should be discharged?

A. No, they didn’t—you know, the Union didn’t say dis-

charge him. They just said they thought discharge was

too severe a penalty.

Q. Did they ever agree with the company that they

thought [187] you should be discharged? A. No.

Q. You were present at the hearing, of course? A.

Yes.

Q. You didn’t—obviously you didn’t bring up that

you thought your Title 7 rights were veing violated be-

cause you have just testified you didn’t know it at that

time. A. No, I wasn’t called upon for any testimony.

Q. Now, if your deposition reflects that you did indi-

cate to the Union that your Title 7 rights had been vio-

lated at the March 31 meeting, then your deposition is

incorrect as to that fact? A. Well, if I said it, I was

just going on, you know, what I thought it would be

true at that time.

— oe

Q. But you are testifying now, and the fact is now,

you now understand it, that at the March 31 meeting with

the Union you did not tell them that your Title 7 rights

had been violated, because you didn’t know at that time

what federal law provided? A. Right. Like I said, I don’t

recall ever saying anything about my civil rights.

Q. Now, your discharge was effective on Aprii 2,

is that correct? A. Yes, sir.

Q. And that decision was made by Mr. Frey? [188]

A. Yes.

Q. And he is an agent of the company? A. Yes.

Q. And to your knowledge the Union didn’t encour-

age him to reach that decision? A. Not to my knowledge.

Q. Do you recall talking to the Union Grievance Com-

mittee on the way out of the hearing on March 31?

A. No.

Q. Do you recall not talking to them after the meet-

ing? A. 1 don’t recall a whole lot since it has been

too long.

Q. All these factors are just so vague in your mind

that you can’t remember too well, one way or the other?

A. I don’t remember any subsequent conversations, no.

Q. There could have been some and you don’t re-

member. A. As I said, it is possible, but I don’t recall

any just now.

Q. You did recall a subsequent conversation with

Mr. Box in which your resignation was discussed, as you

described to Mr. Pickett? A. Yes.

Q. That is all you remember right now? A. Yes.

Q. Isn’t it true that the subject of your discharge

was not—I’m sorry. Isn’t it true that the subject of your

[189] resignation was not discussed after the discharge

hearing but before? A. That I talked to them about

resigning before the discharge hearing?

Q. Yes. A. No,I don’t think I did.

Q. Didn’t the Grievance Committee tell you when

you met with them when you discussed possible defenses

and possible alternatives, that one possibility was a resigna-

tion, and if you went ahead with the hearing that they

had never known the company to allow a resignation after

they had issued a discharge letter? A. If they said

it, I don’t recall it.

Q. Following the time that you received your dis-

charge letter, did you ever have a meeting set up with

Joe Bowman? A. No, sir. :

Q. Did you know that the grievance pursuant to the

collective bargaining contract automatically transferred

from the local to the district after your hearing? A.

No.

Q. Youdidn’t? A. No.

* a «

[193] Q. Did any steward, Grievance Committee-

man, local Union official, district Union official, interna-

tional Union official, ever make any remarks derogatorily

against your religion? A. None that I recall.

Q. That would be something that would stick out

in your mind, since you regard your religion rather seri-

ously? A. I imagine it would be.

Q. Did the Union ever object to you working out

some sort of adjustment to your schedule as long as that

adjustment did not deprive a more senior employee of

his rights under the contract? A. No.

Q. And if you were allowed to bump out of the

seniority, either to transfer shifts or bid shifts under the

contract, that you weren’t entitled to, it would necessarily

mean that an individual who didn’t share your religious

beliefs would be deprived of his rights that he assumed

he was entitled to under the contract? A. That is true.

Q. Didn’t you go back to the company following your

discharge and asked to be rehired? A. Yes.

eee _— tn

a, ————>

Q. And was the Union present at that time? [194]

A. No.

Q. Did the company accept your application for re-

hire? A. No.

Q. Was that the company’s decision and the com-

pany’s decision alone, as far as you know? A. As far

as I know.

Q. I asked you if the Union ever made any deroga-

tory statements directed against your religion. Did anyone

in the Union ever make any derogatory s ments directed

at you? A. Well, I don’t recall any other—no, I don’t

recall any direct ones.

Q. Would you say that your relationship with these

Union people at these various meetirgs that you had with

them was cordial? A. Yes.

Q. There wasn’t any hostility at those meetings di-

rected toward you? A. None that I recall.

Q. Do you remember how long the district has to

appeal a discharge under the collective bargaining con-

tract? A. No.

Q. Did you make any effort to find out under the

contract? A. Not that I recall.

* * *

[198] Redirect Examination by Mr. Pickett

Q. Mr. Hardison, at any time did anyone ever explain

to you what the Union Relief Cominittee was? A. No,

sir.

Q. To this day do you know what it is? A. No,

sir.

e * *

DEPOSITION

IN THE

DISTRICT COURT OF THE UNITED STATES

FOR THE WESTERN DISTRICT OF MISSOURI,

WESTERN DIVISION

Civil Action

No. 20096-1

LARRY G. HARDISON,

Plaintiff,

VS.

TRANS WORLD AIRLINES, INC. AND INTERNA-

TIONAL ASSOCIATION OF MACHINISTS AND AERO-

SPACE WORKERS, AND INTERNATIONAL ASSOCIA-

TION OF MACHINISTS AND AEROSPACE WORKERS

DISTRICT 142, AND INTERNATIONAL ASSOCIATION

OF MACHINISTS AND AEROSPACE WORKERS

LOCAL 1650,

Defendants.

THE DEPOSITION OF THE PLAINTIFF, produced,

sworn and examined on behalf of Defendant TWA, pursu-

ant to Notice to Take Depositions, between the hours of

eight o’clock in the forenoon and six o’clock in the after-

noon of Tuesday, August 15, 1972, at the offices of TWA,

1307 Baltimore, in the City of Kansas City, in the County

of Jackson and State of Missouri, before me,

GERALDINE DUEBBERT

MILES and BEHRENS,

Shorthand Reporters,

a Notary Public in and for the County of Jackson, State

of Missouri, in a certain cause now pending in the District

Court of the United States for the Western District of

Missouri, Western Division, wherein LARRY G. HARDI-

SON is Plaintiff and TRANS WORLD AIRLINES, INC.,

AND INTERNATIONAL ASSOCIATION OF MACHIN-

ISTS AND AEROSPACE WORKERS, AND INTERNA-

TIONAL ASSOCIATION OF MACHINISTS AND AERO-

SPACE WORKERS DISTRICT 142, AND INTERNA-

TIONAL ASSOCIATION OF MACHINISTS AND AERO-

SPACE WORKERS LOCAL 1650 are Defendants.

[2] APPEARANCES

For the Plaintiff:

Mr. William H. Pickett

1100 Home Savings Building

1006 Grand Avenue

Kansas City, Missouri

For Defendant Trans World Airlines:

Mr. James J. Mollenkamp

Room 1-323

Kansas City International

Airport

For Defendants International Association of Machinists and

Aerospace Workers District 142, and International Associa-

tion of Machinists and Aerospace Workers Local 1650:

Messrs. Jolley, Walsh,

Gordon and Staab

606 Argyle Building

306 E. 12th Street

Kansas City, Missouri

By Mr. Michael D. Gordon

100

[3] LARRY GLENN HARDISON,

of lawful age, being produced, sworn and examined on

behalf of Defendant TWA deposeth and saith:

Direct Examination by Mr. Mollenkamp

* * *

[23] Q. I believe that isenough. A. Okay.

Q. What holidays other than the Sabbath are cele-

brated by your church? A. The first day of Days of

Unleavened Bread, and the last day.

Q. Does that fall on a certain calendar day within

the month? A. No, sir, it is a movable date.

Q. Between what months? A. Usually between

April and May. It can be as early as March, and the

one following those two days.

Q. Before we get to that, do you recall when that

day fell in 1968? A. No, sir.

Q. Do you remember when it fell in 1969? A. April

the 3rd.

Mr. Gordon: Which one are we talking about, 1969?

Mr. Mollenkamp: Yes.

A. That is when I was discharged, yes.

Q. So, the day after your discharge, there was this

holiday, the name of which appears in the record, the

First Day of Unleavened Bread, and the last is one day?

A. The First Day of Unleavened Bread and the Last

Day of Unleavened Bread are separate dates.

Mr. Gordon: One occurred on April 3rd?

* * *

[29] Q. Has there ever been a Sabbath Day on which

you have performed work since September of 1968? A.

Since I was into the church fully, no.

Q. I am not sure that I understand what y

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