# Appendix — Trans World Airlines, Inc. v. Hardison > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2182%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1977 - **Citation:** 432 U.S. 63 ## Text 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, = 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 = - 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 ; 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. - 10 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 11 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. 12 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. 13 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 14 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. 15 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. 16 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- 17 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 16 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 i9 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. 20 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. 21 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 22 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. 23 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 24 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. 25 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- 26 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 28 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 30 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. 31 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 32 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 33 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.” 34 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. - 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. 75 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 76 [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. 77 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 78 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. : 79 [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 80 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 = = 81 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. 82 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. 83 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. 84 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 85 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. 87 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 88 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. 89 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— 90 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] 91 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, 92 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 93 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. 94 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 95 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. 96 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, ————> 97 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 * * 98 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 of 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 99 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 you mean by “into the church fully”, will you explain that? A. * * 132 [234] Q. (By Mr. Mollenkamp) Mr. Kussman, to your knowledge did plaintiff ever initiate a grievance prior to his discharge on or about March 8 or March 15 or March 22? A. Not tomy knowledge. Q. Or did the Union ever initiate a grievance on his behalf on or about that time? [235] A. Not to my knowledge. Q. To your knowledge did either the plaintiff or the Union initiate an appeal from the discharge hearing? A. Not to my knowledge. [246] EVERETT HERBERT KUSSMANN, having been previously duly sworn, resumed the stand and testified further as follows: Cross-Examination by Mr. Pickett * * * [247] Q. But being you are supervisor, I am totally trying to get to what particular function did he have on the weekend on a reduced work force, and, if so, what was his function and to how many people did his function seem to hinge on? « * * [248] A. My statement was that he was part of a work force of approximately 38 to 40 people. He was, not what he serviced, and on the weekend it was by himself. Q. All right, sir, during the week he is part of or individually a part of how big a work force? A. Well, the Progress group that he was a part of is 38 to 40 people, if I recall the numbers at that time. It would be about that number. Now, how many mechanics he serviced, I couldn’t tell you, but it would be a greatly 133 reduced number on the weekend over what it would be during the week. Q. Do you have any comparison— The Court: What was his title, Mr. Kussmann, Crib Man or— The Witness: Well, it is sort of a nonexistent title. He is a stores clerk and breaks down into groups that have had titles added to them, which is Progress, by a letter of agreement at that time, and the progress man is the man who does the work flow. The Court: Did I understand his function, someone would call for a part, he would go back and locate the part and bring it out and furnish it, or what function? The Witness: He might be asked to go get a specific part from the Kit Center; he might be asked to [249] get a part from a tool kit on the weekend, when he would be the only man there. The Court: How many people would carry the same classification or people have training to perform this par- ticular job? The Witness: Well, the training is really not as great as is the segregation by seniority grouping. But during the week, as he witnessed, he drove a train throughout all of this and isolated his activities basically to the one single operation. When he was there by himself on the weekend, whoever that might be, he does that, the crib operation, which during the week we would have just one man, or two, that would do basically just that, the movement between the work areas, the areas then working, which might be done by specific people during the week- end, on the weekend he is the only guy to do that, too. The Court: Well, apart frorn the question of seniority, perhaps counsel wants to get--at least I would like to get to it—how many other people in the employ of TWA could perform his assigned duties. 134 The Witness: Well, with limited instruction, any stores personnel we’ve got. The Court: I understand, but I am talking about assuming, if one can assume in this day, the [250] absence of any seniority at all, to perform the function, how many bodies would be available to perform this work. The Witness: In the grouping and not on the specific date? The Court: Yes, in the whole group. The Witness: Better than 200. The Court: 200 available other people that could per- form this job, any one of whom without detriment to the company could trade his Saturday without hampering the operation of the company, this is assuming no restric- tions on seniority, is that a fair statement? The Witness: That is a fair statement. The Court: Is this what you are getting at? Mr. Pickett: That is correct, that is one of the points. Q. (By Mr. Pickett) Mr. Kussmann, you said on direct that when a person didn’t show, you did one of two things, you had a person stay overtime or you had a person from another type of seniority grouping fill in in his place, is that correct? A. That is correct. Q. Was th’s any breach of any seniority or any Union agreement whatsoever to do that? A. To move a man from another grouping, because someone is absent, is not a breach of any agreement. On a continuing [251] basis it would be, because it would indicate a company distor- tion of the seniority application. Q. You would call that an emergency, then, is that correct? A. Yes. Q. If it was continuing, it would be a breach of the agreement, correct? A. Right. Q. Would you call the Hardison matter somewhat of anemergency? A. No, sir, I would not. 135 Q. Wasit unusual? A. No, sir. Q. Did you have a lot of other religious problems about people who couldn’t work from Friday Sundown to Saturday Sundown? A. No, sir. Q. Then how is it not unusual at TWA? A. In my opinion, Mr. Hardison had continued to work for an extended period of time, and he and I had discussed the fact that if this came, he would be expected to work and I feel that we had made sufficient arrangements for his religious tenets to take care of the unusual, his holi- days, and I don’t think that—or I didn’t think at that time, and I still don’t, that in keeping with normal in- dustrial practices in this nation, that I could require [252] someone else to work in his place out of his work assign- ment on a continuing basis. If he were ill and couldn’t come to work, it would be something else. A guy gets sick and can’t come in, then we make emergency measures. But Mr. Hardison in this case did not come in, as far as I can recollect, and I have tried to in every way I know how, did not tell us he would not be there. Q. But you called him in on March 6, two days before he was supposed— A. Because I was concerned. Q. And you knew his religious tenets said he couldn’t be there, didn’t you? A. No, I didn’t know they said he could not be there. Q. Don’t you remember the letter as early as April 25, 1968, to you, followed by a great period of correspon- dence which said that he firmly believed that he could not work between Friday Sundown and Saturday Sun- down? A. I also remember the part of the discussion where he said he thought he could take care of his needs in keeping with seniority and he had not reached that plateau. Q. That was before the vacation of Bill Wyatt. A. Yes, sir. 136 Q. In fact, March 8, 1969, was the first time that any person whatsoever or any problem whatsoever be- tween TWA and Employee Larry Hardison’s religious con- victions came [253] into play? A. Basically. Q. Isthat not correct? A. Basically. Q. And two days before the time they were to come into play you had a special meeting about how to cope with the problem, is that right? A. That is right. @. Now what was done to cope with the problem? A. We made some suggestions that might be done to allow him to continue on. Q. And those suggestions were the ones you previ- ously stated? A. Yes, that is right. Q@. Was anything else done? A. Not that I am aware of. Q. Were there any surveys made of anybody in the Stores, whatever shift it may be, to see if they wanted to replace him? A. I don’t know, and I normally would not do that. Q. Whowould? A. The steward. Q. Well, did the employer, because you were con- cerned enough to call a meeting two days before, because you knew there was a problem, did you make any effort [254] whatsoever to contact anybody whatsoever to re- place him on that particular religious holiday, or religious Sabbath? A. No, sir, I did not. Q. Did anybody affiliated with TWA, that you had personal knowledge of or that you have been told, make any effort whatsoever? A. I would not know, because the normal contact on that would be the Union steward, and whether he did or not, I could not witness to. Q. Sir, did you keep a specific personal file on the Larry Hardison matter, you yourself? A. Only the thing that has been introduced here, which was as they came in, the memos were put in his file. 137 Q. As a matter of fact, this April 25, 1968, memo- randum and those things contained in your personal file were not made available to the E.E.O.C. investigation, were they, sir? Mr. Mollenkamp: I object to that, Your Honor, I don’t know whether the E.E.O.C. made any attempt to discover Mr. Kussmann’s personal file, so I don’t believe any request was ever made to Mr. Kussmann. The Court: What difference does it make whether they were or weren’t? E.E.O.C. found probable cause without it. I saw a great man, duplications. The great [255] vacuum in this case is any file at all on the part of the Union. The Union hasn’t marked anything as far as their processing of the case of any internal concern, as far as I have been able to find, didn’t write anybody; purported to set up meetings on a pretty important subject. Q. (By Mr. Pickett) Did you tell Mr. Butcher, your subordinate, of all of the correspondence, or share with him your file, prior to his March 21 memorandum which you have produced? A. I felt certain that I did. Q. He was fully appraised of all the circumstances surrounding the Hardison religious matter with you prior to that memorandum? A. I am confident that he was. Q. And approved it as well as Industrial Relations? A. I did. Q. Now, when persons who are not working on the contract holidays, or according to your agreement with Mr. Hardison—strike. You had an agreement with Mr. Hardison that he would work the contract holidays if you would let him off on his religious holidays, correct? A. Insofar as able. Q. Would this be that therefore there would be Union people that would be replacing who wanted off on the contract [256] holiday? A. Could be. Q. Would this have been a breach on the seniority agreement? A. No, sir. 138 Q. Why? A. Because in that situation we try to get volunteers to work and then we force and reverse orders of seniority. | Q. Did you try to get anybody to work whatsoever to replace Mr. Hardison on the 8th or 15th, whatsoever? A. DidI? Q. Yes. A. No. The Court: Wait a minute, let me see if I understood. You called for volunteers, because it would be quite likely, for example, I would assume, that you take both a Christian and a contract holiday, Christian day, if you call for volun- teers—how do you do this, by the way, bulletin board? The Witness: Through the Union steward, sir. The Court: Do you know what they do? Is that by way of mouth or posting on the bulletin board? The Witness: It is by solicitation, not by posting. The Court: All right, but whatever it is, you have no difficulty getting volunteers for someone that [257] wants to trade his obligation to work December 25th for someone that would want to trade with him. The Witness: That isn’t quite the way it is. The Court: All right, I didn’t understand it and this is why I would like to know. The Witness: All right, take Christmas, for instance. The company determines the number of people that are required to maintain its services. We then advise the Union steward that we have this number of positions that must be filled by shifts. The Union steward then contacts to see who wants to work, and then if he is not able to fill that, then the junior people on that shift are required to work that contract. The Court: In other words, you give preference to who does not have to work from the top of the list rather than bumping from the bottom? 139 The Witness: Well, when you go to forcing your seniority practices, you do it in reverse order of seniority. The Court: So you really don’t have a volunteer for trade. Does the contract cail for double pay on contract holidays? The Witness: Two and a half times now. Two times at that time. The Court: All right, so you get some [258] volun- teers on that. The Witness: Not always, sir. The Court: Do you have any experience in providing swaps for particular days that would not affect seniority as a matter of practice, either within your present ex- perience on management’s side—I also understood you to testify that your first employment with TWA was in a capacity for the Union after you got out of the Navy, right? The Witness: Yes, sir. The Court: So you have been on both sides of the table. The Witness: Yes, sir. The Court: Sometimes feel like you are in the middle of the table? The Witness: Most of the time, sir. The Court: Are there any circumstances under which there are trades for particular days that disregard seniority as a matter of practice? The Witness: In the Union ranks in my area, sir, not to my knowledge. The Court: Let me ask you this— The Witness: Let me clarify if I may. That is for specific days. Now, there are some arrangements that are agreed to whereby we have changed days off or shifts, [259] as I witnessed earlier. 140 The Court: But this would handle the whole group, I would assume. The Witness: Well, that was by agreed-to arrange- ment, yes, sir. The Court: Now let me ask you this question. You have told me that there are approximately 200 people that could do this job. Assuming that you were not hampered by seniority requirements, what is your judgment as to whether or not it would be possible to find volunteers who would have been willing to have traded Saturday off for Sunday off, for example? The Witness: The reason I hesitate is that you are asking the question in a complex area. It isn’t just like saying from here to here. There are more than one work- ing groups, and if it were not for a Union agreement or seniority provisions or anything else, if the company had the complete versatility to move people, no, there would not be that problem. The Court: Of course, as the number of instances that you would have to make exceptional and special pro- visions increase, the difficulty of working out these ar- rangements, it would seem to me, would obviously increase, would that be true? The Witness: It would be my opinion it would. [260] The Court: And this prompts my final ques- tion before I ask counsel to continue. In your experience throughout your entire employ with TWA, how many in- stances do you know of where religious conviction has conflicted under circumstances similar to this? In other words, have you had any Seventh-Day Adventists, have you had any Orthodox Jews, who had the same Sabbath observation? There may he additional sects that have the Sabbath. The Supreme Court, I think, quotes the particular member, particular chapter and verse in the Bible, that 141 at least Seventh-Day Adventists’ selection of Sundown Friday to Sundown Saturday is based upon. My knowl- edge of Judaic tradition, I don’t know. I am familiar that this was the traditional Orthodox Jewish Sabbath. How many times within your experience clear back in 1965, with TWA, have you known of a conflict between religious consicence and assigned work duty? The Witness: Limiting it to the Stores operation? The Court: Yes. The Witness: This is the only one that I can recall. The Court: So it is a highly exceptional circum- stance? * * * [261] A. No, what I was trying to illustrate was the fact that you can’t predict what is going to happen when a man bids, and it always calls to mind a situation we had years ago with an individual who wanted to bid a lead job in particular work area, and the inclination was to say, “There is no possibility for you to get that job.” [262] But through experience I didn’t tell him he couldn’t get it, because there is always that remote possibility. He went ahead and bid the job and ended up with the lead job on the day shift. If you tell a man he can bid from one place to another and the norms happen, this can happen. He might go right into that slot. But the thing that is not normal, you’ve got a bachelor that works the graveyard shift and he gets married and he wants to work days, and at the same time he comes up on that, that closes, so you just can’t predict what is going to happen. I don’t think anybody can in a seniority exercise that involves an opening where people are moving into a work section and seniority is applicable to those that are already there. Q. One further question, sir. When March 8 and ‘March 15 and March 22 were not worked by Mr. Hardi- 142 son, and let’s presume nobody had filled his place, what would have been the maximum amount of hardship due to his absence, or a person’s absence, from that particular job on that particular day have been to TWA? A. You mean if the job were not filled at all? Q. That is correct, sir, for one day, one shift. A. Under the circumstances, as I can reconstruct them, if we did not have an hourly man to come in to work that shift, we would have worked it with a supervisor. It [263] would have been that important. The Court: The problem here is notice. You don’t have any problem if you get notice, so that you have time to fill this? The Witness: Yes, we can have a problem with that, Your Honor. The Union is not required to work overtime except in an emergency, and this is not construed to be an emergency, and there have been periods of time when we could not get overtime. The Court: But to fiil the vacancy and to avoid the use of supervisory personnel, the important thing to company was that “I am not going to show up to give you enough chance to see what your situation actually may be,” wouldn’t that be true? The Witness: My attempt was to illustrate to counsel that in this case, where there are a number of mechanics working that need parts moved to them and obtained for them, we would have to supply this kind of manpower from some place, and that is what we did. The Court: I think there is somewhere in the record that there was a suggestion made to the plaintiff that he simply report in sick on these days, and he suggested that his word should be yea and his word should be nay, as stated, is that true, and he wasn’t going to lie about it? Did you have any discussions with him in [264] this connection? I am not sure whether it was the March meeting or not. 143 The Witness: No, sir, I did not. The Court: You may continue, Mr. Pickett. Mr. Pickett: One moment, Your Honor. No further questions, Your Honor. Cross-Examination by Mr. Gordon Q. Mr. Kussmann, let me make sure that I understand what I think was the sole import of your statement to Mr. Pickett, that the company would have had to work a supervisor if there was nobody else there to perform the job, or something to that effect. A. Right. Q. Let me ask you this question. I am trying to focus you in on that area. Could the company have oper- ated on that day if that job was not performed? A. The work in that area would have been greatly imperiled. The Court: In what way? The Witness: To say that the company could not have operated would be kind of a far-reaching statement. In the way that there were mechanics working who needed parts, that is what they were there for, is to work on specific parts, on engines or whatever the work may be that is assigned that day, and that is what [265] we are there for, is a service organization, and if the parts were not obtained for them, moved to them, moved from them, we could impair service, yes. Q. And when you talk about those employees, are you talking about the 30 to 40 employees that worked that day? A. I don’t know how many employees worked that day. I regret to say that—it is a matter of record and could be obtained, if you are talking about the me- chanic force, and when I say an approximation, it would be an utter guess. Q. Talking something about the Union Relief Com- mittee, there has been some discussion about it, to your experience has the Union Relief Committee ever made 144 a permanent transfer as opposed to a temporary one? A. I am not aware of a permanent transfer, only tempo- rary. Q. In other words—I don’t mean to put words in your mouth—in other words, the Relief Committee— A. May I correct that statement? Q. Surely. A. When we moved from KCOB to MCI, there was one permanent transfer that was made, a man who had a heart condition, in the tool room. There was another one that has continued for a period of time, that I think time itself made it permanent, because the man had the seniority to hold it in what we call the Packaging Area, incapacitated [266] people. But the normal action of the dealings that I have had with this committee has been on a temporary basis. Q. And isn’t it true that usually their authority, I suppose you would say, extends for a 90-day period? A. Generally the request is for no longer than that. If it goes longer than that, fer an extension. The Court: Mr. Kussmann, I am intrigued with this Relief Committee. My impression is that it is more or less an ad hoc committee whose recommendation must be accepted by the Union, that they do not have plenary power to come to any agreement, but simply to recommend a solution to an exceptional problem. Is my impression correct? The Witness: It is kind of difficult, Your Honor, for me to answer it, because I am dealing with what I consider to be a group from within the Union that speaks for them, and normally their terminating or culminating action is taken care of by letter, so I accept it as being a Union agreement. [268] Q. (By Mr. Gordon) Let me just ask a few questions directed along that line as far as your experience 145 is concerned. Let’s assume that Mr. Hardison did go to the Relief Committee and that the Relief Committee came up with—well, let’s not use Mr. Hardison, let’s say an employee goes to the Relief Committee with a problem and the Relief Committee comes up with a suggested solu- tion. Before that solution is implemented, isn’t it true that it has to be approved by management? A. Yes. Q. And isn’t it true that the Relief Committee on occasion, to your personal experience, has come up with proposed solutions that have been turned down by manage- ment? A. Been turned down by me. Q. By youpersonally? A. Yes. Q. So the fact that an employee would go to the Relief Committee doesn’t necessarily mean that he would get relief? A. Well, I can’t answer that. [269] Q. It wouldn’t necessarily, it would depend on the circumstances, I assume. A. Well, where I am involved, it would depend on what they brought to me as the alternate solution. 'Q. You would consider it. A. I certainly would. Q. I think maybe the notion is floating around that the Relief Committee has authority to reach decisions that management regards as vested in itself, and I am just trying to inquire as to whether that is a valid assumption. Does my question make any sense? A. Yes, to answer your question specifically, the Union committee, the Relief Committee, rather, has implemented nothing in my area without my concurrence. Does that answer you specifi- cally? Q. I hope so. I think it does. A. Or my subordi- nate’s concurrence. Q. Let’s go to the March 6 meeting, and I think probably we have all agreed on some facts; I’m not sure that we have agreed on all of them. At the March 6 meeting, you proposed some suggestions which Mr. Tinder 146 didn’t agree with, regarding the change of shifts or change of departments. Is that basically what we are talking about? A. I haven’t said, I don’t believe, that Mr. Tinder did not agree with them. [270] Q. That is what I am trying to clarify. A. I would look to resultant action as to whether or not he was able to obtain agreement. Q. Pardon me? A. I would look to resultant action as to whether or not he was able to obtain agreement. Q. Do you recall a discussion involving whether Mr. Hardison could work a 4-day week and be excused on Saturdays without pay? A. My recollection says the discussion was related to he was willing to take the day off without pay on a continuing basis. Q. Pardon me, are you done? I didn’t mean to interrupt. A. Yes. Q. Was that discussion acceptable to Mr. Tinder? A. I could not say that it was and I cannot say that it wasn’t. Q. Was it acceptable to you? A. It was not. Q. Why not? A. Because this would deprive me of coverage on the day that I needed a man to work. | Q. I am a little curious, too, about the presence of Mr. Tinder. I assume it is a routine matter to call in the steward who serves an employee who has got a person- nel [271] matter that either you want to discuss with him or he wants to discuss with you, is that the idea? A. Basically, but not always. Q. Whose decision was it to call in Mr. Tinder on this occasion? A. I can’t really answer that question. It could have been mine. Q. Did you know Mr. Tinder before this meeting? A. Yes, sir. Q. What is his capacity in terms of authority? A. Well, he had been the Union steward for some period of time in the area that we are talking about. 147 Q. What authority does the Union steward have in this type of discussion? A. Under the contract he is a representative that relates to those people. He is ap- pointed by the Union or elected by the people in that section, depending on whatever the circumstances may be. Q. Do you know if his authority extends beyond rou- tine-type matters? What I am getting at, is it a signifi- cant influence on the relationship, if it isn’t true that the company will either go to the local Grievance Commit- tee or to the district for that matter. A. I don’t under- stand your question. Q. In your experience in relating to Union stewards, what [272] is your experience as to the scope of their authority to make changes that have an impact on the collective bargaining relationship? A. If they feel like they get beyond their authority or something that doesn’t relate to them, they normally go to the committee. Q. Would taking someone out of seniority and giv- ing him a priority or giving him super seniority be this type of matter, if you know? A. If I were a steward it would be that type of matter. Q. You used to be on the Grievance Committee, as a matter of fact. A. Yes, sir. Q. I hope I can make myself clear. Is it true to say that all the employees who could have—all the employ- ees within Mr. Tinder’s—I’m sorry—that all the employees within Myr. Hardison’s seniority grouping had rejected the weekend off by virtue of their previous bids? A. Are you asking me if they had? Q. Yes. A. I cannot answer that question. Q. Well, wouldn’t the selection of seniority within, that grouping indicate that those senior employees didn’t want to work on weekends? A. It would indicate it, but your initial question would [273} cause me to have 148 to knuw whether everybody had been contacted, and I don’t know this. * * * [275] Q. Fine, but if the Union disagreed with one of your proposed actions, you could go ahead and take it anyway and the Union would have to take steps to complain about it. A. Yes, sir. Q. They don’t have veto power. A. No. The Court: You’ve never found any hesitancy of the Union complaining under that circumstance, have you? The Witness: Yes, complaining, yes; but as far as taking the action, if I felt as a part of management, under the contract, I had the right to take the action and the Union must abide by it unless I jeopardize their safety or health and then grieve it. [282] WILBUR STONE, called as a witness on behalf of Defendant TWA, was duly sworn and testified as follows: Direct Examination by Mr. Mollenkamp << « * [285] Q. In TWA’s operation is the Kansas City Overhaul Base the location for all base overhaul operations systemwide? A. Yes. Q@. Would you describe what a base overhaul is? A. Well, a base overhaul, after an airline has flown a given number of hours, as approved by the Federal Avia- tions Agency, it then must be brought in for complete undressing, if you will, taking apart, inspections com- pletely, and completely overhauled and rebuild anything that is either worn excessively or shows any signs of wear or corrosion or anything of that sort. These airplanes 149 come in usually of an evening on a weekend so that the small crew there in the hangar can get them ready for the larger crews coming in then on the main part of the week. Q. So is it fair to say that the maintenance facility here is not just another line maintenance, but it is the most major facility that TWA has? A. It is the only overhaul base and the main major repair station. Q. How often are the operations at the overhaul base conducted? A. Well, I guess you would best answer that as continuously. There are 7 days a week, 3 shifts every day, 365 days a [286] year. Q. Why is that necessary? A. Because you have to repair and receive items from the field that may have been removed because of airplanes that are presenting some problem with some piece of equipment or some- thing—the time control on some of the items is up and they have to be brought in and they have to be repaired and you have to get them turned around in the shops and back out to the field, because if they are not out to a foreign location someplace, either as standby or repair on an airplane, it may be necessary even to get one off the ground, and a flight could be delayed or passengers cancelled off 2 flight or something of that sort, because the equipment isn’t available. Q. When you say the equipment isn’t available— A. I mean the airplane. Wouldn’t be ready to go, is a better way of saying it. Q. Does the Kansas City Overhaul Base include the Stores Department? A. Yes. Q. What is the work of the Stores Department at the overhaul base? A. Well, I would describe it as the department that receives shipments coming in. It receives materials coming in on [287] our own airplanes from out in the field, including units for rehire, units 150 that may be damaged, units that are worn or time con- trolled or something, bending of parts and so on, in the general stock rooms and transportation of parts and pieces between shops and between buildings. Q. And is that operation also conducted on a 7-day- a-week basis? A. Yes, sir. Q. 365days? A. 365 days a year. Q. 3shiftsperday? A. Right. * * * [293] The Court: If Mr. Stone was in charge of the examination that was made at that time, and he made that examination, or if it was made under his supervision, I would be very happy to hear it. Mr. Mollenkamp: I will put that question to the wit- ness. Q. (By Mr. Mollenkamp) You are familiar with the details of the Hardison case, isn’t that correct? A. Yes. Q. What hardship, if any, would have resulted from attempting to accommodate Mr. Hardison’s request for Sab- bath— A. Well, the first hardship you run into is the absence of a person who is necessary to perform essential function. If you take other action to correct that, then you have robbed from someplace else where you have already had to adjust your work force to put everybody you can on to the regular work week with Saturdays and Sundays off in keeping with the request and interest of most of the [294] people, so that you have so few people, then, to call upon and so little interest to call upon under an agreement such as we have, that you just can’t get there without additional overtime or robbing something someplace. Q. You said that was the first problem. Are there others? A. Well, the second problem you would run into would be that if you did something under our agree- ment, if you did something to violate the basic agreement 151 or the basic understanding, then you would run into troubles with the people who are complaining, and as a matter of fact that would be true whether you had an agreement or not. The Court: Mr. Stone, I want to be sure that I under- stand your answers. I gather from your answers that you are assuming that any arrangement and any accom- modation that might be made to take care of the highly exceptional situation presented by Mr. Hardison’s case; Mr. Kussmann, who has been with TWA since 1945, both sides of the table, says to his knowledge this is the only case like it that he has ever heard of. So we are talking about one single accommodation. But my question to you is whether your answers do not assume that any accommodation that may be made must be made within the framework of observation of the [295] seniority provisions in your contract. The Witness: Yes, to a degree, that is true. The Court: Well, isn’t it to a total degree that it is true? The Witness: Well, I don’t think so. The Court: Well, I want to know why you don’t think so. The Witness: The reason I don’t think so is that when you have as high as 4400 people in one place or 2500 people, roughly, represented by a Union, or another 1500 people who are non-management people, clerical and others working in an organization, there has to be some kind of a systematic or organized or accepted way that people appreciate how these kinds of things have to be done, and to move in against something that is understood and appreciated and sometimes demanded, to require them to do something different does present problems, and so then you end up with a lot more complaints, a lot more dissatisfied people, than you had before. 152 The Court: Well, as I understand that, that still is predicated upon the difficulties that would be implicit in doing anything except following the procedures that are provided in the contract as to transfers, hours, days, shifts, in accordance with the seniority requirements. [296] A. Well, that would be true unless you would have developed some other kind of a system to take care of it. I suppose you could go alphabetically or go by age or color of hair. The Court: That is exactly right, and the question in this case—you have been here throughout the case— is whether or not the Congress of the United States said to management and Union, “You've got to develop some supplemental system to take care of these cases.” That is the question in this cace. _ I don’t decide the question, but I am required to find whether or not there is hardship within the meaning of the law, and I have difficulty understanding how one can claim hardship if he leaves out whether some additional system for handling these exceptional cases has been de- vised and attempted. Now, I can understand completely that circumstances may be present where you have a single employee who is of critical importance and very highly specialized ex- pertise where it would be exceedingly difficult to make any kind of an arrangement, but in light of Mr. Kussmann’s testimony, I can’t conceive that you have this type of individual when there are at least 200 people located in Kansas City that if they were willing, and if not barred by seniority, could not be put in that [297] slot and perhaps, as he indicated, you might have any number of people quite willing to do so, to create a Sunday for a Saturday, because Sunday is generally more a family day, if the wife is working—if she is in a store she may be working Saturday, and married couples could be to- 153 gether on Sunday, but of course all this is speculation until somebody systematically made some inquiry as to what sort of reaction and how big a problem you really had to cover the 200 additional people who are qualified to do this job on any day. | Now, do you disagree with his estimate of 200 other people that could have filled this job? | The Witness: In terms of the basic qualifications of what they would do when they were on the job, I don’t disagree. I have no basis for disagreement. He would know that better than I. The Court: It is not a unique job. The Witness: No, but I think there are other factors involved beyond just the qualifications of the in [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2182%3A03. Public record. Not legal advice.