Petition — Locals 1830 & 1833, General Longshore Workers, International Longshoremen's Ass'n v. Bailey

Supreme Court, U.S.

80-569 isis

OCT 9 1980

MICHAEL RODAK, JR.. CLERK

IN THE

Supreme Cot of the United States

OCTOBER TERM, 1980

LOCAL 1830 AND LOCAL 1833,

GENERAL LONGSHORE WORKERS,

INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, AFL-CIO,

Petitioners,

¥.

ALTON J. BAILEY, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

de

C. PAUL BARKER

BARKER, BOUDREAUX, LAMY,

GARDNER and FOLEY

’ 1400 Richards Building

837 Gravier Street

New Orleans, Louisiana 70112

GEORGE KAUFMANN

(Counsel of record)

2101 L Street, N.W.

10th Floor

Washington, D.C. 20037

(202) 296-1294

Attorneys for Petitioners

ea

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Petitioners are two local unions, one black and the

other almost entirely white, although individuals were

free to join either local. The unions are and have been

of almost equal size. Respondent is a member of the

black local who challenged a work distribution practice

which allocates jobs equally among the two locals, claim-

ing that it has a discriminatory impact on employment

opportunities for blacks in violation of Title VII of the

Civil Rights Act of 1964. Class certification was denied

because nearly 90% of the members of the black local—

the putative class members—petitioned the district court

in opposition to the relief plaintiff sought: merger of

the two locals. They opposed it because they would

thereby lose “our right to equal jobs with whites” and

their autonomy to protect the interests of black em-

ployees. Both courts below found that over a period of

many years neither plaintiff nor any other black em-

ployee had suffered any adverse employment consequences

from the challenged work distribution practice. The court

of appeals, however, found a perceived possibility that

if the relative size of the locals changed at some time

in the future the practice could have an adverse im-

pact on blacks and thereby violate § 703(c) (2) of Title

VII. Solely on that basis, the Court of Appeals directed

not that the practice be modified but that the two locals

be merged—the very relief 90% of the would-be class

had objected to in successfully opposing class certifica-

tion. Accordingly, the question presented is:

Is not the order of the Court of Appeals directing

merger of the two locals wholly inconsistent with

Title VII, the basic principles of equity established

by this Court, and the proper allocation of functions

between the district courts and the courts of appeals

in formulating equitable decrees?

(i)

ii

LIST OF PARTIES

In addition to the parties named in the caption, the

following were parties to the proceeding below:

Ryan Stevedoring Co., Inc.

Rogers Terminal and Shipping Corp.

Louisiana Stevedores, Inc.

Ramsay, Scarlett & Co., Inc.

Baton Rouge Marine Contractors, Inc.

TABLE OF CONTENTS

Page

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FT eI | ackchopeincininssconntseninusiindssbsakeeckensesinnaniabedee

STATUTORY PROVISIONS INVOLVED ..................

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REASONS FOR GRANTING THE WRIT ................ 10

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iv

TABLE OF AUTHORITIES

Cases: Page

Albemarle Paper Co. v. Moody, 422 U.S. 4065 ....18, 14, 15,

18, 19

Barela v. United Nuclear Corporation, 462 F.2d

ok SERN ATES a 21 Ce oe 17

California Brewers Assn. v. Bryant, 444 U.S. 598.. 16

Dayton Board of Education v. Brinkman, 433 U.S.

" a ice 12, 18

East Texas Motor Freight System v. Rodriguez,

rs ieaehasaieinnente 9,17

Franks v. Bowman Transportation Co., 424 U.S.

ARDS TRIE RUE OTR Oe Ce Meee ee eee 18, 15, 18

Labor Board v. Jones & Laughlin Steel Corp., 301

(+ ES RETR cree Oe a i ee 15

Los Angeles Dept. of Water & Power v. Manhart,

es Oe sasschintintinteietenaigtieions 13, 15

Mayor v. Educational Equality League, 415 U.S.

a sdcbcanatdisommnetintion 19

Mills v. Electric Auto-Lite, 396 U.S. 375 —.............. 12

Mine Workers v. Illinois Bar Ass’n., 389 U.S. 217.. 16

Nance v. Union Carbide Corp., Consumer Prods.

Div., 540 F.2d 817 (10 Cir.), cert. denied, 431

U.S. 953, vacated on other grounds, 431 U.S.

ERNE a AOR OS ROR ae SE 17

Peltier v. City of Fargo, 533 F.2d 374 (8 Cir.) .... 17

Price v. Lucky Stores, Inc., 501 F.2d 1177 (9 Cir.).. 17

"a Saracini v. Missouri Pacific Railroad Co., 431

I Ms I iit snccegtdecarmiennednconsie 17

Smith v. Arkansas State Highway Employees, 441

A SARE Peon ee 16

Taylor v. Jones, —— F.Supp. ——, 23 FEP Cases

a es caminanenieh 17

Teamsters v. United States, 431 U.S. 324........... 11, 13, 15,

18, 20

Thomas v. Collins, 328 U.S. 516.....................2......... 16

Tipler v. E. I. duPont de Nemours and Co., 443

|p & Fs 5 Baa Nenenreee aS Se eee 17

Trainmen v. Virginia, 877 U.S. 1...........................-- 16

United States v. Robel, 389 U.S. 258 ......................-.. 16

Vv

TABLE OF AUTHORITIES—Continued

Page

William v. Boorstin, 451 F.Supp. 1117 (D.D.C.),

reversed on other grounds, ——— F.2d ——(D.C.

a I i 17

Constitution, Statutes and Rule:

United States Constitution:

. tsiCi*i‘(‘éR RCC OEIC CN 16

Civil Rights Act of 1964, 42 U.S.C. § 2000-e, et

seq.:

§ 703 (a) (2), 42 U.S.C. § 2000e-2(a) (2) ........ 12

§ 703 (c) (2), 42 U.S.C. § 2000e-2(c) (2) ........ passim

§ 706(f) (3), 42 U.S.C. § 2000e-5(f) (3) ......... 2

§ 706(g), 42 U.S.C. § 2000e-5(g) 2000. 3

Judicial Code:

GAG Te MIIIEIED cnscrssressacsinnsdasiaetguiamaganabiabisisiatas 2

ER | eee eae ree nee 2

Labor Management Reporting and Disclosure Act

of 1959, 29 U.S.C. §§ 401 et seq... 16

National Labor Relations Act, 29 U.S.C. §§ 141 et

seq.:

Be Gee Win TP IIE dshsadithccsicccercanttbncidtbiationua 15

Federal Rules of Civil Procedure:

BID IID <cssincisisivce: cassisnaiiblacaacdiactiiadnansbieiatiaimteminadaaas 17

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No.

LOCAL 18380 AND LOCAL 1833,

GENERAL LONGSHORE WORKERS,

INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, AFL-CIO,

Petitioners,

v.

ALTON J. BAILEY, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Local 1830 and Local 1833, General Longshore Work-

ers, International Longshoremen’s Association, AFL-CIO,

respectfully petition for a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Fifth Circuit entered in this case on March 14, 1980.

OPINIONS BELOW

The original opinion of the district court is reported

at 7 FEP Cases 914 (M.D. La. 1974) and is reprinted

herein as App. E (28a-40a). The first opinion of the

court of appeals is reported at 528 F.2d 551 (5th Cir.

2

1976) and is reprinted herein as App. C (12a-24a). The

order denying rehearing of that decision (Judge Clark

dissenting) is reported at 538 F.2d 976 (5th Cir. 1976)

and is reprinted herein as App. D (25a-27a). The dis-

trict court decision upon remand is reported at 443

F.Supp. 899 (M.D. La. 1978) and is reprinted herein

as App. B (5a-lla). The second court of appeals deci-

sion—the decision from which certiorari is sought—is

reported at 613 F.2d 588 (5th Cir. 1980) and is reprinted

as App. A (la-4a).

JURISDICTION

The court below entered judgment on March 14, 1980,

App. F (41a-42a). A timely petition for rehearing was

denied on May 12, 1980, App. G (43a-44a). On August

5, 1980, Mr. Justice Powell extended the time for filing

this petition to and including October 9, 1980, App. H

(45a). This Court has jurisdiction pursuant to 28 U.S.C.

$ 1254(1). The district court had jurisdiction over this

action under § 706(f) (3), Civil Rights Act of 1964, Title

VII, 42 U.S.C. § 2000e-5 (f) (3), and 28 U.S.C. § 1843 (4).

STATUTORY PROVISIONS INVOLVED

Section 703(c) (2), Civil Rights Act of 1964, Title VII,

as amended, 42 U.S.C. § 2000e-2(c) (2), provides as

follows:

(c) It shall be an unlawful employment practice for

a labor organization—

* o ” *

(2) to limit, segregate, or classify its mem-

bership or applicants for membership, or to

classify or fail or refuse to refer for employ-

ment any individual, in any way which would

deprive or tend to deprive any individual of

employment opportunities, or would limit such

employment opportunities or otherwise adversely

affect his status as an employee or as an appli-

cant for employment, because of such individ-

ual’s race, color, religion, sex, or national

origin....

Section 706(g), Civil Rights Act of 1964, Title VII,

as amended, 42 U.S.C. § 2000e-5(g), provides in perti-

nent part as follows:

(g) If the court finds that the respondent has

; intentionally engaged in or is intentionally engaging

in an unlawful employment practice charged in the

complaint, the court may enjoin the respondent from

engaging in such unlawful employment practice,

and order such affirmative action as may be appro-

priate, which may include, but is not limited to,

reinstatement or hiring of employees, with or with-

out back pay (payable by the employer, employment

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

responsible for the unlawful employment practice),

or any other equitable relief as the court deems

appropriate. ... No order of the court shall require

the admission or reinstatement of an individual as a

member of a union, or the hiring, reinstatement, or

promotion of an individual as an employee, or the

payment to him of any backpay, if such individual

was refused admission, suspended, or expelled, or was

refused employment or advancement or was sus-

pended or discharged for any reason other than dis-

crimination on account of race, color, religion, sex, or

national origin or in violation of section 704(a) of

this title.

STATEMENT OF THE CASE

Petitioners are Local 1830 and Local 1833 of the Gen-

eral Longshore Workers, International Longshoremen’s

Association, AFL-CIO. Local 1830 was organized in

1955 and has historically been, and was at the time of

this lawsuit, comprised only of black members. Local 1833

was organized in 1956 and has historically been, and

A

was at the time of this lawsuit, comprised almost entirely

of white members.' Since their inception, these two locals

have bargained jointly—each local being equally repre-

sented in the bargaining process—with the Baton Rouge

Steamship Association, which is comprised of the steve-

doring companies that operate in the Port of Baton

Rouge. The result of these joint negotiations is a single

collective bargaining agreement covering both locals.

Members of both locals receive their work assignments

at a single hiring area. Work assignments are made

twice daily at “shape-ups”, where foremen select workers

for various longshore gangs. Each such gang is comprised

of a variety of longshore jobs; all of the jobs pay the

identical rate. Selection for a work assignment is not

based upon seniority, but must be made in a manner

consistent with certain guidelines set out in the bargain-

ing agreement: preference is conferred upon those who

were present and registered at the preceding shape-up but

who were not then selected for any work assignment;

and, overall hiring at each shape-up is to be done in

such a fashion as to assure to the extent pru*ticable that

the members of each local have equal access to work

opportunities. In the latter regard, the collective bar-

gaining agreement provides as follows:

The employer, while having the right to select his

employees, agrees to cooperate with union representa-

tives in effecting an equitable distribution of work

among the available work force. A central hiring

system will be established wherein work records of

1 This case does not concern the reasons for the racial composi-

tion of the two locals. There is no evidence, and the courts below

did not find, that blacks were excluded from membership in Local

1833, or whites from Local 1830. The only evidence in the record

on this point is the statement of nearly 90% of the members of

Local 1830 that they understood they were free to join Local 1833

if they so wished. See infra at 7.

5

each employee will be maintained in order to assist

the parties in distributing the available work.”

At all times since at least since 1965, Local 1830 has

had approximately the same number of members as local

1833. App. 34a. The district court found (App. 34a-35a,

paragraph numbers omitted) :

There is no dispute about the fact that work has

been assigned on close to a 50-50 basis between the

two locals, but that over the years, the black long-

shoremen have been assigned more working hours

than have the white members of Local 1833. From

the inception of these locals in 1956 through the year

1973, the black members of Local 1830 have been

assigned 54 per cent of all of the longshoremen’s

work at the docks.

During the whole seventeen years from 1956 to

1973, there have been only two years (1971-1972)

that blacks have not worked more hours than whites.

After a union member has worked 700 hours or

more in a year, he is entitled to vacation pay, holi-

day pay, and welfare benefits. In every year since

1956 more blacks than whites have been assigned

over 700 hours of.work per year.

Respondent, Alton J. Bailey, is a black longshoreman

and a member of Local 1830. Bailey brought suit in the

Urited States District Court for the Middle District of

Louisiana against petitioners (the two locals) and cer-

tain of the stevedoring companies which make up the

employer associations, alleging, inter alia, that the so-

called “50%-50% rule” violates Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e.* As relief, Bailey

2 Defendants’ Exhibit E-5, Article 1, Section F, page 4.

3 Bailey’s complaint did not actually allege the existence of a

“50%-50% rule.” Rather, it alleged that the defendants “allocate

approximately” 50% of the available jobs to the members of each

local. The complaint further alleged that Local 1830 has approxi-

mately twice as many members as Local 1833, and therefore that

6

sought, inter alia, an order directing the merger of the

two locals.

In addition to his individual action, Bailey sought to

represent a class of “other persons similarly situated.”

At the time the lawsuit was initiated Local 1830 had

approximately 230 members. A petition of 204 of these

members in opposition to certification of a class was pre-

sented to the district court. In pertinent part, the peti-

tion stated as follows (App. 13a-14a, emphasis added) :

We understand . . . Bailey claim[s] to represent

all black persons employed as longshoremen on the

Port Allen docks since 1965 and all black persons

who are members of Local 1830.

We understand [he is] seeking to join our black

Local 1830 and the white Local together.

We state .. . Bailey [does] not represent us as a

class in [his] effort to integrate the unions. Jf the

unions are integrated, we will lose (1) our right to

equal jobs with the whites, (2) our right to elect our

own officers and grievance committees, and (3) our

rights to our own meetings and a chance to hold

office and act for the black longshoremen to protect

their interest.

By maintaining our separate strength and not

having it diluted by joining with the white Local we

have been able to obtain the same wages, the same

number of jobs and equal working conditions, includ-

ing foremen and other jobs in the Port... ..

members of the latter local have “twice as great an opportunity

to secure employment.” There is no evidence in the record of any

hard and fast “50%-50% rule.” To the contrary, the collective

bargaining agreement, quoted in text, supra, calls only for “equita-

ble distribution of work.” And the district court did not find there

to be such a “50%-50% rule.” Rather, the district court found that

in practice, the memberships of the two locals having been virtually

equal for years (contrary to Bailey’s allegation), jobs were allo-

cated on “close to a 50-50 basis.” App. 34a.

7

We do not want .. . Bailey to act for us as

class in this suit and we do not want our Local

Union destroyed. We understand that if any of us

want to we have the right to join the white union

or stay a member of the black union now.

Based largely on this petition, the district court re-

fused to certify the case as a class action App. 33a,

38a-39a. On the merits, the district court, after a trial,

found, inter alia, as follows (App. 33a-34a, 35a, para-

graph numbers omitted) :

There is not one bit of evidence in this record to

support plaintiff’s claim that the defendants [i.e.

the locals and the stevedoring companies] have dis-

criminated against the plaintiff or any other black

longshoreman with regard to compensation, terms,

conditions or privileges of employment, ... .

There is no credible evidence to support the con-

tention that the defendants have in any way discrimi-

nated against blacks in either the volume or the

nature of the work assigned to longshoremen at the

Port of Baton Rouge.

Finding that Bailey had not suffered from any dis-

crimination at the hands of the defendants, the district

court entered judgm at in favor of defendants, dismiss-

ing Bailey’s suit in its entirety.

On appeal, the Fifth Circuit affirmed the district

court’s refusal to treat the case as a class action, stating

that “[i]t appears . . . that the views of a majority of

the black longshoremen are antagonistic with those of

the appellant, the would-be standard bearer for the pro-

posed class.” App. 14a. On the merits, the court of

appeals sustained the district court’s findings that Bailey

had not personally suffered from any racial discrimina-

tion by the defendants and that there had been no dis-

crimination “against blacks in either the volume or the

nature of work assigned to longshoremen at the Port of

8

Baton Rouge.” App. 18a. The Fifth Circuit stated flatly

that Bailey “did not prove that the 50%-50% rule

actually deprived blacks of employment opportunities.”

App. 18a, n.8.

Nevertheless, the court of appeals reversed, finding that

the “50%-50% practice” violates § 703(c) (2) of Title

VII, 42 U.S.C. § 2000e-2(c) (2). The court explained

the nature of this violation as follows (App. 23a, em-

phasis added): “Because of the inevitable fluctuation in

union membership, there is a real possibility for discrimi-

natory treatment.” See also App. 17a, n.6 (emphasis in

original): “* * * Although the reality of discriminatory

treatment was not proven in this case, the threat or po-

tential is obvious and is violative of 42 U.S.C. § 2000e-

2(c) (2).”

On the basis of this “potential” effect of the “50%-

50% rule,” the Fifth Circuit directed the very relief that

had been opposed by the overwhelming majority of black

longshoremen—which opposition had caused denial of

class action status: merger of Locals 1830 and 1833.‘

Thus, the court stated (App. 24a):

We conclude that the district court erred when it

refused to grant appellant’s motion for permanent

injunction against the continued operation of segre-

gated locals. The 50%-50% hiring practice repre-

sents a threat of employment discrimination and

thus violates 42 U.S.C. § 2000e-2(c) (2), which makes

an employment practice unlawful if it “would de-

prive or tend to deprive” an individual of employ-

ment opportunities.

Thereafter, petitioners unsuccessfully sought rehearing

or rehearing en banc in the Fifth Circuit, Judge Clark

dissenting from the denial of the latter. App. 25a. This

Court denied their petition for a writ of certiorari. 429

U.S. 1052.

4The Fifth Circuit determined that Bailey was not entitled to

recover any backpay because he had suffered no injury.

9

On remand, however, the district court ruled that this

Court’s intervening decision in Hast Texas Motor Freight

System, Inc. v. Rodriguez, 481 U.S. 395 (1977), com-

pelled it to deviate from the mandate of the court of

appeals. The district court stated (App. lla):

In the present case, it was determined by both this

Court and the Court of Appeals that the plaintiff

had suffered no racial discrimination at the hands of

any of the defendants, and it was likewise deter-

mined by both Courts that no member of the alleged

class had been discriminated against by these de-

fendants. Both Courts concluded that the plaintiff

was not the representative of a class, and thus, as in

the East Texas Motor Freight case, he is hardly “in

a position to mount a class-wide attack on...” the

defendants in this case.

yw 6 _ x

[Ijn light of the most recent case law from the

Supreme Court, it would be illegal and unjust to

compel the merger of the two unions under the cir-

cumstances of this case.

Accordingly, the district court again dismissed Bailey’s

suit, App. lla. On appeal, the Fifth Circuit reversed,

holding that Rodriguez required no change in its earlier

decision (App. 3a):

In this Court’s prior opinion, it was found that the

continuous fluctuation in the membership of each

segregated local union and the 50%-50% hiring rule

represented a real threat of discriminatory treat-

ment. 528 F.2d at 554 n. 6, 557. Since plaintiff

Bailey presently suffers from this threat of discrimi-

natory treatment, he has the requisite standing to

assert a violation of his statutory rights under Title

VII. Thus, Kast Texas Motcr Freight System, Inc.

v. Rodriguez is inapplicable and plaintiff Bailey was

and is entitled to a permanent injunction merging

the two segregated local unions into one integrated

local union,

10

REASONS FOR GRANTING THE WRIT

Plaintiff Bailey was denied the status of class repre-

sentative because nearly 90% of the class he claimed to

represent—204 out of approximately 230 black members

of Local 18833—opposed the relief he sought, a merger

of Locals 1830 and 1833. In explaining their opposition

in a “voluntary petition” (App. 18a) fed with the Dis-

trict Court they stated, in part: “If the unions are in-

tegrated, we will lose . . . our right to equal jobs with

the whites,” and they explained that by “maintaining

our separate strength, . . . we have been able to obtain

the same wages, the same number of jobs and equal

working conditions, including foremen and other jobs in

the Port”, whereas if the unions were merged, “a few

dissatisfied black men can join with the white men and

deprive the vast majority of black workers of their jobs

and working conditions.” (P. 6, supra).

Nevertheless, the court below commanded that “our

Local Union [be] destroyed” (p. 7, supra)—the precise

result which they sought to avoid. The court did so not

because it determined that the existence of the separate

locals was per se illegal—an issue which was expressly

reserved (App. 24a), and which would raise entirely

different substantive and remedial issues than are pre-

sented by this Petition.’ Rather, it did so in order to

remedy what it determined to be a violation of § 703

(ec) (2) of the 1964 Civil Rights Act in that “the long-

shoremen were hired according to [a] 50%-50% rule”,

that is, an allocation of jobs between the locals on a

50/50 basis. According to the court below, “Because of

the inevitable fluctuation in union membership, there is a

real possibility for discriminatory treatment.” (App. 24a;

5 It bears emphasis in this connection that the petitioning black

members of Local 1833 understood “that if any of us want to we

have the right to join the white union or stay a member of the

black union now.” See 7, supra.

il

see also p. 8, supra, quoting App. 23a and 17a, n.6).

The Court of Appeals took this drastic step although it

approved the finding of the District Court that as a

matter of eight years’ actual experience the black mem-

bers of Local 1830 had enjoyed equal employment oppor-

tunity (pp. 7-8, supra), and although it merely perceived,

but had no evidence, that future fluctuation in the rela-

tive size of the two locals was “inevitable”. And, the

Court of Appeals took this step although there were

means of relief available which would fully protect

against the “threat” the court perceived without requir-

ing the merger that 90% of the affected black employees

opposed. See pp. 14-15, infra.

In thus overriding the thoughtfully expressed desires

of the vast majority of the black members affected (as

well as hose of the white members of Local 1833, the

other petitioner here), the court below may well have

unwittingly deefated, rather than promoted, the principal

objective of Title VII. How matters will turn out if the

decision below stands, only the future can tell. But it

can be stated with assurance now that review should be

granted because the decision beiow conflicts with the de-

cisions of this Court in at least two critical respects:

1) The court disregarded the “basic principles of

equity” (Teamsters v. United States, 431 U.S. 324, 374)

which, under this Court’s precedents, circumscribe the

power of a court in fashioning an equitable decree under

federal statutes, including Title VII of the 1964 Civil

Rights Act.

2) The Court failed to heed what this Court has de-

termined to be the proper “division of functions between

the federal trial courts and the federal appellate courts”

in the formulation of equitable decrees, although observ-

ance of the courts’ proper roles “is important in every

12

case”, see Dayton Board of Education v. Brinkman, 483

U.S. 406, 410.°

1(a). The duty of the courts in formulating equitable

relief for violations of federal statutes is well established:

As Mr. Justice Harlan wrote in Mills v. Electric Auto-

Lite, Inc., 896 U.S. 375 at 386:

In selecting a remedy the lower courts should exer-

cise “ ‘the sound discretion which guides the deter-

minations of courts of equity,’”’ keeping in mind the

role of equity as “the instrument for nice adjust-

ment and reconciliation between the public interest

and private needs as well as between competing pri-

vate claims.” Hecht Co. v. Bowles, 321 U.S. 321,

329-330, (1944), quoting from Meredith v. Winter

Haven, 320 U.S. 228, 235 (1943).

This fundamental principle has governed the exercise

of the Court’s equitable powers in remedying violations of

6 We disagree with the Court of Appeals’ determination that de-

fendants have violated § 703(c) (2). The correctness of that rul-

ing, which is necessary, but by no means sufficient to sustain its

judgment, is encompassed within the Question Presented by this

Petition. However, because the petitioners’ overriding concern is

with the preservation of their local unions, and because the Court

of Appeals’ departure from precedent in formulating the decree

so plainly justifies review by this Court, we have not put forward

the Court’s interpretation of § 703(c) (2) as an independent reason

for granting the Writ. This is not to suggest that the Court’s

interpretation of §703(c) (2) does not raise an important issue:

In that Court’s view a practice may “tend to deprive any individual

of employment opportunities,” despite a lengthy operation of the

practice without any adverse employment effects on the plaintiff

or any other protected individual, solely on the basis of the Court’s

unsupported speculation as to what may happen in the future. We

are unaware of any other case under § 703(c) (2), or its counterpart

§ 703(a) (2), which reads this statutory phrase so broadly. Indeed,

if the Court of Appeals’ reading of that provision in this case were

correct, there are few if any forms of classification of employees

which would be lawful.

13

Title VII of the 1964 Civil Rights Act. In Teamsters Vv.

United States, 431 U.S. 324, 374-375, this Court held:

[T]he extent to which the legitimate expectations

of nonvictim employees should determine when vic-

tims are restored to their rightful place is limited by

basic principles of equity. In devising and imple

menting remedies under Title VII, no less than in

formulating any equitable decree, a court must draw

on the “qualities of mercy and practically [that]

have made equity the instrument for nice adjustment

and reconciliation between the public interest and

private needs as well as between competing private

claims.” Hecht Co. v. Bowles, 321 U.S. 321, 329-330.

Cf. Phelps Dodge Corp. v. NLRB, 313 U.S., at 195-

196, modifying 113 F.2d 202 (CA 2); 19 N.L.R.B.

547, 600; Franks, [v. Bowden Transportation Co.]

424 U.S., [747] at 798-799 (Powell, J., concurring

in part and dissenting in part). Especially when

immediate implementation of an equitable remedy

threatens to impinge upon the expectations of inno-

cent parties, the courts must “look to the practical

realities and necessities inescapably involved in recon-

ciling competing interests,” in order to determine the

“special blend of what is necessary, what is fair, and

what is workable.” Lemon v. Kurtzman, 411 US.

192, 200-201 (opinion of Burger, C.J.).

These limitations on the exercise of equitable discretion

in formulating remedies under Title VII have also been

recognized in Albemarle Paper Co. v. Moody, (hereafter

“ Albemarle’), 422 U.S. 405, 415-16; Franks v. Bowman

Transportation Co., (hereafter “Franks’’), 424 U.S. 747,

777-78, text and note at n.389; and Los Angeles Dept. of

Water & Power v. Manhart, (hereafter “Manhart’”’), 435

U.S. 702, 719.

This Court has not only enunciated these precepts; it

has implemented them. In Teamsters, the Court deter-

mined that an “equitable balance * * * should be struck

between the statutory rights of victims and the contrac-

14

tual rights of nonvictim employees.” (431 U.S. at 376).

And while Albemarle emphatically declared that the poli-

cies of Title VII ordinarily require that the victims of

discrimination who have suffered economic injury be

made whole by an award of backpay, it left open the

possibility that such relief would be denied in that very

case if the defendant could show prejudice by the plain-

tiffs’ initial disclaimer of such relief. (See id. at 423-

425). In Manhunt this Court “[w]ithout qualifying the

force of the Albemarle presumption in favor of retro-

active relief . . . conclude[d] that it was error to grant

such relief in this case.” (435 U.S. at 723). The Court

held that “the presumption” was overcome by the serious

adverse impact which such liability would have on pension

funds. (See id. at 719-723.)

(b) In sharp contrast to this Court’s precepts and

practice, the Court of Appeals directed a merger of the

two locals without regard to the countervailing equitable

considerations which were so forcefully called to its at-

tention by the 204 black members’ “voluntary petition”

(App. 18a). Even as a matter of elementary logic the

violation of § 703(c) (2) which the Court of Appeals

found could be remedied by an order other than the

merger of the locals. That violation was said to consist

of “the 50%-50% hiring practice” which created the

“notential” or “threat” of future discrimination. See p.

8, supra. Since that practice consisted of the conjunction

of separate black and white locals and the existence of a

50%-50% “rule” allocating jobs between those locals, that

“threat” could be removed, and the violation remedied,

by either the merger of the locals or eliminating the 50%-

50% “rule”. Yet for aught that appears from its opinion

the Court of Appeals did not even consider the latter

alternative, which could have been given practical effect

in a decree which the District Court should have been

directed to formulate on remand once the Court of Ap-

peals had determined that there was a violation. The

15

Court of Appeals did not find that any relief other

than merger would be futile, nor could it have done so;

indeed, the collective bargaining agreement between the

parties provided for just the contingency contemplated

by that court; it contains a clause to allow the employers

the flexibility to compensate for any substantial fluctua-

tion in the relative membership of the locals (see pp.

4-5, supra) ."

The Court of Appeals’ disregard of this Court’s teach-

ings is particularly unjustifiable—and the need for re-

view by this Court all the greater—for two reasons. First,

unlike the situation in Albemarle, Franks, Teamsters and

Manhart, the court below had before it no victims of past

discrimination whose interest in obtaining full relief was

entitled to strong consideration in formulating a remedy.

Thus, the element which weighed heavily in favor of

broad relief there is entirely absent here.

Second, the Court of Appeals’ decision requires these

200-odd innocent employees (as well as the white mem-

bers of Local 1830) to sacrifice additional valued rights

which have statutory and, we submit, even constitutional

basis. The decision below directly overrides these em-

ployees’ “right to self-organization, to form, join, or assist

labor organizations, to bargain collectively through repre-

sentatives of their own choosing” vouchsafed by § 7 of the

National Labor Relations Act, 29 U.S.C., § 157. As stated

in Labor Board v. Jones & Laughlin Steel Corp., 301 US.

1, 38: “That is a fundamental right.” It is at the very

core of the rights granted by the NLRA and to say the

least is not to be overridden in the absence of a clear

showing that the objectives of Title VII cannot be effec-

7For example, the hiring formula could have been changed

from “50%-50%” to a ratio dependent upon the relative sizes of

the two memberships at any given time. Even this assumes that

the Court could appropriately direct relief which extended beyond

the individual plaintiff Bailey; but see pp. 16-17, n. 9, infra.

16

tuated by some other means. Cf. California Brewers

Assn. V. Bryant, 444 U.S. 598, 609.* Particularly in-

structive in this connection is the Manhart decision, where

the Court in denying retroactive backpay took heed that

in enacting ERISA, “Congress underlined the importance

of making only gradual and prospective changes in the

rules that govern pension plans.” (435 U.S. at 721, n. 40.)

The black members’ interest in forming and preserving

their own union to further their economic and other

interests is, as this Court repeatedly held, also protected

by the First Amendment. See e.g. Thomas v. Collins, 323

U.S. 516; Trainmen v. Virginia, 377 U.S. 1; Mine Work-

ers V. Illinois Bar Assn., 389 U.S. 217; Smith v. Arkansas

State Highway Employees, 441 U.S. 463. And while we

by no means contend that Congress could not outlaw

racially separate locals if necessary to promote equal

employment opportunity, that is not this case. And, as

U.S. v. Robel, 389 U.S. 258, 268, teaches, even when

legislative concerns regarding national security “are ex-

pressed in a statute which imposes a substantial burden

on protected First Amendment activities, Congress must

achieve its goal by means which have a ‘less drastic’ im-

pact on the continued vitality of First Amendment free-

doms.” Yet the Court of Appeals, though admonished, as

a court of equity, to formulate a decree which will provide

a “nice adjustment and reconciliation between the public

interest and private needs as well as between competing

private claims” (see p. 13, supra) has in this case chosen

to implement § 703(c) (2) by the most drastic means.*

8 As to the black members’ right to elect their own officers, hold

their own meetings, and to hold office, see also generally the Labor

Management Report and Disclosure Act of 1959, 29 U.S.C., § 401

et seq. and particularly Title IV thereof.

® The Court of Appeals’ decree is overbroad in a further, sig-

nificant respect, in that it unnecessarily goes far beyond protecting

the employment opportunities of the individual plaintiff Bailey.

While the Court correctly ruled that Bailey as a member of Local

17

1830 had standing to challenge the “50%-50% hiring practice”, the

scope of its decree is inconsistent with the spirit if not the letter

of East Texas Motor Freight Co. v. Rodriguez, 431 U.S. 395. For

what would be the point of insisting on “careful attention to” the

requirements of Rule 23(a) of the F.R. Civ. P. (id. at 405) if

the courts were free to enter an order which adversely affects the

very persons whom the plaintiff is disqualified from representing

because they oppose the relief which he seeks? The Fourth Circuit,

in Nance v. Union Carbide Corp., Consumer Prods. Div., 540 F.2d

718, 722-723 (4 Cir.), recognized that classwide relief, where it is

not necessary to remedy the plaintiff’s individual claim, is inap-

propriate in Title VII actions where the requirements of Rule 23

are not met. And the Ninth Circuit has expressly left open the

question whether a plaintiff in an action under Title VII might

obtain relief benefitting nonparties and broader than that neces-

sary to protect his own individual interests (see Price v. Lucky

Stores, Iuc., 501 F.2d 1177, 1179 (9 Cir. 1974). But other lower

courts have swept away those requirements and imposed unneces-

sarily broad injunetions with classwide impact despite non-

compliance with Rule 23. As the Tenth Circuit rationalized, in

Barela v. United Nuclear Corporation, 462 F.2d 149, 154 (10th

Cir.) :

... Rule 28 is not the best possible vehicle for the kind of

relief which we now consider; its technical prerequisites are

therefore often used as a shield whereby its efficacy as a sword

is undermined. Many of the cases have suggested that the indi-

vidual plaintiff seeking an injunction against a pervasive

practice assumes the role of a private attorney general attempt-

ing to carry out the objectives of an act which is strongly

affected by a public interest.

2 * * om

A vast number of cases in addition to those cited above...

emphasize that in the civil rights injunction case the court has

the authority, Rule 23 notwithstanding, to fashion an injunc-

tive remedy designed to uproot the policy or practice for the

protection of the other employees.

See also, eg., Peltier v. City of Fargo, 533 F.2d 374, 379-380 (8th

Cir.) ; Tipler v. E. I. du Pont de Nemours & Co., 443 F.2d 125, 130

(6th Cir.), Taylor v. Jones, —— F.Supp. ——, 23 FEP Cases 1274,

1279-1282 (E.D. Ark.); William v. Boorstin, 451 F.Supp. 1117,

1126-1127 (D. D.C.), reversed on other grounds, —— F.2d ——

(D.C. Cir. Oct. 8, 1980) ; Saracint v. Missouri Pacific Railroad Co.,

431 F.Supp. 389, 395-396 (W.D. Ark.).

18

2. The Courts of Appeals’ disregard of fundamental

equitable principles established by this Court would alone

fully justify review of its decision. But review is appropri-

ate for the additional reason that that court contravened

the precedents of this Court by itself directing a merger

of the local unions without first remanding the case to

enable the District Court to formulate the appropriate

remedy for the violation of § 703(c) (2) which the Court

of Appeals had found.

As this Court said in Dayton Board of Education v.

Brinkman, 433 U.S. 406, 409: “While we would by no

means discount the importance of [the substantive] as-

pect of the case, we think that the case is every bit as

important for the issues it raises as to the proper alloca-

tion of functions between the district courts and the

courts of appeals within the federal judicial system”. See

also id. at 410. That allocation of functions imposes upon

the district courts, rather than the courts of appeals,

the initial duty to formulate the appropriate equitable

remedy for a violation of law, including violations of

Title VII. The statutory “scheme implicitly recognizes

that there may be cases calling for one remedy but not

another, and—owing to the structure of the federal ju-

diciary—these choices are, of course, left in the first in-

stance to the district courts.” Albemarle Co., supra, (422

U.S. at 416), quoted with approval in Franks, supra,

424 U.S. at 779. And in Teamsters, supra, where, as we

have seen, this Court held that an “equitable balance...

should be struck between the statutory rights of victims

and the contractual rights of nonvictim employees”, it

was held also that that “determination is best left, in

the first instance, to the sound equitable discretion of the

trial court.” (431 U.S. at 376), following Franks and

Albemarle. See also Dayton, supra, 433 U.S. at 420."°

10 As Albemarle also made clear, the District Court’s exercise

of its equitable discretion is subject to appellate review under the

19

The Court of Appeals was even more needful of the

trial court’s “keener appreciation of those facts and cir-

cumstances peculiar to particular cases” here than in

the more familiar situations where the violation consists

of proven past discrimination or other deprivation of

right which calls for a “make-whole”’ remedy. In such

cases, the record on which a court of appeals bases its

determination that there has been a violation may be

sufficient to enable it to prescribe the appropriate remedy

without further consideration by the district court.” But

where, as here, there is no such history, and the sole

basis for providing injunctive relief is a determination

that there is an illegal “threat” of future adverse effects

upon black employees, a court is wholly unwarranted in

assuming that there is but one way in which that po-

tential can be avoided and the violation remedied.”

“familiar” [standard] of whether the District Court was ‘clearly

erroneous’ in its factual findings and whether it ‘abused’ its tra-

ditional discretion to locate ‘a just result’ in light of the circum-

stances peculiar to the case. (422 U.S. at 424; see also id. at 416).

11 Albemarle, 422 U.S. at 421-422, more fully quoted in the

succeeding footnote. See also, e.g., Mayor v. Educational Equality

League, 415 U.S. 605, 621, reaffirming “the salutary principle

that great weight should be acocrded findings of fact made by

district courts in cases turning on peculiarly local conditions and

circumstances.”

12 As the Court said Albemarle: “The courts of appeals must

maintain a consistent and principled application of the backpay

provision, consonant with the twin statutory objectives, while at

the same time recognizing that the trial court will often have the

keeper appreciation of those facts and circumstances peculiar to

particular cases.” (422 U.S. at 421-422). As we have seen, the

Albemarle case was remanded to the district court for deter-

mining whether there was an equitable ground, not offensive to

Title VII, for denying backpay.

18 Here, the complicated hiring process on the Baton Rouge

docks, as well as the organizational problems inherent in the merger

of two local unions were additional matters bearing on the alterna-

20

Thus, once the Court of Appeals had determined that

there was a violation of § 708(c) (2), a proper regard for

its own institutional limitations should have caused that

court to remand the case to the District Court for the

formulation of a remedy even if the opposition of the

black members had not made clear that countervailing

equities required careful consideration before a merger

of the unions was directed.

CONCLUSION

For the foregoing reasons this Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

C. PAUL BARKER

BARKER, BOUDREAUX, LAMY,

GARDNER and FOLEY

1400 Richards Building

837 Gravier Street

New Orleans, Louisiana 70112

GEORGE KAUFMANN

(Counsel of record)

2101 L Street, N.W.

10th Floor

Washington, D.C. 20037

(202) 296-1294

Attorneys for Petitioners

tives to merger and the potential disadvantages thereof which

would have provided additional guidance as to what relief would be

equitable. Cf. Teamsters, supra, 431 U.S. at 376, n.62:

Other factors, such as the number of victims, the number

of nonvictim employees affected and the alternative available

to them, and the economic circumstances of the industry may

also be relevant in the exercise of the District Court’s dis-

cretion.