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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 450 U.S. 964

## Text

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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PN MOE ovicincsndnsnccersisarcacaeasastndiap temiensninain 1
FT eI | ackchopeincininssconntseninusiindssbsakeeckensesinnaniabedee
STATUTORY PROVISIONS INVOLVED ..................
STATI CO Taare Ce vnc canisters ccc
REASONS FOR GRANTING THE WRIT ................ 10

CITRON tinicicsnsscettncsennistninenabhonesienbinonscitpesibhameateins 20

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0584%3A1. Public record. Not legal advice.