# Petition — AAA Trucking Corp. v. Green > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0746%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 1035 ## Text — In THE Supreme Court of the United States Octroser TERM, 1980 AAA TRUCKING CORPORATION and EUGENE C. BONACCI, Petitioners, VS. LEROY GREEN and DIRECTOR OF THE DIVISION ON CIVIL RIGHTS, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION HeErBert BurstTEeIN of the New York Bar Counsel for Petitioners One World Trade Center Suite 2373 New York, New York 10048 (212) 432-0940 Russo, Tumuutty & NesTER 921 Bergen Avenue Jersey City, N.J. 07306 (201) 653-2090 HERBERT BURSTEIN of the New York Bar Attorneys for Petitioners Adams Press Corp., 5 Commerce Street, Newark, N. J. 07102—(201) 623-8611 Questions Presented 1. Whether there is a federal labor law which estab- lishes standards binding upon State courts in the deter- mination of cases involving alleged violations of State laws against discrimination in employment so that con- flicts with federal law may be avoided and rights granted to employers by Congress may not be frustrated. 2. Whether the New Jersey Law Against Discrimination (“Act”) [N.J.S.A. 10:5-1 et seq], as interpreted by the New Jersey courts, imposes such onerous, harassing and conflicting conditions on an interstate carrier’s right to discharge or discipline an employee as to hamper it in the conduct of its interstate trucking business. 3. Whether a charge of a discriminatory discharge may be purged by an offer of reinstatement, reserving to the employee and the employer the right of recourse to later arbitration under a collective bargaining agreement. Parties to the Proceeding Petitioners-A ppellants AAA Trucking Corporation and Eugene C. Bonacci The Respondents-A ppeliees Leroy Green and the Director of the Division on Civil Rights of New Jersey [i] TABLE OF CONTENTS QUESTIONS PRESENTED «...------o-oscesseseneoesstmessnnsensneenetesamenns PARTIES TO THE PROCEEDING .«..-------c+eseceeeee=+ Peper pene WS STATEMENT OF JURISDICTION .........----- LR TT RTS STATUTE INVOLVED ....cccsescoceese------ STATEMENT OF THE CASE .....---.-.—------ REASONS FOR GRANTING THE WRIT .......---------cccceeeeeeeeeeeees CoNnCLUSION APPENDIX: A—Opinion of the Superior Court of New Jer- sey, Appellate Division .............--------s-s-s-ss-s00 B—Order of the Supreme Court of New Jersey Denying Petition for Certification .................. C—N.J.S.A. 10:5-1 and 10:5-12a. .................---.-0+ Cases Cited Alexander v. Gardner-Denver eee 415 U.S. 36 CNTR) carn nnnnnnsnsnnnnnnnsecnsenenncereroonree ae Bradford v. Sloan Paper Co., 383 F. Supp. 1157 (ND. Ala. 1974) -....-.-.-.csceccscecescscescssosesessncnsssssencensneensneee Furneco v. Waters, 438 U. S. 567 (1978) .....-.----.-------0+ Hampton v. Mon Sun Wong, 426 U.S. 88 $7) aoe la 20a li TABLE OF CONTENTS PAGE International Brotherhood of Teamsters v. United Pare, SE, Fe. BERR. CR 6 Pin siccienscinsensecesecocinbanicieniion 7 Kunda v. Muhlenberg College, 621 F. 2d 532 (8d Cir. UI, hetsnsnbellls-ccnacessictieneenstalienichudinadhcesetatiactiasiitaanaibsbabasdiaatasies 8 Local 174 Teamsters v. Lucas Flour Co., 369 U. S. BP NT acti ctincanacersaicecinssutcbstlahibiabauntanenitidanaiaddantendasadiacen 6 McDonald v. Sante Fe Trail Transportation Co., 427 i Rt Fk. | PRGA Tenceeoe morn deieiieaidninomeans 7 McDonnell-Douglas Corp. v. Green, 411 U. S. 792 EE ios sic i ialessehda toa losdvencnlconbabidacaneibdabida tbeasnaseaenikatadaiiadle bce 9) Pearson v. Borden Metal Products Company, 434 F. RR Ce Eis. MAM TCE) cicniiceersseteiecicsebpsiniictiiscces 9 Peper v. Princeton University Board of Trustees, A rs He I bncccteaieescecesennie ; 7 The Colorado Anti-Discrimination Commission v. Continental Air Lines, Inc., 372 U. S. 714 (1963) 6, 10 Textile Workers Union vy. Lincoln Mills, 353 U. S. Oe SED. paca tiveniasatcsendaunthe eiddadecduatecincasdanabtdae as 6 United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593 (1960) 2.2... .eecseceeeeee 6 United Steelworkers of America v. Warrior and Gulf Navigation Co., 363 U. S. 574 (1960)... Worthy v. U. S. Steel Corp., 616 F. 2d 698 (1980) .... ~] United States Constitution Cited eek ee TABLE OF CONTENTS iii PAGE Statutes Cited N.J.S.A. 10:5-1 (New Jersey Law Against Discrimi- nation Act) ............- i, 2, 10 ee Se eon , REG aaa 2 28 U.S.C.: See. 1257(3) e ; peerene- av ae 2 42 U.S.C. (Cvil Rights Act of 1964, Title VII): ee ghh NE Ne ea OPO leet eRe 5-7, 10 No. IN THE Supreme Court of the United States October Term, 1980 i, — AAA TRUCKING CORPORATION and EUGENE C. BONACCI, Petitioners, VS. LEROY GREEN and DIRECTOR OF THE DIVISION ON CIVIL RIGHTS, Respondents. . PETITION FOR A WRIT OF CERTIORARI TO THE SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION Statement of Jurisdiction On July 14, 1979, the New Jersey Division on Human Rights entered an order which found that the petitioners- appellants (“petitioners”) violated the Act by discharging a black employee and had engaged in a pattern and prac- tice of discrimination (A 2a). An appeal from this order was taken to the Superior Court of New Jersey, Appellate Division which, on February 28, 1980, affirmed so much thereof as determined that the discharge of the Respond- ent-Appellee Leroy Green (“Green”) was unlawful and re- versed and remanded to the Division of Human Rights of New Jersey that part which found a pattern and prac- tice of discrimination (A la-19a). selected relevant labor pool had special factors which influenced the statistics. The Court said: In that case, [International Brotherhood of Team- sters v. United States], we stated that it is the Government’s burden to “establish by a preponder- ance of the evidence that racial discrimination was 1 SMSA is the acronym for Standard Metropolitan Statistical Area. The Bureau of the Census of the United States Department of Com- merce determines each such area. 17a Appendia A the [employer’s] standard operating procedure—the regular rather than the unusual practice.” Id., at 336, 52 L. Ed. 2d 396. We also noted that statistics can be an important source of proof in employment discrimination cases, since “absent explanation, it is ordinarily to be ex- pected that nondiscriminatory hiring practices will in time result in a work force more or less representative of the racial and ethnic composi- tion of the population in the community from which employees are hired. Evidence of long-last- ing and gross disparity between the composition of a work force and that of the general popula- tion thus may be significant even though §703(j) makes clear that Title VII imposes no require- ment that a work force mirror the general popu- lation.” Id., at 340 n 20, 52 L. Ed. 2d 396. See also Arlington Heights v. Metropolitan Housing Dev. Corp. 429 U.S. 252, 266, 50 L. Ed. 2d 450, 97 S. Ct. 55; Washington v. Davis, 426 U.S. 229, 241- 242, 48 L. Ed. 2d 597, 96 S. Ct. 2040. Where gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern of practice of discrimination. Teamsters, supra, at 339, 52 L. Ed. 2d 396, 97 S. Ct. 1893. [433 U.S. at 307-308, 57 L. Ed. at 777]. We note that Justice Stewart said in footnote 13 to the majority opinion that in the case of truck drivers com- parison to general population statistics may well be appro- priate because the skill involved is one that many possess and that others could easily acquire. 18a Appendix A Respondents further urge that areas outside of New Jersey as well as portions of the State other than those in the Trenton SMSA and Newark SMSA should be included in determining the relevant labor pool. The former should alegedly be included because geographically they are close to Trenton. The latter should allegedly be added because AAA advertised for applicants. Our review of the record does not show that the Divi- sion explained why the data from the Trenton SMSA es- tablished the “relevant labor pool” for the Trenton ter- minal and why the data from the Newark SMSA estab- lished the “relevant labor pool” for the Pine Brook ter- minal. Here there was no showing that the terminals would most likely draw the drivers and other personnel from the Trenton SMSA and the Newark SMSA. See United States v. Ironworkers Local 86, 443 F. 2d 544, 551 n. 19 (9th Cir. 1971), cited in Teamsters v. United States, 431 U.S. 324, 340, 97 S. Ct. 1848, 52 L. Ed. 396, 418 n. 20 (1977). Nor, was there a showing of the relevant com- munity from which employees were hired in fact. In Ironworkers, swpra, 443 F. 2d at 551 n. 19, the Court of Appeals noted that the union’s hiring hall and appren- tice training facilities were in the City of Seattle and therefore the District Court could properly compare the minorities in union membership to the census data fro the City of Seattle. Although the hearing examiner re- ferred to that case, he made no findings to establish the foundation for the relevancy of the data. Instead, he ruled that the defendants had failed to refute it and thereby im- properly applied the initial burden of proof and therefore we reverse the determination on this issue. 19a Appendix A Accordingly, we do not pass upon other issues tendered for the reversal of the order in favor of the Division. We affirm the order in favor of Green. We vacate the order in favor of the Division and remand for further proceedings to determine whether AAA did discriminate in their hiring practices and if so what are appropriate remedies. We do not retain jurisdiction. A True Copy EvizABETH McLAvuGHLIN Clerk 20a APPENDIX B Order of the Supreme Court of New Jersey Denying Petition for Certification SuPREME Court oF NEw JERSEY C-815 SepremMBer Term 1979 in a LEROY GREEN, et al., Complainants-Respondents, Vv. AAA TRUCKING CORPORATION, e¢ al., Respondents-Petitioners. ¢ To the Appellate Division, Superior Court: A petition for certification of the judgment in A-5084-77 having been submitted to this Court, and the Court having considered the same; It is OrpErEp that the petition for certification is denied with costs. Witness, the Honorable Robert N. Wilentz, Chief Jus- tice, at Trenton, this 8th day of July, 1980. STEPHEN W. TownsEND Clerk Filed STEPHEN W. TowNsEND Clerk Jul ilu 1980 2la APPENDIX C Relevant Statute [N.J.S.A.] 10:5-1. Short title This act shall be known as “Law Against Discrimination.” 10:5-12. Unlawful employment practice or unlawful discrimination It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination: a. For an employer, because of the race, creed, color, national origin, ancestry, age, marital status, or sex of any individual, or because of the liability for service in the Armed Forces of the United States, of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment; provided, however, it shall not be an unlawful employment practice to refuse to accept for employment an applicant who has received a notice of induction or orders to report for active duty in the armed forces; provided further that nothing herein contained shall be construed to bar an employer from refusing to ac- cept for employment any person on the basis of sex in those certain circumstances where sex is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business or enterprise. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0746%3A1. 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