Petition — Local 1576, International Longshoremen's Ass'n v. Equal Employment Opportunity Commission

Supreme Court brief1981

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80-1147 |

* RODAK, JR., CLERK

IN THE :

Supreme Court of the United States

OCTOBER TERM, 1980

LOCAL 1576,

INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, AFL-CIO,

Petitioner,

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JULIA PENNY CLARK

(Counsel of record)

ROBERT M. WEINBERG

MICHAEL H. GOTTESMAN

BREDHOFF, GOTTESMAN,

COHEN, CHANIN,

WEINBERG & PETRAMALO

1000 Connecticut Avenue, N.W.

Washington, D.C. 20036

Attorneys for Petitioner

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

a a

QUESTIONS PRESENTED

1. Whether a federal court can abolish a seniority

system that was not found to have been established or

maintained as a result of discriminatory intent, in order

to remedy a violation of Title VII of the Civil Rights

Act of 1964, which could be completely remedied without

changing the seniority system in any respect.

2. Whether, consistent with the national labor policy

as expressed in the National Labor Relations Act and

the Landrum-Griffin Act, and consistent with the prin-

ciple of Milliken v. Bradley, a federal court can abolish

an autonomous local union that is the chosen bargaining

representative of employees in a proper single-employer

bargaining unit, and also abolish the bargaining unit,

by ordering merger with other local unions in a different

multi-employer bargaining unit, in order to remedy a

violation of Title VII of the Civil Rights Act of 1964

that was committed by the other local unions.

8. Whether a federal court cam order major changes

in the business operations of an employer, in a way that

jeopardizes his continuing business, in order to remedy

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

where such changes are not necessary to provide a com-

plete remedy for that violation.

4. Whether the court of appeals in this case, by sub

stituting its judgment for that of the district court re

garding an appropriate remedy, deviated impermissibly

from the established principles governing allocation of

remedial responsibility between the district courts and

the courts of appeals.

(i)

LIST OF PARTIES

In addition to the parties named in the caption, the

following were parties to this proceeding in the Court

of Appeals:

Local 307 and Local 851, International Longshore-

men’s Association, AFL-CIO.

TABLE OF CONTENTS

QUESTIONS PRESENTED .WW..22....2222..eceseccseseeenceeeeeenens

AT, NEE RID enticed pcre pnitensoensenlinornenssshenpernanionben ion

pv PF Gir ge Voy yk) \ yn). RATIOS Coe mane nena STN

OPINIONS BELOW

Pts RE SANE a RRR RIDE Ace NAMEN Se Mae at EO BR

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

STATEMENT OF THE CASE W0000.02o..eeeeeeeeeeeeeeeeeeee

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

I. THE DECISION OF THE COURT OF AP-

II.

PEALS ORDERING ABOLITION OF A LAW-

FUL SENIORITY SYSTEM IS CONTRARY

TO THE APPLICABLE DECISIONS OF THIS

COURT AND IN CONFLICT WITH DECI-

SIONS OF OTHER COURTS OF APPEALS....

THE DECISION OF THE COURT OF AP-

PEALS ORDERING ABOLITION OF A

LOCAL UNION AND A BARGAINING UNIT

ARE CONTRARY TO THE DECISIONS OF

THIS COURT REQUIRING THAT TITLE

VII BE APPLIED IN A MANNER CONSIST-

ENT WITH OTHER STATUTES EXPRESS-

ING THE NATIONAL LABOR POLICY, AND

TO THE PRINCIPLE OF MILLIKEN v.

SINE TE hi iksiceghie taps nbadabcialeneieanbeiaeomiasiacen

(iii)

TABLE OF CONTENTS—Continued

Page

III. THE DECISION OF THE COURT OF AP-

PEALS ORDERING MAJOR CHANGES IN

BUSINESS OPERATIONS IS IN CONFLICT

WITH THE HOLDING OF ANOTHER CIR-

CUIT en 21

IV. THE DECISION OF THE COURT OF AP-

PEALS, SUBSTITUTING ITS JUDGMENT

FOR THAT OF THE DISTRICT COURT, IS

CONTRARY TO THIS COURT’S DECISIONS

GOVERNING THE ALLOCATION OF AU-

THORITY WITHIN THE FEDERAL COURT

SYSTEM ......... 23

iota Sc fps artiil ie VOW MDS BER OSU VIO Bee ead eee 27

TABLE OF AUTHORITIES

Cases Page

Albemarle Paper Co. Vv. Moody, 422 U.S. 405

| SERRE sacar ee Wty 7 eC SCM tae 28, 25

Aluminum Line, 8 N.L.R.B. 1825 (1938) -............... 5

Bailey v. Ryan Stevedoring Co., 613 F.2d 588 (CA5

1980), petition for cert. pending sub nom. Local

1830, General Longshore Workers v. Bailey

fe BRR Re LPS ui tee brs en TMS 26

Burdine Vv. Texas Dept. of Community Affairs, 608

F.2d 563 (CA5 1979), petition for cert. granted,

No. 79-1764, 48 U.S.L.W. 3813 (June 17, 1980).. 26

California Brewers Ass’n V. Bryant, 444 U.S. 598

CI snes di kninthceennctacenbclahetuieia nisin Mele tecbeean ae - 16

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

gf ORI SC Rae ema tonec ter? See Ere 28, 25

EEOC v. Local 14, Internationxl Union of Operat-

ing Engineers, 558 F.2d 251 (CA2 1977) ............. 21, 22

Emporium Capwell Co. v. Western Addition Com-

munity Organization, 420 U.S. 50 (1975) .......... 16, 18

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

» | SERRE al Wer are ed NOR as Woes 15, passim

Furnco Construction Corp. Vv. Waters, 438 U.S. 567

SRNUUIUIE: Siiocsescccaclesaites dedibgbee pinscletbnsndbecescacieiiiies uaedibieemideitiael 21, 22

Hills v. Gautreaux, 425 U.S. 284 (1976) ................. 20

Hughes Tool Co. v. Trans World Airlines, 409

es BE ID wlainiss-censssiactdinnicarniuisoclisureldainesihigniciods 12

International Ass’n of Machinists v. N.L.R.B., 311

es Pee ID” vchchin sid lactebichesitienohneiceianannaaadiantiiaiia 17

Local 298, International Alliance of Theatrical

Stage Employees v. Local 293-A, International

Alliance of Theatrical Stage Employees, 526 F.2d

FB, an R vicar Ae ee 24

Local 851, International Longshoremen’s Ass’n,

eae BR 8, eer 7

Milliken Vv. Bradley, 418 U.S. 717 (1974) .............. 20, 21

Mobile Steamship Ass’n, 8 N.L.R.B. 1297 (1938).. 5

Sledge v. J. P. Stevens & Co., 585 F.2d 625 (CA4

1978), cert. denied, 440 U.S. 981 (1979) ............ 14, 15

Southern Stevedoring Co., 230 N.L.R.B. 609

EAE ROPES ES A SEA Ds 5

all

TABLE OF AUTHORITIES—Continued

Page

Swint v. Pullman Standard, 624 F.2d 525 (CA5

NTE ETT SS EER TRS Po EE TC GR CE ved DO 26

Teamsters V. United States, 481 U.S. 824 (1977).. 14,

passim

Trans World Airlines, Inc. v. Hardison, 482 U.S.

i a is Ee ae 14, 16

United States v. International Longshoremen’s

, Ass’n, 460 F.2d 497 (CA4), cert. denied, 409

I I nL acetegesnie 22

United States v. Navajo Freight Lines, Inc., 525

EE RRIENEE TIPTED | cecccesncececkusenssessasusiccsebevonsece 15

Statutes and Rules

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

seq.: ¥

§ 708 (c), 42 U.S.C. § 2000e-2(c) 0.000. 2

§ 708 (h), 42 U.S.C. § 2000e-2(h) .....000000000...... 12, 15

§ 706(g), 42 U.S.C. § 2000e-5(g) .................... 8

§ 707(a), 42 U.S.C. § 2000e-6(a) .................... 4

§ 707(b), 42 U.S.C. § 2000e-6(b) ~.......000000000.. 4

§ 707(c), 42 U.S.C. § 2000e-6(c) ..........-........... 4

§ 707(d), 42 U.S.C. § 2000e-6(d) -........0.000..... 4

Judicial Code:

eS ESERIES ET EE Pe CO 2

By ree TIMID ED sclitecdececcdcnsccnccccescscsccocces 9

Labor Management Reporting and Disclosure Act

of 1959 (Landrum-Griffin Act), 29 U.S.C. § 401

et seq.:

§ 2(a), 29 U.S.C. § 401 (a) 22... eee eee 17

nia a i: eM a occas cacetecndonemeccoes 17

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

et seq.:

IT EERE ES eno OO 17

§ 8(a) (1), 29 U.S.C. § 158(a) (1) 00. 17

§ 8(a) (2), 29 U.S.C. § 158(a) (2) 0. 17

a csecenvnanes 17

Federal Rules of Civil Procedure:

ES Ry ae a 24

Rule 54(b) 11

’%

IN THE

Supreme Comet of the United States

OCTOBER TERM, 1980

No.

LOCAL 1576,

INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, AFL-CIO,

Petitioner,

Vv.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Local 1576, International Longshoremen’s Association,

AFL-CIO, respectfully petitions 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

August 13, 1980.

OPINIONS BELOW

The original opinion of the district court is reported

at 334 F.Supp. 976 (S.D. Tex. 1971) and is reprinted

herein as App. E (38a-49a). The first opinion of the

court of apeals is reported at 511 F.2d 278 (CA5 1975)

and is reprinted herein as App. D (28a-37a). This

Court’s denial of a petition for certiorari to that judy-

ment is reported at 423 U.S. 994 (1975) and is reprinted

herein as App. C (22a). The decision of the district

court on remand is unreported; it is reprinted herein

as App. B (13a-2la). The second decision of the court

of appeals—the decision from which certiorari is sought—

is reported at 623 F.2d 1054 (CA5 1980) and is re-

printed herein as App. A (la-12a).

JURISDICTION

The court below entered judgment on August 13, 1980,

App. F (50a-5la). On October 30, 1980, Mr. Justice

Powell extended the time for filing this petition to and

including January 10, 1981, App. G (52a).

This Court has jurisdiction to review the judgment

of the court of apeals by certiorari, pursuant to 28

U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

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

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

for a labor organization—

(1) to exclude or to expel from its membership, or

otherwise to discriminate against, any individual be-

cause of his race, color, religion, sex, or national

origin;

(2) to limit, segregate, or classify its membership

or applicants for membership or to classify or fail or

refuse to refer for employment 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

°’.

applicant for employment, because of such individ-

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

(3) to cause or attempt to cause an employer to

discriminate against an individual in violation of

this section.

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 engag-

ing in an unlawful employment practice charged in

the complaint, the court may enjoin the respondent

from engaging in such unlawful employment prac-

tice, and order such affirmative action as may be

appropriate, which may include, but is not limited

to, reinstatement or hiring of employees, with or

without back pay (payable by the employer, employ-

ment agency, or labor organization, as the case may

be, responsible for the unlawful employment prac-

tice), or any other equitable relief as the court

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

require the admission or reinstatement of an individ-

ual as a member of a union, or the hiring, reinstate-

ment, or promotion of an individual as an employee,

or the payment to him of any backpay, if such indi-

vidual was refused admission, suspended, or expelled,

or was refused employment or advancement or was

suspended or discharged for any reason other than

discrimination on account of race, color, religion,

sex, or national origin or in violation of section

704(a) of this title.

STATEMENT OF THE CASE

This action was brought, pursuant to Title VII of the

Civil Rights Act of 1964, by the Attorney General on

behalf of the United States. The defendants were the

International Longshoremen’s Association (“ILA”) and

its affiliated local unions on the Texas Gulf Coast.’

The Complaint alleged that defendants were engaged in

a pattern or practice of discrimination on the basis of

race or national origin. The complaint alleged (1) that

defendants maintained segregated local unions and hiring

halls in each port; and (2) that in each port the segre-

gated locals had a practice of dividing the available work

in a discriminatory manner. The primary relief that

the United States sought in this action was merger of all

local unions performing similar work in each port. Al-

though the original proceedings covered all the Texas

Gulf ports, the case as it comes to this Court is limited

to the local unions in the Port of Galveston.

There are four ILA local unions in the Port of Galves-

ton. Each of the locals operates a hiring hall, maintains

its own seniority system, and supplies longshore workers

to perform work for the stevedoring companies that load

and unload cargo in the Galveston port. Three of those

locals were found by the district court to be part of the

discriminatory system alleged in the complaint. The

other local—petitioner here—was found not to be part

of that system. Nonetheless, the court of appeals has or-

dered that petitioner be merged with the other local unions,

and that a single hiring hall and seniority list be

established.

A. Under the terms of its charter with the ILA, peti-

tioner, Local 1576, has exclusive jurisdiction over the

handling of bananas and green fruit; the cargo that

Local 1576 actually handles is virtually all bananas.

The other three locals in Galveston have exclusive juris-

diction over general cargo other than bananas and green

fruit. The three general-cargo locals are in a single

1 The action was brought under section 707(a) of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e-6(a). The jurisdic-

tion of the district court was founded on section 707(b) of the Act,

42 U.S.C. § 2000e-6(b). Pursuant to the 1972 amendments to the

Act, the EEOC was substituted as a party in place of the United

States. Sections 707(c) and (d) of the Act, as amended; 42 U.S.C.

§ 2000e-6 (c)-(d).

bargaining unit. They negotiate jointly with and are

parties to a master agreement with a multi-employer

association known as the West Gulf Maritime Associa-

tion (“WGMA”). Local 1576 is in a separate bargaining

unit. It is not a party to any agreement with the WGMA,

but negotiates separately with Southern Stevedoring Co.,

the only stevedore company that handles bananas. That

separate bargaining unit is consistent with National

Labor Relations Board precedent defining separate units

of banana handlers as appropriate bargaining units in

the longshore industry.2 The separate local union was

created in accord with the ILA’s practice of chartering

a separate local union for the sole purpose of banana

handling in ports that have a significant amount of

banana cargo.*

The specialized banana jurisdiction serves important

interests of banana shippers. When a banana ship ar-

rives in port, the highly perishable cargo must be un-

loaded quickly. The market is also highly competitive,

to the degree that a small difference in cargo-handling

costs will cause banana shippers to choose one port over

another. Gangs of longshoremen who specialize in banana

handling and who regularly work together unloading

banana ships are more efficient than general longshore-

men, who may handle different cargo every day.*

2 Mobile Steamship Ass’n, 8 N.L.R.B. 1297, 1313-1314 (1938) ;

Aluminum Line, 8 N.L.R.B. 1325, 1343-1344 (1938).

3 See Southern Stevedoring Co., 230 N.L.R.B. 609, 611 & n.10

(1977).

4 As a reflection of these business interests, although Local 1576’s

contract with Southern Stevedoring Co. consistently has provided

the same wages and benefits to banana handlers that the WGMA

contract provides to the general-cargo longshoremen referred by the

other locals to the other employers, Local 1576’s contract contains

certain special provisions not in the WGMA contract, designed to

keep bananas moving: one is an agreement to keep working through

contract negotiations without any strikes: and, in the event of a

cesaer wae than’ culk the uae of aon

banana handling, and the members of Local 1576 have a

competitive banana business to Galveston and keeping

the Local 1576 hiring hall. He testified that referral

through a general hiring hall, not limited to banana re-

ferrals, would reduce that efficiency and could cause the

banana shippers to move their business to another port.

The Galveston banana handlers have repeatedly ex-

pressed their choice to be represented by Local 1576,

rather than by the general-cargo locals. The charter of

Local 1576 was originally issued in 1937. It became

inactive in the mid-1950s, when the ILA was expelled

from the American Federation of Labor and the rival

union, the International Brotherhood of Longshoremen,

was formed. In 1962 the longshoremen who were then

performing banana handling work in Galveston through

the rival union, approached the ILA and asked that the

strike, to provide 30 days notice in addition to all other notice re-

quired by law, so that banana ships can be diverted to a different

port; another provides that banana unloading, unlike other louy-

shore work, does not stop for rain, but stops only if conditions are

hazardous (the clause has never been invoked, not even when a

hurricane was just off the Coast.)

dormant charter of Local 1576 be activated. ILA com-

plied with their request, and Local 1576 became their

representative. During the pendency of this lawsuit,

Local 1576 has repeatedly taken votes among its mem-

bers and other longshoremen who have done banana

handling work, and each vote has been unanimous in

favor of separate representation by Local 1576 and

opposed to merger with the general-cargo locals.

The members of Local 1576, and the other longshore-

men who use its hiring hall, are predominantly Mexican-

American. One of the three general-cargo locals, Local

307, is predominantly white;*® the other two general-

cargo locals, Local 329 and Local 851, are predominantly

black.

The three general-cargo locals were all chartered by

the ILA in the early part of the 20th century. By the

mid-1920s they had arrived at their current formula for

sharing the work provided to their bargaining unit by

the general-cargo stevedores: Local 329 has exclusive

jurisdiction over the work of four particular stevedoring

companies; Local 851 and Local 307 divide the remain-

ing work equally.® |

The hiring hall operated by Local 1576 is open to any-

one who wants work as a banana handler, including

members of the other local unions. Among those who

show up at the hiring hall on any given day, the first

persons selected for work are those who have accumu-

lated seniority by working out of the Local 1576 hiring

hall, in seniority order. In recent years the schedule of

5 We use the term “white” in this petition, following the lower

courts’ usage, to refer to white longshoremen who are not of Mexi-

can descent. At some places in the record the term “Anglo” is used

with the same meaning.

® The history of Local 329’s exclusive rights to the work of four

stevedores is described in Local 851, International Longshoremen’s

Ass’n, 194 N.L.R.B. 1027, 1028-1029 (1972).

banana shipments has been such that applicants without

seniority are regularly selected for work on Mondays, and

anyone who works regularly on Mondays alone can obtain

seniority status in Local 1576.

Local 1576 has never discriminated against anyone in

membership or referral for work. As the volume of

banana work has increased, the number of black and

white longshoremen who have been referred for work

through the Local 1576 hiring hall and have become

members of Local 1576 has also increased. Local 1576

has sponsored radio advertisements in English and Span-

ish and has called other ILA locals, to recruit additional

longshore workers to unload the banana ships in port

on Mondays.

B. This action was tried, as to all the Texas Gulf locals,

in 1970. The district court found that the maintenance

of separate locals by itself did not violate Title VII. The

court found a violation of the Act, however, in the pre-

vailing practice of dividing work on a 50-50 basis be-

tween white and black local unions in each port (45a,

48a). The district court found that Local 1576 had never

been part of that practice. Indeed the court found that

Local 1576 was not involved in the division of general-

cargo work in Galveston but worked only in its own

specialized jurisdiction regardless of the relative volume

of work available to it and to the other locals. (The

banana handling work was never divided, but was all

done by Local 1576.) The court did not find that the

separation of work in Galveston between general cargo

and banana handling was discriminatory, or that it other-

wise violated Title VII (47a).”

7 The district court’s only conclusion regarding Local 1576 was

that its members had been denied work opportunities “because of

the restrictions on its charter,” to the handling of bananas and

green fruit (47a).

On the question of relief for the 50-50 division of work

between white and k'«ck locals, the district court held

that merger of the locals was not necessary in order to

remedy the violation, but that a common hiring hall

should be established, with a common seniority system

(48a-49a). The district court accordingly entered an

interlocutory decree denying the Government’s request to

merge the local unions, and ordering that a single com-

mon hiring hall be established in each port.

The Government took an interlocutory appeal, pursuant

to 28 U.S.C. § 1292(a) (1), from the district court’s re-

fusal to order merger of local unions, and the court cf

appeals reversed. Citing the district court’s finding that

the practice of dividing work 50-50 between white and

black locals had deprived longshoremen of equal employ-

ment opportunity on the basis of race or national origin,

the court held that “merger of segregated locals [is]

mandatory whenever they are shown to have had actual

discriminatory effect on employment opportunities,”

(37a).* Accordingly, the court of appeals remanded the

case for the district court to enter an order merging

the segregated local unions in each port. A petition for

certiorari was filed on behalf of a group of defendants

that included Local 1576; it was denied (22a).

While the interlocutory appeal was pending, Local

1576, joined by the three general-cargo locals, filed a

motion asking the district court to exclude Local 1576

from the common hiring hall required by the interlocu-

8 Judge Goldberg, who wrote the opinion for the court describing

the facts and affirming the court’s jurisdiction over the interlocu-

tory appeal, wrote that he would have held that employment dis-

crimination is “inherent in segregated locals” (35a; emphasis in

original). The other two members of the panel, in a separate opin-

ion written by Judge Thornberry, reached their decision on the

grounds quoted in the text, “without holding that segregated locals

constitute a per se violation of Title VII” (36a).

tory decree. Following the remand from the court of

appeals, the district court heard evidence on this motion,

treating it as a motion to exclude Local 1576 from the

merger of the other local unions in Galveston. In the

course of the hearings, the other three Galveston locals

changed their position on the question, and opposed

Local 1576’s request for exclusion. On October 1, 1979,

the district court granted the motion for exclusion and

dismissed Local 1576 as a defendant in the case (18a-

21a).

The district court supported its ruling with extensive

findings to the effect that Local 1576 had no part in the

Title VII violation that had been found with respect to

the other locals, and that it would be unjust to include

Local 1576 in the merger. The district court found that

Local 1576 had “never discriminated against members

of any racial group” in admitting applicants to member-

ship or in referring applicants for work (16a, 20a). The

district court found that Local 1576 had never been part

of the general-cargo agreement or the division of general-

cargo work between the black and white locals, but had

its own separate work jurisdiction and separate collective

bargaining agreement with a different employer (14a-15a,

17a). The district court also found that the members

of Local 1576 were unanimously opposed to merger, and

that including Local 1576 in the merger would be unjust,

because the members of Local 1576 had worked hard to

establish themselves in the banana market, while the

other locals had refused to have “anything to do with

Local 1576” (16a, 18a), and that the relative seniority of

the banana handlers and the other longshoremen was

such that a merger would place the banana handlers at

the bottom of the list and deprive them of the banana

trade they had worked to develop (15a, 18a-19a). The

court also found, based on these facts and the testimony

of the president of Southern Stevedoring, that because

the merged union and its common hiring hall would no

longer guarantee the employer that he would receive

efficient specialists experienced in banana handling, the

result could be that the banana industry would take this

business to another port (19a).

On appeal by the EEOC and two of the other local

unions, the court of appeals reversed.® It held that the

doctrine of law of the case required that Local 1576 be

included in the merger. The court of appeals did not

purport to disturb any of the district court’s findings.

However, notwithstanding the district court’s findings

to the contrary, the court of appeals asserted that Local

1576 “has been part of a system which operates to dis-

criminate against people because of race and national

origin” (10a). In light of this assertion, the court of

appeals held that it was immaterial that Local 1576 had

never discriminated against anyone (10a) and that

merger would be unjust to members of Local 1576 (11a-

12a). The court of appeals therefore remanded the case

with instructions to merge all four local unions in the

Galveston port (12a). The court of appeals’ opinion

makes clear that its instructions require not only merger

of the local unions but also the establishment of a single

hiring hall with a single seniority list based not on sen-

iority in any one hiring hall but on seniority in the port

(10a-12a).

REASONS FOR GRANTING THE WRIT

The court of appeals’ judgment is squarely contrary

to the decisions of this Court on the meaning and appli-

cation of Title VII, and it also conflicts with standards

adopted by other courts of appeals to govern remedial

® Upon dismissing Local 1576 from the case, the district court

directed entry of a final judgment pertaining to Local 1576, pursu-

ant to Rule 54(b), Federal Rules of Civil] Procedure, thus allowing

immediate appeal even though final judgment had not been rendered

as to the remaining defendants (21a).

orders under Title VII. As we describe in sections I

through IV below, it conflicts with this Court’s decisions

and the decisions of other courts of appeals, in ordering

the abolition of a seniority system without a finding that

it is unprotected by § '708(h) of Title VII; in destroying

a separate bargaining unit and an independent local

union without any attempt to accommodate Title VII to

the rights that exist under the National Labor Relations

4 Act and the Landrum-Griffin Act; in ordering a radical

change in business operations that is not necessary to

remedy a violation of Title VII; and in departing from

the rules that govern the allocation of remedial functions

between the district courts and courts of appeals in the

federal system.’°

In order to place the discussion that follows into its

proper context, it is important to understand the basis

for, and the consequences of, the court of appeals’ order

for merger. That order was entered despite the district

court’s finding that Local 1576 had not violated Title VII

and was not part of the system that had been found dis-

criminatory—a finding that the court of appeals did not

disturb—, in the absence of any finding that the establish-

ment or maintenance of Local 1576’s separate bargaining

unit and seniority system was discriminatorily motivated,

and despite the district court’s conclusion that including

Local 1576 in the merger would be unjust to the banana

handlers, who are innocent of any unlawful conduct. The

inclusion of Local 1576 in the merger is neither necessary

nor appropriate as a remedy for the only violation of

Title VII that has been found in this case—the practice

of dividing identical work between the three local unions

10 The court of appeals professed to be bound by the “law of the

case” from its decision on the interlocutory appeal in this case

(7a-10a). Whatever the merits of that decision on its own terms,

this Court is not bound by the law of the case in these circumstances.

See Hughes Tool Co. v. Trans World Airlines, 409 U.S. 3638, 365

n.l (1978).

—one white and two black—that handle general-cargo

work. That violation can be remedied completely by a

remedy restricted to the general-cargo local unions, with-

out any change in the operation of Local 1576 or its

seniority system.

In addition, the decision of the court of appeals has

unusually severe consequences. Including Local 1576 in

a merger with the general-cargo local unions will deprive

the Galveston banana handlers of their chosen bargain-

ing representative. The merger order will destroy the

separate bargaining unit for banana handlers, which con-

forms with applicable precedents of the NLRB. Thus, in-

stead of leaving the banana handlers to bargain with

their own employer through their chosen bargaining rep-

resentative, it will place them in a multiemployer bar-

gaining unit, with representation by a single merged

union they do not want for their representative. The

merger order will destroy Local 1576 as a political entity.

The merger order will abolish the current seniority sys-

tem in Local 1576, thus destroying the seniority prefer-

ence that banana handlers now have based upon their

time in banana work, allowing other longshoremen to

claim their work based upon their greater seniority in

the port. The inclusion of Local 1576 in the merger

order will also unnecessarily jeopardize the continuation

of an innocent employer’s business. Southern Stevedoring

will no longer get specialized longshore gangs for banana

handling through the referral system it prefers, but will

be required to accept as employees longshoremen who

have never worked for it before through a referral sys-

tem that will reduce the efficiency of the banana handling,

operations, and efficiency is the key to the success of

Southern’s business. At the same time the banana han-

dlers will have to accept work with employers for whom

they have never worked.

I. THE DECISION OF THE COURT OF APPEALS

ORDERING ABOLITION OF A LAWFUL SENIOR-

ITY SYSTEM IS CONTRARY TO THE APPLICA-

BLE DECISIONS OF THIS COURT AND IN CON-

FLICT WITH DECISIONS OF OTHER COURTS OF

APPEALS.

In Teamsters v. United States, 481 U.S. 324 (1977),

this Court held that Congress in enacting Title VII in-

tended to extend a measure of protection to seniority

rights, and that a seniority system cannot be found

unlawful unless it was established or maintained as the

result of an intent to discriminate. Id. at 355-356; Trans

World Airlines, Inc. v. Hardison, 432 U.S. 63, 82-83, n.13

(1977).

In this case Local 1576 maintains a bona fide seniority

system, in a bargaining unit separate from the general-

cargo unit. Neither Local 1576 nor the employer with

whom it bargains have violated Title VII, and there is no

evidence and no finding that the separate seniority sys-

tem based on seniority in banana handling was estab-

lished or maintained with an intent to discriminate. The

violation of Title VII committed by other parties can be

remedied without any alteration of the Local 1576 sen-

iority system. Nonetheless, the court of appeals ordered

the Local 1576 seniority system merged into that of the

other locals in a different bargaining unit with different

employers, thus destroying the legitimate expectations of

the banana handlers with respect to their seniority rights.

Contrary to the decision below, at least one other court

of appeals has recognized that the Teamsters principle

prohibits the federal courts from ordering changes in a

lawful seniority system, for the purpose of remedying

other violations of Title VII, where such changes are not

necessary to put victims of discrimination in their “right-

ful places.” In Sledge v. J. P. Stevens & Co., 585 F.2d

625 (CA4 1978), cert. denied, 440 U.S. 981 (1979), the

Fourth Circuit held that the district court could not order

a change from the use of department seniority to plant

seniority for purposes of layoff, in a lawful seniority sys-

tem where the victims of the employer’s other unlawful

practices were adequately protected by “rightful place”

remedies. 585 F.2d at 651-652. The court of appeals’

decision in this case, ordering the abolition of a separate

seniority system based on banana seniority, in favor of a

merged system based on port seniority, is in conflict with

the ruling of the Fourth Circuit in Sledge." The Fifth

Circuit here ordered a far more drastic change in senior-

ity rights than the change ordered by the district court

in Sledge, despite the fact that the banana seniority sys-

tem is not unlawful and the violation that was found—

here with respect to other local unions and other em-

ployers—can be fully remedied without any change in

the banana handlers’ seniority.

The writ should be granted on this question to resolve

the conflict between the Fifth and Fourth Circuits re-

garding the power to change lawful seniority systems as

part of a remedial order, and to correct the Fifth Cir-

cuit’s disregard for the principles expressed in Teamsters.

11 The court of appeals’ decision is also in conflict with the de-

cision of the Ninth Circuit in United States v. Navajo Freight

Lines, Inc., 525 F.2d 1818 (CA9 1975). The Ninth Circuit held

there that employees can “be required to sacrifice seniority ad-

vantages only to the extent necessary to permit discriminatees to

achieve their ‘rightful place.’” Jd. at 1827 (emphasis added). This

decision pre-dates Teamsters, supra, and Franks v. Bowman Trans-

portation Co., 424 U.S. 747 (1976), but its principle is reinforced

by those cases. (Although Franks held that § 703(h) does not re-

strict the power to award appropriate relief for violations, 424

J.S. at 761-762, it did so in a context in which the petitioners

did not seek “modification or elimination of the existing seniority

system,” but only an award of their “rightful place” seniority

status within that system, id. at 758.)

16,

II. THE DECISION OF THE COURT OF APPEALS

ORDERING ABOLITION OF A LOCAL UNION AND

A BARGAINING UNIT ARE CONTRARY TO THE

DECISIONS OF THIS COURT REQUIRING THAT

TITLE VII BE APPLIED IN A MANNER CON-

SISTENT WITH OTHER STATUTES EXPRESSING

THE NATIONAL LABOR POLICY, AND TO THE

PRINCIPLE OF MILLIKEN v. BRADLEY.

A. This Court has repeatedly expressed the principle

that Title VII cannot be applied in a vacuum but must

be interpreted and administered in a way that will ac-

commodate its commands to the other statutes that em-

body the national labor policy. In Emporium Capwell

Co. v. Western Addition Community Organization, 420

U.S. 50, 69 (1975), the Court cautioned that the rights

secured by Title VII “cannot be pursued at the expense

of the orderly collective-bargaining process contemplated

by the [National Labor Relations Act].” In Trans World

Airlines, Inc. v. Hardison, supra, the Court began its

analysis with the proposition that “Collective bargaining

. . . lies at the core of our national labor policy,” 432

U.S. at 79, and that the principles of that labor policy

will not be made to “give way” to Title VII “[w]ithout

a clear and express indication from Congress” that it

intended such a result, id. In California Brewers Ass’n

v. Bryant, 444 U.S. 598, 608 (1980), the Court again

declared that

Congress passed the Civil Rights Act of 1964 against

the backdrop of this Nation’s longstanding labor

policy of leaving to the chosen representatives of

employers and employees the freedom through collec-

tive bargaining to establish conditions of employment

applicable to a particular business or industrial en-

vironment.

In each of these cases, this Court interpreted Title

VII against the backdrop of the National Labor Relations

Act, in order to accommodate the statutes’ respective

requirements and to avoid a reading of Title VII that

would interfere with the operation of the earlier statutes.

The character of the necessary accommodation between

Title VII and the other statutes is suggested by T'eam-

sters, which requires the federal courts in granting reme-

dies for violations of Title VII to strike an “equitable

balance . . . between the statutory rights of victims and

the contractual rights of nonvictim employees,” 431 U.S.

at 376. The courts are directed to “look to the practical

realities and necessities” to determine the “special blend

of what is necessary, what is fair, and what is workable,”

id. at 375.

The nat’onal labor policy includes, as its first principle,

the right of employees to “bargain collectively through

representatives of their own choosing,” 29 U.S.C. § 157,”

and employees are given protection against representa-

tion by unions they have not freely selected as their

bargaining representative. Jd. §§ 158(a) (1), (2), 159;

see, e.g., International Ass’n of Machinists v. N.L.R.B.,

311 U.S. 72, 79, 82 (1940). The National Labor Rela-

tions Act (NLRA) entrusts to the NLRB the primary

responsibility for determining what is an appropriate

bargaining unit, 29 U.S.C. § 159. The Landrum-Griffin

Act, enacted in 1959, establishes and protects the political

rights of union members in relation to their unions, 29

U.S.C. § 411.

The court of appeals in this case made no attempt to

accommodate its remedial order under Title VII with

the rights of the members of Local 1576 under the NLRA

and the Landrum-Griffin Act. Without so much as a

word indicating that merger was necessary to cure the

Title VII violations committed by other parties in another

12 This policy was reiterated in the Landrum-Griffin Act, 29

U.S.C. § 401 (a), declaring that “it continues to be the responsibility

of the Federal Government to protect employees’ rights to organize

[and] choose their own representatives ... .”

bargaining unit, the court ordered that the members of

Local 1576 be deprived of their chosen bargaining repre-

sentative; that their bargaining unit, though in accord

with NLRB precedents, be abolished; and that they hence-

forth be part of a local union that they unanimously

oppose for their representative. The order also materially

changes the relationship of the members of Local 1576

to their union, abolishing Local 1576 as a political entity

and substituting for it a larger union composed of em-

ployees with a range of interests different from those of

the banana handlers."* This action by the court of appeals

is in conflict with this Court’s decisions, cited above,

requiring accommodation of Title VII to the other stat-

utes that express the national labor policy.

Not only did the court of appeals fail to consider

whether merger of Local 1576 was necessary, it also took

no account of the fact that a merger including Local

1576 is not even an appropriate remedy for the practice

of dividing general-cargo work between racially separate

locals. The situation of Local 1576 is unlike the situation

of the general-cargo locals in Galveston. In the case of

the general-cargo locals, where separate locals are found

within a single bargaining unit, bargaining jointly with

the same employer, and the only difference between them

is the race of their members, it might be found that

merging those locals would “ ‘recreate the conditions and

relationships that would have been had there been no’

unlawful discrimination,’ Teamsters v. United States,

supra, 481 U.S. at 372, quoting from Franks v. Bowman

Transportation Co., supra. In that situation, merger

might be found to end the artificial separation of a single

18 Cf. Emporium Capwell, supra, 420 U.S. at 64 (a unit appro-

priate for collective bargaining is “a group of employees with a

sufficient commonality of circumstances to ensure against the sub-

mergence of a minority with distinctly different interests in the

terms and conditions of their employment”).

bargaining unit into distinct racial entities.“ In the case

of Local 1576, however, merger would not create the

“conditions and relationships” that would have existed

absent discrimination; the representation of banana han-

dlers by a separate local in a separate bargaining unit

with a separate employer has been neither shown nor

found to be the result of race or national origin. It ig

no different from a situation in which two separate manu-

facturing companies were found side by side, one with

a white workforce and the other with a black workforce,

each with a separate bargaining unit and a separate

local union. There can be no doubt that in such a cir-

cumstance a federal court would lack power under Title

VII to require merger of the two employers or the two

local unions, even if the court thought it would be desir-

able abstractly to have a single racially mixed local rather

than two “segregated” locals: Merger in that circum-

stance would not create the “conditions and relationships

that would have existed absent discrimination. The ap-

propriate remedy would be to enjoin any further dis-

crimination by the employers or the unions (if they have

themselves committed violations) and to provide “rightful

place” remedies to all identified victims of discrimination.

Teamsters v. United States, supra; Franks v. Bowman

Transportation Co., swpra.

B. The decision of the court of appeals also conflicts

with the decisions of this Court that limit the exercise

of the federal equitable power in relation to independent

14 Even though it might be found that merger of such segregated

unions would create the relationships that would have existed absent

discrimination, the courts in deciding whether to order such a

merger would still be obligated to consider the other values of

separate unions, such as political autonomy and honoring the mem-

bers’ choice of bargaining representative, in order to accommodate

the Title VII remedy to the national labor policy. Merger of sepa-

rate hiring halls and seniority lists could be a sufficient remedy

without actual merger of the local unions.

political entities. In Milliken v. Bradley, 418 U.S. 717,

744 (1974), this Court reversed a court of appeals deci-

sion providing for injunctive relief mandating “cross-

district or interdistrict consolidation to remedy a condi-

tion of [school] segregation found to exist in only one

district.” * The Court held that the boundary lines of

separate school districts could not be bridged with inter-

district remedies where the constitutional violation that

joining districts. Id. at 741, 744-745. The Court sum-

marized its holding, id. at 746:

Disparate treatment of White and Negro students

occurred within the Detroit school system, and not

elsewhere, and on this record the remedy must be

limited to that system.

Just as local control over schools is a “deeply rooted”

and important concern, id. at 741-742, control of a local

union by the employees who work in the bargaining unit

it represents is a central and important concern of na-

tional labor policy. See authorities cited at pages 17-18,

supra. The conditions that would allow a decree con-

solidating separate local unions under the principle an-

nounced in Milliken do not exist in this case. Local 1576

has been found to have committed no violation of Title

VII, and Local 1576 was not a part of the system of

dividing general-cargo work among the other three locals

that was found to violate Title VII. The court of ap-

peals’ decision is therefore in conflict with the controlling

principle stated in Milliken.

1% The Court subsequently, in Hills v. Gautreauz, 425 U.S. 284,

294 & n.11 (1976), stated that the principles declared in Milliken

were not confined to school desegregation cases but apply generally

to the exercise of equity power by the federal courts.

The writ should be granted to correct the court of

appeals’ failure to consider the necessity for accommo-

dating its Title VII remedies to the rights of employees

under the NLRA and the Landrum-Griffin Act and its

failure to observe the limits that the principle announced

in Milliken imposes upon the Title VII remedial power.

Ii. THE DECISION OF THE COURT OF APPEALS

ORDERING MAJOR CHANGES IN BUSINESS

OPERATIONS IS IN CONFLICT WITH THE HOLD-

ING OF ANOTHER CIRCUIT.

In Furnco Construction Corp. v. Waters, 488 U.S. 567

(1978), this Court considered the power of a federal

court to order changes in a party’s business operations.

Holding that federal courts cannot order a remedy against

an employer that had not violated the Act, the Court

said, id. at 578:

Courts are generally less competent than employers

to restructure business practices, and unless man-

dated to do so by Congress they should not attempt

it.

At least one other court of appeals has adopted 2

standard that forbids the use of Title VII remedial power.

to restructure business practices, even where a violation

is found, unless such a remedy is necessary to cure a

violation of the Act. In EEOC v. Local 14, International

Union of Operating Engineers, 553 F.2d 251 (CA2

1977), the district court had issued a broad injunction,

that required, inter alia, that two separate local unions)

merge their hiring hails. The Second Circuit reversed,

adopting a rule that relief for a Title VII violation can-

not interfere with the defendant’s business operations

any more than is necessary to remedy the violation, and

ordering the district court to receive evidence and make

findings on the effect that the remedial order would have

on the defendant unions and the contractor associations

who obtained employees through the hiring halls. Id. at

256-257.2°

The court of appeals’ decision in this case is in conflict

with the ruling of the Second Circuit in Local 14 and

the principle expressed by Furnco. The order to merge

Local 1576 into the other locals, an extreme measure

that is not necessary in order to remedy the discrimina-

tory division of general-cargo work, will have the effect

of abolishing the separate hiring hall now operated by

Local 1576 and changing the work-referral system from

one that now supplies Southern Stevedoring with gangs

of specialized, efficient banana handlers to a system that

will require the employer to accept longshoremen who

have no special experience or interest in banana handling.

This change was ordered by the court of appeals despite

the employer’s plea to be allowed to continue the spe-

cialized work referral system and despite the district

court’s finding that the end of the specialized referral

system may bring about the end of banana shipments

into Galveston and thus destroy Southern Stevedoring’s

banana trade.

The writ should be granted to resolve the conflict be-

tween this decision of the Fifth Circuit—ordering a sub-

stantial change in business operations which was not

necessary to remedy the Title VII violation—and the

contrary decision of the Second Circuit in Local 14.

16 See also United States v. International Longshoremen’s Ass’n,

460 F.2d 497, 504-506 (CA4), cert. denied, 409 U.S. 1007 (1972)

(upholding against government appeal the district court’s refusal

to order a change from use of permanent, previously segregated

gangs to a daily shape-up system, because it was not necessary

for a complete remedy and it would undermine defendants’ interest

in efficiency and safety).

IV. THE DECISION OF THE COURT OF APPEALS,

SUBSTITUTING ITS JUDGMENT FOR THAT OF

THE DISTRICT COURT, IS CONTRARY TO THIS

COURT’S DECISIONS GOVERNING THE ALLOCA-

TION OF AUTHORITY WITHIN THE FEDERAL

COURT SYSTEM.

This Court has repeatedly held that the equitable

power of the federal courts is primarily entrusted to the

district courts. When a violation of Title VII is found,

it is the district court in the first instance that has the

responsibility of weighing the nature of the violation, the

scope of its effects, the interests of the victims in being

made whole, and the competing interests of other persons

who may be harmed by relief that cures the violation.

Teamsters v. United States, supra, 431 U.S. at 373-376;

see also Dayton Board of Education v. Brinkman, 433

U.S. 406, 419-420 (1977). Resolution of these competing

interests is entrusted “in the first instance to the sound

equitable discretion of the trial court.” Teamsters v.

United States, supra, 431 U.S. at 376; Franks v. Bow-

man Transportation Co., supra, 424 U.S. at 779. The

equitable balance struck by the district court is subject

to review by the court of appeals, but it may not be re-

versed unless the underlying factual findings are clearly

erroneous or the district court abused its discretion in

“locat[ing] ‘a just result’ in light of the circumstances

peculiar to the case.” Albemarle Paper Co. v. Moody,

422 U.S. 405, 424 (1975).

In this case the district court discharged its obliga-

tion. In its initial decision the court found that the un-

lawful practice of dividing similar work between racially

separate locals in the various Texas Gulf ports could

be remedied by measures short of merging the local unions

(48a-49a). The court of appeals reversed, holding that

merger of “segregated locals” is mandatory “whenever

they are shown to have had actual discriminatory effect

on employment opportunities” (36a-37a). On remand

the district court was presented with the specific situa-

tion of Local 1576, and entered extensive findings, con-

cluding that Local 1576 had never been a part of the

violation, and that it had never discriminated against

anyone; considering the effect that merger would have

on the banana handlers and the Southern Stevedoring

Co., the district court concluded that including them in

merger would be unjust (14a-16a, 17a-20a). The court

of appeals did not conclude that any of the district court’s

factual findings were clearly erroneous,” and it did not

find that the district court had abused its discretion. The

court of appeals merely adhered to its original insistence

that merger is the only permissible remedy for “segre-

gated” locals and that harm to members of Local 1576

did not justify denying that remedy (1la-12a).'®

17 Without disturbing the district court’s finding that Local 1576

had never discriminated against anyone, the court of appeals quoted

a remark that the district court made in the course of the evidenti-

ary hearings to the effect that he expected to find that Local 1576

referred Mexican-Americans for work in preference to blacks (10a).

That remark did not purport to be a finding of fact, and it is appar-

ent that the district court changed its view after receiving and

considering all the evidence, because the formal findings of fact

made pursuant to Rule 52, Federal Rules of Civil Procedure, were

inconsistent with the earlier remark (16a, 20a).

18The court of appeals recognized that its own decisions sup-

ported merger as a remedy only when the existence of a “segregated”

local is found to have an actual discriminatory impact on employ-

ment opportunities (9a-10a); see Local 293, International Alliance

of Theatrical Stage Employees v. Local 293-A, International Alli-

ance of Theatrical Stage Employees, 5626 F.2d 816, 319 n.4 (CA5

1976). It is not clear on what basis the court of appeals believed

that standard to have been satisfied in the case of Local 1576.

The court of appeals called the local “functionally segregated,”

citing the evidence that its membership and those who work through

its hiring hall are predominantly Mexican-American (9a-10a), and

asserted that “Local 1576 has been part of a system that operates

to discriminate against people because of race and national origin”

(10a). This latter assertion was not supported by any record cita-

The effect of the court of appeals’ order was to sub-

stitute its judgment for that of the district court, at the

same time completely disregarding principles that govern

the proper fashioning of such a remedy—in particular,

this Court’s admonition in Teamsters that harm to per-

sons affected by a Title VII remedy must be considered

in fashioning a remedy and can, in appropriate cir-

cumstances, justify a denial of equitable remedies that

would otherwise be granted to victims of discrimination.

431 U.S. at 374-376.

The court of appeals’ disregard in this case of the

limitations on its power and of the allocation of func-

tions between district courts and courts of appeals un-

der Title VII is not an isolated aberration. In another

case involving racially separate longshoremen’s locals,

in Baton Rouge, Louisiana, the Fifth Circuit reversed a

tions, and it is inconsistent with the district court’s findings, not

disturbed on appeal, that Local 1576 was not part of the system that

divided the same work within a single bargaining unit between

racially separate unions and that Local 1576 had never discrimi-

nated. The court of appeals adverted to a finding by the district

court that there had been a “tradition” in Galveston for longshore-

men “historically” to work through the hiring hall of the local

union identified with their own racial or ethnic group (16a). The

district court did not find, however, that this “tradition”—which

was shown to exist long before Local 1576 was chartered—was

caused or encouraged by any actions of Local 1576, and the finding

that Local 1576 never discriminated together with the dismissal

of Local 1576 from the action reflect an implicit conclusion either

that the “tradition” was not a violation of Title VII or that Local

1576 was not responsible for it.

If the intent of the court of appeals was to find, contrary to the

district court’s conclusion, that Local 1576 was somehow responsible

for the discriminatory “system,” it nonetheless erred in imposing

the drastic remedy of merger without first giving the district court

an opportunity to consider an appropriate remedy for that violation.

See Teamsters v. United States, supra, 481 U.S. at 376; Dayton

Board of Education, supra, 433 U.S. at 419-420; Albemarle Paper

Co. Vv. Moody, supra, 422 U.S. at 485-4386.

district court’s finding of no violation and, instead of

remanding for the district court to formulate an appro-

priate remedy, ordered merger of the local unions. Bailey

v. Ryan Stevedoring Co., 6138 F.2d 588 (CA5 1980), pe-

tition for cert. pending sub nom. Local 1830, General

Longshore Workers v. Bailey (No. 80-569). The Fifth

Circuit has also disregarded the rules governing alloca-

tion of fact-finding responsibility between the district

courts and courts of appeals, in at least two recent cases.

In Burdine v. Texas Dept. of Community Affairs, 608

F.2d 568 (CA5 1979), petition for cert. granted, No. 79-

1764, 48 U.S.L.W. 3813 (June 17, 1980), the district

court found that the termination of plaintiff was not

based on sex; the court of appeals reversed, “disagree-

[ing] with the trial court’s findings,” 608 F.2d at 567,

and concluding that defendant’s evidence of a nondis-

criminatory reason for the termination was insufficient

to rebut plaintiff’s prima facie case, id. at 569. The

court of appeals took this action based on its belief that

it is entitled to make an independent evaluation of the

factual question of discrimination rather than reviewing

that question under the “clearly erroneous” standard of

Rule 52(a) of the Federal Rules of Civil Procedure. /d.

at 566. And in Swint v. Pullman-Standard, 624 F.2d

525 (CA5 1980), the Fifth Circuit applied the rule of

Burdine to reverse the district court’s conclusion that

a seniority system was not established or maintained as

the result of an intent to discriminate, without disturb-

ing any of the district court’s contrary findings of fact.’®

19 Counsel for petitioner herein are also counsel for the United

Steelworkers of America, a party in Swint v. Pullman Standard.

A petition for writ of certiorari on behalf of the Steelworkers in

that case is under preparation and will be filed January 15, 1981.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted to review the judgment of

the court of appeals.

JULIA PENNY CLARK

(Counsel of record)

ROBERT M. WEINBERG

MICHAEL H. GOTTESMAN

BREDHOFF, GOTTESMAN,

COHEN, CHANIN,

WEINBERG & PETRAMALO

1000 Connecticut Avenue, N.W.

Washington, D.C. 20036

Attorneys for Petitioner

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INDEX

Page

Appendix A—628 F.2d 1054 .20..0..0..0....cccccccscccccocs-------.. la

Appendix B—Mem. & Order dated Oct. 1, 1979—set

as corrected by order 11-9-79—and

“Partial Judgment” dated 10-1-79 ........ 13a

Appendix C—423 U.S. 994 ooo cccccccceccceeceeeeereceeees 22a

Appendix D—611 F.2d 278 oo... cece cceccccecceeseceseeese 23a

Appendix E—334 F.Supp. 976..............0.0. 38a

Appendix F_J udgment 8-13-80 uo... eceeccecceceeccceeeee 50a

Appendix G—Order extending time for filing (10-30-

OMEN RCE ITIE VISE GRE RR OE ROOT SO 52a

APPENDIX A

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 79-3587

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellant,

Vv.

INTERNATIONAL LONGSHOREMEN’S ASSOCIATION,

an unincorporated association, et al.,

Defendants,

I.L.A. LOCAL 1576,

Defendant-Appellee,

I.L.A. LOCAL 851,

Defendant-A ppellant.

Aug. 18, 1980

Appeals from the United States District Court

for the Southern District of Texas

Before FAY, KRAVITCH and RANDALL, Circuit

Judges.

FAY, Circuit Judge:

Appellants Equal Employment Opportunity Commis-

sion (E.E.0.C.), International Longshoremen’s Associa-

tion (I.L.A.) Local 851, and I.L.A. Local 307 seek re-

versal of a district court order excluding I.L.A. Local

1576 from the merger of the remaining I.L.A. deep sea

locals’ in Galveston, Texas. There are four deep sea

locals in Galveston: Local 307 is composed of white long-

shoremen, Locals 829 and 851 are composed of black

longshoremen, and Local 1576 has a_ predominantly

Mexican-American membership. The district court or-

dered the merger of the white and black locals but ex-

cluded the Mexican-American local from the merger.

Notwithstanding the earnest efforts and good intentions

of then District Judge Garza, the clear mandate of this

court in E.E.0.C. v. International Longshoremen’s As-

sociation, 511 F.2d 278, 280 (5th Cir.), cert. denied, 423

U.S. 994, 96 S.Ct. 421, 46 L.Ed.2d 368 (1975), requires

us to reverse the order of the district court excluding

Local 1576 from the merger and remand the case with

directions that all four Galveston locals be merged.

I. A Very Brief * History of the Case

Over a decade ago the United States filed an action

under Title VII of the Civil Rights Act of 1964,‘ alleging

1 The deep sea locals handle loading and unloading of deep sea

vessels carrying cargo involved in foreign trade. See Supp. Record,

vol. I at 810; Brief for Appellant E.E.0.C. at 2 n. 2.

2 Now United States Circuit Judge.

3 A detailed review by us of the facts of the case would be super-

fluous, since the prior decisions of this court and of the district

court more than adequately chronicle the progress of the lawsuit.

See E.E.0.C. v. International Longshoremen’s Ass'n, 511 F.2d 2738

(5th Cir.), cert. denied, 423 U.S. 994, 96 S.Ct. 421, 46 L.Ed.2d 868

(1975) ; United States v. International Longshoremen’s Ass'n, 334

F.Supp. 976 (S.D. Tex. 1971).

* The suit was originally brought by the Attorney General under

42 U.S.C. § 2000e-6(a), which gave him jurisdiction when he had

reasonable cause to believe that a person or group of persons were

engaged in a pattern or practice of resistance to the enjoyment of

any of the rights secured by the Act. Effective as of March, 1974,

this jurisdiction was transferred to the Equal Employment Oppor-

that the International Longshoremen’s Association

(I.L.A.), the South Atlantic and Gulf Coast District of

the I.L.A., and thirty-seven local general cargo long-

shoremen’s unions chartered by the I.L.A., were engaged

in a pattern or practice of discrimination on grounds of

race, color, and national origin. The United States al-

leged that the defendants maintained local unions, hiring

halls, and gangs which were classified and segregated on

grounds of race and national origin, resulting in the

denial of equal working opportunities to black and Mexi-

can-American longshoremen. The relief sought included

a court-ordered merger of the segregated locals, and the

discontinuance of separate locals, hiring halls and gangs

based upon race and national origin.

After hearing several days of testimony in the cause

and reviewing the hundreds of exhibits filed, Judge Garza

found

that the Defendants have chartered and still main-

tain locals on a segregated basis, that the prevalent

rule of dividing the work fifty-fifty between the

White and Negro locals violates Title VII of the

Civil Rights Act of 1964, because it deprives long-

shoremen, be they Black or White, Anglo, Mexican-

American or Negro, equal working opportunities de-

pending on which group is in the majority in the

different ports, and that this will be a continuing

violation in the future.

United States v. International Longshoremen’s Associa-

tion, 334 F.Supp. 976, 981 (S.D.Tex.1971). Despite his

findings that the maintenance of segregated locals de-

prived on longshoremen of equal employment opportu-

nities, Judge Garza refused to order the consolidation of

tunity Commission by 42 U.S.C. § 2000e-6(c); § 2000e-6(d) con-

tinued without abatement all suits brought by the Attorney Gen-

eral by substituting the Commission as the party. E.2£.0.C. v. Inter-

national Longshoremen’s Ass'n, 511 F.2d 273, 274 n. 8 (5th Cir.

1975).

the locals in each port. Rather, the court held that the

violations of Title VII “can be fully corrected by the

abolishment of separate hiring halls and the establish-

ment of a common hiring hall” and by the adoption of

common seniority classifications “on a port by port basis

for each defendant local union which does the same kind

of work... .” Interlocutory Decree, Supp. Record, vol. I,

at 700-11. The E.E.0.C. appealed the court’s refusal to

merge the locals, and this court reversed, holding that

“the edict of 42 U.S.C. § 2000e-2(c) (2) [Title VII] can-

not be satisfied in the present case by measures short of

the merger in each particular port of the racially segre-

gated locals within that port.” E£.2.0.C. v. International

Longshoremen’s Ass’n, 511 F.2d 278, 280 (5th Cir.),

cert. denied, 423 U.S. 994, 96 S.Ct. 421, 46 L.Ed.2d 368

(1975), (Thornberry and Godbold, JJ., specially concur-

ring). The cause was remanded with directions to merge

the I.L.A. locals within each Texas gulf port.

On remand, the district court conducted several eviden-

tiary hearings for the sole purpose of determining

whether I.L.A. Local 1576 should be required to merge

with the other three deep sea locals in Galveston.* In a

5 The record and briefs in the case indicate that the evidentiary

hearings were held in response to a prior motion by the defendant

locals to exclude Local 1576 from the interlocutory decree of the

district court merging hiring halls and seniority plans but not the

locals themselves. In support of their motion to exclude, the locals

argued that Local 1576 had not been included with the others as a

deep sea local in contracts with the West Gulf Maritime Associa-

tion; that Local 1576 had not been covered by the joint welfare,

vacation, and pension plans of the other locals; that Local 1576's

charter limited its work to the loading and unloading of bananas

and green fruit whereas the other locals were limited to loading

and unloading general cargo; and that members of Local 1576

had less seniority than members of the other locals and would

therefore be prejudiced by a merger. See Supp. Record, vol. I, at

700-01, 722-88; Brief for Appellant E.E.0.C. at 6-7. The inter-

locutory decree was reversed by this court, 511 F.2d 273, but the

district court, on remand, continued to consider defendants’ motion

to exclude Local 1576.

—_

Memorandum and Order dated October 1, 1979,* the dis-

trict court examined the historical development, business

activities, seniority systems, and employee benefit plans

of the four locals in question.*? The court next considered

the three alternatives before it.

®* The unpublished Memorandum and Order appears in the Supp.

Record, vol. I, at 809-17.

* The court found, inter alia, that

(I)ocals 307, 329 and 851 are now and have always been oper-

ated as general deep sea locals. Local 1576 has never been

affiliated with the general deep sea locals. Its work jurisdiction

is more limited in that it is involved in the loading and unload-

ing of bananas and green fruit. Locals.307, 329 and 851 have

been and are now signatories to deep sea contracts between

themselves and the South Atlantic and Gulf Coast District

the I.L.A. and the West Gulf Maritime Association.

has never been a signatory nor been named in the

Local contracts. Locals 307, 329 and 851 are also

a guaranteed annual income [GAI] plan with West Gulf

time Association. Local 1576 has never been and is not

covered under that plan, predominately because the work

requirements of Local 1576 do not meet the minimum

necessary to qualify under the GAI Plan. Locals 307,

851 have been covered in a welfare, vacation and pension plan

in which Local 1576 has never been included.

Local 1576 did not become an active local until the

1960’s, many years subsequent to the founding of the

three Galveston locals. Thus, the early 1960's was the starting

point for Local 1576's seniority system. Additionally, although

Locals 307, 329 and 851 have required at lease [sic] a minimum

of 700 hours per year to obtain seniority, Local 1576 has never

been able to demand such an amount. In the formative years

of Local 1576's operation, business was extremely slow. In

fact, there was a period in the early- 1960’s when Local 1576

had no business whatsoever. At first, a longshoreman could

obtain seniority in Local 1576 if he loaded or unloaded one ship

per year. That number was later raised to 20 ships per year

and finally to the present requirement of 300 hours per year.

Nonetheless, it was stated at the hearing that many of the 247

members of Local 1576 have worked more than 300 hours per

Hirtepiee

6a:

First, the Court can merge the four locals together

under a uniform seniority system. Second, it can

order a merger excluding Local 1576 but requiring

those members of Local 1576 who have dual seniority

to choose between Locals 307 and 1576. This election

would result in the elimination of the member’s se-

niority in one of the locals. Third, the Court could

order the merger excluding Local 1576 and allowin »

its members to retain their dual seniority.

Supp. Record, vol. I, at 813.

The court rejected the first alternative, the merger of

all four locals, because the difference in the seniority sys-

tems of each local would place members of Local 1576 at

the bottom of the seniority list. If the merged local were

willing to grant a year’s seniority to any longshoreman

year. Mr. Ramirez stated that Local 1576 maintains complete

time records of all its employees.

Although Local 1576 did experience a number of lean years,

its members worked to develop and strengthen its position with

regard to the banana and green fruit trade. The members of

Local 1576 have built up a good reputation in their specialized

business and have established themselves in the banana and

green fruit market.

It was also elicited at the hearing that a member of one local

could seek work in another local and obtain seniority under the

latter’s system as well as his own. This procedure allows those

longshoremen who cannot obtain work in their own local to go

to another to earn their wages. Nonetheless, there has been

a tradition in the Galveston locals that members of each race

are expected to seek work only with the local whose membership

is composed of that race.

Traditionally, black longshoremen sought work in Locals 329

and 851. Members of the Anglo Local 307 would historically

seek other work in Local 1576, and members of Local 1576

would in turn go to Local 307. Because of this, 43 members

of Local 1576 have seniority in both their own local and Local

307

Supp. Record, vol. I, at 811-12.

who had qualified in his own local and who had been

available for longshore work, regardless of the hours

actually worked, the first alternative would have been

acceptable. Locals 307, 329 and 851 refused however, to

accept this proposal, and because of this attitude, the

court refused to merge all four locals. Supp. Record, vol.

I, at 814.

The second alternative considered by the court was also

rejected because of its discriminatory effect on Local

1576, leaving only the options of merging Locals 307, 329

and 851 while keeping Local 1576 separate. In support

of this alternative, the court pointed out “that unlike the

situation in the other locals, Local 1576 has not discrim-

inated against any racial group. Although the great ma-

jority of members and work gang foremen are Mexican-

American, its membership is open to anyone. There is no

evidence that members of Local 1576 have ever discrimi-

nated against any individuals or refused admittance to

their local.” Supp. Record, vol. I, at 815. Finding the

third alternative to be most equitable, the court ordered

the merger of Locals 307, 8329 and 851; Local 1576 was

excluded from tne merger and removed as a defendant

in the case. The E.E.0.C. and Locals 307 and 851 now

appeal the order of merger excluding Local 1576. Relying

on the law of the case set forth in this court’s prior

opinion, 511 F.2d 278, we reverse and remand the cause

with directions to merge all four Galveston locals.

II. The Law of the Case

It is well established that a decision of a legal issue by

an appellate court establishes “the law of the case” which

must be followed in all subsequent proceedings in the

same case in the trial court or on a later appeal in the

appellate court unless: (1) a subsequent trial produces

substantially different evidence, (2) controlling authority

has since made a contrary decision of law applicable to

such issue, or (3) the prior decision was clearly erro-

neous and would work manifest injustice. White v.

Murtha, 377 F.2d 428, 431-32 (5th Cir. 1967) ; see Mor-

row V. Dillard, 580 F.2d 1284, 1289-1290 (5th Cir.

1978) ; Sehwartz v. NMS Industries, Inc., 575 F.2d 553,

554-555 (5th Cir. 1978). The doctrine does not reach

questions which were not decided in a former proceeding,

but does comprehend “things decided by necessary impli-

cation as well as those decided explicitly.” Carpa, Inc. v.

Ward Foods, Inc., 567 F.2d 1316, 1320 (5th Cir. 1978)

(emphasis in original). Under the “law of the case” rule,.

the trial and appellate courts are bound by any findings

of fact or conclusions of law made by the appellate court

in a prior appeal of the case at issue. De Tenorio Vv.

Lightsey, 589 F.2d 911, 917 (5th Cir.), cert. denied, 444

U.S. 831, 100 S.Ct. 59, 62 L.Ed.2d 39 (1979).

The district court here did not follow the law of the

case as established by this court in the prior appeal. This

court held that Title VII required “the merger in each

particular port of the racially segregated locals within

that port.” 511 F.2d at 280. Judges Godbold and Thorn-

berry, specially concurring, explained that such merger

is required whenever the district court finds (as was

done here) that segregated locals have caused unequal

employment opportunity. Jd. There is no question that

this court’s prior mandate comprehended the Galveston

locals. The district court opinion singled out Galveston

Locals 1576 and 329 as prime examples of locals whose

members had been denied equal employment opportunity

due to segregation. 334 F.Supp. at 980-81. Moreover, its

interlocutory order requiring merger of hiring halls re-

ferred specifically to Galveston Locals 307, 329, 851, and

1576. See Interlocutory Decree, Supp. Record, vol. I, at

700-11. When this court reversed and remanded the case,

holding that there was no discretion to refuse merger, it

clearly contemplated that the four deep sea locals in

Galveston would be merged. This message was clearly

understood; on remand Judge Garza told counsel he

would listen to arguments why Local 1576 should not be

-— - |

merged, “but I just know that the Fifth Circuit is going

to send it back to me.” Supp. Record, vol. III, at 35. His

prophecy is correct.

The district court failed to find an applicable exception

to the law of the case doctrine to justify its deviation

from this court’s mandate. There is no contention that

controlling authority since this court’s 1975 decision dic-

tates a contrary decision of the law applicable to this

case; nor did the district court presume to hold that this

court’s decision was clearly erroneous. Further, the evi-

dentiary hearings conducted since this court’s ruling have

not produced any new or substantially different evidence

which would justify the exclusion of Local 1576 from the

Galveston merger.

In view of this court’s prior holding that segregated

locals must be merged whenever they result in unequal

employment opportunity, the only new evidence that could

have justified excluding Local 1576 from the merger

would have been evidence that the local is no longer seg-

regated or that its segregated existence does not deprive

any group of equal employment opportunity. The evi-

dence demonstrated the contrary. Local 1576, still char-

tered as a union for Mexican-Americans, remains func-

tionally segregated. See, é.9., Record, vol. II, at 22-24, 41-

44, 73. In 1971 the district court found that black long-

shoremen “have to be referred out of a [black] local

hiring hall”; that “White longshoremen are referred out

of a White longshoremen’s hiring hall”; and that excep-

tions to this practice “have been few and far between.”

334 F.Supp. at 978. See also 511 F.2d at 277 n.8. Based

on evidence presented at the September 1979 hearing on

remand, the district court specifically found that this

practice has not changed: few black longshoremen obtain

employment through either white Local 307 or Mexican-

American Local 1576, and few white or Mexican-Ameri-

can longshoremen obtain employment through the black

10a

locals (829 and 851). Referring to the tradition among

the Galveston locals that members of each race are ex-

to seek work only with the local whose membership

is composed of that race, the court commented:

I don’t doubt . .. at all that when there are some

Blacks there in 1576... the Mexican-Americans

have the first crack at it. If I made any other find-

ings, I would be a liar.

Record, vol. II, at 217. Although the trial court may

have been correct in stating that Local 1576 never ac-

tively discriminated against members of any racial

group, the fact remains that as one of four segregated

Galveston longshoremen’s locals, Local 1576 has been part

of a system which operates to discriminate against people

because of race and national origin. That Local 1576

may not have intended to discriminate does not justify

its exclusion from the order of merger mandated by this

court. See 511 F.2d at 278 (Title VII does not look to the

intention of those who segregate). See also International

Brotherhood of Teamsters v. United States, 481 U.S. 324,

97 S.Ct. 1843, 52 L.Ed.2d 396 (1977).

Ill. The Struggle with Seniority

A reading of the district court’s October 1979 Memo-

randum and Order reveals that Local 1576 was excluded

from the merger order primarily because the court be-

lieved a total merger would unfairly penalize members

of Local 1576 by placing them at the bottom of the com-

mon seniority list. The loss of seniority, the court feared,

would deny work to Local 1576 longshoremen, and thus

deprive them of the “fruits of their labors.” Supp. Rec-

ord, vol. I, at 814. It was noted that this consequence

could be prevented by slotting Local 1576 members into

the merged system according to the seniority earned

under that local’s more lax standards. This alternative

lla.

was rejected, however, because of objections by the

other locals.

In fact, the court’s fear of disadvantaging Local 1576

may well have been unwarranted. While seniority in

1576 is determined on a different basis than it is for the

other Galveston locals—Local 1576 has a 300 hour per

year standard, the other locals a 700 hour per year stand-

ard—evidence in the record Suggests that (1) in practice

many Local 1576 longshoremen may be able to satisfy

the higher standard, and (2) many black longshoremen

may have less seniority than Local 1576 members regard-

less of the standard employed. See, e.g., Record, vol. II,

at 191-95, 214.

In any case, the prospect that blacks and whites may

benefit at the expense of Mexican-Americans from the

elimination of discrimination does not, in itself, justify

permitting the discrimination to continue. As the district

court recognized in 1971, “[w]hile the Civil Rights Act

of 1964 was passed to aid Negroes and other minorities,

it was passed to help Whites as much as Negroes, if their

civil rights are being violated .. ..” 334 F.Supp. at 979.

At that time the district court also noted the “terrific

problem” of merging seniority lists. Id. at 981. However,

in holding that a complete merger was required this

court explicitly rejected the view that such problems jus-

tify the continued segregation of the locals. 511 F.2d at

280. The law is well settled that relief under Title VII

cannot be denied simply because the interests of some

employees will be negatively affected; otherwise “there

will be little hope of correcting the wrongs to which the

Act is directed.” Franks v. Bowman Transportation Co.,

424 U.S. 747, 775, 96 S.Ct. 1251, 1269, 47 L.Ed.2d 444

(1976) ; Vogler v. McCarty, Inc., 451 F.2d 1236, 1238-39

(5th Cir. 1971). Rather, to eradicate the consequences of

unlawful discrimination, the court “must be free to deal

equitably with conflicting interests of .. . employees in

12a

order to shape remedies that will most effectively protect

and redress the rights of the . . . victims of discrimina-

tion.” Vogler v. McCarty, Inc., 451 F.2d at 1238-39.

Under these principles, the finding by the district court

that a merger of all four locals would disadvantage the

Mexican-Americans of Local 1576 was not a sufficient

reason to deny the merger.

IV. Conclusion

The outcome of this appeal is predetermined under the

long-standing doctrine of law of the case. This court, in

the prior appeal of this case, ordered that all four Gal-

veston deep sea locals be merged. There have been no

intervening changes in the law or the circumstances to

justify any deviation from that command. We are com-

pelled to once again remand with directions to merge all

four Galveston locals. In so holding, we reaffirm the

prior opinion of this court in E.£.0.C. v. International

Longshoremen’s Ass’n, 511 F.2d 273 (5th Cir.), cert.

denied, 423 U.S. 994, 96 S.Ct. 421, 46 L.Ed.2d 368

(1975).

REVERSED and REMANDED.

’%

13a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

Civil Action Number 69-B-3

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

V8.

INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, an unin-

corporated association; SouTH ATLANTIC AND GULF

CoAsT DISTRICT, INTERNATIONAL LONGSHOREMEN’S AS-

SOCIATION, an unincorporated association; and LOCALS

1367, 1868 and 1372, I.L.A., Brownsville, Texas; Lo-

CALS 872, 1231, 1271, 1278, 1880, 1331, 1525, and 1581,

I.L.A., Houston, Texas; LOCALS 325, 1806 and 1610

I.L.A., Beaumont, Texas; LOCALS 307, 329, 851 and

1576, I.L.A., Galveston, Texas; LOCALS 1224, 1225,

1241, 1245, 1280 and 1281, I.L.A., Corpus Christi,

Texas; LOCALS 1728 and 1818, I.L.A., Freeport, Texas;

LOCALS 636, 991, 1405 and 1406, I.L.A., Texas City,

Texas; LOCALS 440, 1029, and 1175, I.L.A., Port Ar-

thur, Texas; LOCALS 341 and 814, I.L.A., Orange,

Texas; and LOCALS 1758 and 1763, I.L.A., Port Lavaca,

Texas, unincorporated associations,

Defendants.

MEMORANDUM AND ORDER

Pursuant to a decision of the Fifth Circuit Court of

Appeals, Equal Employment Opportunity Commission v.

International Longshoremen’s Association, 511 F.2d 273

l4a

(5th Cir. 1975), cert. denied, 428 U.S. 994 (1975), this

Court is presently attempting to merge the I.L.A. Locals

within each Gulf Port in the State of Texas so as to

eradicate the racial discrimination which created the

necessity for such merger. On September 19, 1979, this

Court conducted an evidentiary hearing for the sole pur-

pose of determining whether I.L.A. Deep Sea Local 1576

in Galveston, Texas, should be required to merge with the

other Galveston Deep Sea Locals. The Court is of the

opinion that it should not.

There are four deep sea locals in the Port of Galves-

ton. A deep sea local is engaged in the loading and un-

loading of ships and materials in the gulf ports of Texas.

Local 307 is composed of Anglo longshoremen. Locals

829 and 851 are composed of black longshoremen, and

Local 1576 has a predominant membership of Mexican-

Americans although it also includes Anglos and blacks.

Locals 307, 329, 851 and the Plaintiff E.E.0.C. all de-

sire a complete merger. Local 1576 does not.

At the September 19th hearing, five individuals tes-

tified. Three of them were members of Local 1576: Mr.

Luis Sendejas, President, Mr. Bill Nelson, Business

Agent and Mr. Baltazar Ramirez, Secretary. Mr. Leroy

Hoskins, President of Local 851, and Mr. Andrew Lee

Laws, President of Local 329, also testified. The follow-

ing facts are taken from the foregoing individuals’

testimony. .

Locals 307, 8329 and 851 are now and have always been

operated as general deep sea locals. Local 1576 has never

been affiliated with the general deep sea locals. Its work

jurisdiction is more limited in that it is involved in the

loading and unloading of bananas and green fruit. Locals

307, 329 and 851 have been and are now signatories to

deep sea contracts between themselves and the South

Atlantic and Gulf Coast District of the I.L.A. and the

West Gulf Maritime Association. Local 1576 has never

15a

been a signatory nor been named in the deep sea local

contracts. Even though Local 1576 is not a party to any

such collective bargaining agreements, it is covered under

a pension, welfare and vacation benefit plan which is

also available to Locals 307, 329 and 851. Since 1976,

Local 1576 has received the same coverage as the other

three locals under a guaranteed annual income program.

This guaranteed annual income program entitles an em-

ployee who, because of the sparsity of jobs, is unable to

work the base amount of 1,000 hours per year to receive

a benefit which will equal his base plus his actual wages

up to a certain annual hourly maximum.

Local 1576 did not become an active local until the

early 1960’s, many years subsequent to the founding of

the other three Galveston locals. Thus, the early 1960’s

was the starting point for Local 1576’s seniority system.’

Additionally, although Locals 307, 329 and 851 have

required at least a minimum of 700 hours per year to

obtain seniority, Local 1576 has never been able to de-

mand such an amount. In the formative years of Local

1576’s operation, business was extremely slow. In fact,

there was a period in the early 1960’s when Local 1576

had no business whatsoever. At first, a longshoreman

could obtain seniority in Local 1576 if he loaded or un-

loaded one ship per year. That number was later raised

to 20 ships per year and finally to the present require-

1In regard to Local 1576’s seniority system, Mr. Nelson testified

that the Plan of Seniority itself was determined differently in the

other three locals. Mr. Nelson stated that while Locals 307, 329

and 851 accord seniority on progressive intervals of five years

tenure, Local 1576 grants seniority on a year-by-year basis. Under

the first system, in, for example, the five to ten year category, a

longshoreman who has six years experience is equal to one with

nine years experience and, according to the wishes of his foreman,

could be selected over his more experienced colleague. Under Local

1576’s system, the longshoreman with nine years experience would

be chosen first for a job on the waterfront.

16a

ment of 300 hours per year. Nonetheless, it was stated

at the hearing that many of the 247 members of Local

1576 have worked more than 300 hours per year. Mr.

Ramirez stated that Local 1576 maintains complete time

records of all its employees.

Although Local 1576 did experience a number of lean

years, its members worked to develop and strengthen its

position with regard to the banana and green fruit trade.

The members of Local 1576 have built up a good reputa-

tion in their specialized business and have established

themselves in the banana and green fruit market.

It was also elicited at the hearing that a member of

one local could seek work in another local and obtain

seniority under the latter’s system as well as his own.

This procedure allows those longshoremen who cannot

obtain work in their own local to go to another to earn

their wages. Nonetheless, there has been a tradition in

the Galveston locals that members of each race are ex-

pected to seek work only with the local whose member-

ship is composed of that race. Traditionally, black long-

shoremen sought work in Locals 329 and 851. Members

of the Anglo Local 307 would historically seek other

work in Local 1576, and members of Local 1576 would

in turn go to Local 807. Because of this, 48 members

of Local 1576 have seniority in both their own local and

Local 307. Even though Local 1576 is predominantly

Mexican-American, the evidence shows that it never dis-

criminated against members of any racial group. Local

1576 is composed of Anglos, blacks and Mexican-Ameri-

cans. Local 1576 possesses 16 work gangs through which

the members earn their hours. There are 15 Mexican-

American foremen and one Anglo foreman. Although

there are no black foremen at the present time, there

has been one in the past. Additionally, Local 1576 has

advertised on the radio in an effort to obtain additional

longshoremen. These advertisements were in both Eng-

17a

lish and Spanish on Galveston Station KGBC. They were

usually placed on weekends which tend to be the busiest

time since two ships might arrive simultaneously. Local

Local 1576 ceased the advertising, largely because the

cost became excessive.

Locals 307, 329 and 851 now seek a merger which wil!

include Local 1576. This stance taken by the three locals

signifies a 180 degree shift from their previous position.

On December 26, 1973, Locals 807, 329 and 851 joined

in a Motion to Exclude Local 1576.2 The Motion was

based largely upon the fact that the work jurisdiction

of Local 1576 was separate and distinct from that of the

other Galveston locals. More recently, the Court was

informed by letter that a plan of merger in the Galves-

ton ports which excluded Local 1576 was ready although

it was never presented to the Court. Now, because of

“changed circumstances,” the three locals desire a total

merger. The “changed circumstances” were never de-

lineated by the locals seeking the merger. The member-

ship of Local 1576 is unanimously in favor of remaining

Separate. The membership is also fully cognizant that

their lifeline of employment is a slender one. A banana

crop wiped out by a hurricane or a decision, by the

banana industry to pull out of Galveston would destroy

Local 1576. The membership is completely aware of such

possibilities and assumes the inevitable risks.

Therefore, the Court is faced with three alternatives.

First, the Court can merge the four locals together

under a uniform seniority system. Second, it can order

a merger excluding Local 1576 but requiring those mem-

bers of Local 1576 who have dual seniority to choose

between Locals 307 and 1576. This election would result

in the elimination of the member’s senority in one of the

2 Besides the three locals abovementioned, the International Long-

shoremen’s Association and the South Atlantic and Gulf Coast

District of the J.L.A. also joined in the motion to exclude Local 1576.

18a

locals. Third, the Court could order the merger exclud-

ing Local 1576 and allowing its members to retain their

dual seniority.

Under the first alternative, supported by Locals 307,

329 and 851, it is apparent that members of Local 1576

would be penalized and might well find themselves out

of a job. Although the average number of years that

members have been employed in each of the four locals

might be similar, the difference in the seniority systems

would place members of Local 1576 at the bottom of the

seniority list. If the merged local would grant a year’s

seniority to any longshoreman who had qualified in his

own local and who had been available for longshore work,

regardless of the hours actually worked, the first alterna-

tive would be acceptable. Locals 307, 329 and 851, how-

ever, refuse to agree to such a proposition. Mr. Hoskins

testified that he will not agree to give a year’s seniority

to a longshoreman who has not worked the minimum

number of hours required in his union even if that man

qualified in Local 1576.5 Mr. Laws also stated that he

would not agree to such a situation. Because of this

attitude, the Court will refuse to merge all four locals.

Local 1576 has been treated as a stepchild in the

Port of Galveston since its inception. It has endured

rugged and trying years when work was slim. Even

when the work increased, members of Local 1576 did

not become part of the deep sea contracts. The other

Galveston locals have not, until now, wanted anything

to do with Local 1576 because of the latter’s special-

ized duties. If merger is now allowed, Local 1576 mem-

8 At the hearing, counsel for Local 851, Mr. Robert Moore, stated

that his client would agree to grant a year’s seniority to any mem-

ber of Local 1576 who qualified for a year’s service in the latter

union. Nonetheless, it was apparent that Mr. Hoskins did not agree

with his attorney’s stipulation. In light of such a conflict, the Court

must assume that the union would not agree to accepting Local

1576 members on the same basis as its own members.

19a

Members of the three locals contend that if the dual

seniority is retained, members of Local 1

able to work their usual four day work and then,

by taking advantage of their dual seniority, seek work

in Local 307 on weekends and holidays. The three locals

contend that this would allow Local 1576 members to

work a six or seven day week and deprive Local 307

members of work in their own union. The Court refuses

to accept this alternative as well. The 43 members of

Local 1576 who have dual seniority have made them-

selves available for work in Local 307 and have acquired

legitimate seniority in that local. To require those long-

shoremen to choose between the two locals and renounce

their seniority in one of them is inequitable and un-

founded. The Court’s reasoning is strengthened by the

fact that members of locals in other ports could and

probably do possess seniority in Galveston locals. The

three locals apparently do not object to the latter prac-

tice. The Court sees no reason to discriminate against

= Fe

20a

It is also clear to the Court that unlike the situation

in other locals, Local 1576 has not discriminated

against any racial group. Although the great majority

of members and work gang foremen are Mexican-Amer-

ican, its membership is open to anyone. There is no

evidence that members of Local 1576 have ever discrimi-

nated against any individuals or refused admittance to

their local. Therefore the Court is of the opinion that

the most equitable decision is to proceed with the merger

of Locals 307, 329 and 851. Local 1576 shall be ex-

cluded from the merger, and it shall continue to conduct

its present business. Additionally, all members of Local

1576 who possess dual seniority shall be allowed to re-

tain it.

It is hereby ORDERED that the merger of Locals

307, 329 and 851 in the Galveston port shall proceed

with all haste.

It is further ORDERED that Local 1576 shall be ex-

cluded from the merger and shall be removed as a

Defendant in the above styled case.

The Clerk shall send a copy of this Memorandum and

Order to all counsel, and the master, Dean A. A. White.

DONE at Brownsville, Texas, on this the lst day of

October, 1979.

/s/ Reynaldo G. Garza

REYNALDO G. GARZA

United States Circuit Judge

TRUE Copy I CERTIFY

ATTEST:

V. BAILEY THOMAS

Clerk

By /s/ B. Barbour

Deputy Clerk

21a

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

Civil Action Number 69-B-3

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

Vs.

INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, et al.,

Defendants.

PARTIAL JUDGMENT

By a Memorandum and Order entered this date, the

Court ordered that Galveston I.L.A. Local 1576 would be

excluded from the merger of Galveston I.L.A. Locals 307,

329 and 851. Based upon that Memorandum and Order,

it is hereby

ORDERED, ADJUDGED and DECREED that Galves-

ton I.L.A. Local 1576 is removed as a defendant from

the abovestyled cause. The Clerk shall remove said de-

fendant from the docket of this Court.

Although there are still a number of parties and claims

involved in this case, pursuant to Fep. R. Civ. P. 54(b),

the Court is of the opinion that there is no just reason

for delay on this issue, and, therefore, final judgment

shall be entered dismissing Local 1576 from this action.

The Clerk shall send a copy of this Partial J udgment

to all counsel, and the master, Dean A. A. White.

DONE at Brownsville, Texas on this the 1st day of

October, 1979.

/8/ Reynaldo G. Garza

REYNALDO G. GARZA

United States Circuit Judge

22a

APPENDIX C

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1975

December 1, 1975

No. 75-356. INTERNATIONAL LONGSHOREMEN’S ASSN.

ET AL. v. EQUAL EMPLOYMENT OPPORTUNITY COMMIS-

SION. C.A. 5th Cir. Certiorari denied. Reported be-

low: 511 F. 2d 273. }

28a

APPENDIX D

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 74-1058

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellant,

Vv.

INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, et al.,

Defendants-Appellees.

April 11, 1975

Appeal from the United States District Court

for the Southern District of Texas

Before THORNBERRY, GOLDBERG and GODBOLD,

Circuit Judges.

GOLDBERG, Circuit Judge:

This suit poses for us, in the year 1975, the question

of the legality of maintaining segregated black and white

unions. Workers in these unions perform the same basic

functions, for the same bosses, in the same ports but do

80 out of different locals. Defendants claim that this divi-

sion is no more than an amenity for those who wish to

associate with “their own”. We believe that the effect,

if not the intention, is far more invidious, in that it de-

nies equal opportunities to workers and potential work-

ers, and is thus in violation of 42 U.S.C. § 2000e et seq.

The defendants in this suit are the International Long-

shoremen’s Association, the South Atlantic and Gulf

Coast District of the Association and 37 local unions

within the State of Texas which are chartered by the

Association. Save for one of the locals, all, whether black

24a

or white, are opposed to a merger with their “sister”

unions within each port.’

All of the locals involved in this suit were chartered

before the passage of Title VII, the Civil Rights Act of

1964.2 The unions have had what was admittedly a pro-

gressive interracial arrangement when the unions were

first chartered. In most of the ports the work was di-

vided on a 50%-50% basis between the black and white

locals. There were no wage differentials between those

in the white and those in the black locals. The defendants

contend, and the plaintiff, the Equal Employment Oppor-

tunity Commission, does not dispute, that the union com-

mittee, which bargains with the shippers for the labor

agreements which control the Texas ports, is made up

equally of black and white members. Finally, while in

some of the ports the mean take home pay for a white

longshoreman is higher than that for a black longshore-

man, this is at least in part a function of the fact that

black locals have chosen in their own discretion to confer

seniority and therefore job eligibility on more men by

employing laxer standards.

Nonetheless, the United States in 1969 brought suit,’

claiming that what was progressive many years ago has

become, because of the march of law, illegal now.

1 Local 1868, in Brownsville, Texas is made up mostly of blacks

with some Mexican-Americans. Brownsville appears to be a special

case, in which this union local receives only 25% of the work. It

appeals for a “fair share” for its members by whatever means

necessary and does not necessarily oppose merger of locals.

2 42 U.S.C. § 2000e et seq.

3 The suit was originally brought by the Attorney General under

42 U.S.C. § 2000e-6(a), which gave him jurisdiction when he had

reasonable cause to believe that a person or group of persons were

engaged in a pattern or practice of resistance to the enjoyment of

any of the rights secured by the Act. Effective as of March, 1974,

this jurisdiction was transferred to the Equal Employment Oppor-

tunity Commission by 42 U.S.C. § 2000e-6(c); § 2000e-6(d) con-

tinued without abatement all suits brought by the Attorney General

by substituting the Commission as the party.

25a

FACTS

The Government’s suit claimed that the pattern of

union organization violated 42 U.S.C. § 2000e-2(c) (2),

which says that it will be an unlawful employment prac-

tice for any labor organization:

[T]o limit, segregate, or classify its membership or

applicants for membership or to classify or fail to

refuse to refer for employment any individual, in

any way which would deprive or tend to deprive any

individual of employment opportunities . . . or other--

wise adversely affect his status as an employee or

as an applicant for employment, because of such

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

origin.

The plaintiff asked the district court to hold that seg-

regated unions are, per se, a violation of the statute and

therefore to order that the paired local unions be merged.

The defendants essentially argued that no economic dep-

rivation resulted from the existence of separate locals and

therefore that their organizational structure did not vio-

late the law.

In his opinion, United States v. Int’l Longshoremen’s

Ass’n, 8.D.Tex.1971, 334 F.Supp. 976, the district judge

found that the maintenance of completely separate unions

would, in fact, tend to deprive individuals of employment

on the basis of their race. Judge Garza decided that

while the 50%-50% rule had the superficial look of equal-

ity, in fact it had discriminatory potential:

If in any port there are one hundred Whites avail-

able to work on the waterfront as longshoremen and

two hundred Negroes, and the work is divided fifty-

fifty it is obvious that the one hundred Whites will

work more hours than the Negroes. . . .

26a

It is not the racial composition of the community

that should control, but the number of Blacks and

Whites that make themselves available for longshore

work that counts.

334 F.Supp. at 979. However, he declined to find that

segregated unions in themselves were in violation of the

Civil Rights Act of 1964 and stated that he thought he

could shape a decree short of merger which would remedy

the economic deprivation. He held the formulation of a

decree in abeyance, however, and certified to this Court,

under 28 U.S.C. § 1292(b), the question of whether the

segregated locals had to be merged.‘

For reasons known only to it, or perhaps for no reason

at all, the plaintiff did not take an appeal but decided

instead to enter into negotiations with the unions, still,

apparently, maintaining its “merge or no deal” approach

throughout. This approach did not result in a resolution

of the issues, and on November 6, 1972, a year after

Judge Garza entered his first order, the Government

made a motion for entry of judgment. In its Memoran-

dum in Support of Plaintiff’s Motion for Entry of Judg-

ment, the Government said: “We believe that an Order

should be entered requiring merger in the manner sug-

gested by our Proposed Decree, and also requiring the

other elements of relief contained in that proposal.” A

year after this motion on October 1, 1973, the district

428 U.S.C. § 1292(b) reads, in relevant part:

When a district judge, in making a civil action an order not

otherwise appealable under this section, shall be of the opinion

that such order involves a controlling question of law as to.

which there is substantial ground for difference of opinion and

that an immediate appeal from the order may materially ad-

vance the ultimate termination of the litigation, he shall so

state in writing in such order. The Court of Appeals may

thereupon, in its discretion, permit an appeal tc be taken from

such order, if application is made to it within ten days after

the entry of the order... .

27a

court entered an Interlocutory Decree which held that

the defendants were not required to merge and that

“therefore such relief is hereby denied;” and proceeded

to hold that the violations of Title VII of the Civil Rights

Act of 1964 “can be fully corrected by the abolishment of

separate hiring halls and the establishment of a common

hiring hall” and by the establishment of common senior-

ity classifications. The Equal Employment Opportunity

Commission appeals from this Interlocutory Order.

JURISDICTION

A panel of this Court denied appellee’s motion to dis-

miss the appeal on February 12, 1974. We agree with

that panel’s action and believe that the appeal is correctly

before this Court.’ The jurisdictional posture of this

case is a peculiar one. The district court’s order is defi-

nitely interlocutory in nature. It orders the parties to

confer in establishing common seniority systems and hir-

ing halls and to submit a plan back to the district court

so that it can entertain objections. The order goes on to

state that the district court is retaining jurisdiction in

5 Indeed, it might appear that once a panel of this Court had made

a legal determination that jurisdiction exists, no subsequent panel

on its own could make a contrary determination. Rather the original

panel’s action would appear, at the least, the law of the case, and

could not be overruled except by this Court sitting en banc. None-

theless, this Court has held that the panel deciding the case must

make a de novo determination of jurisdiction. We have said: “Al-

though motions to dismiss have been denied under our adminis-

trative procedures, the Court of Appeals is not precluded from a

further inquiry as to its jurisdiction and is not relieved of the duty

to dismiss the appeal if it appears there is no jurisdiction.” Austra-

can, Inc. v. M/V Lemoncore, 5 Cir. 1974, 500 F.2d 287 at 239; see

also Cook v. Eizenman, 5 Cir. 1963, 312 F.2d 184 at 136. Thus we

must make the independent inquiry above.

28a

the matter with “full power and authority to issue any

additional Orders necessary to insure equal employment

opportunities . . ..” In so ordering, however, the judge '

denied the plaintiff’s motion for a permanent injunction

merging the locals.

28 U.S.C. § 1292(a) (1) provides in relevant part that

the courts of appeals shall have jurisdiction of appeals

from “interlocutory orders of the district courts of the

United States, ... granting(,) ... refusing or dissolving

injunctions .. .” In a number of cases we have upheld

the appealability of denials of preliminary injunctions.

See, e.g., Mercury Motor Express, Inc. v. Brinke, 5 Cir.

1973, 475 F.2d 1086; Southeastern Promotions, Ltd. v.

City of Mobile, 5 Cir. 1972, 457, F.2d 340; Smith v.

Grady, 5 Cir. 1969, 411 F.2d 181; Dilworth v. Riner, 5

Cir. 1965, 348 F.2d 226; Bd. of Pub. Instr. v. Braxton,

5 Cir. 1964, 326 F.2d 616.

The only jurisdictional question in the present case is

whether § 1292(a) (1) applies to give us jurisdiction of

denials of permanent injunctions. We conclude that it

does. In Ferrara v. Louisiana, 5 Cir. 1971, 443 F.2d

344, while recognizing our lack of jurisdiction we said

“« .. [Wle concede that the denial of a preliminary or

permanent injunction is appealable, . . .” and go on to

decide the case by noting “But the critical fact is that

plaintiffs in the proceedings on defendants’ motions to

dismiss merely opposed those motions and did not ask for

a preliminary injunction, much less a permanent one.”

443 F.2d at 345, 346. Though dicta, Ferrara’s language

traces the correct path.

First, we note that in granting the jurisdiction to

hear an appeal from the denial of an injunction, the

statute draws no distinction based upon the type of in-

junction which a party has requested. Second, to the ex-

tent that jurisdiction over only certain interlocutory or-

ders—those involving injunctions—has been granted in

furtherance of the general policy against piecemeal

29a

appeals, see Andrews v. United States, 1968, 373

U.S. 334, 88 S.Ct. 1236, 10 L.Ed.2d 383, that purpose

is as well, or better served, in the adjudication of mo

tion for a permanent rather than a preliminary injunc-

tion. In many cases issues will be finally resolved by the

grant or denial of a permanent injunction, while no such

resolution will stem from a decision on a motion for a

preliminary injunction. This will be the case when, as

in the present situation, the question of the appropriate

remedy is itself a matter of law. Finally, the factor

which singles out injunctions as those matters which will

be appealable from an interlocutory order, the potential

for irrecompensible injury, Di Bella v. United States,

1962, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614; Balti-

more Contractors, Inc. v. Bodinger, 1955, 348 U.S. 176,

75 S.Ct. 249, 99 L.Ed. 233, is just as likely to be present

when an injunction is denied or granted for a time period

extending beyond the final order in the trial. These con-

siderations compel the conclusion that the appeal at bar

is properly before us.°

III

MERITS

In United States v. Jacksonville Terminal Co., 5 Cir.

1971, 451 F.2d 418, we gave comprehensive attention to

the evidentiary issues surrounding a showing of discrimi-

nation. That opinion dealt in part with the interpreta-

® We note that dicta in the Supreme Court’s opinion in Switzer-

land Cheese Ass’n v. Horne’s Mkt., 1966, 385 U.S. 23, 87 S.Ct. 193,

17 L.Ed.2d 23, is consistent with our conclusion. The Court said:

“We take the other view [that the petitioner could not appeal] not

because ‘interlocutory’ or preliminary may not at times embrace

denials of permanent injunctions, but for the reason that the denial

of a motion for a summary judgment because of unresolved issues

of fact does not settle or even tentatively decide anything about the

merits of the claim.” 385 U.S. at 25, 87 S.Ct. at 195, 17 L.Ed.2d

at 25.

80a

tion of section 2000e-2(c) (2), noting that “there appears

no valid justification for preservation of these locals as

separate entities. The record clearly discloses that the

existence of ‘separate but equal’ locals has had, and may

continue to have, post-Act deleterious effects on blacks.”

451 F.2d at 457. We ordered the merger of segregated

unions, but in doing so did not need to inquire further

into the meaning of the statute before us.’

Reading § 2000e-2(c) (2) by its literal terms, as we

ordinarily do, Perry v. Commerce Loan Co., 1966, 383

U.S. 392, 400, 86 S.Ct. 852, 857, 15 L.Ed.2d 827, 833;

Mumford v. Glover, 5 Cir. 1974, 503 F.2d 878 at 882, I

believe that the statute puts an extremely heavy burden

on those who wish to maintain segregated unions. They

must show that this organizational structure would not

tend to deprive any individual of employment opportuni-

ties or affect his status as an employee.

I conclude that the unions cannot make such a showing,

even granting that present longshoremen, whether black

or white, are paid the same wages, have equal numbers

of representatives on the contract negotiating committee,

and, under a common seniority and hiring hall system,

could be assured of an equal chance of obtaining long-

shore work. There are two reasons for this decision.

First, black individuals who might potentially seek em-

ployment opportunities as longshoremen would tend to be

dissuaded by the onus they would then have to bear of

working through an involuntarily all-black organization.°

7™The Court was not presented with motions for remedies short

of merger and did not directly deal with the validity of such

remedies.

8 The defendants note that there is no requirement within the

rules which govern the locals that each local may service only

members of its predominant race. But they admit that the locals

were chartered on the basis of race, and have been maintained on

that basis. As the district court found, the exceptions to this pat-

3la

Second, there is a significant likelihood that the contracts

which would emerge from bargaining sessions in which °

all of labor’s representatives were charged with serving

all of the employees would better the employment status

of present and potential black employees than does a bar-

gaining committee in which half of the representatives

are charged with serving white employees and the other

half with serving black employees.

A. Stigma

In Brown v. Board of Educ., 1954, 347 U.S. 488, 74

S.Ct. 686, 98 L.Ed. 873, in which the Supreme Court held

that segregated schools denied to blacks the equal protec-

tion guaranteed by the Fourteenth Amendment, the

Court said: “To separate [black school children] from

others of similar age and qualifications solely because of

their race generates a feeling of inferiority as to their

status in the community that may affect their hearts and

minds in a way unlikely ever to be undone.” 347 U.S. at

494, 74 S.Ct. at 691, 98 L.Ed. at 880. The Court then

quoted from the lower court in one of the cases consoli-

dated in Brown: “Segregation of white and colored chil-

dren in public schools has a detrimental effect upon the

colored children. The impact is greater when it has the

sanction of the law; for the policy of separating the races

is usually interpreted as denoting the inferiority of the

negro group.” Jd. The Supreme Court found that re-

gardless of the equality of the material inputs, segre-

gated schools could not be equal because the very segre-

gation causes psychic trauma to the black children.

tern “have been few and far between”. 334 F.Supp. at 978. They

are functionally segregated; neither this Court nor the statute we

are applying would force blacks to undergo the tension and tribula-

tions of joining the predominantly white local before we decide

the case.

32a

The racial stigma which prevents segregated schools

from offering equal educational opportunities is not felt

exclusively by children, nor is it felt exclusively in the

educational context. The Supreme Court subsequently

summarily decided a series of cases in which it held that

racially separate facilities were inherently unconstitu-

tional; the Court came to those decisions without regard

to any evidence of material equality. See, e.g., New Or-

leans City Park Improvement Ass’n v. Detiege, 1958, 358

U.S. 54, 79 S.Ct. 99, 3 L.Ed.2d 46, aff’g 5 Cir. 1958, 252

F.2d 122 (segregated parks). Gayle v. Browder, 1956,

352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114, aff’g Browder

v. Gayle, M.D. Ala. 1956, 142 F.Supp. 707 (segregated

eoctioning of buses); Mayor and City Council of Balti-

more v. Dawson, 1955, 350 U.S. 877, 76 S.Ct. 133, 100

L.Ed. 774, aff’g Dawson v. Mayor and City Council of

Baltimore, 4 Cir. 1955, 220 F.2d 3886 (segregated

beaches).

We must address ourselves to the terms of § 2000e-2 (c)

(2) in light of this judicial recognition of the harm to

self-esteem that attaches to many black persons at the

prospect of obtaining their goal through an involuntarily

segregated mechanism—whether that goal be educational,

transportation, recreation or, in the present case, employ-

ment. Once we do so it becomes apparent to me why the

segregated locals currently before us must be merged.

The statute says that any segregation which tends to

deprive an individual of employment opportunities is

illegal. Many black people who are about to embark

upon a career will be dissuaded from becoming long-

shoremen because of the extra burden which attaches to

that profession in the form of the psychic discomfort of

segregation. That extra obstacle, in other words, tends

to deprive them of their opportunity to become longshore-

men. It does not matter that many of the blacks cur-

rently in the segregated local have come to regard it as

a voice of the black community. The effect of such seg-

33a

regation is likely to be viewed as a negative one by many

blacks considering potential jobs and so long as one black

so views it, the result of the practice is discrimination.

Nor does it matter that those who continue the system

may not have a discriminatory intent. The statute which

we are construing calls for a finding of illegitimacy

where the classification tends to effect a denigration of

employment opportunities. It does not look to the inten-

tion of those who segregate nor to the satisfaction with

which they may view the job they have done.

B. Negotiations

The other detriment which blacks will tend to suffer

relates to the adverse effect upon their employment

status and employment opportunities of the contractual

terms which emerge from bargaining sessions in which

only some of labor’s negotiators are charged with rep-

resenting their point of view. The problem is well ex-

pressed in an analogous case to the present one, faced

by the Fourth Circuit:

Abolition of the dual hiring halls and the other

reforms decreed by the district court do not elimi-

nate the necessity of merging the locals. The ILA’s

failure to secure equal employment opportunities

for its black members in all jobs for which they are

qualified is an example of the inherent inequality

that the district judge correctly concluded can be

remedied only by merger. Apart from further liti-

gation, discrimination against black workers who

aspire to non-gang jobs, such as gearmen, mechan-

ics, and foremen, can only be accomplished by bar-

gaining with the stevedores. But the officers of the

white local owe no duty to the members of the black

local, and it is unrealistic to expect them to partici-

pate in hard bargaining on behalf of black long-

shoremen. . . . At best, the union’s committee ap-

34a

proaches the bargaining table with divided legal

responsibilities and loyalties. However, merger of

the locals will place on all bargaining representa-

tives, not just. black bargaining representatives, the

statutory duty to eliminate racial discrimination

throughout the Port. Steele v. Louisville & Nashville

Railroad Co., 323 U.S. 192, 203, 65 S.Ct. 226, 89

L.Ed. 173 (1944).

United States v. Int’] Longshoremen’s Ass’n, 4 Cir. 1972,

460 F.2d 497 at 501. This reasoning is as relevant in

our case as it was in the case before the Fourth Circuit.

As Judge Garza noted below:

Much of this disparity [in total earnings by locals]

is due to the earnings of individual workers on the

waterfront who are members of the locals, but who

are hired directly by the employers, and who are not

referred by the locals, most of whom are Whites,

such as the so-called Gearmen. This situation has

been known for a long time, and yet the cont ~acts

entered into by and between the industry and the

longshoremen have not attempted to correct this

situation.

334 F.Supp. at 979.

I believe that this type of discrimination is more likely

to be overcome when all of labor’s negotiators have the

statutory duty to oppose it, as compared to the case when

only some will oppose it and others will be willing, at

least, to tolerate the discriminatica in return for other

types of benefits.°

Moreover, merger eliminates the possibility of inter-

necine strife between the segregated unions either in

*In addition, there are, of course, multifarious aspects of the

contract negotiation process whose resolution may differentially

affect a black employee's status depending on the duties and direc-

tions of the negotiators.

35a

the negotiation process or in other phases of union activ-

ity. For, where different unions have different interests

we cannot be assured of continuing amicable relations.

I read another salutary effect of this construction of the

statute to be the prevention of any such interunion carn-

age under black and white flags.

‘CONCLUSION

Plessy v. Ferguson, 1896, 163 U.S. 537, 16 S.Ct. 1138,

41 L.Ed. 256, with all of its “separate but equal” para-

phernalia has failed the constitutional test of time for a

good reason. The involuntary separation of people en-

genders a psychological harm which puts the lie to con-

tentions of equality. It is ludicrous to say in the seventh

decade of the twentieth century, 20 years after Brown

v. Board of Education gave us our forceful education in

race relations, as our society and courts have struggled

with the great task of cleansing the vicious inequities

which have beset our black citizens, that segregated

unionism is to receive the statutory or constitutional

blessing of our Congress or this Court. Congress would

be shocked to hear that their legislation entrenches the

inequality inherent in segregated locals. And I would

not undue twenty years of judicial travail to allow that

same result. Unions are not entitled to any separate

enclave in our legal and sociological stratification. A

union is not a social club; it is a fundamental economic

instrument in our society and we have a whole body of

law regulatiug it. The statute we have under considera-

tion is addressed to the potential employment of every

citizen as well as to post-employment conditions. The

segregated unions that we have before us, by ‘heir very

nature, deny equal employment opportunities a. condi-

tions because of the psychological harm they inflict. This

36a

is an intolerable situation. Congress designed the statute

we have before us to abrogate racism and does not allow

us to sanctify segregated unions when the, perpetuate

unequal effects. It may cost some money to merge these

unions; there may be some disruption in activities, but I

would not ever condemn black workers to the Hobson’s

choice of living in an involurtarily black niche or fore-

going employment opportunities on the waterfront.

I must conclude, then, that the district court erred

when it refused to grant plaintiffs’ motion for the entry

of a permanent injunction against the continued opera-

tion of segregated locals. I find that the edict of #2

U.S.C. § 2000e-2(c) (2) cannot be satisfied in the present

case by measures short of the merger in each particu-

lar port of the racially segregated locals within that port.

On that basis I would reverse and remand this case.

Reversed and remanded.

THORNBERRY, Circuit Judge, with whom GOD-

BOLD, Circuit Judge, joins (specially concurring) :

We concur in the court’s judgment, and in Parts I

and II of Judge Goldberg’s opinion. In our view, how-

ever, the merits of this case can be decided without hold-

ing that segregated locals constitute a per se violation of

Title VII. As Judge Goldberg notes, p. 275, ante, the

lower court here specifically found that “the Government

has discharged . . . [its] burden... [of showing] that

the maintenance of segregated locals constitutes a pattern

or practice depriving individuals of working opportuni-

ties, because of their race or national origin.” 334 F.

Supp. at 980." In United States v. Jacksonville Terminal

Co., 5 Cir. 1971, 451 F.2d 418 this court wrote:

The record clearly discloses that the existence of

‘separate but equal’ locals has had, and may con-

37a

tinue to have, post-Act deleterious effects on blacks

. . . We conclude that the District Court erred in

refusing to hold that the failure to consolidate the

locals violates section 703(c) of the Act, 42 U.S.C.A.

§ 2000e-2 (c).

451 F.2d at 457. We read this language to make merger

of segregated locals mandatory whenever they are shown

to have had actual discriminatory effect on employment

opportunities. Since in this case Judge Garza found that

employment discrimination resulted from the existence

of segregated locals, Jacksonville Terminal left him no

discretion to refuse merger. Hence, the order on appeal

must be reversed. If a case ever comes to us with a

finding by the district court that no actual employment

discrimination arose from segregated locals, we may

then properly consider the necessity for a rule of per

se illegality. On this basis we join the court’s judgment.

38a

APPENDIX E

UNITED STATES DISTRICT COURT

S. D. TEXAS

BROWNSVILLE DIVISION

Civ. A. No. 69-B-3

UNITED STATES OF AMERICA, BY JOHN N. MITCHELL,

ATTORNEY GENERAL,

Plaintiff,

INTERNATIONAL LONGSHOREMEN’S ASSOCIATION,

an unincorporated association, et al.,

Defendants.

Nov. 12, 1971

MEMORANDUM

GARZA, District Judge.

On January 20, 1969, in which was probably the last

case filed by the Johnson administration, then Attorney

General Ramsey Clark filed the above suit under Title

VII of the Civil Rights Act of 1964, alleging a pattern

or practice of discrimination on grounds of race, color

and national origin, in violation of said Act. The De-

fendants included the International Longshoremen’s As-

sociation (hereinafter called the I.L.A.), the South At-

lantic and Gulf Coast District of the LL.A. (hereinafter

referred to as District), and thirty-seven local general

cargo longshoremen’s unions chartered by the I.L.A., all

of whom are labor organizations within the meaning of

42 U.S.C. § 2000e(d), and all of whom are engaged in

an industry affecting commerce within the meaning of

42 U.S.C. § 2000e(e). As has been stated, the United

States has alleged that the Defendant unions have en-

39a

gaged in a pattern or practice of discrimination on the

grounds of race and national origin, more particularly

that the Defendants have maintained local unions, hir-

ing halls and gangs, which were classified and segregated

on the grounds of race and national origin, and that this

has resulted in the denying of equal working opportuni-

ties to Negro and Mexican-American longshoremen, be-

cause of their race or national origin, and that the

District, in its contract negotiations with employers, has

caused such employers to also discriminate on the

grounds of race and national origin. The United States

asks this Court to order a merger of the segregated lo-

cals, and the discontinuance of separate locals, hiring

halls and gangs based upon race and national origin, and

for such further steps as would be necessary and proper.

With the exception of two Negro locals, one in Gal-

veston and one in Brownsville, both with special problems

that will be referred to further on in this opinion, all

Defendants are opposed to the merger of locals that the

Government proposes, and deny any violation of the

Civil Rights Act of 1964.

It took some time to serve all Defendants and for an-

swers to be filed, and with the exception of a few depo-

sitions and communications between the United States

and some of the attorneys for the Defendants, very little

was done in preparation for the trial of this case, until

this Court, on May 12, 1970, set a pretrial in this cause

to be held in Houston, Texas, on Tuesday, June 28rd,

and the trial of the same was set for Houston, as a place

within this District convenient to counsel and witnesses,

for July 18, 1970.

In preparation for trial, the depositions of officials of

every one of the Defendants were taken.

At the pre-trial on June 23, 1970, the parties agreed

to stipulate to as many facts as possible to shorten the

40a

time of trial. This was done and an extensive stipulation

was filed by the parties, which has been very helpful to

the Court.

At the pre-trial, the Defendants urged this Court to

dismiss the cause of action on the grounds that the at-

tempt by the United States to merge the local longshore-

men’s unions was a violation of their constitutional right

of association under the First Amendment. The Court

took the motion to dismiss on these grounds under consid-

eration, and said it would carry it along with the case.

The motion to dismiss on these grounds is now denied.

The Court heard testimony in this cause from July

13th through July 17, 1970, and from September 9th to

September 17, 1970. During the trial, hundreds of ex-

hibits, some of them rather bulky, were received in evi-

dence, and the Court has had to read the same and as-

similate their contents. The parties, at the conclusion of

the trial, were allowed to file briefs, and a schedule was

set up, which, at the request of counsel, had to be ex-

tended. In the meantime, some of the Defendants asked

to reopen the record for the filing of additional exhibits,

all of which requests were granted.

The Defendants in this cause of action represent long-

shoremen and warehousemen who load and unload ships

at warehouses in ports along the Texas Gulf Coast, at

Orange, Beaumont, Port Arthur, Galveston, Texas City,

Houston, Freeport, Port Lavaca, Corpus Christi and

Brownsville. The membership of each local union in

these ports is totally segregated on the basis of race or

national origin. Of the thirty-seven local unions which

are party Defendants, sixteen locals were for White long-

shoremen and have no Negro members, and nineteen

were for Negro longshoremen and have no White mem-

bers, and two locals are composed predominantly of Mex-

ican-American longshoremen.

4la

Because of the Texas Right-to-Work Law, all the locals

service and refer many non-members. In fact, it was

surprising to find that many, many of the longshoremen

are not union members, but they work through the local

union hiring halls. Under the contracts with the employ-

ers, the union gets a certain amount from the employer

for every longshoreman, be he union member or not, some

of this money going to the pension and welfare funds,

and the balance to the coffers of the unions, and even

non-union members are entitled to attain seniority as

longshoremen and to participate in their pension and

welfare plans.

While attempts were made to prove to this Court that

a Negro could apply for membership in a White local

and vice versa, it is obvious that a Negro does not apply

to a White local, an’ a White does not apply to a Negro

local for membership. Negro longshoremen have to be

referred out of a Negro local hiring hall, and White

longshoremen are referred out of a White longshoremen’s

hiring hall. While there may have been exceptions in

the past, they have been few and far between. The evi-

dence shows that some coastwise general cargo locals

have been merged with some deep sea general cargo locals

in their respective ports. The Negro coastwise general

cargo locals have been merged with Negro deep-sea gen-

eral cargo locals, and the White coastwise general cargo

locals have been merged with White deep-sea general

cargo locals, this happening since the filing of this action.

It has been stipulated that the I.L.A. chartered the

locals on the basis of race, and there is no question that

it has maintained these locals on the basis of race, has at

all times been aware of their segregated nature and has

done nothing to seek their merger, or to charter inte-

grated locals since the passage of the Civil Rights Act.

Negro union officials who testified before the Court

have urged the Court not to order a merger. They say

42a

that by the maintenance of “sister locals” in every port,

the Negroes, by having their own unions and their own

union officials, have been able to better themselves by

being able to hold high positions in their locals, and have

been recognized in the community as a separate, powerful

voice for the Negro communities, and has attained for

them and the Negro people of the community, a standing

which they could not have otherwise attained. The

Court believes that they are correct in this assumption,

but the ultimate issue before the Court is whether this

pattern or practice of having segregated locals is keeping

longshoremen, be they Black or White, from equal work-

ing opportunities on account of a longshoreman’s race or

national origin. With the exception of the port of

Brownsville, generally the longshoremen’s work is di-

vided between the White and Negro locals on a fifty-fifty

basis. On its face, this would seem to be a fair shake for

the races, but this does not tell the whole story. If in any

port there are one hundred Whites available to work on

the waterfront as longshoremen and two hundred Ne-

groes, and the work is divided fifty-fifty between the

locals, it is obvious that the one hundred Whites will

work more hours than the Negroes. The fifty-fifty rule

would be ideal if there were an equal number of White

longshoremen to Negro longshoremen in every port, but

this is not the case. The same situation would exist if

instead of one hundred White and two hundred Negro

longshoremen, there would be two hundred White and

one hundred Negro longshoremen in a given port. In

that situation, the Black longshoremen would work more

hours than the White. While the Civil Rights Act of

1964 was passed to aid Negroes and other minorities, it

was passed to help Whites as much as Negroes, if their

civil rights are being violated, and this Court can foresee

where in many situations, now and in the future, the

Whites will be asking for the protection of Title VII of

the Civil Rights Act of 1964.

43a

The Defendants opposing the proposed merger of the

“sister locals” have argued vehemently that the Negroes,

whom the Government assumes to protect by this cause

of action, are going to be the losers if the Government

prevails; that the Negroes in the several ports involved

in this lawsuit are getting 50% of the work, even though

the racial composition of the communities is far less than

50%. They urge upon the Court that the Government in

the construction industry has brought forth the so-called

Philadelphia Plan, seeking job opportunities on the basis

of the racial ratio in the area and community, and that

if this Plan were to be put into effect, Negroes would

only have 19% of the work in Houston, 21% of the work

in Galveston, 30% in Beaumont, 27% in Port Arthur,

25% in Orange, 12% of the work in Freeport, 5% of

the work in Corpus Christi, and only 1% of the work in

Brownsville. They are off target in their argument. It

is not the racial composition of the community that

should control, but the number of Blacks and Whites

that make themselves available for longshore work that

counts.

From the many Exhibits before the Court, it is obvious

that even under the fifty-fifty rule, Negroes, and in some

cases Mexican-Americans, having been segregated on the

basis of their race or national origin, have been forced

to accept a diminished opportunity to earn wages, re-

ceive union benefits, work better cargo and otherwise

enjoy employment opportunities solely on the basis of

their race. A comparison of the earnings of segregated

“sister locals” shows that not only the tote] earnings of

the Negro locals, but also the earnings of individual °

Negro longshoremen, are less than those that work out

of the White local.

Much of this disparity is due to the earnings of in-

dividual workers on the waterfront who are members of

the locals, but who are hired directly by the employers,

44a

and who are not referred by the locals, most of whom

are Whites, such as the so-called Gearmen. This situation

has been known for a long time, and yet the contracts

entered into by and between the industry and the long-

shoremen have not attempted to correct this situation.

However, in fairness to the unions, it must be said that

they have tried, in most cases, most diligently to give

50% of the work to the Whites and 50% of the work to

the Blacks, the trouble lying in the basic fact that the

50% given to the Negroes has had to be divided amongst

a greater number of Negro longshoremen.

The Government has urged in this case that the very

existence of segregated locals is a “per se” violation of

Title VII of the Civil Rights Act of 1964. The Govern-

ment has already been successful in a similar case in up-

holding this theory. United States of America v. Interna-

tional Longshoremen’s Association, Atlantic Coast District,

International Longshoremen’s Association, and Locals 829

and 858, I.L.A., Baltimore, Maryland, D.Md.1970, 319

F.Supp. 737. This case has been cited with approval by

this Circuit in United States of America v. Jacksonville

Terminal Company, 451 F.2d 418 (5 Cir. 1971). In that

case, the District Court had held that having segregated

locals was not a “per se” violation of Section 703(c) of the

Act, 42 U.S.C.A. § 2000e-2(c). United States of America

v. Jacksonville Terminal Company, 316 F.Supp. 567

(M.D.Fla.1970). Our Circuit, speaking through Judge

Dyer, in reversing the case said:

“Contrary to the allegations made by the Unions,

we find that their locals are not mere ‘social clubs’,

having no influence in national union policy or prac-

tice. We conclude that the District Court erred in

refusing to hold that the failure to consolidate the

locals violates section 703(c) of the Act, 42 U.S.C.A.

2000e-2(c). See United States v. Sheet Metal Work-

ers Local 36, supra at 127-129; Local 53, Interna-

45a

tional Association of Heat & Frost Insulators &

Asbestos Workers v. Vogler, supra at 1051-55;

United States v. International Longshoremen’s As-

sociation, D.Md.1970, 319 F. Supp. 737, 741-742;

Hicks v. Crown Zellerbach Corp., E.D.La.1970, 310

F. Supp. 586; United States v. Local 189, United

Papermakers & Paperworkers, E.D.La.1969, 301

F.Supp. 906, 919, aff’d, 5 Cir., 416 F.2d 980.”

If the maintenance of segregated locals is a “per se”

violation of the Civil Rights Act, there the matter ends,

and the relief sought by the Government, as far as order-

ing the merger of locals in this case, has to be granted.

There is no question that segregated locals were so char-

tered and are still maintained. See also, Musicians’ Pro-

tective Union Local No. 274, A.F. of M., and James

Adams, on his own behalf and on behalf of all others

similarly situated v. American Federation of Musicians

of United States and Canada, E.D.Pa.1971, 329 F.Supp.

1226.

However, this Court cannot believe that it was the in-

tention of Congress to condemn all segregated locals. If

it were, they could have easily said so. The Government

must still show that the maintenance of segregated locals

constitutes a pattern or practice depriving individuals of

working opportunities, because of their race or national

origin. However, in this case, the Government has dis-

charged this burden.

In the case of the port of Brownsville, the White local,

which has many Mexican-American members, has been

given 75% of the work, and Local 1368, a Negro local,

has been given only 25% of the work, and naturally,

Local 1368 feels that they should be getting 50% of the

work, and is therefore in favor of merger. A history of

the Brownsville controversy shows that many of the

Negro longshoremen seeking work in the port of Browns-

ville were recruited from other ports, and the local long-

46a

shoremen resisted their coming down to take their jobs.

The controversy resulted in the establishment of the

seven.y-five—twenty-five rule. The situation in Browns-

ville only serves to point out the inequities that can re-

sult from segregated locals.

The undersigned Judge is a lifetime resident of

Brownsville, Texas, and was present when the first ship

came up the Brownsville ship channel to the port of

Brownsville, and even though not in the record in this

case, if I may be permitted, I will recall the situation

of longshoreman work in the port of Brownsville, as I

remember it. When having a deep-water port at Browns-

ville and Port Isabel, Texas, was to become an accom-

plished fact, a group of men, mostly Anglo, applied for a

charter to the I.L.A. The original fight was not so much

between Whites and Blacks, as it was between Anglos

and Mexican-Americans, who at first were having a

hard time getting into the local. There were few Negroes

living in the city of Brownsville, and the few that lived

there had not been engaged in longshore work. Most of

them worked for the railroads, a few were hotel porters,

some were barber shop shoeshine boys, and one worked

for the Coca Cola Bottling Company. When the Whites

applied for a charter, a group of Negroes, in line with

the practice of the I.L.A. to have “sister locals”, ap-

plied for a charter for a Negro local. Most of the mem-

bership of the Negro local had to come from outside the

Brownsville-Port Isabel area. The local people compris-

ing the White local and those working out of its hiring

hall, naturally resisted the influx of outsiders who took

their jobs away from them. This Court is convinced that

if the practice of having segregated locals had not been

in effect, and the few Negroes who were available for

longshore work in the port of Brownsville had been al-

lowed to join the White local, the Brownsville situation

would never have arisen.

47a

The concern of the Government in this case with the

situation of Mexican-Americans, has been mainly brought

about by Local 1576 in Galveston. None of its members

are Negro, and there are a few Anglos, and the member-

ship is composed mainly of Mexican-American longshore-

men. The charter of this local provides that its members

can only work bananas and green fruit. This type of

work has been drastically reduced, and the members of

Local 1576 have very little work at present. It has been

testified that the work of unloading bananas and green

fruit is the most difficult, physically, of work done by

other deep sea locals. We have a situation where the

members of Local 1576, most of whom are Mexican-

American as has been stated above, are able-bodied in-

dividuals wanting to do longshore work, but being limited

in the opportunity of doing this type of work, because of

its charter. It has been shown that they must work out

of other hiring halls, instead of their own, but when they

appear at said hiring halls, they compete with so-called

“casuals”, who are not union members. Testimony was

received that Local 1576 has taken up the matter of the

restriction in their charter with both the District and

I.L.A., but the charter remains unchanged. They are not

even included in the West Gulf Maritime Association

Agreement, even though this has been requested.

There is no question that individuals belonging to

Local 1576 have been denied an opportunity to work as

longshoremen, because of the restrictions on their charter.

Local 1576 is not seeking a merger, but apparently are

demanding an equal right to longshore work in the port

of Galveston.

Another local that has joined hands with the Govern-

ment in seeking a merger of the locals is Local 329.

Local 329, a Negro local, is only allowed by the I.L.A.

to work for four stevedoring companies. At one time

these companies had a lot of business, but the type

cargo they handled has now dwindled, and Local 329

i |

48a

finds itself with very little work. The problems caused

by this situation would not exist if all longshoremen at

the port of Galveston belonged to one local. Local 329

has for years been asking the District and the I.L.A. for

relief, but to no avail. The stevedoring companies have

also joined in asking that Local 329 be given more work.

The basic finding that the Court is making in this

cause is that the Defendants have chartered and still

uiaintain locals on a segregated basis, that the prevalent

rule of dividing the work fifty-fifty between the White

and Negro locals violates Title VII of the Civil Rights

Act of 1964, because it deprives: longshoremen, be they

Black or White, Anglo, Mexican-American or Negro,

equal working opportunities depending on which group

is in the majority in the different ports, and that this

will be a continuing violation in the future.

A merger of locals brings with it many problems,

which have to be resolved in the issuing of an equitable

The evidence shows that locals own their own property,

on which are housed their hiring halls, these properties

not being of the same value, as amongst “sister locals”,

The question of seniority is also present. Although evi-

dence shows that the I.L.A. and the District have in-

sisted that every local have a seniority system, no real

attempt at having the same seniority system within every

local has been undertaken. Since no standard seniority

system has been in practice in all the locals, this poses

a terrific problem in modeling an equitable decree. The

basic hours the longshoremen have to work to achieve

seniority have differed greatly from one local to another.

Since seniority and the hours worked affect the pension

and welfare rights of individual longshoretien, the Court

has to be mindful of the great necessity of protecting

the rights of those who have spent their lives on the

49a

Nor is this Court satisfied that the only solution to the

problem must include a merger of the locals, for a plan

or scheme can be devised that would eradicate the in-

equity of the basic finding made above, unless the opin-

ion in United States v. Jacksonville Terminal Company,

supra, dictates such a course.

This Court finds that some of the relief sought by the

United States is forthcoming. The Defendants, I am

sure, do not agree with this conclusion, and an appeal is

almost certain.

The Government has submitted to the Court a pro-

posed decree, with whica this Court is not in agreement,

as in my view, parts of the proposed decree do violence

to the Civil Rights Act and my interpretation of the in-

tent of Congress. A decree that orders the merger of the

locals will, of necessity, be different than a decree under

the Act that does not so provide. I, therefore, certify

under 28 U.S.C. §1292(b) that my findings involve a

controlling question of law, as to which there is sub-

stantial ground for difference of opinion, and an im-

mediate appeal may materially advance the ultimate ter-

mination of this litigation, and it is the hope of the

undersigned that the Honorable Circuit Court of Appeals

for the Fifth Circuit will accept an appeal under 28

U.S.C. § 1292(b), to determine whether the record in this

case entitles the United States to relief, and whether

such relief should include an order of merger of the locals

involved.

Counsel for the parties will meet to try to formulate

a decree for entry in this cause, upon a denial of an

appeal under 28 U.S.C. § 1292(b), or a final ruling of

the Circuit Court of Appeals for the Fifth Circuit, and

within sixty days of either event, either submit a pro-

posed decree agreeable to all, or inform the Court of

their inability to submit such decree, with their analysis

of the points they cannot agree upon.

50a

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

October Term, 19

No. 79-3587

D.C. Docket No. CA-69-B-3

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-A ppellant,

versus

INTERNATIONAL LONGSHOREMEN’S ASSOCIATION,

an unincorporated association, et al.,

Defendants,

I.L.A. LOCAL 1576,

Defendant-A ppellee.

L.L.A. LOCAL 851,

Defendant-Appellant.

Appeals from the United States District Court

for the Southern District of Texas

Before FAY, KRAVITCH and RANDALL, Circuit

Judges.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Southern District of Texas, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the order of the

5la

District Court appealed from, in this cause be, and the

same is hereby, reversed; and that this cause be, and the

same is hereby, remanded to the said District Court in

accordance with the opinion of this Court;

It is further ordered that defendant-appellee pay to

the plaintiff and defendant-appellants the costs on appeal,

to be taxed by the Clerk of this Court.

August 13, 1980

Issued as Mandate: Sep. 5, 1980

i |

52a

APPENDIX G

SUPREME COURT OF THE UNITED STATES

No. A-378

INTERNATIONAL LONGSHOREMEN’S ASSOCIATION,

LOCAL 1576,

Petitioner,

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al.

ORDER EXTENDING TIME TO FILE PETITION

FOR WRIT OF CERTIORARI

UPON CONSIDERATION of the application of counsel for

petitioner,

IT Is ORDERED that the time for filing a petition for

writ of certiorari in the above-entitled cause be, and the

same is hereby, extended to and including January 10,

1981.

/s/ Lewis F. Powell, Jr.

Associate Justice of the

Supreme Court of the

United States

Dated this 30 day of October, 1980.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.