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

Supreme Court of the United States

OCTOBER TERM, 1980

NO. 80-1147

LOCAL 1576, INTERNATIONAL

LONGSHOREMEN’S ASSOCIATION,

* AFL-CIO,

Petitioner,

V.

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION, ET AL,

Respondents

RESPONSE TO PETITION FOR A

WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ROBERT M. Moore

(Counsel of record)

MARTIN M. HOKANSON

Moore & LAURENCE

99 Detering, Suite 230

Houston, Texas 77007

(713) 864-2424

Attorneys for Respondent,

INTERNATIONAL LONG-

SHOREMEN’S ASS< CIATION,

LOCAL 851

STATES 2 RE REE EES RENE LE AC RAE LNT EUR TROON

Alpha Law Brief Co., One Main Plaza, No. 1 Main St., Houston, Texas 77002

I

LIST OF PARTIES

In addition to the parties named in tne caption, the

following were parties to this proceeaiug in the Court of

Appeals:

Local 307 and Local 851, International Longshore-

men’s Association, AFL-CIO.

i

TABLE OF CONTENTS

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

STATEMENT OF THE CASE ..........ccceceeceeces

REASONS FOR DENYING THE WRIT ............-..

I.

II.

Il.

IV.

THE DECISION OF THE COURT OF APPEALS

REGARDING THE SENIORITY SYSTEM OF

ILL.A. LOCAL 1576 IS NOT CONTRARY TO

THE APPLICABLE DECISIONS OF THIS

COURT AND IS NOT IN CONFLICT WITH

DECISIONS OF OTHER COURTS OF APPEAL

THE DECISION OF THE COURT OF APPEALS

IN ORDERING THE MERGER OF THE LOCAL

UNIONS IS NOT CONTRARY TO THE DE-

CISIONS OF THIS COURT REQUIRING THAT

TITLE VII BE APPLIED IN A MANNER CON-

SISTENT WITH OTHER STATUTES ExX-

PRESSING THE NATIONAL LABOR POLICY

THE DECISION OF THE COURT OF APPEALS

ORDERING CHANGES IN BUSINESS OPERA-

TIONS IS NOT IN CONFLICT WITH AN-

FERN GAMAVER 5 oboe sa bee can eseevedaasscs

THE DECISION OF THE COURT OF APPEALS

IS NOT CONTRARY TO THIS COURT’S DE-

CISIONS GOVERNING THz ALLOCATION OF

aa WITHIN THE FEDERAL SYS-

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12

13

18

22

24

29

7

TABLE OF AUTHORITIES

CASES Page

Albermarle Paper Co. v. Moody, 422 U.S. 405 (1977) ..... 25, 29

Bailey v. Ryan Stevedoring Co., 528 F.2d 551 (Sth Cir.

1976), cert. denied, sub nom., Local 1830 International

Longshoremen’s Association v. Bailey, 429 U.S. 1052

SR eee aad ek elds ba adides Nias BWaaiby 6's s+’ 21

Brown v. Board of Education, 347 U.S. 483 (1954) ...... 27

Dobbs v. City of Atlanta, Georgia, 606 F.2d 557 (Sth Cir.

i Util voc iMaleats thee ad s'atau wale we ecibiiesceecee 15

E.E.0.C. v. Local 14, International Union of Operating

Engineers, 553 F.2d 251 (2d Cir. 1977) .............. 23

Equal Employment Opportunity Commission v. Inter-

national Longshoremen’s Association, 511 F.2d 273 (Sth

Cir. 1975), cert. denied, 423 U.S. 994 (1975) ......... 6,12

Equal Employment Opportunity Commission v. Inter-

national Longshoremen’s Association, 623 F.2d at 1059

DF cacet ox ci Ene G ia un cowcouwnebaties'de 12, 13, 28

Emporium Capwell Co. v. Community Org., 420 U.S. 50

EE ie ae tu cat Ae ecw we ceddavandetees e's 18

Furnco Construction Corp. v. Waters, 438 U.S. 567 (1970) 23,24

Griggs v. Duke Power Co., 401 U.S. 424 (1971) ......... 25,29

James v. Stockham Valves & Fittings Co., 559 F.2d 310

ee Ww Ode Lis wales cele uaeaualgheke ade 15

Local 1830 International Longshoremen’s Association ».

SD Ws, BE CREED ve doccceccvctacasdetende 21

Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157

(Sth Cir. 1978), cert. denied, 439 U.S. 1115 (1979) .... 15

Swint v. Pullman-Standard, 624 F.2d 525 (5th Cir. 1980) . 15

Teamsters v. United States, 431 U.S. 334 (1977) ...... 14, 15, 16, 29

United States v. International Longshoremen’s Association,

Soe Pee SIG. CSD. Te, BOTT) once ccc cccccccccs 5, 28

STATUTES

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Supreme Court of the United States

OCTOBER, TERM, 1980

NO. 80-1147

LOCAL 1576, INTERNATIONAL

LONGSHOREMEN’S ASSOCIATION,

AFL-CIO,

Petitioner,

Vv.

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION, ET AL,

Respondents

RESPONSE TO PETITION FOR A

WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Local 851, International Longshoremen’s Association,

AFL-CIO, respectfully requests this Honorable Court to

deny the petition for writ of certiorari of Local 1576,

International Longshoremen’s Association, AFL-CIO, to

review the judgment of the United States Court of Ap-

peals for the Fifth Circuit entered in this case on August

13, 1980.

s*%

7%

2

OPINIONS BELOW

The original opinion of the district court is reported

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

in the appendix attached to the petition for writ of cer-

tiorari filed by the I.L.A. Local 1576 at App. E (39a-

49a). The first opinion of the court of appeals is re-

ported at 511 F.2d 273 (Sth Cir. 1975) and is reprinted

in the petition for writ of certiorari at App. D (23a-

37a). This Court’s denial of a petition for certiorari to

that judgment is reported at 423 U.S. 994 (1975) and

is reprinted in the petition for writ of certiorari at App.

C (22a). The decision of the district court on remand is

unreported; it is reprinted in the petition for writ of

certiorari at 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 (Sth Cir. 1980)

and is reprinted in the petition for writ of certiorari at

App. A (la-12a).

JURISDICTION |

This Court has jurisdiction to review the judgment of

the court of appeals 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 fol-

lows:

(c) It shall be an unlawful employment practice

for a labor organization:

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

or otherwise to discriminate against, any individual

3

because 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 oportunities, or would

limit such employment opportunities or otherwise

adversely affect his status as an employee or as an

applicant for employment, because of such indi-

vidual’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 per-

tinent part, as follows:

(g) If the court finds that the respondent has

intentionally engaged in or is intentionally engaging

in an unlawful employment practice charged in the

complaint, the court may enjoin the respondent from

engaging in such unlawful employment practice, and

order such affirmative action as may be appropriate,

which may include, but is not limited to, reinstate-

ment or hiring of employees, with or without back

pay (payable by the employer, employment agency,

or labor organization, as the case may be, respon-

sible for the unlawful employment practice), or any

other equitable relief as the court deems appropriate.

. No order of the court shall require the admis-

sion or reinstatement of an individual as a member

of a union, or the hiring, reinstatement, or promo-

tion of an individual as an employee, or the payment

to him of any back pay, if such individual was re-

fused admission, suspended, cr expelled, or was

4

refused employment or advancement or was sus-

pended or discharged for any reason other than dis-

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

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

of this title.

STATEMENT OF THE CASE

A. COURSE OF PROCEEDINGS AND DISPOSI-

TION IN THE COURTS BELOW:

This case was originally instituted in 1969 by the

United States against the International Longshoremen’s

Association (I.L.A.) and thirty-seven “deep sea locals”

in the port cities of Texas under Title VII of the Civil

Rights Act of 1964. The Government alleged that the

union and the locals discriminated against Blacks and

Mexican-Americans by maintaining segregated locals,

hiring halls, and work gangs in violation of Title VII

and requested an order directing merger and discontinu-

ance of all segregated locals. The longshoremen’s locals

involved in this particular controversy are Locals 307

and 851, which are locals comprised, of Black members;

Local 329, predominately a White’ local; and, Local

1576, a Mexican-American local.

In 1971 the district court found that the maintenance

of completely separate unions would tend to deprive indi-

viduals of employment on the basis of race, but held that

segregated unions, in themselves, did not constitute a vio-

lation of the Civil Rights Act of 1964. The district court

1. We use the term “White” in this petition, following the lower

court’s usage, to refer to White longshoremen who are not of Mexican

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

the same meaning.

5

found that “membership of each [longshoremen’s] local

union [within the State of Texas] is totally segregated on

the basis of race or national origin” in accordance with

the charter granted by the I.L.A.; that “Negro longshore-

men have to be referred out of a Negro local hiring hall,

and White longshoremen are referred out of a White

longshoremen’s hiring hall” and that exceptions to this

practice “have been few and far between;” that it is “ob-

vious that a Negro does not apply to a White local and

a White does not apply to a Negro local for member-

ship;” and that the maintenance of segregated locals

violates Title VII because it deprives all longshoremen of

equal working opportunities solely on the basis of race

or national origin, United States v. International Long-

shoremen’s Association, 334 F. Supp. 976, 978-980

(1971).?

Even though the district court specifically found that

segregated locals deprived longshoremen of equal em-

ployment opportunities, it refused to order the consolida-

tion of the locals in each port and held that Title VII of

the Civil Rights Act could be fully corrected by the

abolishment of separate hiring halls and the establishment

of a. common hiring liall and common seniority classifica-

tions.

2. “The court made specific findings concerning two locals in

Galveston—Locals 1576 and 329. With respect to Local 1576 it

found that its membership is composed predominately of Mexican-

American longshoremen with no Blacks and few Whites; that its

charter provides that its members can only work bananas and green

fruit; and that, because of the restrictions on their charter, members

of Local 1576 have been denied an opportunity to work as long-

shoremen. 334 F.2d at 981. Similarly, the court found that the

I.L.A. allows Local 329, a Black union, to work only for four

stevedoring companies which provide little work. Jd. It concluded:

[t]he problems caused by this situation would not exist if all long-

shoremen at the port of Galveston belonged to one local.”

6

The Government appealed the court’s refusal to merge

the locals and the Fifth Circuit reversed. The Fifth Cir-

cuit held that Title VII could not “be satisfied in the

present case by measures short of the merger in each

particular port of the racially segregated locals within

the port.” Equal Employment Opportunity Commission v.

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

290 (Sth Cir. 1975) cert. denied, 423 U.S. 994 (1975).

Judge Goldberg stated that segregated unions could not

be maintained under Title VII because they inevitably

tend to deprive individuals of employment opportunities.

Id. at 277. Judges Thornberry and Godbold (specifically

concurring) stated that segregated unions could not be

maintained where, as in the case before it, “they are

shown to have had actual discriminatory effect on employ-

ment opportunities.” In such circumstances, they con-

cluded, the district court has no discretion to refuse mer-

ger. Id. at 280. The case was remanded to the court “in

accordance with the opinion of [the Fifth Circuit].”

In 1973, before the Fifth Circuit had even considered

this appeal, three of the four Galveston locals filed a

joint motion to exclude Local 1576 from the merger of

the hiring halls which the district court had previously

ordered.* In 1976, after the Fifth Circuit issued its man-

date to the district court to merge all the locals in each

3. Local 329 did not join in this Motion. The other three Gal-

veston locals later changed their position and joined sides with the

Government requesting that Local 1576 be included in the merger

when it was discovered that Local 1576 wanted to maintain dual

seniority, which would exacerbate the discriminatory effect of sep-

arate locals by giving the Mexican-Americans their seniority in

a while not reciprocating with the two Black locals, 329

851.

7

port, the district court held three hearings on the motion

to exclude 1576 from the merger.*

The evidence presented at these hearings demonstrated

that Local 1576 remained almost exclusively a Mexican-

American local. In 1971 Local 1576 had 140 members, of

which there were no Blacks and only twenty Whites. In

1977 Local 1576 had 250 members, of which there were

only three Blacks and thirty Whites. The statistics clearly

reflect that from the time the district court found that

Local 1576 was a segregated local until 1977, Blacks

increased their percentage from zero percent to one per-

cent of the total membership in the union. The percentage

of White membership actually decreased from fourteen

percent to twelve percent.

The evidence presented at the three hearings demon-

strated that members of Local 1576 perform the same

nature of work as members of the other Galveston locals.

4. These hearings were held on August 16, 1976; February 10-

11, 1977; and, September 19, 1979.

5. The petitioner, all through its brief to this Court, attempts

to persuade the Court that the longshoremen of Local 1576 have a

in the ing i

contentions. The president of Local 1576, Mr. Louis Sendejas,

fied cross-examination by the undersigned counsel as follows:

is that have a healthy body and nothing else; is that

right?

A. Yes.

Q. The stronger the back and the better it is built, as long

as you can work in 1576, there is nothing to prevent the

i the work of 307, 851, or 329,

eral cargo work gangs require a certain degree of skill—

which generally can be acquired through experience—

many employment functions performed by general cargo

longshoremen require little or no skill. Banana work is

less difficult physically than unloading other kinds of

cargo such as cotton or grain, and banana work gangs

and other longshore work gangs in Galveston are all

selected in substantially the same manner. Both banana

and other longshoremen gangs occasionally include in-

experienced workers but, with more experienced workers

to learn from and to observe, inexperienced longshore-

men do not erode the efficiency of longshore work gangs

in Galveston.°

Local 1576 points out that its seniority system differs

from those of the other three Galveston locals in two re-

because of any requirement of any special talent or skill;

is that right?

Well, on bananas, you have a little skill on the truck. You

have to have some skill. You have got to be trained for that.

. I see. And those four Blacks, they have that skill?

Well, they learn it like the others do.

. That is all right. You don’t think that the rest of the Blacks

in 851 and 320 could—

I am not saying Blacks or Whites or anything. I am saying

that any man that goes to work for us has to learn the

skill to load it on the truck. You have ventilation space and

all that on there.

. It would take at least one full day to learn?

At least.

Okay. No more than that, though?

Anybody could catch on.

Right. So, there really is no real job distinction as between

the work being done by 1576 and the others, is there, other

than the air conditioning? Is that right?

A. Right.

Mr. Moore: Thank you.

(79Tr.-53-54)

6. 77Tr. 131-132, 144, 148-150, 156-160, 171, 178, 190-198;

79Tr. 52-54, 166-168, 189-190, 205-206.

> OPO >

Or>ore

9

spects. First, their system is based on steps of one-year

intervals while the other locals (307, 329 and 851) are

based on five-year intervals. Second, to achieve one

year of seniority credit in Local 1576, its members need

only work 300 hours per year; members of the other

three locals must work 700 hours.

Of Local 1576’s 250 members, 43 also have seniority

in Local 307, the White local, (since Mexican-Americans

have always been included as “Whites”) which they

gained as a result of being allowed to work general cargo

through Local 307’s hiring hall. However, because of the

discriminatory effect of the founding and maintenance of

these separate unions on the sole basis of race, Black

longshoremen have been referred only through the two

Black hiring halls, Locals 851 and 329, and as a result,

have no seniority in either Local 1576 or Local 307.

Thus, members of Local 1576 have the exclusive work

of the bananas and, when they are not working bananas,

are then able to work with general cargo out of the White

Local 307; and, members of Locals 851 and 329 (the

Blacks) can rarely work with bananas and green fruit,

and, hence, have never been allowed to develop any

seniority in either the White Local, 307, or the Mexican-

American Local, 1576.’

7. 77Tr. 147-148; 79Tr. 26-28, 33-37, 38-39, 41, 44, 45-46, 55-

56, 78, 79, 81, 97, 104-108, 112, 113-115, 164-166, 173-178, 176,

187-189, 191, 194, 198, 200-201, 225-226, 228-229, 232-233, 252-

254, 258.

If Local 1576 is not included in the merger of all locals, it can

readily be seen that the discrimination which has been fostered from

the very inception of the granting of all four of the I.L.A. Local’s

charters allows an unusual reward to the members of I.L.A. 1576;

these members would then benefit from the fact that the Blacks,

who have been traditionally excluded from Local 1576, and who

have not had the opportunity to develop seniority in Local 1576

'

7%

10

Two weeks after its hearing of September 19, 1979,

the district court enered its order excluding Local 1576

from the merger and dismissed Local 1576 from the

lawsuit, completely reversing its earlier “limited merger”

order of November 12, 1971.

Not only did the district court fail to follow the law

of the case as established by the Fifth Circuit in the prior

appeal, but the district court, in its 1979 memorandum

and order, failed to follow its original findings of fact and

conclusions of law of 1971.° This glaring inconsistency

through the years, must now share their available work after the

mergers of Locals 307, 329 and 851, with the members of Local 1576,

who, by being Mexican-Americans, have never been kept out of the

White local and, thus, have always been able to accumulate seniority

in Local 307.

8. In its Memorandum of November 12, 1971, (App. E, 38a-

49a, petitioner’s application for writ of certiorari) the court found

at 41a that:

“Tt 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 integrated locals since the passage of the

Civil Rights Act.”

At 47a, the court went on to find:

“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 is demanding an equal right

to longshore work in the port of Galveston.”

And, at 48a, the district court went on to make its basic findings:

“The basic finding that the Court is making in this cause is

that the Defendants have chartered and still maintain locals on

a segregated hasis, 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 1965, because it deprives long-

shoremen, 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

vt ¥ a continuing violation in the future.” (Emphasis sup-

plied.

11

in not considering its own findings and the district court’s

refusal to implement the Fifth Circuit’s original order

of 1975 is all highlighted in the opinion of the Fifth

Circuit of August 13, 1980 (reprinted in the petition for

writ of certiorari at App. A 8(a), where the court, re-

ferring to its first reversal in 1975, stated:

“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. R. vol. III, at 35. His prophecy is correct.”

(Emphasis Supplied.)

The Fifth Circuit continued, setting out the gist for its

refusal to accept the district court’s order of October 1,

1980 by finding:

“The district court failed to find an applicable ex-

ception to the law of the case doctrine to justify its

deviation from the court’s mandate. There is no con-

tention that controlling authority since this court’s

1975 decision dictates 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 evidentiary hearings con-

ducted since this court's ruling have not produced

any new or substantially different evidence which

would justify the exclusion cf Local 1576 from the

Galveston merger.” (Emphasis Supplied. )

-_

12

B. REASONS FOR DENYING THE WRIT

Although the Supreme Court of the United States is

not bound by the law of the case doctrine since it did not

decide this case on the merits when it denied certiorari in

1975, 423 U.S. 994, it must be noted that the Fifth Cir-

cuit reversed the district court’s order to exclude Local

1576 from the merger of the other three Galveston locals

because it was contrary to the clear mandate of the Fifth

Circuit in Equal Employment Opportunity Commission

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

273 (Sth Cir. 1975), cert. denied, 423 U.S. 994 (1975).

Since 1975 when four members of the United States

Supreme Court refused to grant the previously filed peti-

tion for writ of certiorari, there have been no changes in

the controlling authority since the Fifth Circuit’s 1975

decision; nor did the district court find that the Fifth

Circuit’s prior decision was clearly erroneous; nor did the

district court find any new or substantially different evi-

dence that would require or remotely justify the exclusion

of Local 1576 from the Galveston merger. In short, there

is no basis to grant a review of the judgment of the

United States Court of Appeals for the Fifth Circuit,

Equal Employment Opportunity Commission vy. Inter-

national Longshoremen’s Association, 623 F.2d 1054,

1059 (1980).

The subsequent hearings held by the district court did

not produce any substantially different evidence than

what was produced in 1971. The only new evidence that

could have justified excluding Local 1576 from the merger

would have been evidence that the local is no longer

segregated or that its segregated existence does not de-

prive any group of equal employment opportunity. The

13

evidence demonstrated the contrary. Local 1576, still

chartered as a union for Mexican-Americans, remains

functionally segregated. E.E.O.C., 623 F.2d at 1059. The

district court in its 1971 opinion found the following

facts:

“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 and a White does not

apply to a Negro local for membership. Negro long-

shoremen 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.” 334 F. Supp. at 978.

These discriminatory practices have not changed since

1971. Few, if any, Black longshoremen obtain employ-

ment through the White local or 1576. In fact, out of

a membership of 250, in 1977 there were only three

Black members in Local 1576.

I. THE DECISION OF THE COURT OF APPEALS

REGARDING THE SENIORITY SYSTEM OF

ILL.A. LOCAL 1576 IS NOT CONTRARY TO

THE APPLICABLE DECISIONS OF THIS

COURT AND IS NOT IN CONFLICT WITH

DECISIONS OF OTHER COURTS OF APPEAL.

A close reading of 42 U.S.C. § 2000e-2(h),°* herein-

after referred to as Section 703(h), reveals that it is not

9. (h) Notwithstanding any other provision of this subchapter, it

shall not be an unlawful employment practice for an employer to.

apply different standards of compensation, or different terms, con-

ditions or privileges of employment pursuant to a bona fide seniority

- 4

i

14

applicable to the facts of our case and, therefore, the

decision of the court of appeals is not in conflict with

this court’s opinion in Teamsters v. United States, 431

U.S. 334 (1977). Section 703(h) pertains to situations

where an employer applies “different terms, conditions,

or privileges pursuant to a bona fide seniority system.”

In our case, Local 1576 set up its own seniority system;

and, in fact, the evidence reflects that they modified that

seniority system on several occasions. (79Tr.-15 and App.

B [15a] of the petition for writ of certiorari.) It is the

internal duty of Local 1576’s union officials to determine

who has seniority and what workers to send to the steve-

dore companies for unloading. A literal interpretation of

Section 703(h) would require this court to disregard the

“seniority system” exception and uphold the merger of

the four deep sea longshoremen locals.”

Even if this Court might find that Section 703(h) is

applicable, the decision of the court of appeals is still not

contrary to this court’s decision in Teamsters v. United

or merit system, or a system which measures earnings by quantity

or quality of production or to employees who work in different

locations, provided that such differences are not the result of an

intention to discriminate because of race, color, religion, sex or

national origin, .. .

10. The petitioner contends that the merger of Local 1576 with

the other three locals in Galveston, Texas should not have been

ordered because the merger abolishes its lawful seniority system.

The petitioner tells this court that the other three locals maintain

a common seniority system with Local 1576’s seniority system being

separate. Each local has its own seniority system. For example, if a

member of Local 851 has five years seniority with Local 851 and

goes to Local 329, he will only receive employment as a Temporary

and cannot use his five years seniority with 851 as a means of being

hired at 329. Therefore, each of the other three locals will have their

respective seniority systems abolished by the merger. If petitioner’s

argument is correct, then the court of appeals’ merger of the other

three locals would also have been incorrect.

15

States, in that the petitioner’s seniority system was not

“bona fide.” In Teamsters this Court relied on Section

703(h) to uphold the seniority system under review even

though the seniority system was not justified by business

necessity and operated to freeze the status quo of prior

discriminatory employment practices. The court concluded

that Section 703(h) would apply if the seniority system

was found to be “bona fide.” In determining whether a

seniority system is bona fide, the totality of circumstances

in the development and maintenance of that system is

relevant in examining “whether there has been purposeful

discrimination in connection with the establishment or

continuation of a seniority system [which is] integral to

a determination that the system is or is not bona fide.

Swint v. Pullman-Standard, 624 F.2d 525 (Sth Cir.

1980); Dobbs v. City of Atlanta, Georgia, 606 F.2d 557

(Sth Cir. 1979); Pettway v. American Cast Iron Pipe

Co., 576 F.2d 1157 (Sth Cir. 1978), cert. denied, 439

U.S. 1115 (1979); James v. Stockham Valves & Fittings

Co., 559 F.2d 310, 352 (Sth Cir. 1977).

The court of appeals in James, Supra at 352, discussed

four factors from Teamsters in determining whether a

seniority system is bona fide:

(1) whether the seniority system operates to dis-

courage all employees equally from transferring

between seniority units;

(2) whether the seniority units are in the same or

separate bargaining units;

(3) whether the seniority system has its genesis in

racial discrimination; and,

(4) whether the system was negotiated and has been

maintained free from any illegal purpose.

e%

a

16

The seniority system does not operate to discourage

employees from transferring between seniority units.

The relative seniority system of the four locals dis-

courages Blacks more than any other group from trans-

ferring between seniority units. In Teamsters, the court

found that the seniority system applied equally to all races

and ethnic groups and “to the extent that it ‘locks’ em-

ployees into non-line-drivers jobs, it does so for all.” The

court found that “not all city drivers and servicemen who

are discouraged from transferring to line-driver jobs are

all Negroes or Spanish-surnamed Americans; to the con-

trary, the overwhelming majority is White.” Teamsters,

supra at 355. Therefore, Whites working as city drivers

were faced with the same dilemma as the Black workers

in Teamsters in that to leave one’s position as a city

driver a White worker, as well as a Black worker, would

have to forfeit his city driver seniority. In our case, the

relative seniority systems are not applied equally to all

races and ethnic groups. Blacks are locked into their

“general cargo jobs” within Locals 851 and 329, not

being able to acquire seniority in the more desirable

banana boat work.”

Local 1576 is in a separate bargaining unit from

the other three locals.

Even though Local 1576 is in a separate bargaining

unit from the other three locals and that separate bargain-

11. A good example of the disparity was reflected in the district

court’s 1971 opinion. In 1971 Local 329 was only allowed by the

I.L.A. to work for four stevedoring companies and was seeking a

merger of the locals so it could be given more work. The members

of Local 329, exclusively Black, would be discouraged from seeking

from the other locals without any seniority in those

17

ing unit is consistent with the National Labor Relations

Board precedent defining separate units of banana han-

dlers in the longshore industry, it must be remembered

that Local 1576 was created by Mexican-Americans who

left Local 307. The present seniority system was not

implemented until after the enactment of Title VII of

the Civil Rights Act.

The seniority system had its genesis in racial dis-

crimination.

All the parties to the lawsuit stipulated that “the I.L.A.

chartered the localsion 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 segre-

gated nature and has done nothing to seek their merger

or to charter integrated locals since the passage of the

Civil Rights Act.” 334 F. Supp. at 978. The purpose

of chartering separate locals was to maintain workers in

separate locals whereby Blacks would work together in

Black locals, Whites in White locals and Mexican-

Americans in Mexican-American locals. Because of the

stipulation of the I.L.A. and the finding of the district

court on this issue, it is apparent that the establishment

and maintenance of the segregated locals was based on

no other consideraiton than the objective to separate the

races.

The system was not negotiated nor has it been

maintained free from any illegal purpose.

As referred to previously, the local longshoremen

unions had their genesis in racial discrimination. Each

local union maintained its own membership based on

race and had its own seniority system. The individual

rs

18

seniority systems would encourage Blacks to stay with

Blacks, Whites with Whites, and Mexican-Americans

with Mexican-Americans.”*

Il. THE DECISION OF THE COURT OF APPEALS

IN ORDERING THE MERGER OF THE LOCAL

UNIONS IS NOT CONTRARY TO THE DECI-

SIONS OF THIS COURT REQUIRING THAT

TITLE VII BE APPLIED IN A MANNER CON-

SISTENT WITH OTHER STATUTES EX-

PRESSING THE NATIONAL LABOR POLICY.

The px iitioner takes an overly broad view of this Court’s

statements that Title VII must be interpreted and ad-

ministered in accordance with national labor policy and

is incorrect in its assertion that the court of appeals in

this case made no attempt to accommodate its remedial

order with the national labor policy.

In Emporium Capwell Co. v. Community Org., 420

U.S. 50 (1975), this Court held that the National Labor

Relations Act does not give minority employees the right

to bypass their exclusive bargaining representative in

order to bargain with their employer over issues of em-

ployment. This Court’s decision dealt with the orderly

process of union representation which could only be

guaranteed by exclusive representation. This Court only

interpreted the mandate of Congress in that members

of unions be given the right to gather their collective

strength and bargaining power when dealing with their

12. Notwithstanding the fact that only one percent of Local

1576’s membership was Black in 1977, a Black individual working

in Local 851 would still be discouraged from seeking employment

in Local 1576 because any hours accumulated with Local 1576 would

not apply to his obtaining his 700 hour per standard at Local 851.

19

employer and not allow certain individuals as splinter

groups to dilute the union’s collective strength.*

The court of appeals implemented the most appropriate

remedy in ordering the merger of the four deep sea

longshoremen locals, Although Local 1576 has a separate

bargaining unit and does not deal with the same em-

ployer as the other three locals, it must be remembered

that Local 1576’s charter was borne out of the discrimi-

natory chartering of the locals by the I.L.A. In addition,

the jobs performed by the members of Local 1576 are

sufficiently similar to the jobs performed by the members

of the other locals. The record shows that all Galveston

longshoremen perform the same nature of work; that the

work is essentially unskilled, with those skills required

for certain job classifications readily acquirable through

work experience; that some members of Local 1576

regularly work through Local 307 performing general

cargo functions; that inexperienced workers are frequent-

ly included in work gangs and their inclusion does not

diminish the ability of gangs to perform efficiently and

that any individual who is physically capable can per-

13. In Trans World Airlines, Inc. v. Hardison, 432 U.S. 135

(1977) this court held that an agreed upon seniority system in a

collective bargaining agreement could not give way so that an airline

employee would not have to work on Saturdays contrary to his

religious beliefs. This court based its opinion on the “seniority ex-

ception” of Section 703(h) of Title VII and its opinion in Teamsters

v. United States, 431 U.S. 324, 352 (1977). As discussed in Part I

of this brief, this case can be distinguished from this court’s opinion

in Hardison. Likewise, in California Brewers Association v. Bryant,

444 U.S. 598 (1980) this court based its decision on Section 703(h)

of Title VII and its opinion in Teamsters in holding that a provision

in a statewide brewery industry collective bargaining agreement

requiring a “temporary” employee to work at least 45 weeks in a

simple calendar year before becoming a “permanent” employee was

a component of a “seniority system” within Title VII. As discussed

in Part I of this brief, this case can be distinguished from Bryant.

**»

-%

20

form longshore work regardless of the particular com-

modity being loaded or unloaded."*

Although its members wanted to be excluded from

the merger in 1971, they wanted more “general cargo”

business because their charter was limited to green fruit

and bananas. The members asked the I.L.A. and the

district to remove the “green fruit” restriction on their

charter because the green fruit business was drastically

reduced at that time. They were denied an opportunity

to work because of the restrictions on their charter which

arose out of the discriminatory chartering of the locals

by the I.L.A. Local 329, one of the four Black locals,

is only allowed by the I.L.A. to work for four stevedoring

companies and has very little work. The district court

recognized this problem that had arisen out of the arti-

ficial creation of locals because of race and nation l

origin. It saw that many workers, be they Black or

Mexican-American, were denied the opportunity to work

simply because of their race or national origin. In fact,

the court stated:

“The problems caused by this situation would not

exist if all longshoremen at the port of Galveston

belonged to one local.” (App. E [48a] of petition

for writ of certiorari) (Emphasis supplied. )

In 1981 the same problems exist except that the green

fruit business has increased while the other cargo busi-

ness has diminished. Again, Blacks are denied oppor-

tunities to work simply because of the discriminatory

chartering of the locals. The district court’s finding of

14. (77Tr. 149-50, 156-60, 171, 178, 182, 184-85, 187-88, 190,

192-93, 194-95, 198; 79Tr. 52-54; 77Tr. 144, 148-50, 180-81, 183,

193, 208; 79Tr. 53, 166-68, 205-06).

21

ten years ago remains true today in that unemployment

problems of Blacks on the Galveston waterfront “would

not exist if all longshoremen at the port of Galveston

belonged to one local.” The sloathful, foot-dragging pro-

cession of this attempted merger has continued to domi-

nate the plight of all longshoremen in Galveston, whether

they be Black, White or Brown!

For these reasons, the exclusion of Local 1576 from

the Galveston merger “would deprive or tend to deprive”

individuals of equal employment opportunities. See 511

F.2d at 277; Bailey v. Ryan Stevedoring Co., 528 F.2d

551, 556-557 (Sth Cir. 1976) Cert. denied, sub nom.,

Local 1830 International Longshoremen’s Association v.

Bailey, 429 U.S. 1052 (1977). Local 1576 must be in-

cluded in the merger. Such a merger will provide neces-

sary employment security to all Galveston longshoremen,

which all longshoremen have missed since the Govern-

ment took up its task over eleven years ago. As the

history of the port of Galveston has shown, fluctuation

in business at the port among the four locals has meant

that working opportunities have not been divided evenly

among the four locals. Without the merger of all the

locals, Black longshoremen will continue to have little

or no opportunity to obtain work unloading bananas

and green fruit; and, in the event the banana and green

fruit business should decline, many Mexican-American

longshoremen will have less opportunity to obtain general

cargo work. With this in mind, the court of appeals made

a factually correct and legally sound decision in ordering

the merger of all four deep sea longshoremen locals into

one.

22

Ill. THE DECISION OF THE COURT OF APPEALS

ORDERING CHANGES IN BUSINESS OPERA-

TIONS IS NOT IN CONFLICT WITH AN-

OTHER CIRCUIT.

In its most alluring effort to create magic, the peti-

tioner now claims that the decision of the Court of

Appeals for the Fifth Circuit has the effect of ordering

major changes in business opvrations, and that such a ruling

is in conflict with the holding of another circuit court.

In making its “bootstrap” attempt to obtain a review

of the Fifth Circuit’s order, the petitioner weaves a

“straw man” with liberally laced conclusions concerning

the effect the merger of Local 1576 will have on Southern

Stevedoring Company, none of which can be found either

in the record or in any of the findings of fact of the

district court. In neither of its orders of 1971 and 1979

did the district court ever give the slightest hint that it

could see any adverse changes in the business operations

of Southern Stevedoring Company. In the eleven years

that this case has been pending, Southern Stevedoring

Company has obviously made no attempt to file a petition

in intervention nor any other petition for relief. Neither

has it made any effort to protect any “so called business

interests” that would be adversely affected because of

the merger of Local 1576 with the other Galveston locals.

The reason for this is obvious; the merger of all Gal-

veston locals will give this company a larger and more

readily available work force.

Since Southern Stevedoring has been aware for the

last eleven years that a merger of all locals in Galveston

was due, it is logical as well as equitable for any court

23

to conclude that there will be no adverse effects on

Southern Stevedoring Company.**

Nonetheless, the petitioner argues that the opinion of

the Second Circuit in E.E.0.C. v. Local 14, International

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

1977) is in conflict with the opinion of the Fifth Circuit

in our case. The Second Circuit in E.E.O.C. did not hold

that a court could not use its Title VII remedial power

to restructure business practices. In that case the con-

tractors associations did not participate in the trial of the

case, and consequently, were not allowed to offer evi-

dence as to the effect of the merger of the two locals

upon them. The Second Circuit reversed the district

court’s order because “included in the pretrial order

issued by the district court was a stipulation between

GCA [the contractors association] and the E.E.O.C. that

the former would have ‘a full opportunity to offer proof’

on the issue of relief.” E.E.0.C., supra at 257. Even a

broad reading of this case could only be interpreted to

allow the employers to introduce evidence as to the ef-

fect of the merger on their business. The decision does

not prohibit the restructuring of the employers’ business

operations in order to cure violations of the Civil Rights

Act.

The petitioner also argues that this Court’s holding in

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

15. It is also noted that Southern Stevedoring Company offered

no evidence at the hearing of September, 1979. On the other hand,

West Gulf Maritime Association did participate in all evidentiary

hearings and its most scholarly and learned counsel, Mr. Bryan

Williams (who, unfortunately, is now deceased) specifically informed

the district court that his client was taking no position regarding

the merger of Local 1576 with the other locals. (79Tr. 260-261)

%

24

(1970) that federal courts cannot order a remedy against

an employer that has not violated the Act stands for the

principle that courts cannot order changes in a party’s

business operations. Furnco is clearly distinguishable

from the facts in our case and even the petitioner’s

broader interpretation should not be applicable to our

case. In Furnco it was the employer, and not a union, that

was alleged to have violated that Act. Furthermore, the

Furnco court reversed the court of appeals’ finding that

the employer had violated the Act because of the treat-

ment of the nature of the evidence necessary to rebut a

prima facie case of discrimination. The Furnco court

said that since the employer could articulate legitimate

and nondiscriminatory reasons for the rejection of cer-

tain Blacks from employment, it was able to rebut the

Government’s prima facie case. Furnco, 438 U.S. at 578.

In our case, Local 1576 never did substantiate why in

1971, it did not have one Black member; and why in

1977, it had only three Black members!

IV. THE DECISION OF THE COURT OF APPEALS

IS NOT CONTRARY TO THIS COURT'S DE-

CISIONS GOVERNING THE ALLOCATION OF

AUTHORITY WITHIN THE FEDERAL SYS-

TEM.

The petitioner argues that the Fifth Circuit overstepped

its limitation of power when it ordered the district court

to implement a remedy more encompassing than the one

fashioned by the district court and contends that the Fifth

Circuit’s mandate to the district court to merge all of

the segregated union locals was therefore erroneous.

25

A district court must fashion its remedy in light of the

purposes of Title VII of the Civil Rights Act. In Albe-

marle Paper Co. v. Moody, 422 U.S. 405, 417, the Su-

preme Court, in citing Griggs v. Duke Power Co., 401

U.S. 424, 429-30 (1971), stated that the primary ob-

jective of Title VII was a prophylactic one:

It was to achieve equality of employment op-

portunities and remove barriers that have been op-

erated in the past to favor an identifiable group of

White employees over other employees.

The Albemarle court further stated:

It is also the purpose of Title VII to make persons

whole for injuries suffered on account of unlawful

employment discrimination. This is shown by the

very fact that Congress took care to arm the courts

with full equitable powers. For it is the historic pur-

pose of equity to secure complete justice... . Where

racial discrimination is concerned, ‘the district court

has not merely the power but the duty to render a

decree which will so far as possible eliminate the

discriminatory effects of the past as well as bar like

discrimination in the future. Albemarle, supra at

418.

The district court failed to carry out the mandate of

Congress when it enacted 42 U.S.C. § 2000e-2(c)(2).”°

16. In its MEMORANDUM and ORDER of October 1, 1979,

the trial court made many determinations of fact, which were not

sustained by the record, in order to achieve the result that it wanted,

to-wit: to find a basis to exclude Local 1576 from the merger. It

should be noted that many letters and pleas by the Mexican-

Americans had been sent directly to the district court through the

years without the other parties to this lawsuit having been notified

of same and without the other parties to this lawsuit having been

furnished copies of any such letters. These were in the nature of

7%

26

That statute puts an extremely heavy burden on those

who wish to maintain segregated unions. Even though by

having a “common hiring hall” whereby Blacks would be

entitled to be picked for longshore work on the same foot-

ing as Whites and Mexican-Americans as the district

court formulated in its 1971 opinion, there still would

be maintained “separate but equal” union locals. Under

“ex parte” communications with the court by the members of Local

1576, none of whom were, of course, attorneys in the case. (79Tr.

258-260)

The most glaring example of the district court’s unwillingness to

be bound by the evidence in the record is in its memorandum and

order when it considered what it called its “three alternatives” with

regard to an appropriate action. The court described its first alterna-

tive as merging the four locals together under a uniform seniority

system; its second was to order a merger excluding 1576, but re-

quiring those members of Local 1576 that have dual seniority to

choose between Local 307 and Local 1576. The third alternative,

and the one that the court chose was to order the merger excluding

1576 and allowing its members to retain their dual seniority.

In discussing its stated first alternative in its memorandum and

order, the court reasoned:

“If the merged local would grant a year’s seniority to any

longshoremen who had qualified in his own local and who had

been available for longshore werk regardless of the hours worked,

the first alternative would be acceptable.” (App. B, 18a, peti-

tioner’s application for writ of certiorari) (Emphasis Supplied)

With respect to testimony that the court elicited from Mr. Leroy

Hoskins, President of Local 851, the court then went on to say that:

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

with his attorney’s stipulation.” (Footnote 3, App. B, 18a, peti-

tioner’s application for writ of certiorari) (Emphasis Supplied)

A close review of the record and the facts of that hearing indicate

that the district court’s statement is absolutely untrue. After the

court had elicited an answer from Mr. Hoskins, counsel for Local

851 made a stipulation into the record which was accepted by Mr.

Hoskins and which was then, as well as now, still binding on Local

851. Local 851 had made the stipulation that it would allow and

grant a year’s seniority to a longshoreman in Local 1576 who had

qualified in his own local with 300 hours, assuming that Local 1576

was merged with the other three locals. Nobody except the district

_—s rc its memorandum and order, rejected that stipulation. (79Tr.

14-216

27

the district court’s original plan, Black, White and Mexi-

can-American longshoremen could conceivably be paid

the same wages, have an equal number of representatives

on the contract negotiating team, and under a common

seniority and hiring hall system, be assured of an equal

chance of obtaining longshore work. The Fifth Circuit

recognized that merely placing the Black longshoremen

on the same economic level as the White and Mexican-

American longshoremen was not what Congress in-

tended in passing Title VII. As the Fifth Circuit discussed

in the first review of this case, “any segregation which

tends to deprive an individual of opportunities is illegal,”

511 F.2d at 517. The Fifth Circuit saw the incomple-

tion of the district court’s remedy in light of the “sepa-

rate but equal” cases which have been handed down by

this court since Brown v. Board of Education, 347 US.

483 (1954)*" and the legislative purpose behind the pas-

sage of Title VII.

Under the district court’s 1971 remedy, there would

still be one White local, two Black locals, and one Mexi-

can-American local in Galveston, Texas. A Black man

seeking longshore employment under those conditions

might make the same wages as the White or Mexican-

17. As noted in the Fifth Circuit’s Opinion, the Supreme Court

subsequently summarily decided a series of cases in which it held

that racially separate facilities were inherently unconstitutional;

the Court came to those decisions without regard to any evidence

of material equality. See, e.g., New Orleans 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 sectioning of

buses); Mayor and City Council of Baltimore 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 386 (segre-

gated beaches).

i. |

28

American, but he would still be faced with lawfully

sanctioned segregation. Since a Black individual might

not want to work in a segregated local and wouid not be

hired by one of the non-Black locals because of his color,

he would, in essence, be deprived of employment oppor-

tunity.

The petitioner argues that, on remand, the district

court made extensive findings that Local 1576 never

violated Title VII and never discriminated against any-

one. These findings are contrary to the findings of the

district court in its 1971 opinion, and pursuant to the’

prior mandate of the Fifth Circuit in 1975, should not

have been made. The Fifth Circuit ordered the district

court to merge all the locals in each port in Texas and,

contrary to the mandate, the district court heard addi-

tional evidence and made additional findings of facts

which were not authorized by the Fifth Circuit. Un-

less the Fifth Circuit’s decision in 1975 was er-

roneous, the findings of fact of the district court in

1979 are clearly immaterial to this appeal. Therefore, the

district court’s previous findings that “membership of

each [longshoremen’s] local union [within the state of

Texas] is totally segregated on the basis of race or national

origin,” 334 F.Supp. at 978, and the evidence that even

though Local 1576 had 140 members in 1971, with no

Black members, should be controlling (Emphasis sup-

plied. )

Furthe: .ore, the petitioner argues throughout its brief

that it never intentionally discriminated against anyone.

Title VII is not concerned with the employer’s or union’s

“good intent or absence of discriminatory intent” for

“Congress directed the thrust of the Act to the conse-

29

quence of employment practices, not simply the motiva-

tion,” Griggs v. Duke Power Co., supra; Albemarle

Paper Co. v. Moody, supra; Teamsters v. United States,

supra."®

CONCLUSION

The petition for writ of certiorari of Local 1576, Inter-

national Longshoremen’s Association, AFL-CIO, to re-.

view the judgment of the United States Court of Appeals

for the Fifth Circuit entered in this case on August 13,

1980 should be denied.

\

ROBERT M. Moore

(Counsel of record)

MARTIN M. HOKANSON

Moore & LAURENCE

99 Detering, Suite 230

Houston, Texas 77007

Attorney for Respondent,

I.L.A. Local 851

18. See also Watson v. City of Memphis, 373 U.S. 526, 536

(1963); Wright v. Council of Emporia, 407 U.S. 451, 461-62.