Petitioners Brief — American Tobacco Co. v. Patterson

No, 80-1199

In THE

Supreme Court of the

OCTOBER TERM,

THE AMERICAN TOBACCO (

Vv.

JOHN PATTERSON,

On Writ of Certiorari to th

Court of Appeals for the

BRIEF FOR PETITIONERS BAKE)

AND TOBACCO WORKERS INTI

AND ITS LOCA)

LAURENCE GOLD HENRY |}

AFL-CIO RONALD

815 - 16th Street, N.W. (Coun

Washington, D.C. 20006 MICHAEL

(202) 687-5390 BREDH

1000 C

Washi

(202)

Jay I. L

Imperi

5th an

Richm

(804)

Attorneys for Union P

WILSON - Eras Printing Co.. Inc. - 769-0091

a ~

QUESTION P!

Whether the immunity fro

to bona fide seniority systems

seniority systems instituted 01

date of Title VII.

LIST (

A complete list of the ;

the caption of the petiti

are:

The American Tobac

American Brands,

American Brands, In

Bakery, Confectioner

International Unio

Workers’ Internati

with Bakery & Con

International Unio

union in 1978)

Local 182 of Bakery,

Workers Internatic

The respondents are:

John Patterson

Marion Moshoe

Edmund Page

James Randolph

Percy Taylor

Equal Employment O

The first five named res

district court to represen

American Tobacco Comps

TABL

QUESTION PRESENT

LIST OF PARTIES .....

OPINIONS BELOW ..

JURISDICTION

STATUTORY PROVIS)

STATEMENT OF THE

INTRODUCTION AN

ARGUMENT

1. The Statutory La

2. The Legislative |

The Pre-§703 (

The Post-§ 708

The Lessons of

8. The Statutory S

(a) The purpose

(b) The relation

labor policy

CONCLUSION

TA

Cases:

Albemarle Pap

Alexander v. /

California Bre

Consumer Pro

vania, 447 1

Edmonds v. 8S

1052 (N.D.

Edmondson vy.

Cases 1745

EEOC v. McC

Ohio 1978),

Printing Co

Emporium-Cary

30,090, p. |

Hameed v. In!

Local 396, 6!

Johnson v. Bu

(S.D. Fla. 1!

Pate v. Transit

Cal. 1979) ..

Pettway v. Am

211 (5th Cir

Robinson v. Le

1972), cert. |

Rogers v. Inte!

(8th Cir. 19’

Sanders v. She

(E.D. Mich.

Schwegman Br

Steelworkers v

Stevenson vy, Ir

(5th Cir. 19’

TABI

Teamsters

Trans Wor

652 (2nd

Legislative Mat

Congressio

H.R. Rep. |

Statutes:

Civil Right

§ 200068, |

§ 708 (;

§ 708 («

§ 708 ()

Judicial Coc

28 U.S

Labor Mans

§ 102, |

§ 802 (1

National La

§1, 29

Portal-to-Pi

§ 2(a),

§9, 29

$12, 2

Miscellaneous:

Federal Rul

Rule 6

U.S. Dept.

Bargaini

IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

No. 80-1199

THE AMERICAN TOBACCO COMPANY, et al.,

- Petitioners,

JOHN PATTERSON, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF FOR PETITIONER UNIONS

This brief is the joint product of petitioners Bakery,

Confectionery & Tobacco Workers International Union '

and its Local 182 (hereinafter collectively “the Union”),

and American Federation of Labor and Congress of

Industrial Organizations (AFL-CIO), the federation of

national and international unions with which the Union

is affiliated. The decision to file a single brief reflects

the identity of their views on the issue presented, and

their desire to minimize the burdens on the Court by

stating their common position only once.

1 This suit was instituted against, inter alia, Tobacco Workers

International Union and ite Local 812. In 1978, Tobacco Workers

International Union merged with Bakery & Confectionery Workers

International Union to form the present Bakery, Confectionery &

Tobacco Workers International Union

2

OPINIONS BELOW

The en banc opinion of the Court of Appeals for the

Fourth Circuit which this Court has granted certiorari

to review is reported at 634 F.2d 744, and the panel

opinion that it replaced is reported at 586 F.2d 300. An

earlier opinion of the Court of Appeals in this case is

reported at 535 F.2d 257, cert. denied, 429 U.S. 920.

Opinions of the district court in this case are reported at

8 FEP 778 (1974), 11 FEP 577 (1974), and 18 FEP

377 (1977). All of the afore-cited opinions are reprinted

in the Joint Appendix.

JURISDICTION

The judgment of the Court of Appeals was entered on

November 18, 1980. The petition for writ of certiorari

was filed on January 16, 1981, and granted on June 15,

1981. This Court has jurisdiction to review the decision

below pursuant to 28 U.S.C. § 1264(1).

STATUTORY PROVISIONS INVOLVED

Section 703(a) of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-2(a), provides as follows:

(a) It shall be an unlawful employment practice

for an employer—

(1) to fail or refuse to hire or to discharge

any individual, or otherwise to discriminate

against any individual with respect to his com-

pensation, terms, conditions, or privileges of

employment, because of such individual’s race,

color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his em-

ployees in any way which would deprive or tend

to deprive any individual of employment oppor-

tunities or otherwise adversely affect his status

as an employee, because of such individual’s

race, color, religion, sex, or national origin.

Section 703(c) of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-2(c), provides as follows:

(c) It shall be an unlawful employment practice

for a labor organization—

3

(1) to exclude or to expel from its membe:

ship, or otherwise to discriminate against, an

individual because of his race, color, religioi

sex, or national origin;

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

bership, or to classify or fail to refuse to refe

for employment any individual, in any wa

which would deprive or tend to deprive any ir

dividual of employment opportunities, or woul

limit such employment opportunities or othe

wise adversely affect his status as an employe

or as an applicant for employment, because o

suth individual’s race, color, religion, sex, 6

national origin; or

(3) to cause or attempt to cause an employe

to discriminate against an individual in viola

tion of this section.

Section 703(h) of the Civil Rights Act of 1964, 4:

U.S.C. §2000e-2(h), provides in pertinent part a

follows: ’

Notwithstanding any other provision of this title

it shall not be an unlawful employment practice fo

an employer to apply different standards of compen

sation, or different terms, conditions, or privileges o

employment pursuant to a bona fide seniority o

merit system, or a system which measures earning

by quantity or quality of production or to employ

ees who work in different locations, provided tha

such differences are not the result of an intentio

to discriminate because of race, color, religion, se:

or national origin. .. .

STATEMENT OF THE CASE

Petitioner Local 182 is the exclusive bargaining repre

sentative of employees at a number of plants of Peti

tioner American Tobacco Company, including two sepa

rate plants in Richmond, Virginia, which are the subjec

of this action: the Virginia Branch (at which cigarette

4

are manufactured), and the Richmond Branch (at

pipe tobacco is manufactured). Two separate :

were filed challenging employment practices at

plants; one by the EEOC, and the other by five

employees who were certified to represent a cli

black employees at the plants. The actions wer

solidated.

The case was initially tried prior to this Court’:

sion in Teamsters v. United States, 481 U.S. 324

time when the rule in the Fourth Circuit was that

VII invalidated innocently-motivated seniority s)

that perpetuated the effects of pre-Act discrimi

(unless proved by the defendants to be a “business

sity”). Robinson v. Lorillard Corp., 444 F.2d 791 (

1972), cert. dismissed, 404 U.S. 1006. The district

found that pre-Act discrimination was being unla'

perpetuated by the “facially fair and neutral” ser

system in two respects: (1) seniority was measu)

length of service within one’s branch (“branch len,

service’), which deterred black employees from

ferring from one branch to the other, and (2) thers

six lines of progression (LOPs) that were not justi!

business necessity and that, by requiring employ

promote job-by-job, delayed the access of black emy

to the jobs at the top of these LOPs. JA 2-11.? The

of appeals affirmed these rulings, but remanded fo

ther proceedings respecting remedy. JA 70-83. (

mand, the district court entered a judgment req

inter alia, that blacks be permitted to carry their :

ity when transferring from the prefabrication d

ment of one branch to the fabrication department

other, and that the six LOPs be eliminated. JA 13!

Following entry of that judgment, this Court d

Teamsters, and the Company and Union moved

2 There were nine LOPs, but the district court found tha

were justified by business necessity. JA 31-32.

5

F.R.Civ.P. 60(b) for relief from the judgment.

trict court denied the motion. JA 109-110. On a

panel of the court below ruled (1) that the qu

the legality of the contractual use of branch |

service as the measure of seniority required,

of Teamsters, more explicit findings from the

court (which was free to reopen the record tc

further evidence as to bona fides), JA 117-118,

that the lines of progression were not part of a

ity system” within the meaning of § 703(h), so

original holding that they were unlawful irresp

motivation remained proper and was not vulnera

Rule 60(b) motion, JA 116."

The Company and Union filed petitions seeking

ing en bane. While those petitions were pendi

Court decided California Brewers Assn. v. Bry:

U.S. 598, giving a broader reading to the term “:

system” than had been applied in the panel |

The en bane court ruled unanimously that on t

tion of the legality of the use of branch length o!

as the measure of seniority the case had to be r

and the record reopened to receive further evider

bona fides. JA 145-147. That ruling is not bef

Court. The ruling which is before this Court is

lating to the LOPs.

The majority of the en bane court held that tl

were unlawful whether or not they were in

motivated, and whether or not they were part of

iority system” within the meaning of § 703(h)

tion the majority did not address, JA 142-143

because they were “adopted in January 1968,”

The court reasoned that §703(h) is “a quite

exception to Title VII’s general coverage of al

tions of employment’”, JA 144, n, 4, and “[iJn 1

that narrow interpretation” (ibid.) the panel |

* Judge Widener dissented from the ruling respectin,

progression, JA 122-125.

6

concluded “that the legislative history of

conclusively demonstrates that Congress int

munity accorded seniority systems by §7

only to those systems in existence at the

VII's effective date, and of course to ro

applications of such systems,” JA 148-144

Judge Widener, joined by Judge Russ

Preliminarily, he noted his doubt as to tl

of the majority’s holding that § 703(h) i

to seniority systems adopted subsequent to

Title VII:

The Supreme Court has specifically m

sters that § 703(h) on its face immu

fide seniority systems. 431 U.S. 348

though § 708(h) is written as an exce

as a grandfather clause, the majority |

ordinary exception into just that. Cong

edly knows how to write a grandfath«

wishes, but in this case wrote an exce

New plants, for instance, are summ:

from § 703(h) in the majority view, \

justification.” [JA 160, n. 1].

But the principal focus of his dissent wa

quacy of the record to support the majority’

the LOPs were “adopted in 1968”. He note

trict court had made no findings on the po!

that the record evidence appeared to indicat

larger number of LOPs (including these

isted in practice prior to the Act (albeit

prescribed in the collective bargaining agi

that in 1968 the parties had substantiall

number of LOPs, with these six being ai

surviving (JA 162-177). If this is correct,

1968 “change” benefited the black employ

duced the number of LOPs without crea’

ones (JA 165-166, 182). In his view, a rer

essary so that the district court could ma)

7

the first instance as to whether that

reading of the record (JA 177).

The majority appended a footnote t

plaining its reasons for rejecting the

of a remand on this factual issue:

Without attempting here an ex

analysis of the factual record, our

while the informal rudiments of

scribed as a “job lines of progre:

tainly existed before 1965, the :

adopted by American in 1968 to <«

and promotions within specifical

“lines” involved enough of change |

(whether in favor of or against en

to constitute a new policy, or at lea:

altered from prior unstructured p

could not be considered simply a

tion,” see 7'eamsters, 481 U.S. at |

1965 procedures. [JA 143, n.

original].

The majority’s implicit acknowledgm

“change” fn 1968 may have been one '

interests of minority employees, couplec

that that “change” withdrew the “immu!

drew a rebuttal from Judge Widener:

The only way the majority can fin

record without further fact findin

court is by giving such a “string

§ 703(h)] against the employer ar

it actually finds liability when all

the union tried to do was to imp

conditions for the plaintiff class . .

remembered that each relevant cha

tive bargaining agreements disclos

whether pre- or post-act, has bene

class. None have been to its detrin

..+ [T]he majority boldly holds

a previously existing seniority sys'

8

change may be in favor of a class

will deprive the company and th

change from the benefit of a

Nothing I can think of could b

in law or logic. [JA 182-183; em

* Judge Widener explained:

The law . . . rejects this conclusion

v. Weber, 443 U.S. 198 (1979), in wi

court was that it was not a violation o

Act for an employer and a union to ag

minority employees. The court said th

as a spur or catalyst to cause employ

examine and self-evaluate their emplo:

endeavor to eliminate, so far as possil

an unfortunate and ignominious page

tory.” 448 U.S. at 204. Thus, Weber a

ployers and unions designed to allevi

discriminatory conditions of employm

majority opinion providing that a com

not alter a seniority system so as to m

conditions of employment of minorit;

contrary to Weber, I think. It requires

tion of the statute to hold **at a seni:

discriminatory in effect, as in Team

§ 703(h) so long as it remains unchang

in favor of the minority employees, the

union lose their §703(h) exemption.

Not only is this conclusion contrary

blow against minority employees and <

of the statute. Hereafter, in this circ

employer nor a union may safely agr

seniority system existing before July 1

§ 708(h) exemption will be lost. Thus

rigid as the one approved in Teamsters,

of white employees, under the provisio

ceive the sanction of the statute anc

court, while a seniority system equa!

by the action of the employer and the

1965, ameliorated a part of the previou

tory conditions, will not. Such a con

sound astonishing, yet that is precis

holds. [JA 188-184].

9

INTRODUCTI(

SUMMARY OF A

A majority of the court belo

of Title VII of the Civil Rights

to seniority systems “in existe!

VII's effective date,” and that

that date (or, as here, changes

existing systems) even if inno

lawful if they perpetuate pre-Ac'

lower court has adopted that «

and numerous lower court

§ 703(h) to protect post-Act sys

discriminatory intent.’ Those d

sion below are faithful to Cong

We begin our argument by

court’s narrow reading of § 70

with the carefully crafted stati

wrote, which protects without

seniority . . . systems” that a1

intention to discriminate.”

We then demonstrate that, cor

peals’ supposition, the Congressi

ing Title VII’s effect on seniori

should be read to mean what

a single instance in which a pi!

5 Hameed v. International Ass’n. of

F.2d 506 (8th Cir. 1980); Alexander

F.2d 1864 (6th Cir. 1977), cert. de

EEOC v. McCall Corp., 24 FEP Ci

aff'd sub nom., EEOC v. McCall Pr

(6th Cir. 1980); Johnson v. Burroug

(S.D. Fla. 1980); Sanders v. Sherwi

571 (E.D. Mich. 1980); Pate v. Tra

1228, 1245 (N.D. Cal. 1979); Edmoi

Corp., 20 FEP Cases 1745 (N.D. Al

Convoy, 20 Empl. Prac. Dec. { 20,090

Edmonds v. S. Pac. Transp. Co., 19

1979).

10

what the lower court held: t

tect post-Act seniority system

porters responded both broa

charge that the legislation wou

rights. In virtually every i

broad and unqualified: the b

seniority systems. In the wri!

Senator Clark relied on by th

was tailored to the charge: tl

affect existing seniority right

not affect existing seniority

Senator Clark’s statements k

not intend to draw a distin

future seniority rights. Inde

that he had introduced the °

the court below relied to mak

not affect seniority at all” |

phasis added). Each one of

addressed the subject affirmec

that the bill would not affect s

We conclude with a demons

low, by imposing stiff penalti

that make step by step char

system (even in a manner t

women), frustrates both Ti

voluntary affirmative action a

granting employers and uni

seniority systems to their ev

has recognized, Congress inte

trude upon these important le;

A

1, The Si

Section 708(h) is “a ¢

other provisions of § 703

employment practices a)

and which are not.” F?

Co., 424 U.S. 747, 758.°

immunity without quali

. system(s)” that ar

to discriminate”. The |

distinction between seni

the Act and seniority s)

It is hardly likely that €

sion” would choose word

intended was a “grandf;

ity systems.

The unlikelihood that

ance with its intent is m

of the drafting of § 703(

was a part of the “Dir

broke the longest filibust

Dirksen explained that

merely weeks but mont

11935), and concluded:

I doubt very muc

tive lifetime any 1

meticulous attention

of every word, of e'

of every phrase. [i

Finally, the argument!

says is made more bindir

Congress is no novice at

Such provisions are con

“See also Teamsters, 481

lines, Inc. v. Hardison, 482 |

cluding labor legislati

Congress would have 1!

father” language if

§ 708 (h).*

2. Th

(a) There is not ;

VII's legislative histo

has held, i.e. that §'

systems adopted or ch

this Court has empha:

legislative intention to

statute “must ordina

Consumer Product Sa;

U.S. 102, 108. The abs

mit, dispositive, and |

§ 708(h) its plain mé

in what is perhaps ar

that the court of appe

but in its reading of th

T See, for example, the

Labor Management Relat

Stat. 152 (1947), immun

suant to pre-Act collecti

otherwise have been unfa)

Act. See also, § 802(f) o

§§ 2(a), 9 and 12 of the F

258 and 261).

* An additional aid to «

fact that § 708(h) legitin

resulting from “a bona fic

which measures earnings

It hardly seems likely tha’

merit and incentive syst

date of the Act—indeed, |

as to legislative purpose

rational—yet if § 708(h)

them, would Congress ha

phrase if its intent was

ferent treatment?

(b) The deci:

ence as to Cong

materials introd

on Title VII. T!

have no effect |

systems; from tl

that Title VII 2

not “established’

On its face that

that Title VII |

systems is not a

turn later estab

Clark materials

text, including §

introduced those

seniority at all”

that the lower «

intended.

From the star'

VII, those who s

that they hoped

opposition to the

charges that the

443 U.S. at 205-

senting), and tl

seniority. The li

Report accompar

Senator Hill pri

bill,’® and in spes

a candidate in |

The court of a

the bill, to whom

*° H.R. Rep. No. 9

1 110 Cong. Rec.

1) These speeches

11471, 11486.

statutory word

vert Corp., 341

ances as to the

seniority syste

contrary, their

and did not di

systems.

The Pre-§ 70

first by the H

had warned thi

ous calamitous

“destroy” seni

Sess. 65 (1963

the opening spe

by Representa’

Judiciary Com)

voted to answi

cism” which hi

1518). With re

It has t

stroy worl

vis-a-vis t)

wrong. T!

union, as j

nating ag

their race,

During the «

was proposed t

one employee ¢

the indirect ef

race, color, re

Representative

port the amen

2 Throughout |

until introductioi

filibuster, there \

15

The amendment of the gentleman from New Jersey

refers to other practices which “may” have the “in-

direct effect” of discriminating on the basis of race,

color, and so forth.

I should like to say for the record and for the

purpose of establishing legislative history, that if a

union, or an employer, for that matter, engages in a

practice which is a subterfuge amounting to dis-

crimination on the basis of race, color, or creed in

some indirect fashion then a court would probably

find that such a practice would fall within the scope

of this bill.

However, so far as the gentleman’s amendment iv

concerned, there are factors such as seniority, length

of employment, and other factors which couid affect

union membership, union rights, and so forth, and

have nothing to do with color, race, or creed.

. . . I hesitate to support the amendment for the

reasons I have indicated. [Jd. at 2594].

The amendment was rejected (id. at 2595).

With no further reference to seniority, the bill was

passed by the House, and sent to the Senate. Shortly

thereafter, the Republican sponsors in the House prepared

a memorandum describing the bill as passed by the House.

In pertinent part, the memorandum stated:

Title VII does not permit the ordering of racial

quotas in businesses or unions and does not permit

interferences with seniority rights of employees or

union members [id. at 6566].

In the Senate, a 17-day debate ensued over whether

the bill shovld be referred to Committee. During that

period, Senator Humphrey, who was co-manager (with

Senator Kuchel) of the entire Civil Rights bill, intro-

duced a newspaper article quoting the answers of a

Justice Department “expert” to the “ten most common ob-

jections to Title VII.” In pertinent part it stated:

16

Objection: The law would empower federal “in-

spectors” to require employers to hire by race. White

people would be fired to make room for Negroes.

Seniority rights would be destroyed... .

Reply: The bill requires no such thing...

. . - The bill would not authorize anyone to order

hiring or firing to achieve racial or religious balance.

An employer will remain wholly free to hire on the

basis of his needs and of the job candidate’s qualifi-

cations. What is prohibited is the refusal to hire

someone because of his race or religion. Similarly,

the law will have no effect on union seniority rights.

[Id. at 5094].

On March 17, responding to a political advertisement

charging that the bill would give the federal government

the power to run America’s businesses, Senator Humphrey,

on the floor of the Senate, stated:

Title VII . . . will prohibit discrimination in em-

ployment . . . It does not limit the employer’s free-

dom to hire, fire, promote, or demote for any rea-

son—or no reason—so long as his action is not based

on race, color, religion, national origin, or sex. It

does not interfere with job seniority .... [Id. at

5423].

The advertisement had listed “seniority in private em-

ployment” as one of the individual rights that would be

lost were the bill passed (ibid). Senator Humphrey

countered :

[N]othing in the bill would affect any seniority plan

which was not a cloak for racial or religious dis-

crimination. [Ibid].

On March 26, 1964, the Senate voted to reject the

motion to refer the bill to Committee (Jd. at 6455), and

on March 30, the formal debate on the bill began. Sen-

ators Humphrey and Kuchel, the co-managers, undertook

“to lay the affirmative case for the bill before the Senate”

(Id. at 6528). Each of them devoted a portion of his

17

speech to answering the charges respecting seniority

Senator Humphrey said:

I hope this presentation will set to rest the doubts

about this bill which have been voiced by many

union members across the country. This bill is not

an instrument to abolish seniority or unions them-

selves, as some have charged. The only standard

which the bill establishes for unions and manage-

ment alike is that race will not be used as a basis

for discriminatory treatment. The full rights and

privileges of union membership, as protected by other

Federal laws and court decisions, will in no way be

impaired. As a longstanding friend of the American

worker, I would not support this fair and reason-

able equal employment opportunity provision if it

would have any harmful effect on unions. The truth

is that this title forbids discriminating against any-

one on account of race. This is the simple and com-

plete truth about Title VII. [Jd. at 6549].

Senator Kuchel, in the other major opening speech in

support of the bill, made the same point:

Title VII might justly be described as a modest

step forward. Yet it is pictured by its opponents

and detractors as an intrusion of numerous Federal

inspectors into our economic life. These inspectors

would presumably dictate to labor unions and their

members with regard to job seniority, seniority in

apprenticeship programs, racial balance in member-

ship, and preferential advancement for members of

so-called minority groups. Nothing could be further

from the truth. . . . [T]he important point, in re-

sponse to the scare charges which have been widely

circulated to local unions throughout America, is

that the Court cannot order preferential hiring or

promotion consideration for any particular race, re-

ligion, or other group. Its power is solely limited

to ordering an end to the discrimination which is in

fact occurring.

Neither would seniority rights be affected by this

Act. [Id. at 6553-54].

18

At the close of his speech, Senator Kuchel introduce

memorandum prepared by the Republican sponsors i

House, describing the bill as enacted by the House

at 6665-66. (That memorandum, as noted earlier, s

that “Title VII . . . does not permit interferences

seniority rights of employees or union members,” i

6566.)

Each of the next several days was devoted t

sponsors’ exposition of a particular title of the bill

April 8, 1964, the speeches in support of Title VII

made by Senators Clark and Case, the bipartisan

tains” for Title VII. Senator Clark noted the cl

Senator Hill had earlier made that “Title VII woul

dermine the vested rights of seniority” (Jd. at 7206)

he responded:

[I]t is clear that the bill would not affect sen!

at all. It would not affect the present operati

the National Labor Relations Act or rights |

existing labor laws. [/d. at 7207; emphasis ad

As proof of this conclusion, Senator Clark insert

the record certain documents which, ironically, cons

the entirety of the “legislative history” which the

below declared “conclusively demonstrates that Con

intended the immunity accorded seniority system

§ 703(h) to run only to those systems in existence ¢

time of Title VII's effective date” (JA 143-144 and |

The first of these was a Justice Department

orandum, which stated in relevant part:

First, it has been asserted that Title VII |

undermine vested rights of seniority. Title

would have no effect on seniority rights existi)

the time it takes effect. If, for example, a coll

bargaining contract provides that in the eve

layoffs, those who were hired last must be la

first, such a provision would not be affected i

19

least by Title VII. This would be true even i

case where owing to discrimination prior to the

tive date of the title, white workers had

seniority than Negroes. Title VII is directs

discrimination based on race, color, religion, s

national origin. It is perfectly clear that wl

worker is laid off or denied a chance for pron

because under established seniority rules he is

man on the totem pole” he is not being discrimi

against because of his race. Of course, if the

iority rule itself is discriminatory, it would be u

ful under Title VII. If a rule were to state th

Negroes must be laid off before any white man,

a rule could not serve as a basis for discharge

sequent to the effective date of the title. I d

know how anyone could quarrel with such a r

But, in the ordinary case, assuining that sen’

rights were built up over a period of time di

which Negroes were not hired, these rights woul

be set aside by the taking effect of Title VII.

ployers and labor organizations would simp!

under a duty not to discriminate against Ne

because of their race. Any differences in treat

based on established seniority rights would n

based on race and would not be forbidden b

title [id. at 7207].

The second document introduced by Senator Clar}

an interpretative memorandum which he and Se

Case had had prepared (id. at 7212). In pertinent

that memorandum stated:

[Section 703] prohibits discrimination in en

ment because of race, color, religion, sex, or na!

origin. It has been suggested that the conce

discrimination is vague. In fact it is clear and

ple and has no hidden meanings. To discrimin:

to make a distinction, to make a difference in |

ment or favor, and those distinctions or differ

in treatment or favor which are prohibited by

tion [703] are those which are based on any ¢

five forbidden criteria, race, color, religion, sex

20

national origin. Any other criterion or q@

for employment is not affected by this |

Title VII would have no effect on estab

iority rights. Its effect is prospective and

spective. Thus, for example, if a busines

discriminating in the past and as a resi

all-white working force, when the title «

effect the employer’s obligation would be

fill future vacancies on a nondiscrimina!

He would not be obliged—or indeed, per

fire whites in order to hire Negroes, or

Negroes for future vacancies, or, once N

hired, to give them special seniority rig

expense of the white workers hired earli

ever, where waiting lists for employment

are, prior to the effective date of the t

tained on a discriminatory basis, the us

lists after the title takes effect may be h

lawful subterfuge to accomplish discrimina

at 7213].

Finally, Senator Clark introduced written ;

certain questions that had been posed by Senat

(id, at 7215-16) :

Question: Would the same situation

respect of promotions, when that manage!

tion is governed by a labor contract callir

motions on the basis of seniority? Wh

missals? Normally, labor contracts call

hired, first fired.” If the last hired are |

the employer discriminating if his contra

they be first fired and the remaining em)

white?

Answer: Seniority rights are in no w

by the bill. If under a “last hired, first fi)

ment a Negro happens to be the “last hir

21

still be “first fired” so long as it is dc

his status as “last hired” and not becau

Question: If an employer is direct

his employment list because of discrim

happens to seniority?

Answer: The bill is not retroactiv

not require an employer to change exis

lists. [Jd. at 7217].

After the speeches in support of the bill wi

the filibuster began. From that time forwar

only occasional statements by sponsors as to

of the bill.

On April 25, Senator Keating took the

the “morning hour” to respond to a pamphlet

the Coordinating Committee for Fundamen

Freedoms, charging that the bill would r

and would “interfere with the seniority r

_ ployees and union members”:

“The coordinating committee has chai

Title VII would . . . permit the Gover

pose quotas and preferences upon er

labor organizations in favor of minority

coordinating committee also maintains t

will authorize the Federal Government

with the seniority rights of employee

members.

“Title VII does not grant this aut!

Federal Government. To make such ;

the coordinating committee does, is not

fortunate misinterpretation of the tit!

but is a cruel hoax because it generates

fear among those individuals who mu

their job or union membership to m

existence. [Jd. at 9111).

On May 8, Senator Carlson introduced a)

had had prepared because of “the gravity o

against the bill.” In pertinent part, the an

22

There would be no authority to rn

to achieve racial balance or to or«

to create jobs for Negroes. Uni

not be affected and employers wi

free to hire or fire on the basis o

(Id. at 10520].

On May 20, Senator Javits took tl

to charges contained in a campaign s

Wailace:

Another thing that people were

was seniority and trade unions.

said that union seniority systen

gated and that white men’s jobs '

turned over to Negroes. That is

thing that the bill will do—and

of existing state laws has confirn

outright cases of discrimination.

Senator Humphrey, too, was upset

which had occurred during the Mary

paign (id. at 11485). Governor Wall:

misrepresented the bill” (id. at 1148

phrey undertook a point-by-point refu

part:

Then the Governor said that t!

employers whom they can ‘hire ar

the seniority systems of labor un

The authors of the bill in the

were the architects of the bill an

movement itself—have said that

totally untrue. It just is not so

That same day, Senator Humphrey

letter “stating some of my observa

Rights bill, as to what it provides an

provide” (id. at 11486). In part, the

The bill does not permit the I

to require an employer or unior

for membership a quota of emplo

ticular minority group. b

23

The bill does not permit th

to destroy the job seniority rij

nonunion employees. [Jd. at |

On May 22, Senator McGovern n

to demonstrate that “(t]he horre

for [the bill] by its opponents sim

at 11768). In pertinent part:

The bill does not create any h

does not affect union seniority

On May 25, Senator Humphrey

nation of the House bill prepared

said had been “read and approved |

managers of the bill in both house:

11847). In pertinent part, the exp

The Title contains no provisic

ardize union seniority systems

in the Title permit the gover

internal affairs of employers

11848}.

The Post-§ 703(h) Discussion. (

sen-Mansfield substitute was intr

several provisions to the bill, inc

June 4, Senator Humphrey made t

explaining the purpose of the ne’

703 (h), he explained,

makes clear that it is only disc

of race, color, religion, sex or

is forbidden by the title. ‘

narrow application of the titl

its present intent and effect.

On June 18, Senator Williams o:

a letter he had received from Senat

certain questions he (Senator Willi

the bill. “Since [Senator Dirkser

several of the amendments approve

it was important that his interpre

24

tive intent be incorporated in

14329). In pertinent part, the |

sen, dated June 18, 1964 (the di

final vote) read as follows:

DEAR JOHN: I have

raising questions which ha

attention . . . Let me set

then follow them with my

have a complete record in

10. That seniority in u

company employment would

The Senate substitute bil

seniority systems. [/d. at

Senator Williams then provi

the improvements made by the

(id, at 14829). In pertinent par

The language in the Ho

merit, and incentive systen

Senate amendments pert

merit, and all incentive sys

On June 19, 1964, the filibu

by a vote of cloture (id. at 13

the Dirksen-Mansfield substitut

Senate had substantially revi

House debated a recommendati

Senate amendments. In the co!

resentative McCulloch, who ha

publican sponsor in the House, s'

Much inaccurate inform

about the legislation both a

it is now before the H

to negate only the wo

have had such wide dis

Fifth. The bill does

ernment to destroy the

union or non-union em)

A few minutes later, the I

Senate’s amendments, thus :

of 1964 (id. at 15897).

That same day, Senator |!

passage of the bill, introduc

May 25 memorandum, descr

at 15865). The memorand

Title VII “contains no provi

seniority systems” (id. at 15:

The Lessons of the Legis

the Congressional discussion

First, in the House, the

uniformly to the effect that

mit interferences with seni

union members.” See supra |

Second, in the Senate, fro

on Title VII to the introduc

substitute, the following pri

of seniority—Senators Hum

ing, Carlson, Javits and McC

by the proponents spoke of ‘

ing seniority,” and those ¢

their content: “Title VII. .

seniority.” “Neither would s

this Act.” “[I]t is clear tl

seniority at all.” “Title VII

to the Federal Government

seniority rights of employees

seniority would not be affect

In addition, Senator

memoranda on which t

reliance. While those |

objection to Title VII :

bill’s effect on “vested,”

iority rights, that is be

charge made by the bill

an assurance tailored t

bill would affect existin

bill would not affect ex

no suggestion in those n

tecting pre-Act bona fi

date post-Act bona fide

Senator Clark in intro

is clear that the bill w

at the same time he als

questions posed by Ser

answers stated:

Seniority rights |

If under a “last hir

happens to be the '

fired” so long as it

“last hired” and n

See supra pp. 18-21.

Third, the few post-§

are to the effect that

pressly protects valid s

23-24.

Finally, it should be |

§ 708(h), Title VII did

Thus, the pre-§ 703 (h)

not affect seniority at |

the concept that establi

cially protected, and m

ing succinctly stated i

randum:

If ...a collective

in the event of le

must be laid ofl

affected in the

true even in th

prior to the eff

ers had more s

directed at disc

ligion, sex or n

that when a wi

for promotion

rules he is “lov

being discrimin:

Any difference

seniority rights '

not be forbidden

In other words, tho

ing that even where

tion against blacks

thereafter of neutra

discrimination on the

what is now §§ 703(

explained, the addit

application of the T

[pre-Dirksen-Mansfi

The totality of e'

randa, thus does not

on § 708(h) found by

3%. T

This Court has de

VII both the overa

inevitable intersecti

Emporium-Capwell (

69-70; Albemarle Pa

418; Trans World A

Steelworkers v. Webi

Brewers Assn. v. Br,

tion of § 703(h) tha

systems in place on .

to the overall purpo

labor policy.

(a) The purp

as a “spur or |

portunities for r

418; Weber, suj

not confined to

employers and u

conformity with

The Court |

agreement |

status of ce

ing public |

by statute,

detrimental

employees |

(Franks, 8

Weber, sup

It is most wu

such ameliorati,

as they existed

immunity if the

iority systems ii

as the dissent bi

implicitly ackno

construing § 70:

If a seniority s

for job seniority

seniority (whict

pre-Act discrim:

remove the pro

ployer and uni

providing even

seniority), the |

petuate the effe

any change in |

18 Seo, e.g., Unit

668-659 (2nd Cir.

494 F.2d 211, 228-

“steps” necessary to reach the most desirable jobs, would,

under the decision below, remove the protection of

§ 708(h) from the LOPs altogether, and subject them

to invalidation except to the extent justified by “busi-

ness necessity.” '* The decision below thus would make

Title VII a deterrent to step by step progress. It would

tend to freeze pre-1965 seniority patterns into perpetual

place.

(b) The relation of Title VII to the national labor

policy. Ae this Court has recognized, Title VII in gen-

eral (Emporium-Capwell, swpra) and § 703(h) in par-

ticular, must be construed with the knowledge that Con-

gress did not intend to intrude unnecessarily upon core

principles of national labor policy.

Collective bargaining, aimed at effecting workable

and enforceable agreements between management

and labor, lies at the core of our national labor

policy, and seniority provisions are universally in-

cluded in these contracts. Without a clear and ex-

press indication from Congress, we cannot agree...

that an agreed-upon seniority system must give way

... [TWA »v. Hardison, supra, 482 U.S. at 79).

And, as the Court elaborated in California Brewers,

supra, 444 U.S. at 606:

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 col-

lective bargaining to establish conditions of employ-

ment applicable to a particular business or industrial

environment. See generally Steelworkers v. Weber,

448 U.S. 198. It does not behoove a court to second-

guess either that process or its products. Porter Co.

4 See, e.g., Stevenson v. International Paper Co., 616 F.2d 108,

114-115 (5th Cir. 1975); Rogers v. International Paper Co., 510

F.2d 1840, 1856 (8th Cir. 1975), vacated on other grounds, 423

U.S. 809.

30

v. NLRB, 397 U.S. 99. Seniority systems, reflect-

ing as they do, not only the give and take of free

collective bargaining, but also the specific charac-

teristics of a particular business or industry, in-

evitably come in all sizes and shapes. See Ford

Motor Co. v. Huffman, 345 U.S. 330; Aeronautical

Lodge v. Campbell, 387 U.S. 521. As we made clear

in the Teamsters case, seniority may be “measured

in a number of ways” and the legislative history of

§ 703(h) does not suggest that it was enacted to

prefer any particular variety of seniority system

over any other. 431 U.S., at 355, n. 41.

. . . Significant freedom must be afforded employ-

ers and unions to create differing seniority systems.”®

In the natural course of events both “the give and take

of free collective bargaining” and “the specific charac-

teristics of a particular business or industry” will force

changes in a seniority system over time. Unions often

seek broad seniority principles in order to maximize the

role length of service plays in determining job opportuni-

ties, while employers customarily seek narrower applica-

tions of seniority to maximize the retention of employees

on jobs with which they are familiar and on which they

have developed experience and skills. U.S. Dept. of

Labor, Bulletin 908-11, Collective Bargaining Provisions-

Seniority (1949), p. 14. Shifts in relative bargaining

power, or in the importance the parties place on this

15 The Court added: “But that freedom must not be allowed to

sweep within the ambit of §703(h) employment rules that depart

fundamentally from commonly accepted notions concerning the

acceptable contours of a seniority system,” id. at 608. The decision

below was not responding to that caveat. The court below assumed

that the system at issue here would have been protected by § 703(h)

had it been adopted prior to July 2, 1965, i.e. that it did not “de-

part fundamentally from commonly accepted notions concerning

the acceptable contours of a seniority system.” The vice of the

system here, according to the court below, was its timing, not its

content.

31

issue compared to others, are likely to alter the system

Another significant catalyst to change in seniority sys

tems is change in the “specific characteristics” of the em:

ployer. Congress was acutely aware in enacting Title VI!

that automation was radically altering the workplace in

America. Weber, 443 U.S. at 202. Automation calls for

changes in established seniority systems to adapt the

system to differences in job requirements and to altered

relationships between jobs, and to protect employees

whose jobs are eliminated as others are created. To take

a simple example, whenever a new job is created, the

union and employer must change some LOP by inserting

that job into the LOP.

The genius of collective bargaining, and a substantial

reason for “en ouraging [this] practice and procedure”

(§1 of the NLRA), is that the bergaining process

provides a salutary means for adapting the rules of the

shop to changes in the needs and desires of the parties

and to the demands of a dynamic economy and an on-

rushing technology. Indeed, the failure of a business or

industry and the workers involved to accommodate their

methods of doing business to new circumstances is likely

to cost all concerned their livelihood. We do not believe

that Congress can fairly be charged with an intent to

impose stiff penalties on legitimate changes in seniority

rules, and thus to deter employers and unions from mak-

ing such natural changes. Yet that is what the lower

court’s reading of Title VII does.

82

CONCLUSION

For the reasons set forth above, the decision

should be reversed.

Respectfully submitted,

LAURENCE GOLD HENRY KAISER

AFL-CIO RONALD ROSENBERG

815 - 16th Street, N.W. (Counsel of Record)

Washington, D.C. 20006 MICHAEL H. GOTTESMAN

(202) 687-5390 BREDHOFF & KAISER

1000 Connecticut Avenu:

Washington, D.C. 2003¢

(202) 833-9840

JAY J. LEVIT

Imperial Building, Thir

5th and Franklin Stree!

Richmond, Virginia 232

(804) 644-5453

Attorneys for Union Petitioners