# Petitioners Brief — American Tobacco Co. v. Patterson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1982
- **Citation:** 456 U.S. 63

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1942%3A05. Public record. Not legal advice.