Brief for the United States — Local Union No. 84, International Brotherhood of Electrical Workers v. United States

No. 80-2117

Iu the Supreme Court of the United

OcToBER TERM, 1980

LocaL UNION No, 84, INTERNATIONAL BROTHERHOOD

oF ELecTRICAL Workers, AFL-CIO, peTtiTIONER

‘A

UNITED STATES OF AMERICA, ET AL,

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

Rex E, Lee

Solicitor General

JAMES P, TURNER

Acting Assistant Attorney General

JessicA DUNSAY SILVER

IRVING GORNSTEIN

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

CONSTANCE L. Dupre

General Counsel

Equal Employment Opportunity Commission

2401 E Street, N.W.

Washington, D.C. 20506

QUESTION PRESENTED

Whether the court of appeals correctly determined that

petitioner’s seniority system was not bona fide within the

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

42 U.S.C. 2000e-2(h).

(1)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Albemarle Paper Co. v. Moody, 422 U.S.

WEP sesh Seka ven e bak ba bu becbeicernecceks

Alexander v. Louisiana, 405 U.S. 625 .......

Castaneda v. Partida, 430 U.S. 482 .........

City of Mobile v. Bolden, 446 U.S. 55 .......

Franks v. Bowman Transportation Co.,

Ge OE cds wade bh diene cavdeeses

International Brotherhood of Teamsters v.

United States, 431 U.S. 324 wo .ccceceeees

James v. Stockham Valves & Fittings Co.,

3 ee > rer ey eee

Personnel Administrator of Massachusetts v.

Foeney, 442 U.S. 256 oc cccesdOOb ec ccncces

Swint v. Pullman-Standard, 624 F. 2d

525, cert. granted, Nos. 80-1190 & 80-1193

CG SUE iv dcocsviseeuveksseaenns

Terrell v. United States Pipe & Foundry Co.,

PE Me CEES 65 i naceteestccvcesces¥iens

IV

Page

Cases—Continued:

Village of Arlington Heights v. Metropolitan

Housing Development Corp., 429 U.S.

ME SEACRS AEDS ES ESCO 000.0 0600s b 60 pouees 5-6, 7

Constitution and statute:

United States Constitution, Art. XIV,

Sec. 1 (Equal Protection Clause) ............. 7

Civil Rights Act of 1964, Title VII, 42 U.S.C.

; fe | MUTT TET TEETER UTELI TT ee 2, 3, 6

Section 703(h), 42 U.S.C. 2000e-2(h) ....... 6

In the Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-2117

LOcAL UNION No. 84, INTERNATIONAL BROTHERHOOD

OF ELECTRICAL WorKERS, AFL-CIO, PETITIONER

A

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. !a-17a) is

reported at 634 F. 2d 929. The opinion of the district court

(Pet. App. 23a-3la) is reported at 470 F. Supp. 649. A

subsequent order of the district court (Pet. App. 18a-22a) is

unreported. An earlier opinion of the court of appeals (Pet.

App. 32a-69a) is reported at 474 F. 2d 906. An earlier

opinion of the district court (Pet. App. 70a-128a) is unoffi-

cially reported at 3 Fair Empl. Prac. Cas. 767.

JURISDICTION

The judgment of the court of appeals (Pet. App. 129a-

130a) was entered on January 22, 1981. On April 2, 1981,

Justice Powell extended the time for filing a petition for a

writ of certiorari to and including June 21, 1981 (Pet. App.

i31a). The petition for a writ of certiorari was filed on June

15, 1981. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

I

2

STATEMENT

1. In 1969, the United States filed suit in the United

States District Court for the Northern District of Georgia,

charging that the Georgia Power Company and petitioner’s

predecessor unions, which were parties to collective bar-

gaining agreements with Georgia Power, had engaged ina

pattern or practice of employment discrimination in viola-

tion of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

2000e et seq. (Pet. App. 74a). The government’s suit was

consolidated for trial with two private actions (ibid.).

District Judge Smith found that until 1963, Georgia

Power assigned all black employees and no white employees

to the jobs of laborer, porter, janitor, and maid (Pet. App.

2a, 79a). These were the lowest-paying jobs, and Georgia

Power did not permit blacks to transfer to higher-paying

positions (id. at 2a). In 1963, Georgia Power began allowing

blacks to transfer to higher-paying jobs, but only if they had

a high school diploma and passed a series of aptitude tests.

These two requirements did not apply to other transfers

within the company (ibid.). After 1963, Georgia Power

continued to assign almost all blacks to the lowest-paying

jobs; some whites were assigned to jobs as laborers but none

to the other three jobs (id. at 82a, 84a-85a).

The collective bargaining agreements established lines of

progression through which employees could advance to

higher-paying jobs without loss of seniority (Pet. App. 76a).

But unlike other jobs, the all-black jobs of laborer, janitor,

porter and maid were not in lines of progression (id. at

77a-78a). As a result, black employees could advance to

higher-paying jobs only by transferringtoanewsectionand |

forfeiting their seniority (ibid.). The small number of whites

assigned to the laborer job after 1963 were promoted to

higher paying positions far more quickly than blacks (id. at

3

34a).' In 1969, a collective bargaining agreement modified

the seniority system by placing the laborer job, but not the

other “black” jobs, in a line of progression (id. at 3a).

In 1971, the district court held that Georgia Power's

practices before 1963 operated to keep blacks perpetually

beneath whites hired at the same time but that the operation

of the seniority system after 1963 did not violate Title VII

(Pet. App. 3a-4a). It also found the high school diploma

requirement unlawful but the testing program lawful (ibid.).

On appeal, the Fifth Circuit affirmed the district court’s

holdings on the high school diploma requirement and %n

Georgia Power's practices before 1963 (id. at 49a-5Sla, 63a-

66a), but vacated and ,emanded the district court’s holding

on the testing program, finding that the program had not

been validated (id. at 48a-49a). It added that if the district

court found the test invalid, it should grant seniority relief

“to all blacks wrongfully deprived of the opportunity to

advance beyond the positions of laborer, porter, janitor, or

maid by either the testing or the high school education

requirements” (id. at 68a).

In 1974, after the court of appeals’ remand, the parties

entered into a consent decree which, among other things,

awarded seniority on the basis of time employed by the

company, not time spent ina section, to all janitors, porters

and maids; to black laborers hired before 1969, when the

laborer job became part of a line of progression; to black

laborers hired after 1969 who were denied the opportunity

to transfer by the high school diploma requirement and

the testing program; and to all applicants for employment

whom the company failed to hire because of their race (Pet.

App. 4a-Sa).

'Between 1963 and the time suit was brought, whites had remained as

laborers an average of three months and one week; blacks remained as

laborers an average of two years and nine months (Pet. App. 34a).

4

2. Approximately four years later, petitioner moved to

vacate this part of the final decree (Pet. App. Sa). Petitioner

claimed that /nternational Brotherhood of Teamsters v.

United States, 431 U.S. 324 (1977), made the award of

seniority relief inequitable (Pet. App. 5a). Over the opposi-

tion of the United States and private plaintiffs, District

Judge Murphy? agreed that the award of seniority relief in

the consent decree was based on the view rejecte4 in Teams-

ters (id. at Sa-6a). In response to the governme*’s argument

that Teamsters was inapplicable because the Georgia Power

seniority system was not bona fide, the district court said

(id. at 26a-27a):

A “bona fide” seniority sysiem is one which is nego-

tiated and maintained without a discriminatory pur-

pose. * * * There is no evidence before tive Court indi-

cating that the seniority provided for in the collective

bargaining agreement * * * is not “bona fide” * * *.

Indeed, the Court notes that the system * * * is not

untypical * * *.

The district court accordingly granted petitioner’s motion

in substantial part (id. at 27a-28a).?

The court of appeals reversed. It held that although the

decision in Teamsters was the kind of change in circumstan-

ces that could justify a modification of a final decree (Pet.

App. 6a-10a), petitioner’s seniority system was not bona

fide (id. at 10a-16a). The court said that the “key to the bona

fides of a seniority system that may have a discriminatory

effect is the absence of purposeful discrimination” (id. at

10a). In inquiring into purposeful discrimination, the court

said it would examine “the totality of circumstances” with

2District Judge Smith had left the bench in the interim.

3The district court preserved seniority relief for black applicants who

had been denied employment on the basis of race (Pet. App. 6a). See

Franks v. Bowman Transportation Co., 424 U.S. 747 (1976).

5

particular emphasis on four factors identified by Teamsters

and by the Fifth Circuit’s decision in James v. Stockham

Valves & Fittings Co., 559 F. 2d 310, 351-352 (Sth Cir.

1977):

These factors include: whether the seniority system

operates to discourage all employees equally from

transferring between seniority units; whether the senior-

ity units are in separate bargaining units and, if so,

whether that structure is rational and in conformance

with industry practice; whether the seniority system

had its genesis in racial discrimination; and whether

the system was negotiated and has been maintained

free from any illegal purpose.

Pet. App. 10a-Il 1a. The court of appeals also noted (id. at

lla) that Judge Murphy’s “terse” treatment of the question

whether the Georgia Power system was bona fide had over-

looked many of Judge Smith’s findings.

The court concluded, on the basis of those findings, that

Georgia Power’s seniority system was not bona fide. It

noted that although the system was neutral on its face—all

employees lost seniority when they transferred from one

section to another—“{t}his facial equality * * * was but a

mask for the gross inequality beneath” (Pet. App. 12a),

because with few exceptions all blacks and only blacks were

assigned to jobs from which they could transfer only by

giving up their seniority; whites could be promoted through

lines of progression and retain their seniority (id. at 12a-

13a, 14a). The court also reasoned (id. at 13a) that the

seniority system was instituted “in an era of overt racial

discrimination at Georgia Power” and that, by excluding

the black jobs from lines of progression, the system served

precisely the objectives that Georgia Power was pursuing

through its overtly discriminatory hiring and assignment

policies (id. at 13a-14a). The court concluded that this was

“ ‘a clear pattern, unexplainable on grounds other than

6

race’ ” (id. at 16a, quoting Village of Arlington Heights v.

Metropolitan Housing Development Corp., 429 U.S. 252,

266 (1977)) that demonstrated, in light of all the circum-

stances, that Georgia Power’s seniority system was not

bona fide.

7°

ARGUMENT

1. International Brotherhood of Teamsters v. United

States, 431 U.S. 324 (1977), interpreted Section 703(h) of

the Civil Rights Act of 1964, 42 U.S.C. 2000e-(2)(h), to

create a limited exception to Title VII for certain “neutral,

legitimate seniority system(s]” (431 U.S. at 353) that would

otherwise be unlawful because they perpetuate the effects of

prior discrimination (id. at 348-356). But Teamsters

emphasized that Section 703(h) “does not immunize all

seniority systems. It refers only to ‘bona fide’ systems, anda

proviso requires that any differences in treatment not be

‘the result of an intention to discriminate because of race

** **” (431 U.S. at 353). The court of appeals correctly

held that Georgia Power’s seniority system was not bona

fide, at least insofar as it excluded the jobs of laborer,

porter, maid, and janitor from legitimate lines of pro-

gression.

First, the court of appeals was plainly correct in refusing

to regard the seniority system as a neutral scheme that

“applie[d] equally” to all employees (see /nternational

Brotherhood of Teamsters v. United States, supra, 431

U.S. at 355). Petitioner suggests that the court reached this

conclusion solely on the basis of the system’s “disparate

impact” on black employees (Pet. 14-15). But unlike Teams-

ters (see 431 U.S. at 356), this is not a case in which far more

whites than blacks were injured by the challenged aspect of

the seniority system. See also Personnel Administrator of

Massachusetts v. Feeney, 442 U.S. 256, 275 (1979); id. at

281 (Stevens, J., concurring). The Georgia Power seniority

system attached a special disad vantage—the inability to be

promoted without losing seniority—to precisely those jobs

7

which the employer had ensured would be exclusively or, in

the case of the laborers, predominantly black. Having

ensured that blacks would occupy certain jobs, Georgia

Power—and petitioner, which joined Georgia Power in

sponsoring the system—cannot pretend that a seniority

system which singles out those jobs is in some sense neu-

tral”; indeed, it is difficult to see how a system could be less

neutral without being explicitly racial, and the parties toa

collective bargaining agreement are unlikely to use explic-

itly racial language.

This factor alone may not necessarily show that the sys-

tem was not bona fide, and the court of appeals did not treat

it as conclusive. But the lack of neutrality at least created a

strong inference of discrimination that required the spon-

sors of the seniority system to provide legitimate reasons for

subjecting to a disability only the jobs that had been delib-

erately limited to black employees.

Second, the court of appeals properly considered the role

of past racial discrimination by Georgia Power. Petitioner

correctly suggests (Pet. 16-17) that any seniority system

which perpetuates the effects of past discrimination is likely

to have been adopted at a time of pervasive discrimination,

so again this factor alone cannot be decisive. But in cases

dealing with the definition of discriminatory purpose under

the Equal Protection Clause, the Court has recognized that

“a consistent pattern of official racial discrimination” or “a

series of official actions taken for invidious purposes” can

be strong evidence that a subsequent or contemporaneous

official action was also discriminatorily motivated. Village

of Arlington Heights v. Metropolitan Housing Develop-

ment Corp., 429 U.S. 252, 266 n.14, 267 (1977). Any diffi-

culties in imputing the motives of public officials to their

successors, or to officials at a different level of government

(see City of Mobile v. Bolden, 446 U.S. 55,74 & n.20 (1980)

(plurality opinion)), are substantially diminished when the

issue involves only the actions of a single pair of collective

8

bargaining agents over a relatively short period of time. At

the very least, when an employer has unquestionably

engaged in a consistent pattern of discrimination, there is

no reason to presume that contemporaneous actions which

severely disadvantage blacks are nondiscriminatory and

taken for legitimate purposes.

In this case, in particular, the seniority system was sus-

pect. Georgia Power adopted a variety of unlawful devices—

the discriminatory hiring and transfer practices and the

diploma and testing requirements—to bar blacks from all

but the lowest-paying jobs. The seniority system, insofar as

it excluded those jobs from lines of progression, served

exactly the same purpose. It is possible that legitimate

business objectives led Georgia Power to adopt policies

that, coincidentally, furthered its racially discriminatory

aims. But again, at the very least, the court of appeals

properly required those defending the system to establish

this justification.

Petitioner asserts (Pet. 15) that because Georgia Power

would not have permitted blacks in any other jobs in any

event, the seniority system's restrictions were not needed to

enforce segregation; therefore, petitioner suggests, those

restrictions must have been adopted for a legitimate, non-

discriminatory reason. This argument is specious. Accord-

ing to Judge Smith’s findings about the seniority system

(Pet. App. 77a):

[P]romotions, competency being sufficient, * * * are

based upon an employee's [job] classification seniority

in the respective section of the seniority division[4] in

‘The “sections” were the lines of progression consisting of several jobs

or, in the case of the “black” jobs, a single job; an employee could not

transfer his seniority from one section to another. The “divisions” were

the larger administrative units into which Georgia Power divided its

operations (Pet. App. 75a-78a). Georgia Power's use of divisions is not

at issue here.

9

which he is employed. First preference in filling a job

vacancy is given to the senior employee, competency

being sufficient, in the same classification in the same

section and division where the vacancy exists, request-

ing such transfer. If no such employee requests a * * *

transfer, the vacancy is filled by the promotion of the

most senior employee, competency being sufficient, in

the next lower classification in the section * * *

requesting such promotion.

Thus, placing black employees in lines of progression would

potentially have enabled them to claim, under the collective

bargaining agreement, that they were entitled to certain

promotions; excluding the black jobs from lines of progres-

sion permitted Georgia Power to avoid having to promote

competent black employees.

In fact, petitioner's assertion (Pet. 15) that Georgia

Power was unalterably committed to segregation suggests

another reason for presuming the invalidity of the seniority

system. In some circumstances, collective bargaining might

be expected, and presumed, to produce an agreement that

furthers legitimate business and employee objectives. But,

as petitioner says, Georgia Power was evidently determined

to maintain its discriminatory employment practices, and

while petitioner’s predecessors were found not to discrimi-

nate in internal union affairs (see Pet. App. 104a), there is

no showing that they ever attempted to press black

employees’ interests in being free from discrimination by

the company. In other cases where seniority systems were

challenged, the Fifth Circuit has concluded that a union

“sought to bring about a nondiscriminatory [seniority]

* * * system” or “opposed [discrimination] * * * through

every means in[its] power.” Terrell v. United States Pipe &

Foundry Co., 644 F, 2d 1112, 1121 (Sth Cir. 1981). But the

courts below made no such determination in this case, and

10

petitioner points to no evidence suggesting that the unions

offered to make concessions or bargained in any other way

for their black members’ freedom from discrimination.‘

Consequently, Georgia Power's seniority system must be

viewed as the product of collective bargaining between an

employer determined to prefer racially discriminatory prac-

tices over a rational allocation of personnel based on such

factors as ability, and unions that did not resist the employ-

er’s choice. In deciding whether an institutional decision

was made with discriminatory intent, the Court has always

paid close attention to the process by which the decision was

made; when a process that afforded a clear opportunity for

deliberate discrimination yielded a result that dispropor-

tionately disadvantaged blacks, the Court has presumed a

discriminatory purpose and required the party defending

the result to show otherwise. See, e.g., Castaneda v. Par-

tida, 430 U.S. 482 (1977); Alexander v. Louisiana, 405 U.S.

625, 631-632 (1972). The collective bargaining process at

Georgia Power enabled the emplover to carry out his

determination to discriminate, and the results, of course,

disproportionately affected blacks. For this reason, also,

the court properly required petitioner to justify the seniority

system.

Petitioner cites (Pet. 9-10) Judge Smith’s general finding that there

had been “no showing of any conscious intent” to discriminate on the

part of petitioner's predecessor unions (Pet. App. 115a). But it is

entirely possible for a discriminatory seniority system to be established

over the union’s opposition or—as in this case—with the unions’ appar-

ent acquiescence. The unions’ culpability may be relevant to de.ermin-

ing their liability for back pay (see, e.g., Terrell v. United States Pipe &

Foundry Co., supra, 644 F. 2d at 1120-1121; James v. Stockham

Valves & Fittings Co., supra, 559 F. 2d at 353-354; see generally

Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-423 (1975)), but this

case involves only equitable relief, which is appropriate irrespective of

the unions’ culpability if the seniority system was not bona fide.

Petitioner points to no evidence, and we know of none in

the record, showing that Georgia Power’s exclusion of the

“black” jobs from lines of progression served a legitimate

business purpose. Petitioner appears to acknowledge that

the exclusion of the laborer’s job from a line of progression

before 1969 (the year in which suit was brought) served no

legitimate purpose (Pet. 17 n.5). Petitioner asserts that the

janitor, porter, and maid positions were “functionally unre-

lated to any other jobs” (id. at 16 n.5), but this assertion is

unsubstantiated by any citation to the record. Therefore,

petitioner did not overcome the strong showing that the

provision of the seniority system that excluded the “black”

jobs from lines of progression was adopted for a discrimina-

tory purpose, and the court of appeals was correct in its

conclusion that in this respect the seniority system was not

bona fide.

2. Because the court of appeals’ decision was correct, we

would ordinarily ask this Court to deny the petition for a

writ of certiorari. But in Swint v. Pullman-Standard, 624

F. 2d 525 (Sth Cir. 1980), cert. granted, Nos. 80-1190 &

80-1193 (Apr. 20, 1981), a different panel of the Fifth Cir-

cuit applied the criteria used in this case and previously

described by Teamsters and by James v. Stockham Valves

& Fittings Co., supra, to hold that a seniority system was

not bona fide. For reasons we expect to explain in a brief

amicus curiae in Pullman-Standard, we believe that even if

the Court reverses the decision in Pullman-Standard, the

result reached by the Fifth Circuit in the present case should

be allowed to stand. Nevertheless, if there is a possibility

that the decision in Pullman-Standard will affect the pres-

ent case, the Court may wish to hold this petition and

dispose. of it in light of the decision in Pulilman-Standard.

12

CONCLUSION

The Court may wish to hold the petition for a writ of

certiorari pending its decision in Pullman-Standardy v.

Swint and United Steelworkers of America, AFL-CIO v.

Swint, Nos. 80-1190 & 80-1193. Otherwise, the petition for

a writ of certiorari should be denied.

Respectfully submitted.

Rex E. LEE

Solicitor General

JAMES P. TURNER

Acting Assistant Attorney General

JESSICA DUNSAY SILVER

IRVING GORNSTEIN

Attorneys

SEPTEMBER 1981

DOJ-1981-09