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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the United States
- **Published:** January 1, 1982
- **Citation:** 456 U.S. 952

## Text

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

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